Phuagnong v. State, No. 96-4705

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM; Writing for the United States Supreme Court; BARFIELD, C.J., and KAHN; BENTON; BENTON
Citation714 So.2d 527
Docket NumberNo. 96-4705
Decision Date15 June 1998
Parties23 Fla. L. Weekly D1483 Kwunchai PHUAGNONG, Appellant, v. STATE of Florida, Appellee.

Page 527

714 So.2d 527
23 Fla. L. Weekly D1483
Kwunchai PHUAGNONG, Appellant,
v.
STATE of Florida, Appellee.
No. 96-4705.
District Court of Appeal of Florida,
First District.
June 15, 1998.

Page 528

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....

Page 529

....

... 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").

Page 530

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...

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27 practice notes
  • State v. Weisler, Nos. 10–040
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 16, 2011
    ...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......
  • Thomas v. State, No. 1D11–6156.
    • United States
    • Florida District Court of Appeals
    • November 20, 2013
    ...Davis v. State, 946 So.2d 575, 578 (Fla. 1st DCA 2006) (consent “occurred immediately after the claimed seizure”); Phuagnong v. State, 714 So.2d 527, 533 (Fla. 1st DCA 1998) (consent obtained [127 So.3d 665]“only minutes later” than illegal search and arrest).11 In the present case, the tri......
  • Murphy v. State, No. 5D04-1095.
    • United States
    • Court of Appeal of Florida (US)
    • March 11, 2005
    ...5th DCA 2000). However, the trial court's application of the law to the facts is reviewed under the de novo standard. Phuagnong v. State, 714 So.2d 527 (Fla. 1st DCA The Fourth Amendment to the United States Constitution and article 1, section 12 of the Florida Constitution guarantee the ri......
  • Smith v. State, No. 2D98-3188.
    • United States
    • Court of Appeal of Florida (US)
    • March 17, 2000
    ...36 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 authori......
  • Request a trial to view additional results
27 cases
  • State v. Weisler, Nos. 10–040
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 16, 2011
    ...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......
  • Thomas v. State, No. 1D11–6156.
    • United States
    • Florida District Court of Appeals
    • November 20, 2013
    ...Davis v. State, 946 So.2d 575, 578 (Fla. 1st DCA 2006) (consent “occurred immediately after the claimed seizure”); Phuagnong v. State, 714 So.2d 527, 533 (Fla. 1st DCA 1998) (consent obtained [127 So.3d 665]“only minutes later” than illegal search and arrest).11 In the present case, the tri......
  • Murphy v. State, No. 5D04-1095.
    • United States
    • Court of Appeal of Florida (US)
    • March 11, 2005
    ...5th DCA 2000). However, the trial court's application of the law to the facts is reviewed under the de novo standard. Phuagnong v. State, 714 So.2d 527 (Fla. 1st DCA The Fourth Amendment to the United States Constitution and article 1, section 12 of the Florida Constitution guarantee the ri......
  • Smith v. State, No. 2D98-3188.
    • United States
    • Court of Appeal of Florida (US)
    • March 17, 2000
    ...36 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 authori......
  • Request a trial to view additional results

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