Green v. State, No. 1D01-5024.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: BENTON, J.
• Citation: 824 So.2d 311
• Docket Number: No. 1D01-5024.
• Decision Date: 28 August 2002
• Parties: Marcus Eugene GREEN, Jr., Appellant, v. STATE of Florida, Appellee.

824 So.2d 311

Marcus Eugene GREEN, Jr., Appellant,
v.
STATE of Florida, Appellee

No. 1D01-5024.

District Court of Appeal of Florida, First District.

August 28, 2002.

824 So.2d 312

Nancy A. Daniels, Public Defender; David A. Davis, Assistant Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant

Robert A. Butterworth, Attorney General; Kenneth D. Pratt, Assistant Attorney General, Tallahassee, for Appellee.

BENTON, J.

Marcus Eugene Green, Jr., appeals his conviction for possession of cocaine, contending the trial court erred in denying his motion to suppress cocaine seized from a motel room. Upholding the trial court's finding that the room was no longer Mr. Green's by the time the motel owner invited a deputy sheriff inside and showed him the cocaine, we affirm the conviction.

Charged with possession of cocaine found in a room at the Mayfair Motel on August 19, 2001, Mr. Green filed a motion to suppress. The trial court denied the motion, then found (in keeping with the parties' stipulation) that its ruling on the motion was dispositive of the whole case. In entering his plea of nolo contendere, Mr. Green reserved the right to appeal denial of the suppression motion. See Griffin v. State, 753 So.2d 676, 677 (Fla. 1st DCA 2000) ("Pleading to a criminal charge while reserving the right to seek appellate review of a crucial ruling avoids an unnecessary trial. State v. Ashby, 245 So.2d 225 (Fla.1971).... But an `Ashby nolo plea is permissible only when the legal issue to be determined on appeal is dispositive of the case.' Brown v. State, 376 So.2d 382, 384 (Fla.1979).").

The state did not contest appellant's standing to file the motion to suppress.¹ Instead, it called two witnesses at the suppression hearing in order to prove that the motel owner's consent excused the failure to obtain a search warrant. See Coolidge v. New Hampshire, 403 U.S. 443, 487-90, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Stoner v. California, 376 U.S. 483, 489-90, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); Jones v. State, 648 So.2d 669, 674 (Fla.1994) ("As a general rule, a warrantless search or seizure is per se unreasonable, unless the search or seizure falls within one of the well established exceptions to the warrant requirement. Minnesota v. Dickerson, 508 U.S 366, 372, 113 S.Ct. 2130, 2135, 124 L.Ed.2d 334 (1993); United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 2641, 77 L.Ed.2d 110 (1983)...."); Morse v. State, 604 So.2d 496, 501 (Fla. 1st DCA 1992) ("Warrantless searches are per se unreasonable unless conducted within an established exception such as personal consent, abandonment, or consent by a third party with

824 So.2d 313

common authority over the premises."). See also Niemann v. State, 819 So.2d 166, 168 (Fla. 4th DCA 2002) ("In the absence of a search warrant, the State has the burden of proof to justify the warrantless search...."). Proof of consent also obviates the need to prove probable cause. See Reynolds v. State, 592 So.2d 1082, 1086 (Fla.1992) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973))

We are "bound, on search and seizure issues, to follow the opinions of the United States Supreme Court regardless of whether the claim of an illegal arrest or search is predicated upon the provisions of the Florida or United States Constitutions." State v. Butler, 655 So.2d 1123, 1125 (Fla.1995). The Florida constitutional "right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures ... shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court." Art. I, § 12, Fla. Const.

At the suppression hearing in the present case, the state called the only witnesses, Earl F. Jacquay, who owned the motel, and Deputy Sheriff Edward M. Lewis. Mr. Jacquay testified that, on August 19, 2001, Mr. Green had not paid for his room beyond the check-out time of 11:00 a.m. and that, at about 3:00 p.m., he went to the room with a "lock-out, which is a device we put on the doorknobs to lock the door so they can't skip and take off owing us money." He testified that "normally we would have ... locked him out at 11:00 and bagged everything up, called bag and tag," and answered affirmatively the question "You had no obligation after 11:00 in the morning to hold the room, you could have rented it at any time to whoever you wanted to?" He testified that as of 11:00 a.m. the room "was ours because he hadn't paid for the day."

Mr. Jacquay testified that he repossessed the room for Mr. Green's failure to pay rent;² and that, when Mr. Green eventually turned up and offered to pay the rent, he declined to accept it or to allow reentry. But...