Kennedy v. State

• Decision Date: 03 September 1993
• Citation: 640 So.2d 22
• Parties: Danny KENNEDY v. STATE. CR 92-785.
• Court: Alabama Court of Criminal Appeals

Page 22

640 So.2d 22

Danny KENNEDY v. STATE.

CR 92-785.

Court of Criminal Appeals of Alabama.

Sept. 3, 1993.

Rehearing Denied Oct. 22, 1993.

Certiorari Denied Jan. 28, 1994

Alabama Supreme Court 1930185.

Britt Cauthen, Decatur, for appellant.

James H. Evans, Atty. Gen., and Yvonne Saxon, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Danny Kennedy, the appellant, was charged in an eight-count indictment with interfering with custody, in violation of Ala.Code 1975, § 13A-6-45 (three counts involving A.K. and one count involving K.C.); the production of obscene matter, in violation of § 13A-12-197 (one count involving A.K. and one count involving C.F.); and rape in the second degree, in violation of § 13A-6-62 (one count involving C.F. and one count involving K.C.). He was convicted of three counts of interfering with the custody of 13-year-old A.K., one count of production of obscene matter involving A.K., one count of production of obscene matter involving 15-year-old C.F., and one count of second degree rape involving C.F. He was sentenced to 50 years' imprisonment on these convictions. He raises five issues on this direct appeal from those convictions.

I.

The appellant argues that the trial court abused its discretion in finding that "the officers searched the premises with consent of the defendant," Suppression Hearing Record (S.H.R.) 60, and in overruling his motion to suppress the evidence seized as a result of that search.

"A person may consent to a search without a warrant and thereby waive any protection afforded by the Fourth Amendment to his right of privacy. Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965). Consent to a search must be knowingly, intelligently, and freely given." Ex parte Wilson, 571 So.2d 1251, 1255 (Ala.1990). "[T]he question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973). "The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness--what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248, 249-51, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991).

This Court has recently held:

"A search pursuant to a valid consent is constitutionally permissible. See Ex parte Wilson, 571 So.2d 1251, 1255 (Ala.1990); Hubbard v. State, 500 So.2d 1204, 1221-22 (Ala.Cr.App.), affirmed, 500 So.2d 1231 (Ala.1986). 'When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.' Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968). See State v. Kyles, 571 So.2d 1283 (Ala.Cr.App.), on return to remand, 574 So.2d 1057 (Ala.Cr.App.1990).

" '[T]he question whether a consent to a search was in fact "voluntary" or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.'

"Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973).

"Mere submission to police authority will not suffice for consent. Schneckloth, 412 U.S. at 233, 93 S.Ct. at 2051; Bumper v. North Carolina, 391 U.S. at 548-49, 88 S.Ct. at 1792; Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 268, 65 L.Ed. 654 (1921); Herriott v. State, 337 So.2d 165, 169 (Ala.Cr.App.), cert. denied, 337 So.2d 171 (Ala.1976). While a ' "display of weapons is a coercive factor that sharply reduces the likelihood of freely given consent," ' 3 W. LaFave, Search and Seizure, § 8.2(b) at 181 (2d ed. 1987), the determination of voluntariness requires 'careful sifting of the unique facts and circumstances of each case.' Schneckloth, 412 U.S. at 233, 93 S.Ct. at 2050.

"A show of force is a significant factor in the voluntariness equation, but it does not always vitiate consent to search. See United States v. Kelley, 953 F.2d 562, 566 (9th Cir.1992); United States v. Phillips, 664 F.2d at 1024 [ (5th Cir.1981) ]; United States v. Cepulonis, 530 F.2d 238, 243-44 (1st Cir.), cert. denied, 426 U.S. 908[, 96 S.Ct. 2231, 48 L.Ed.2d 834] (1976); United States v. Evans, 519 F.2d 1083 (9th Cir.), cert. denied, 423 U.S. 916 [96 S.Ct. 224, 46 L.Ed.2d 145] (1975).

"....

