Mobley v. State

• Decision Date: 23 July 1976
• Docket Number: No. 75--721,75--721
• Citation: 335 So.2d 880
• Parties: John Henry MOBLEY, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 880

335 So.2d 880

John Henry MOBLEY, Jr., Appellant, v. STATE of Florida, Appellee.

No. 75--721.

District Court of Appeal of Florida, Fourth District.

July 23, 1976.

Rehearing Denied Aug. 27, 1976.

Richard L. Jorandby, Public Defender, and J. Roy Bean III, Asst. Public Defender, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.

JOHN GALE, Associate Judge.

Defendant seeks review of his conviction for robbery and possession of a short-barrelled shotgun and the 20 year imprisonment and consecutive 10 year probation sentence imposed.

Defendant was suspected of having participated in an armed (shotgun) robbery of a grocery store. Pursuant to Officer Kramer's request, defendant and his stepmother voluntarily went to police headquarters for questioning the day after the robbery. Defendant was eighteen years of age, and Officer Kramer excluded the stepmother from the room in which the defendant was being questioned. Defendant denied participation in the robbery and denied Officer Kramer's request for permission to search his apartment. Thereupon, defendant was given his Miranda rights, and another request for permission to search the apartment was made. When defendant again refused, Officer Kramer stated that he had probable cause for his arrest, and that he would 'go ahead and place him under arrest and proceed the following day to get a search warrant to search his room.' Defendant then said, 'Let's go ahead and go,' whereupon a search of the apartment was made which revealed the presence of a sawed-off shotgun in a suitcase under defendant's bed. Unbeknownst to defendant, a search warrant had already been applied for and denied for failure to adequately identify the premises to be searched.

Defendant plead nolo contendere to the charges against him reserving for appellate review the propriety of the denial of his motion to suppress.

The main issue thus presented is whether a warrantless search can be justified as lawful upon the basis of consent when that 'consent' has been given only after the official conducting the search has asserted that he would get a search warrant the next day anyway.

The exceptions to the requirement of the Fourth and Fourteenth Amendments, that a search be conducted only under the color of a proper warrant issued upon probable cause, have been well established and delineated. The Supreme Court of the United States has held that unless it falls within one of these recognized exceptions, a 'search conducted without a warrant issued upon probable cause is 'per se unreasonable. " Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). One of the established exceptions is a search which is conducted pursuant to consent. The Supreme Court of Florida has held that where a defendant has been properly advised of his constitutional rights and has consented to the search, the search may not be unreasonable when '. . . considering all of the circumstances.' Grimes v. State, 244 So.2d 130, 133 (Fla.1971). However, the issue which presents itself is whether the consent has been freely and voluntarily given. In this regard it is important to note that the Supreme Court of Florida has recently held, in Bailey v. State, 319 So.2d 22 (Fla.1975), that in order to support a finding of consent, evidence of such consent to search without a warrant must be clear and convincing. In the case sub judice, the state has failed to come forth with such clear and convincing proof.

It has been repeatedly held in Florida that:

'. . . (I)t is encumbent upon the state to establish clearly a waiver of search and seizure rights and: 'A distinction is recognized . . . between submission to apparent authority of an officer and unqualified consent. Mere acquiescence in a search is not necessarily a waiver of a valid search warrant. Rather, for an occupant to waive his rights, it must clearly appear that he voluntarily permitted or expressly invited and agreed to the search, being cognizant of his rights in the premises . . .'' Carter v. State, 238 So.2d 681, 683 (Fla.1st DCA 1970), quoting from Talavera v. State, 186 So.2d 811, 814 (Fla.2d DCA 1966).

'(I)f this consent is obtained by the use of force or pressure, or where superior authority had any place in the obtaining of the consent, the consent is no consent at all, and the constitutional guarantees against unreasonable searches and seizures have been violated.' Pekar v. United States, 315 F.2d 319 (5th Cir.1963).

Such violations are especially prevalent, according to that court, where there is a disparity of position, such as between a government agent and the defendant. James v. State, 223 So.2d 52 (Fla.4th DCA 1969).

Some of the factors which have been used to determine whether a consent to search was voluntary, include: youth of the...