State v. Waterman

• Decision Date: 22 June 1994
• Docket Number: No. 91-03843,91-03843
• Citation: 638 So.2d 1032
• Parties: 19 Fla. L. Weekly D1388 STATE of Florida, Appellant/Cross-Appellee, v. John WATERMAN, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 1032

638 So.2d 1032

19 Fla. L. Weekly D1388

STATE of Florida, Appellant/Cross-Appellee, v. John WATERMAN, Appellee/Cross-Appellant.

No. 91-03843.

District Court of Appeal of Florida,

Second District.

June 22, 1994.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol M. Dittmar, Asst. Atty. Gen., Tampa, for appellant/cross-appellee.

James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Asst. Public Defender, Bartow, for appellee/cross-appellant.

DANAHY, Acting Chief Judge.

The State of Florida appeals from an order which partially granted John Waterman's motion to suppress. The state contends that the trial court erred in suppressing items seized from Waterman's car and home. Waterman cross-appeals that portion of the order which otherwise denied his motion to suppress. He contends that his initial arrest for loitering and prowling was invalid, that statements he made after his invalid arrest should have been excluded, and that the search warrant for his house was defective. We find no merit in the issues Waterman raises in his cross-appeal and affirm the partial denial of his motion to suppress. On the state's direct appeal, we affirm in part and reverse in part.

Waterman's next-door neighbor in the city of Sarasota was found murdered on June 13, 1991. Her body, wrapped in a bedsheet and bound around the neck, waist, and ankles with traverse curtain rod cord bearing a unique knot, was dumped in a rural section of eastern Sarasota County. There was a ligature around her neck also and ligature marks on her wrists. After inspecting her apartment, which was open and undisturbed, Sarasota County sheriff's detectives theorized that the murderer was someone close by or someone who knew about her activities. Because black, gray, and silver fibers similar to car trunk lining or auto carpeting were found on the body, but few fibers of any kind were found on the bedsheet in which the body was wrapped, the detectives further theorized that the body was transported in two different cars.

Approximately five weeks later, Detective Don Wenger of the Sarasota County Sheriff's Office, who lived on the same street as the victim but about five blocks away, noticed an unfamiliar late model Buick parked on the street across from his home at 10 p.m. in front of the darkened and vacant house there. The Buick had not been there when he arrived home fifteen minutes earlier and the driver was nowhere to be seen. Suspecting the car was stolen, the detective radioed from his car to check the license tag number and found that it was registered to an elderly woman who lived on Gulfstream Drive in downtown Sarasota. Wenger then waited in his own car about twenty minutes. He saw Waterman come out from behind the vacant house and approach the Buick as its trunk opened automatically. Waterman did not have a flashlight and was dressed completely in black. Believing Waterman did not have a legitimate reason to be there, Wenger approached Waterman, identified himself as a sheriff's deputy, and asked him what he was doing there. Waterman replied that he might be interested in buying the house. As he was replying to the detective, his demeanor was very nervous, he spoke with a quivering voice, and would not look the detective in the eye.

There had not been a "For Sale" sign on the house, and Wenger was not otherwise aware that the owner was interested in selling it. Wenger asked Waterman why he thought the house was for sale. Waterman responded that he lived five blocks away and was considering relocating because he had some problems in his neighborhood. Spontaneously, Waterman mentioned that he lived next door to the murder victim, named her, and asked if Wenger were working on that case and if police were making any progress on it. During the conversation Wenger glanced into the open trunk, saw a bag of some type, and noticed that the carpeting was black and gray. He recalled that the same color fibers had been found on the victim's body and that investigators believed she had been transported in a car's trunk.

Wenger's suspicions about loitering and prowling had not been allayed by Waterman's explanations. Although Wenger believed he had probable cause to arrest Waterman for loitering and prowling he preferred not to do so because he was within Sarasota city limits. He called Sarasota City Police and requested they come to the scene. Sarasota City Police Officer Brenda Redden arrived quickly and Wenger briefed her on his suspicions about Waterman's loitering and prowling, but not about Waterman's comments relating to the victim and the ongoing investigation. Redden had her dispatcher call the owner of the Buick to ask if the owner knew where the car was. The owner replied that she believed it was parked in the garage of her condominium but that if Waterman had it, that was permissible. ¹ Officer Redden interviewed Waterman while Wenger checked around the house and backyard.

