Phuagnong v. State

Decision Date15 June 1998
Docket NumberNo. 96-4705,96-4705
Citation714 So.2d 527
Parties23 Fla. L. Weekly D1483 Kwunchai PHUAGNONG, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

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

Robert A. Butterworth, Attorney General; Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Invoking Florida Rule of Appellate Procedure 9.140(2)(a), Kwunchai Phuagnong appeals his conviction for burglary of a dwelling in violation of section 810.02(3), Florida Statutes (1995). In entering the plea of nolo contendere on which the conviction is predicated, he reserved the right to appeal the order denying his motion to suppress evidence seized from his bedroom. The state stipulated on the record below that the outcome of the motion to suppress was dispositive. In the absence of legal justification for the unwarranted search of appellant's bedroom, we reverse.

Initially, we reject the state's contention that we lack jurisdiction to entertain this appeal because there was other evidence against the defendant not subject to the motion to suppress. There was other evidence, to be sure. Cf. Hannigan v. State, 307 So.2d 850 (Fla. 1st DCA 1975). But the issue on which jurisdiction depends is whether denial of the motion to suppress was "dispositive" within the meaning of Florida Rule of Appellate Procedure 9.140(2)(a). See Brown v. State, 376 So.2d 382, 384 (Fla.1979). Here, as in Zeigler v. State, 471 So.2d 172 (Fla. 1st DCA 1985), the state stipulated in the trial court that the outcome of the suppression motion was dispositive.

We focus first upon the fact ... that this case is here by way of a joint stipulation between appellant and the state that the issue of the voluntariness of the confession absent the presence of counsel was in fact dispositive of the prosecution's case. This court has previously held that such a stipulation is sufficient to establish the dispositiveness of an issue concerning a confession, even though such issue would otherwise be deemed not dispositive as a matter of law. Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980), aff'd, 392 So.2d 1324 (Fla.1981). Therefore, unless this court is prepared to "go behind" the stipulation of the parties in an effort to ascertain whether the issue is truly dispositive, we would be bound to decide the issue reserved for review by the defendant, and thus would have no occasion for independent examination of the record to determine whether, even if the trial court erred in denial of the motion to suppress, other evidence in the record could be used equally as well to establish guilt ....

... For these reasons, we hold that a stipulation voluntarily entered into by all parties that an issue preserved for appeal by a defendant's nolo contendere plea is dispositive will be so considered by this court. As a result, we do not re-examine the stipulation entered into here between appellant and the state.

Zeigler, 471 So.2d at 175-176. The parties stipulated that the order denying the motion to suppress was dispositive. This established, as a matter of fact, that "regardless of whether the appellate court affirms or reverses the lower court's decision, there will be no trial of the case." Morgan v. State, 486 So.2d 1356, 1357 (Fla. 1st DCA 1986). In so stipulating, moreover, the state waived its right to argue otherwise on appeal. This is not a case in which the trial court found an order dispositive "notwithstanding the state's vigorous argument to the contrary." Vaughn v. State, 711 So.2d 64, 64 (1998). We have jurisdiction.

The appellate court's role is a limited one. On review of the trial court's order on the suppression motion, "legal questions are subject to de novo review, while factual decisions by the trial court [viewed in light of constitutionally mandated burdens of proof] are entitled to deference commensurate with the trial judge's superior vantage point for resolving factual disputes." State v. Setzler, 667 So.2d 343, 344-45 (Fla. 1st DCA 1995). These procedural requirements, like others applicable in the trial court, flow from the Fourth Amendment and its reiteration or incorporation in the Florida Constitution. Art. I, § 12, Fla. Const. ("[The] 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."). See Perez v. State, 620 So.2d 1256, 1258 (Fla.1993).

