Busch v. State
| Decision Date | 17 November 1980 |
| Docket Number | No. GG-445,GG-445 |
| Citation | 392 So.2d 272 |
| Parties | Vincent Anthony BUSCH, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael J. Minerva, Public Defender, for appellant.
Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
The United States Supreme Court has vacated our judgment in this case (355 So.2d 488 (Fla. 1st DCA 1978)) and remanded the cause for further consideration, 446 U.S. 902, 100 S.Ct. 1826, 64 L.Ed.2d 255. On remand, we are to consider whether the holding in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), requires that the confession of Busch following his warrantless arrest in his home be suppressed. In our previous opinion in this case, on the authority of Perez v. State, 277 So.2d 778 (Fla. 1973), we found that the trial court was correct in denying Busch's motion to suppress his confession. Since that opinion was handed down, the U.S. Supreme Court has ruled, in Payton, that the Fourth Amendment prohibits police officers from making a warrantless, nonconsensual entry into a suspect's home in order to make a routine arrest in the absence of exigent circumstances. The initial question here is whether the officers' entry into Busch's home was, in fact, nonconsensual. The evidence shows that Busch was implicated by another suspect in a robbery case. Without obtaining an arrest warrant, two detectives went to Busch's home, were admitted by another occupant, found Busch asleep, and with their guns drawn awoke and arrested him. He was taken to jail, given the Miranda warnings, and within approximately three hours, he had given the officers a confession. The trial court found that the confession was freely and voluntarily given and, therefore, denied Busch's motion to suppress it. Busch was subsequently convicted of armed robbery.
The key factor is that the officers were admitted to the home by another person. The record contains conflict and is unclear as to whether the admittance was consensual. Therefore, we remand to the trial court for further hearing on the question of whether or not the admittance of the officers was consensual. If the admittance was consensual, appellant's conviction will stand because the holding in Payton would not apply, the arrest would be deemed legal and the subsequent confession would be admissible, the court having already found that it was freely and voluntarily given.
However, if the trial court finds on remand that the admittance of the officers was nonconsensual, then, under Payton, the arrest was illegal and a more complicated question arises. If the arrest was illegal, then any statements made by Busch which were the fruits of the illegal arrest should be excluded from evidence. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Thus, the question to be considered will be whether the confession Busch seeks to have suppressed is, in fact, the fruit of the illegal arrest. The court in Wong Sun declared that verbal evidence which derives immediately from an unlawful entry and an unauthorized arrest is the fruit of the illegal action on the part of police officers and must be suppressed. However, the Wong Sun court also recognized that when the connection between the illegal arrest and the statement given had "become so attenuated as to dissipate the taint," the statement is not considered to be the fruit of the illegal arrest, and, therefore, the statement is admissible. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939). The court found that Wong Sun's confession was not the fruit of his illegal arrest since, after the arrest, he was released on his own recognizance and returned voluntarily several days later to make the statement.
Therefore, if Payton applies, in keeping with Wong Sun v. United States, we must look to the circumstances surrounding Busch's confession to determine whether the confession was "sufficiently an act of free will to purge the primary taint of the unlawful invasion." Id. at 371 U.S. 486, 83 S.Ct. at 416. To do so, we must inquire as to what factors will purge the primary taint.
In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the court drew a distinction between satisfaction of Fourth and Fifth Amendment requirements. The court found that while the giving of the Miranda warnings might satisfy Fifth Amendment requirements, the giving of those warnings does not in and of itself break the causal chain between an illegal arrest and a...
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Williams v. State
...While I share the State's doubt about Payton's retroactivity, 1 I am presently more concerned that our opinion cites to Busch v. State, 392 So.2d 272 (Fla. 1st DCA 1980), cert. denied, --- U.S. ----, 101 S.Ct. 3040, 69 L.Ed.2d 412 (1981), 2 as authority. We say in footnote 2, with seeming a......
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State v. Thomas, 80-2148
...U.S. 1064, 94 S.Ct. 570, 38 L.Ed.2d 468 (1973). 2 While we reject this contention, it is not for the reason assigned in Busch v. State, 392 So.2d 272 (Fla. 1st DCA 1980), cert. denied --- U.S. ----, 101 S.Ct. 3040, 69 L.Ed.2d 412 (1981). Accord, State v. Jennings, 396 So.2d 1231 (Fla. 4th D......
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McPhail v. Warden, Attica Correctional Facility
...Court's action as an indication that Payton is to be given retroactive application to cases on direct appeal. See Busch v. Florida, 392 So.2d 272, 274 (Dist.Ct.App. 1980). See also United States v. Vasquez, 638 F.2d 507 (2d Cir. 1980). That court limited its holding to cases on direct revie......
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Younger v. State, 82-248
...In any event, Payton v. New York does not apply where the suspect consents to the police officer's entry of his house. Busch v. State, 392 So.2d 272 (Fla. 1st DCA 1981). This brings us to the real issue here which is whether appellant consented to the officers' entry of his home. If so, the......