McDonnell v. State

• Decision Date: 12 May 2008
• Docket Number: No. 1D06-5764.,No. 1D06-5731.,1D06-5731.,1D06-5764.
• Citation: 981 So.2d 585
• Parties: Brian McDONNELL and Christopher McDonnell, Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

981 So.2d 585

Brian McDONNELL and Christopher McDonnell, Appellants, v. STATE of Florida, Appellee.

No. 1D06-5731.

No. 1D06-5764.

District Court of Appeal of Florida, First District.

May 12, 2008.

Michael Ufferman, of Michael Ufferman Law Firm, P. A., Tallahassee, for Appellants.

Bill McCollum, Attorney General, and Alan R. Dakan, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellants challenge the denial of their motions to suppress evidence recovered from a search of their home and statements they made while in police custody. For the reasons discussed below, we affirm the denial of appellants' motions to suppress the evidence found during the search of their home. We deny, without discussion, appellants' assertions that their statements were involuntary.

I. BACKGROUND

In 2005, appellants Brian and Christopher McDonnell (twin brothers) were charged with a number of criminal offenses, including burglary, grand theft, and aggravated assault. The appellants each filed a motion to suppress certain items found during a search of their residence. They asserted that Christopher's consent to search the home was involuntary.

At the hearing on the motion to suppress, Investigator Mathis testified that on August 12, 2005, he was investigating the theft of an ATM from the Bay Point Marriott. A loss prevention officer at the Marriott had obtained the "tag number" of the truck used during the theft of the ATM, and records indicated that the truck belonged to appellants' father.¹ The appellants' father stated that his son Eric had the truck and had taken it to appellants' residence to take some debris to the Marriott to be thrown away. The police went to the appellants' shared residence at about four in the morning.² Christopher McDonnell answered the door in a bath towel. Investigator Mathis told Christopher that he was investigating a theft of an ATM from the Marriott and asked him if he had anything in the house linking him to the theft. Christopher denied any involvement, at which time Investigator Mathis asked appellant for consent to search the home. When Christopher refused, Investigator Mathis left to obtain a warrant while the other officers stayed behind. Christopher stayed on the front porch in his bath towel while Officer Mathis went to secure a warrant. At some point, about an hour and half to two hours later, while waiting for Officer Mathis to return with a warrant, another officer requested and received permission from Christopher to search the home. A warrant for the search was never obtained. Inside the home, officers found a number of incriminating items linking appellants to a number of offenses.

At the conclusion of the hearing, the trial court denied the motions to suppress. The trial court ruled, in essence, that even though a search warrant was never obtained, the police were in the process of getting a warrant, and would have done so because they had sufficient probable cause:

All right, here's what we've got. We have a video tape of the ATM being stolen. The video tape shows the type of truck, it shows the ident —, the tag number, and it shows who was doing it. One of the employees says hey, that looks like Christopher McDonnell. Well, you might say he may have been mistaken but guess what, when the truck tag came back to McDonnells' house and they went to the McDonnells' father's house and there is the truck, it's not too much of a need to figure out whether that was a McDonnell or not that was stealing that ATM. The father says Brian had the truck. They go to Brian's house and they talk to Christopher.

Now, when Investigator Mathis left with that information, the picture of the truck, the tag of the truck, the truck, the identification of Christopher, a search warrant was going to be issued on that and he was going to come back to that house and he was going to have that house searched. There was probable cause for a search warrant. He was in the process of getting a search warrant. He came back to the house because there was no need. Instead of waking up the Judge, he came back on a consent and he searched.

The evidence is not suppressed. The testimony about the consent and the Miranda warnings, the statements are not suppressed.

Following the denials of their motions to suppress, the appellants entered no contest pleas to the charges of grand theft, burglary and aggravated assault, reserving the right to appeal the denial of the motions to suppress.

II. NO VOLUNTARY CONSENT TO SEARCH

It is undisputed the police did not have a warrant to search the residence, but relied on the consent of Christopher. In such circumstances, the Florida Supreme Court has held:

The starting point for our fourth amendment analysis is Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), where the United States Supreme Court held that warrantless searches "are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions".... Among the established exceptions to the warrant requirement is a search conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In order to rely upon consent to justify the lawfulness of a search, however, the state 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, 20 L.Ed.2d 797 (1968). In Florida, the prosecution must show by clear and convincing evidence that the defendant freely and voluntarily consented to the search. Bailey v. State, 319 So.2d 22 (Fla.1975); Sagonias v. State, 89 So.2d 252 (Fla. 1956); Taylor v. State, 355 So.2d 180 (Fla. 3d DCA 1978).

Norman v. State, 379 So.2d 643, 646 (Fla. 1980). The voluntariness of a defendant's consent is determined by considering the totality of the circumstances. Id.; see also Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Wilson v. State, 952 So.2d 564 (Fla. 5th DCA 2007); DeLeon v. State, 700 So.2d 718, 720 (Fla. 2d DCA 1997) ("When, as in this case, a defendant alleges that his consent resulted from coercion or intimidation, the court, in ascertaining the voluntariness of consent, must consider all the circumstances surrounding the encounter and determine whether the police conduct would have communicated to a reasonable person that he was not free to decline the officers' request or otherwise terminate the encounter.").

When consent is at issue, the state does not carry its burden of demonstrating voluntary consent when evidence is introduced of submission to or acquiescence in the apparent legal authority of the police to perform a search. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Reynolds v. State, 592 So.2d 1082, 1086 (Fla.1992); Smith v. State, 904 So.2d 534 (Fla. 1st DCA 2005). The appellants assert that Christopher's consent to search the residence was not voluntary because he acquiesced to a show of authority. Appellants assert the factors showing that the consent to search the residence was involuntary include: (1) the encounter occurred in the early morning hours; (2) there were a number of law enforcement officers present at the residence; (3) Christopher McDonnell remained outside his residence — wearing only a bath towel — for approximately an hour and a half to two hours; (4) Christopher did not believe that he was free to leave the residence during the encounter with law enforcement; (5) during the time that Christopher was waiting by his front door, law enforcement officers announced that they suspected that Christopher had committed a crime and they suspected evidence from the crime would be found within the residence; and (6) the law enforcement officers repeated their request for permission to search the residence, despite knowing that Christopher had previously refused to consent to a search of his residence.

In Kutzorik v. State, 891 So.2d 645 (Fla. 2d DCA 2005), the court identified three circumstances relevant to determining whether consent was voluntary or whether it was given after a defendant had been seized by a show of authority: (1) the time and place of the encounter; (2) the number of officers present; and (3) the officers' words and actions. Id. at 647 (citing Miller v. State, 865 So.2d 584, 587 (Fla. 5th DCA 2004)). In that case, at least three uniformed police officers knocked on a door at 10 p.m. and asked permission to come inside to speak with the occupant. Id. at 646. Once inside the officers asked to look around and were granted permission. Id. The appellant filed a motion to suppress alleging her consent to the search was involuntary. Id.

The Kutzorik court reversed the trial court's order denying the suppression motion, finding that consent was involuntary because the defendant had been seized by a show of authority. The court noted that the encounter took place at the appellant's residence at 10 p.m., which added to the "intimidating circumstance" that the defendant faced. Kutzorik, 891 So.2d at 648. Further, the court noted that at least three uniformed officers were involved in the encounter, which also suggested that the consent was involuntary. Id. The Court explained:

The totality of the circumstances in this case — beginning with the late-night arrival of a uniformed officer at the door, continuing with the entry of three uniformed officers into the small home, followed by an announcement that the police suspected a crime and knew drugs were on the premises, and culminating with repeated requests for consent to search when the resident was in an emotional state — were such that no reasonable person would have felt free to end the encounter by demanding that law enforcement leave her home.

Id. at 648.

Further, in Gonzalez v. State, 578 So.2d 729 (...