Wyche v. State

• Decision Date: 10 July 2008
• Docket Number: No. SC05-1509.,SC05-1509.
• Citation: 987 So.2d 23
• Parties: Earl WYCHE, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

987 So.2d 23

Earl WYCHE, Petitioner, v. STATE of Florida, Respondent.

No. SC05-1509.

Supreme Court of Florida.

July 10, 2008.

Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Petitioner.

Bill McCollum, Attorney General, Robert R. Wheeler, Assistant Attorney General, Bureau Chief, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, FL, for Respondent.

WELLS, J.

We have for review Wyche v. State, 906 So.2d 1142 (Fla. 1st DCA 2005), in which the First District Court of Appeal certified conflict with the Fourth District Court of Appeal's decision in State v. McCord, 833 So.2d 828 (Fla. 4th DCA 2002). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we approve the First District's decision in Wyche that affirmed the denial of the motion to suppress and distinguish the Fourth District's decision in McCord that affirmed the granting of the motion to suppress.

FACTS AND PROCEDURAL HISTORY

The facts of this case are set forth in the opinion of the First District:

While Wyche was detained in Columbia County for a probation violation, Lake City Police Department Investigator Clint VanBennekom asked Wyche for a saliva sample, stating that he was suspected of committing a burglary at a Winn-Dixie supermarket. In fact, VanBennekom had manufactured the fictitious Winn-Dixie burglary in order to obtain Wyche's consent to take swabs for a sexual-assault investigation. No DNA match was obtained in the sexual-assault case; as a consequence, Wyche was exonerated as to it.

During VanBennekom's investigation, Lake City Police Department Investigator Joseph Moody was also investigating a [burglary¹] of The Pink Magnolia, a gift shop in Lake City, and asked VanBennekom to send the saliva swab that he had obtained to the FDLE lab for a comparison with blood drops taken from the crime scene. FDLE acquired a match. Based on the results, Wyche was accused of the [burglary]....

Wyche, 906 So.2d at 1143. Wyche then filed a motion to suppress the saliva swabs and DNA test results, arguing that VanBennekom gained his consent through trickery and that suppression was appropriate pursuant to the Fourth District's decision in State v. McCord, 833 So.2d 828 (Fla. 4th DCA 2002). Wyche, 906 So.2d at 1144.

In McCord, a police investigator was investigating a series of robberies that he suspected McCord had committed. McCord was in county jail on unrelated charges. The investigator told McCord that he was a suspect in a rape case and that DNA evidence could exclude him from the rape investigation. This rape case was invented by the investigator. McCord gave a saliva sample. DNA from this sample matched blood recovered at the scene of one of the robberies, and McCord was charged with the robberies. McCord filed a motion to suppress the DNA evidence on the ground that his consent was involuntary and obtained in violation of his due process rights as a result of the investigator's deceit in telling him that the DNA would be used in a rape investigation. The trial court granted McCord's motion to suppress. McCord, 833 So.2d at 829. The State appealed the granting of the motion to suppress, and the Fourth District affirmed. Id. at 831.

In contrast, in Wyche, the trial court denied the defendant's motion to suppress and granted the State's motion for denial "on its face."² Wyche was tried and convicted of burglary, grand theft, and criminal mischief. Wyche then appealed his convictions to the First District, contending that the trial court erred by denying his motion to suppress evidence of the saliva swabs and DNA test results and by denying his motion for judgment of acquittal on the charge of grand theft. Wyche, 906 So.2d at 1143. The First District affirmed the conviction, expressly declining to follow the Fourth District's decision in McCord and certifying conflict. Id. at 1144.

STANDARD OF REVIEW

The standard of review for motions to suppress is that the appellate court affords a presumption of correctness to a trial courts findings of fact but reviews de novo the mixed questions of law and fact that arise in the application of the historical facts to the protections of the Fourth Amendment.³ Fitzpatrick v. State, 900 So.2d 495, 510 (Fla.2005). The conflict issue to be resolved in this case is whether the defendant's motion to suppress must be granted because the police investigator told the defendant that his DNA was needed in the investigation of a fictitious burglary. We review this legal question de novo.