"If the evidence relating to a consent search is in conflict, 'it is the duty of the trial court to resolve any conflict in the testimony and not within the province of this Court. The trial court [is] in a better position to judge the demeanor of the witnesses.' Hollenquest v. State, 394 So.2d 385, 389 (Ala.Cr.App.1980) (citations omitted), cert. denied, 394 So.2d 389 (Ala.1981). When an accused contests the police version of the facts relating to an alleged consent search, this 'presents an issue of fact to be resolved by the trial judge based on his assessment of the relative credibility of the parties; the issue will generally not be rev[ers]ed on appeal unless the judge's finding was clearly erroneous.' 1 W. Ringel Searches and Seizures, Arrests and Confessions § 9.3(a) at 9-6 (2d ed. 1992). See United States v. Cepulonis, 530 F.2d at 243; Jordan v. State, 384 So.2d 277 (Fla.App.1980) (trial court's decision as to whether accused was consenting or was submitting to authority would not be disturbed unless clearly erroneous), abrogated on other grounds, Elsleger v. State, 503 So.2d 1367 (Fla.App.1987).

"....

"We have considered the fact that the appellant was not told he had the right to refuse to consent to the search, and we do not find it to be determinative here. In Schneckloth v. Bustamonte, the Supreme Court observed that "[w]hile knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent." 412 U.S. at 227, 93 S.Ct. at 2048. See generally 1 Ringel § 9.2 at 9-3. The facts of this case provide a reason to believe that, notwithstanding the failure to inform the appellant that he had the right to refuse to allow the search, his consent was nevertheless voluntary.

"The appellant twice denied that there were any 'weapons or drugs or anything' in the vehicle. R. 27, 28, 50. '[A] belief that nothing personally incriminating is to be found in the place the police want to search [is a] factor[ ] tending to show that a consent is voluntary.' 3 LaFave at § 8.2(h) at 206....

"The argument that 'no sane man who denies his guilt would actually be willing that policemen search ... for contraband which is certain to be discovered, 'Higgins v. United States, 209 F.2d 819, 820 (D.C.Cir.1954), has generally been rejected, see 3 LaFave § 8.2(h) at 208, and has specifically been rejected by this Court, Quinn v. State, 611 So.2d 483, 487 (Ala.Cr.App.1992). A defendant who believes that there is no contraband in the place to be searched or that it is hidden too well to be found might well give his voluntary consent to a search, 3 LaFave § 8.2(h) at 208 & n. 178. On the other hand, the defendant may simply be 'giving up.'

" ' "[T]he pressure exerted on a criminal by the realization that the jig is up is far different from the deliberate or ignorant violation of personal right that renders apparent consent ineffective.'' [Gorman v. United States, 380 F.2d 158, 165 (1st Cir.1967) ]. The soundness of that principle is dramatically revealed in North Carolina v. Alford, [400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) ], where the Court held that a defendant might voluntarily plead guilty even though he claimed to believe he was innocent. If at the time that a particular question is asked there is no agreeable answer, the fact that the answer chosen is not a pleasant one does not mean necessarily that it was not voluntarily selected. The alternative might have seemed worse.

" 'The application of that principle to consent to search is particularly apt. A defendant may believe that search is ultimately inevitable whether he consents or not. In such circumstances a suspect might well feel he is better off to consent than to oppose.'

"Leavitt v. Howard, 462 F.2d 992, 997 (1st Cir.) (footnotes omitted), cert. denied, 409 U.S. 884 (1972), quoted in United States v. Cepulonis, 530 F.2d at 244; 3 LaFave at § 8.2(h) at 208-09. 'Bowing to events, even if one is not happy with them, is not the same thing as being coerced.' State v. Lyons, 458 P.2d 30, 32 (Wash.1969)."

Martinez v. State, 624 So.2d 711 (Ala.Cr.App.1993).

"When the evidence pertaining to the voluntariness of a consent is conflicting, the trial court is in the best position to determine consent or lack thereof.... On appeal, this court will not disturb the trial court's finding unless we are convinced that the conclusion is palpably contrary to the weight of the evidence." Daniels v. State, 534 So.2d 628, 654 (Ala.Cr.App.1985), affirmed, 534 So.2d 656 (Ala.1986), cert. denied, 479 U.S. 1040, 107 S.Ct. 898, 93 L.Ed.2d 850 (1987). "[C]onflicting evidence given at [a] suppression hearing presents a credibility choice for the trial court." Atwell v. State, 594 So.2d 202, 212 (Ala.Cr.App.1991), cert. denied, 594 So.2d 214 (Ala.1992). "[W]hen conflicting evidence is presented on the issue of the voluntariness of a consent to search and the trial judge finds that the consent was voluntarily given, great weight must be given his judgment. This finding will not be disturbed on appeal unless the appellate court is convinced that the conclusion is palpably contrary to the weight of the evidence. Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial...