Ishmael v. State, 1D00-2634.

• Decision Date: 15 January 2002
• Docket Number: No. 1D00-2634.,1D00-2634.
• Citation: 803 So.2d 910
• Parties: Larry ISHMAEL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

803 So.2d 910

Larry ISHMAEL, Appellant, v. STATE of Florida, Appellee.

No. 1D00-2634.

District Court of Appeal of Florida, First District.

January 15, 2002.

Nancy A. Daniels, Public Defender and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General and Anne C. Toolan, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Larry Ishmael challenges his conviction for three counts of armed robbery raising three issues. Because no reversible error has been demonstrated, we affirm.

Ishmael first argues that the trial court erred in denying his motion to suppress physical evidence seized from the residence at which he was staying at the time of his arrest. Ishmael jointly occupied a single-family residence with Beatrice Allen and her sons, and, after Ishmael's arrest, police obtained Allen's verbal and written consent to conduct a search of the residence. We find no basis to disturb the trial court's finding that the consent to search was valid under United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)(authority to consent to a search arises from the mutual use of the property by persons generally having joint access, common authority over, or other sufficient relationship to the premises or effects to be inspected). In addition, we agree with the trial court that it was reasonable for police to rely on Allen's consent, because she had the apparent authority to consent. See Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)

. Ishmael's argument that police were required to seek consent from Ishmael, who was in police custody at the time the search was undertaken, before police could rely upon the consent of a third party, has repeatedly been rejected. See Preston v. State, 444 So.2d 939 (Fla. 1984),

sentence vacated on other grounds, 564 So.2d 120 (Fla.1990); State v. Purifoy, 740 So.2d 29 (Fla. 1st DCA 1999); and Leonard v. State, 659 So.2d 1210 (Fla. 4th DCA 1995).

As for Ishmael's second claim of error, we find no basis to reverse the trial court's decision to allow the prosecution to reopen its case to present evidence regarding the amount of currency taken during the third armed robbery for which appellant was charged. The defense counsel did not object to the reopening of the state's case, noting that such reopening was "kind of [an] exercise in futility" and that it would leave the matter "within the Court's discretion...." Ishmael's assertion that he was twice put in jeopardy when the prosecution was permitted to reopen its claim is meritless. See Fitzhugh v. State, 698 So.2d 571 (Fla. 1st DCA 1997)

. No abuse of discretion has been shown. See K.K. v. State, 717 So.2d 193 (Fla. 5th DCA ...