ANALYSIS

Our analysis begins with Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), in which the Supreme Court wrote:

Similar considerations lead us to agree with the courts of California that the question whether a consent to a search was in fact "voluntary" or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent. As with police questioning, two competing concerns must be accommodated in determining the meaning of a "voluntary consent" — the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.

A few years later, in United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), the Supreme Court reaffirmed its holding that the voluntariness of a defendant's consent to search is a question of fact to be determined from the totality of the circumstances. In that case, the Supreme Court found that a defendant's consent to search was voluntary, explaining:

There was no overt act or threat of force against Watson proved or claimed. There were no promises made to him and no indication of more subtle forms of coercion that might flaw his judgment. He had been arrested and was in custody, but his consent was given while on a public street, not in the confines of the police station. Moreover, the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search. Similarly, under Schneckloth, the absence of proof that Watson knew he could withhold his consent, though it may be a factor in the overall judgment, is not to be given controlling significance. There is no indication in this record that Watson was a newcomer to the law, mentally deficient, or unable in the face of a custodial arrest to exercise a free choice. He was given Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),] warnings and was further cautioned that the results of the search of his car could be used against him. He persisted in his consent.

Id. at 424-25, 96 S.Ct. 820 (footnote omitted). This Court has likewise held that the issue of whether consent is voluntary under the Fourth Amendment is to be determined from the totality of the circumstances. See, e.g., Washington v. State, 653 So.2d 362, 364 (Fla.1994).

The motion to suppress in this case was based upon stipulated facts. The stipulated material circumstances were:⁴

1. Wyche was in custody (on an unrelated charge).

2. Police were investigating a rape, and Wyche was a suspect.

3. To obtain DNA for the rape investigation, Wyche was told that the police were investigating a burglary of a Winn-Dixie grocery store and was asked to give saliva swabs that could be tested for DNA and used in the Winn-Dixie investigation.

4. The Winn-Dixie burglary was made up by the investigator.

5. The saliva swab cleared Wyche in the rape investigation.

6. The saliva swab was given to another investigator who was investigating a burglary at The Pink Magnolia, a gift shop where Wyche had worked.

7. The saliva swab did have a positive match with the DNA from The Pink Magnolia burglary.

8. The DNA match was then sought to be used in the prosecution of The Pink Magnolia burglary.

The focal issue is whether the fact that Wyche consented to the saliva swabs upon being told that the DNA sample was for use in a fictitious burglary investigation requires that the saliva swabs containing Wyche's DNA not be used in the prosecution of an actual burglary. As Schneckloth frames the issue: was the consent to the saliva swabs under these circumstances voluntary or coerced?

Though Washington did not involve a fictitious investigation, our decision in Washington did involve the similar issue of whether a biological sample collected in one investigation may be used by police in an unrelated investigation. While he was incarcerated on other charges, Washington was interviewed by a detective and two police officers. Washington did not know and the officers did not tell him that he was suspected in the beating death of a ninety-three-year-old woman. The police interviewed Washington regarding an unrelated sexual battery. The officers told Washington that hair and blood samples could prove or disprove his guilt in the sexual battery case, and Washington provided the requested samples. When the State sought to use the samples in the murder prosecution, Washington filed a motion to suppress the samples. Washington, 653 So.2d at 363-64. On appeal, this Court considered the totality of the circumstances and found that Washington's consent to the collection of the samples was voluntary. Id. at 364. The fact that Washington had not been informed that he was a suspect in the murder case did not render his consent involuntary.

We further held in Washington that once the samples were validly obtained, they could be used in the unrelated murder prosecution. Id. Thus, Washington established that when a defendant validly consents to the giving of the bodily substance, whether saliva, hair, or blood, for use in a criminal investigation, the characteristics of the substance can be used in...