Writing for the United States Supreme Court, Chief Justice Rehnquist recently described the standard of review that the Fourth Amendment (and so the Florida Constitution by reference to the Fourth Amendment) requires on appellate consideration of probable cause determinations in search and seizure cases:

We think independent appellate review of these ultimate determinations of reasonable suspicion and probable cause is consistent with the position we have taken in past cases. We have never, when reviewing a probable-cause or reasonable-suspicion determination ourselves, expressly deferred to the trial court's determination. See, e.g., Brinegar [v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) ] (rejecting district court's conclusion that the police lacked probable cause); Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (conducting independent review and finding reasonable suspicion). A policy of sweeping deference would permit, "[i]n the absence of any significant difference in the facts," "the Fourth Amendment's incidence [to] tur[n] on whether different trial judges draw general conclusions that the facts are sufficient or insufficient to constitute probable cause." Brinegar, [338 U.S.], at 171, 69 S.Ct., at 1308. Such varied results would be inconsistent with the idea of a unitary system of law. This, if a matter-of-course, would be unacceptable.

... Independent review is ... necessary if appellate courts are to maintain control of, and to clarify the legal principles. See Miller v. Fenton, 474 U.S. 104, 114, 106 S.Ct. 445, 451, 88 L.Ed.2d 405 (1985)....

Finally, de novo review tends to unify precedent and will come closer to providing law enforcement officers with a defined " 'set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement.' " New York v. Belton, 453 U.S. 454, 458, 101 S.Ct. 2860, 2863, 69 L.Ed.2d 768 (1981); see also Thompson v. Keohane, 516 U.S. 99, 115, 116 S.Ct. 457, 467, 133 L.Ed.2d 383 (1995)("[T]he law declaration aspect of independent review potentially may guide police, unify precedent, and stabilize the law," and those effects "serve legitimate law enforcement interests").

Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996). The same reasoning supports independent appellate review where the validity of a search has been found to rest not on probable cause but on consent. Appellate "deference to clearly erroneous findings of fact is not consistent with the review required in Fourth Amendment cases," Setzler, 667 So.2d at 346, even where some evidence may be said to support such findings.

The state has raised no issue of standing on this appeal. We proceed on the premise, therefore, amply supported by the record, that the defense established and the state conceded Mr. Phuagnong's standing. See generally Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). In such circumstances, the prosecution had the burden of justifying a warrantless search and seizure

at the suppression hearing, because the State did not justify the search before the fact, by showing a judge grounds for issuance of a warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Jones [v. State], 648 So.2d [669,] 674 [ (1995) ]. As a practical matter, absence of a search warrant in the court file sufficed to shift the burden of going forward to the prosecution. State v. Hinton, 305 So.2d 804, 808 (Fla. 4th DCA 1975); see also State v. Williams, 538 So.2d 1346, 1348 (Fla. 4th DCA 1989). The prosecution also had to demonstrate exigent circumstances, conditions which precluded applying to a neutral and detached magistrate for a search warrant, or some other exception to the warrant requirement. Coolidge; Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964).

Setzler, 667 So.2d at 345-46. Here the State contends that law enforcement officers had consent to enter an apartment and that, once in the apartment, a sweep of the home was justified for purposes of officer safety. We find, however, that initial consent to enter the apartment was not proven.

Charged with burglary of a television set, Mr. Phuagnong filed a motion to suppress a television set seized from his apartment bedroom on the basis that it was seized illegally without a warrant. 1 In denying the motion, the trial judge ruled:

Based upon the evidence and testimony in this case, the Court finds that the police officers' entry into the residence of Mr. Joy was consensual. The Court finds that even assuming that there were no words spoken inviting the police officers in the house, that the actions and reactions of Mr. Joy would have indicated it would have been reasonable for the police officers to assume they were being invited into the house at that point in order to see whatever medication Mr. Joy was on at that time.

Therefore, the Court finds the entry into the residence was consensual, that once into the residence that the activities of the officers in no way constituted a violation of either the Defendant's rights or those of Mr. Joy. I'll,...

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    • United States State Supreme Court of Vermont
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    ...review on appeal. Id. ¶ 20. As noted, other courts have reached similar conclusions, for similar reasons. See, e.g., Phuagnong v. State, 714 So.2d 527, 529–30 (Fla.Dist.Ct.App.1998) (relying on high court decisions in Miller and Ornelas to hold that “[t]he same reasoning supports independen......
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    ...L.Ed.2d 854 (1973). After the government first shows that the suspect gave law enforcement consent to search, see Phuagnong v. State, 714 So.2d 527, 531 (Fla. 1st DCA 1998), it must next prove that the consent was voluntary, an act of free will and not mere acquiescence to police authority.......
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