State v. Brehm

• Decision Date: 16 February 1973
• Docket Number: No. 72-95,72-95
• Citation: 273 So.2d 128
• Parties: STATE of Florida, Appellant, v. Stephen G. BREHM, Appellee.
• Court: Florida District Court of Appeals

Page 128

273 So.2d 128

STATE of Florida, Appellant, v. Stephen G. BREHM, Appellee.

No. 72-95.

District Court of Appeal of Florida, Second District.

Feb. 16, 1973.

Robert L. Shevin, Atty. Gen., Tallahassee, and P. A. Pacyna, Asst. Atty. Gen., Tampa, for appellant.

Walter R. Talley, Public Defender, Bradenton, for appellee.

PER CURIAM.

The State brings this appeal from an order of the lower court suppressing certain evidence, to-wit, marijuana.

The lower court in its order held that there was no ground for stopping the vehicle operated by appellee in which the marijuana was found. We agree with the trial court in this conclusion.

The State argues, however, that a free and voluntary consent was given by the appellee to the police authorities to search the automobile. The trial court held that the consent was not given freely and voluntarily 'inasmuch as no prior warning was given defendant pursuant to the Miranda decision and related authority.'

In the recent case of State v. Spanierman, Fla.App.1972, 267 So.2d 102, this court in an opinion by Judge McNulty held:

'In any case, even if it be assumed that the officer had no right to stop the van under any theory, a valid search and subsequent seizure may nevertheless be predicated upon a free and voluntary consent; provided, however, that such consent was not obtained by the exploitation of any prior unlawful actions of the officer. ³ A finding of a voluntary consent,

therefore, might well have obviated any question of an illegal stopping or arrest. ⁴

In Spanierman, Supra, we remanded the cause to the trial court for a finding as to the voluntariness of the consent but precluded the court from finding that the consent was involuntary merely because the officer did not advise the defendant of his Fourth Amendment rights.

In view of Spanierman, Supra, we remand this cause to the lower court for a determination as to the voluntariness of the consent and direct the trial court to proceed with his determination in accordance with the guidelines set out in Spanierman, Supra.

Reversed and remanded.

HOBSON, J., and PIERCE, J. (Ret.), concur.

MANN, C. J., dissents with opinion.

MANN, Chief Judge (dissenting).

This is a harmless error case if I ever saw one.

As time goes on the work load of this court increases, markedly impairing the precision of language with which we state the law. So it is with trial judges, and when a trial judge has reached the only result sustainable on the record, the ascription of a reason to the order which is not precisely correct should not furnish a basis for reversal. This was a patently unlawful arrest, based on hearsay not even offered as reliable, resulting in stopping a car for going down an alley, which is not alleged to be a crime anyhow. The car's occupants were arrested for loitering, which they weren't doing and which any policeman who has read the newspapers knows is now a patently phony charge unsustainable in court. ¹ The only evidence of a consent to search rests upon a shrug of the shoulders. The arresting officer admits that Brehm didn't say yes, and he didn't say no. While it is true that no Miranda warnings need be given, it is necessary to show an intelligent and voluntary waiver to support an allegedly consensual search after an invalid arrest. ² We are sending this case back for a petty, technical reason. We would not reverse a conviction on such flimsy ground. ³ As I said in Spanierman, cited in the majority opinion, I don't disagree with the law, but where the trial judge has arrived at the right result by generally sound reasoning it is poor judicial administration to send the case back just to polish language. It...