In the backyard Wenger discovered that, although the house showed no signs of burglary, through a gap in the fence at the back of the yard, one could see into the next house. Wenger knew that a woman and her two teenage daughters lived there. Wenger returned and related what he had seen to Redden.

During the interview with Officer Redden Waterman did not allay her suspicions either so she arrested him for loitering and prowling and transported him to the Sarasota County Jail. Meanwhile, Wenger contacted one of the sheriff's deputies investigating the murder, Detective Penny Kimball, to acquaint her with Waterman's arrest and Waterman's expressed interest in the murder investigation. Kimball's notes did not show that Waterman had been interviewed as part of the neighborhood canvass at the time the homicide was discovered so she was very interested in speaking to him. Accordingly, she went to the jail to speak to him during the booking procedures on the loitering and prowling charge.

Just as the booking procedures were getting underway, Detective Kimball read Waterman his Miranda rights and he voluntarily agreed to be interviewed about the murder. Because of the noisy booking area they were in, the detective sought a quieter place and conducted the interview in the detectives' offices in a nearby building. Waterman was cooperative and did not invoke his right to counsel or ask to call a friend or a family member. He stated he was willing to talk about the case because he felt badly about the death of his neighbor. Waterman said he lived with his fiancee and worked as a security guard at Bay Plaza Condominium and as a chauffeur for an elderly woman who lived there. He was living at his current residence when the homicide victim moved in next door. He had never been formally introduced to her but knew what she looked like since he had seen her unloading groceries, going to the mailbox, and doing other things at the residence. He knew she rented a separate apartment attached to the house next door to his and that two men occupied the front part of that house. He knew what type of car she drove, that she was sometimes gone for several days at a time, and that friends of hers had a blue van or large white vehicle which would sometimes be parked out front.

Waterman admitted that he had a lot of rope around his house, commenting that one could never have enough rope. He said he also kept rope in his car. He had recently obtained a quantity of cord from a traverse curtain rod he had gotten from Bay Plaza. He described how his house was decorated and listed the colors of his sheets which matched the kind in which the victim was wrapped--beige with brown trim. He discussed his sexual relations with his fiancee telling the detectives that at one time he had tied her to the bed but that he had cut the bindings off after she complained they were too tight and caused her discomfort. Kimball noticed a prominent wound in the middle of his forehead which Waterman said had come from hitting his head against the top of a car trunk while he was parking cars. He explained away almost healed scratches on his forearms as having been inflicted by a cat. He said that during the week of the homicide he had worked as a chauffeur every morning, showered at home, and returned to the condominium to work security from 3 to 11 p.m. He occasionally kept the Buick overnight to get it washed and serviced but did not recall if he had done so the week of the murder.

He agreed to undergo a polygraph test and seemed, according to the polygraph examiner, very interested in all the procedures, even eager to take the test. While the polygraph was being administered, two detectives went to inspect Waterman's own car, a Renault, which was parked in the garage at the Bay Plaza condominium complex, his place of employment. The first three floors of the garage were used for valet parking by the businesses at Bay Plaza. There was a swinging-arm type gate at the entrance to the garage which was operated by a security guard. The garage levels above the first three floors were private and secured for condominium residents only. A floor-to-ceiling gate divided the first three floors of the garage from the more secure, residents-only, floors above. Employees and residents could drive their own cars into the garage upon being identified by the security guard. Waterman's Renault was located on the second level but below the secure, residents-only parking area. The security guard on duty at the time voluntarily showed the detectives to the Renault when they requested to view it.

The detectives inspected the car from the outside. It had vinyl seats which were not conducive to transferring fibers. They believed this was consistent with the lesser number of fibers found on the sheet wrapped around the body of the homicide victim. Using a flashlight to look into the car through the windows they saw a thin white piece of cord lying between the front seats. The cord had the same unique knot...