State v. McClamrock, 74--123

• Decision Date: 11 June 1974
• Docket Number: No. 74--123,74--123
• Citation: 295 So.2d 715
• Parties: STATE of Florida, Appellant, v. Edward McCLAMROCK and Audrey Faye McClamrock, Appellees.
• Court: Florida District Court of Appeals

Page 715

295 So.2d 715

STATE of Florida, Appellant, v. Edward McCLAMROCK and Audrey Faye McClamrock, Appellees.

No. 74--123.

District Court of Appeal of Florida, Third District.

June 11, 1974.

Richard E. Gerstein, State's Atty., and Milton Robbins, Asst. State's Atty., for appellant.

Max P. Engel, Louis Stoskopf, Miami, for appellees.

Before PEARSON, HENDRY and HAVERFIELD, JJ.

HENDRY, Judge.

This is an interlocutory appeal by the state from an order entered by the trial court granting defendant-appellees' motion to suppress physical evidence. We affirm.

The defendants, husband and wife, were indicted for first degree murder in connection with a fatal shooting on July 14, 1973. The trial judge made the following findings of fact in his order granting the motion to suppress:

'1. That the defendants were taken into custody on July 14, 1973 at approximately 1:00 P.M. in connection with the death of one Gordon Stevens;

'2. That shortly after 3:00 p.m. on that same date the defendant, Audrey McClamrock was interviewed by Det. Jerry Strickland in connection with this case;

'3. That prior to this interview Det. Strickland properly warned the defendant of her Constitutional Rights to remain silent and to counsel;

'4. That the defendant Audrey McClamrock voluntarily waived the rights read to her by Det. Strickland and gave a statement to Det. Strickland;

'5. That later on in the afternoon or early evening of July 14, 1973, the defendant Audrey McClamrock refused to give any further statements and requested an attorney;

'6. That at or about the same time defendant Edward McClamrock also refused to waive his right to counsel and requested an attorney;

'7. That at approximately 10:30 on that same date each of the defendants were requested to execute a consent to search their residence;

'8. That at this time each of the defendants, after having had the consent form (marked State's exhibits A and B) read to them and explained, did execute same;

'9. That the defendants had not withdrawn their previous request for counsel.'

At the hearing on the motion to suppress, defendant Edward McClamrock testified that at 10:30 P.M., police officers of the Dade Public Safety Department showed him the consent to search form and told him his wife had already executed the same, and that if and when he signed it, his wife would be released. He signed.

Then, Mrs. McClamrock testified that she was shown the form already signed by her husband and told that she would be released if she signed an identical consent paper. She also signed, and shortly thereafter she was released and not formally arrested until a later date.

The police officers who testified at the hearing flatly denied that the defendants' consent was obtained in this manner. However, the record is clear that at 5:30 P.M., five hours earlier, the appellees requested an attorney and no attorney was summoned. And, apparently the police, although they were in contact with Mr. Terry McWilliams, an assistant state attorney, in connection with this case, made no effort to obtain a warrant to search the defendants' apartment.

The state contends, however, as a basis for reversal of the order appealed that the right to counsel is not an essential element of a consent search and that the failure to have counsel present at the time of the giving of consent does not constitutionally prohibit the admissibility of the evidence uncovered by the consent search.

The state relies on three cases: Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Custer, Fla.App.1971, 251 So.2d 287; State v. Spanierman, Fla.App.1972, 267 So.2d 102; see also, State v. Brehm, Fla.App.1973, 273 So.2d 128.

In each one of these cases, an automobile was stopped by the police, and Prior to any arrest, consent was obtained by the officers to search the car. It was held in each case that under the circumstances of the case, the requirements of the United States Supreme Court's holding in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, were not dictated.

As the Second District Court of Appeal stated in State v. Custer, supra:

'Advising one of his right of refusal to consent to a search is not required to validate that consent or to Prima facie establish the voluntariness thereof.'

The court in that case further concluded 'that the search herein was purely and simply a classic 'consent search,' and it was error to suppress the fruits thereof.'

The facts and circumstances in the instant case are anything but a 'classic consent search.' In this case, Mr. McClamrock was actually under arrest when he consented. Mrs. McClamrock, the record shows, was not actually placed formally under arrest until a later date.

However, she and her husband had been held at the police station for nine and one-half hours when they signed the consent form. Furthermore, the record shows that the McClamrocks at the hearing before the trial judge accused the police of acts of brutality used against them. And, the officers who testified admitted that counsel was not provided the appellees after they requested the assistance of counsel.

This case does not present a situation where the police simply did not advise the defendants of the Miranda warnings, which is not mandated under the Fourth Amendment protection against unreasonable search and seizures. See Schneckloth v. Bustamounte, supra.

In the case sub judice, the defendants actually requested an attorney, and the state failed to give them one. Of course, when Mrs. McClamrock waived her constitutional right against self-incrimination and the assistance of counsel, and she made a statement of the police after the Miranda warnings...