State v. McLeod, 93-0534
Decision Date | 13 September 1995 |
Docket Number | No. 93-0534,93-0534 |
Citation | 664 So.2d 983 |
Parties | 20 Fla. L. Weekly D2107 STATE of Florida, Appellant, v. Janice McLEOD, Appellee. |
Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, Tallahassee, and Melvina Racey Flaherty, Assistant Attorney General, West Palm Beach, for appellant.
Richard L. Rosenbaum of the Law Offices of Richard L. Rosenbaum, and Michael J. Entin of the Law Offices of Michael J. Entin, Fort Lauderdale, for appellee.
In his written order granting defendant's motion to suppress evidence, the trial judge found that defendant consented to the search of her auto and that her consent was not coerced. He then explained his decision as follows:
The italicized part of the quotation from the order on review shows that it was a factual finding that the judge made on the scope of consent, not a categorical or legal one. Because there is substantial competent evidence to support his findings, we are required to accept them. 1
The factual finding of no consent should not be confused with an erroneous legal conclusion that the Constitution precludes the use of police dogs sniffing around automobiles looking for illegal drugs. See United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) ( ). That is to say, in this case the police chose not to do a unilateral "sniff walk-around" the stopped vehicle. Instead they, themselves, elected to seek the consent of the defendant for their search of her vehicle.
Judge Kaplan, then, decided this case on the consent issue and not on the entirely separate theory, "a sniff is not a seizure," now being argued. 2 Applying the "fundamental thing" that we review cases on the way they were decided below, we do not believe that we are free to treat this case as a canine-sniff, non-seizure case. The police chose the avenue of consent to travel on, and once down that highway we cannot place them on the "correct" one.
The state apparently believes that, because there was a barking dog in one of the police cars at the scene, defendant impliedly consented to search with the dog, as to the presence of which she had actual or constructive knowledge. The stated facts, however, imply that the judge accepted her testimony that she did not see any dog after she was stopped by the officer and...
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...is true that individuals are afforded a greater expectation of privacy in their home as compared to a vehicle. See State v. McLeod, 664 So.2d 983, 985 (Fla. 4th DCA 1995). However, as Judge Charles Moylan has succinctly written: The higher level of justification required to satisfy the Four......
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...is true that individuals are afforded a greater expectation of privacy in their home as compared to a vehicle. See State v. McLeod, 664 So.2d 983, 985 (Fla. 4th DCA 1995). However, as Judge Charles Moylan has succinctly written: The higher level of justification required to satisfy the Four......
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The Fourth Amendment, canine olfaction, and vehicle stops: time is of the es'scents'.
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