State v. Preston

• Citation: 387 So.2d 495
• Decision Date: 27 August 1980
• Docket Number: No. 79-385,79-385
• Parties: STATE of Florida, Appellant, v. Robert A. PRESTON, Appellee.
• Court: Court of Appeal of Florida (US)

Page 495

387 So.2d 495

STATE of Florida, Appellant, v. Robert A. PRESTON, Appellee.

No. 79-385.

District Court of Appeal of Florida, Fifth District.

Aug. 27, 1980.

Douglas Cheshire, Jr., State's Atty., Titusville, and Alan B. Robinson, Asst. State's Atty., Sanford, for appellant.

David M. Porter, Public Defender, and Bennett Ford, Chief Asst. Public Defender, Titusville, Joan H. Bickerstaff, Asst. Public Defender, Cocoa Beach, and Andrew A. Graham, Cocoa, for appellee.

COBB, Judge.

The state appeals from the trial court's granting of defendant's pre-trial motion to suppress evidence on the grounds that a search of defendant's room in his mother's house was conducted without warrant and without consent. Defendant was charged with first degree murder, robbery, kidnapping, and sexual battery.

Concerning whether the defendant consented to a search of his room, we find substantial evidence to support the trial court's conclusion that consent was not freely and voluntarily given. One officer admitted that an interrogation was conducted with officers standing by with blackjacks in their hands, but not in a threatening manner. In addition, defendant testified that during the interrogation one detective grabbed him by the shirt and had a heavy five-cell flashlight in his hand, while another detective had a blackjack and three or four other officers had blackjacks or heavy flashlights. The trial court properly found that defendant's signing a form consent to search the room he occupied in his mother's home was not voluntary the day after the interrogation even though the record does not indicate the defendant was physically abused. We disapprove the use of blackjacks and five-cell flashlights as a means of encouraging suspects to cooperate with the police.

Concerning the consent of the defendant's mother to a search of defendant's room in her house, defendant's mother testified that she was interviewed at a time when she was aware that a homicide had been committed and that her son was a suspect; and admitted that she gave her consent to search defendant's room in her house. A jacket was found across a chair and food stamps were taken from a wastebasket. Defendant's mother testified that defendant paid her no room and board money the month the evidence was seized; that she had access to his room to do the laundry, change his sheets, and clean his room. She stated there were no keys to lock the bedroom doors; that they were seldom locked; that the money that defendant gave her bought groceries; that she entered his room to do laundry and cleaning weekly; that in a prior sworn statement she had stated her son paid no rent and was unemployed. The mother also stated she occasionally ran the sweeper through his room when cleaning the whole house, but that defendant did any other cleaning.

Defendant testified that he had his own bedroom and that when he was employed he paid his mother some money for rent; that his brothers were not allowed to enter his room without his permission; that his mother had access to the room to do the laundry, clothes and linen, and to clean. Defendant admitted he was unemployed at the time the evidence was seized; that he had no key to secure his room when he was gone; that he paid his mother little or nothing for the use of the room; that he had earned between $1,000 and $2,000 the previous year; and that his mother paid the mortgage, electric, water, and phone bills on the premises. Defendant also stated he cleaned his room and his mother had not done so in almost four years.

Defendant's brother testified that defendant had his own bedroom; that his mother cleaned the entire house weekly, including defendant's room; that she also emptied all the trash cans in the house. The defendant, his mother and brother testified that defendant had sole and exclusive occupancy of one of the bedrooms in his mother's home; that defendant's brothers were not permitted to enter his room without knocking first and receiving express permission to enter; that defendant's mother had his permission to enter his room for the limited purpose of bringing him clean clothing and bed linen. Defendant and his mother also testified that though he had paid little or no money in January due to unemployment, he had paid rent in exchange for the use of his bedroom in the past. Defendant's brother, his mother and defendant stated defendant sometimes locked the door to his room.

The trial court granted defendant's motion to suppress on the grounds that the mother did not have the authority to consent to a search of defendant's room.

The state argues that the warrantless search of defendant's room was proper, since the mother could...