County Criminal Court: CRIMINAL LAW – Search and Seizure – Evidence – Trial Court properly denied defendant’s motion to suppress finding that the officers’ entry into the defendant’s home was consensual and once inside the home the officers observed drug paraphernalia in “plain view”.  Judgment affirmed. Williams v. State,  No. 0404899CFAES  (Fla.  6th Cir. App. Ct. June 20,  2006).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

KATHLEEN WILLIAMS,     

                        Appellant,

v.

 

STATE OF FLORIDA,                                               Case No: 0404899CFAES

                        Appellee.                                              Lower No: 037300MMAWS  

________________________/

 

 

Appeal from Pasco County Court

County Judge Marc Salton

 

Antonio R. Arnao, Esquire

for Appellant

 

Michael J. Harris, Esquire, A.S.A.

for Appellee

 

 

ORDER AND OPINION

 

 

This matter came before the court on appellant Kathleen Williams appeal from a   judgment and sentence entered by the Pasco County Court.  Appellant was charged with possession of paraphernalia.  The evidence against the defendant consisted of marijuana pipes which were seized by the arresting officer.  The defendant filed a pretrial motion to suppress the evidence, claiming that the pipes were obtained by an illegal search and seizure. Appellant  claims that the trial court abused its discretion in failing to grant her motion to suppress evidence.  This court has jurisdiction. Fla. R. App. P. 9.030(c).   We affirm the decision of the trial court.

At the hearing, Deputy Daniel Housel testified that he has worked as a Pasco County Deputy Sheriff for four years. On October 24, 2003, he responded to a battery complaint at 3904 Darlington, in Holiday; the home where the defendant was residing.  He made contact with both the defendant and Michael Boyden.   The defendant told the deputy that she was renting a room from Bradley and  asked the deputy to enter the home “so she could get her belonging so there wouldn’t be any problems between her and Bradley. ”  He stated that the defendant “wanted him to stand by so she could get her belongings out of the home because she was afraid that Bradley would be violent with her.”    He testified to the following:

We walked into the room and she started gathering her belongings. And as she was doing that, I observed some pipes.  I didn’t say anything to her about it. I wanted to see what she would –her reaction was, but she went about her business like normal.

 

And then when she left, she was carrying her stuff out, I stood by there, my partner stood by with Bradley outside to keep them separated.  When she came back into the room, I asked her, I said, ‘what’s the deal with the pipes.’  Of course, she said, ‘oh, I don’t know anything about the pipes, they’re not mine.’

 

So I checked them out and looked them over and, you know, they smelled consistent with marijuana.  I got some of the residue out of the pipes and tested it and it tested positive for THC. And I believed that they were used for smoking marijuana.

 

The deputy testified that there were things on of the floor of the room but that it was not disgusting or filthy. Housel  explained that when he first noticed the pipes he was about four feet away.  He described the pipes as ‘smoking pipes, metallic kind of, you know, ceramic, whatever. They were different colors.”  He testified that up until he saw the pipes, he was not searching for any type of evidence.  “I was there simply to stand by to make sure that nothing happened between her and Bradley.  I was not there to investigate narcotics violation or anything like that.” Housel stated that he did not move anything to see the pipes, stating “[s]he moved it and I saw it.”  He explained that after he noticed them she walked out of the room.  When she returned he asked her about them and she said she did not know what they were and further stated “[h]e must have planted them.  They’re not mine.  I don’t know what they are.”  The deputy explained that based on his experience they looked like drug pipes.  He stated “I’ve been dealing with this stuff and I’ve come across a lot of drug pipes and smoking pipes and tobacco pipes.” Once he walked up to them he put it close to his face to  smell the smell of marijuana on the pipe before he could determine what they were.  He stated that he was absolutely confident the smell that he observed was marijuana. The deputy testified that the defendant never asked him to leave. He stated, “In fact, I stood by, I got the pipes and collected them, and the I stood by until she got the rest of her stuff, because I still needed to stay there until she got the rest of her stuff because there was still a problem.  So she got the rest of her stuff out of the house and then I gave her the notice to appear, then she went on her way.”   He  stated that he did not detain the defendant before he smelled the odor on the pipes.   

The defendant testified that on October 24, 2003, she was next door at a friend’s house and when she looked out the window she saw a police car in the driveway.  She stated that she ran next door and “they were in my room.  And they were telling me, what are these, what are these.  I’m like, I don’t know, they’re not mine.” She testified that she remembered seeing deputy Housel, stating, “[h]e was very, very nice.  He stayed there with me until I got the stuff out of the house.  They told me I had to move.  And I had Michael Boyden’s truck.  I put everything I owned into the truck” and went to Bradley’s mother’s house. 

The defendant testified that Deputy Housel was in her room when she came in but then stated “[i]t might have been Deputy Housel, it might have been the other deputy, but there were police officers in my room, because when I left, the room was dead bolted.”  She was asked “[d]id you give anybody permission to go into your room?” and she replied “[o]nly after the room was already opened and I said, yes, the police can come in. And they came in and there was these pot pipes on the dresser.  They were not mine.”  The defendant then explained that the room was immaculate when she left it, but when she came back “it was flipped upside down.”  She testified that the room was not the way she left.  The defendant was asked “[a]nd did anyone tell you that you had ten minutes to leave”” and she replied “[y]es they did.  The officers told me I had—because Bradley said I wasn’t paying him rent.  Everyone was fighting.  And I can’t recall the whole situation. It was a couple of years ago.. . .”  She was not sure which deputy told her to leave, “[i]t might have been one or other other, but I was thankful that they was there because Bradley was being a lunatic”  She was then asked “[n]ow when the deputy helped you, was he actually inside your bedroom?” and she responded “[t]o be quite truthful with you, I don’t even know.  I remember just trying to take everything I owned and just putting it in the back of the pickup truck.  . . .”.

Both sides rested and presented argument.  The court found Deputy Housel’s testimony to be credible and denied the appellant’s Motion to Suppress.  The trial court has "the superior vantage point to see and hear the witnesses and judge their credibility." Guzman v. State, 721 So.2d 1155, 1159 (Fla. 1998). Thus, so long as its decisions are supported by competent, substantial evidence, an appellate court will not substitute its judgment for that of the trial court on  the credibility of the witnesses and the weight to be given to the evidence.  Id.

 

IT IS THEREFORE ORDERED that the judgment and sentence be AFFIRMED. 

 

  DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of June, 2006.  

 

                                                                                    ________________________

                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                           

                                                                                    _____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

Copies furnished to:

Honorable Marc Salton

Antonio R. Arnao, Esq.

Michael J. Harris, Esq., A.S.A.