Wyche v. State, 1D03-5211.

• Decision Date: 20 June 2005
• Docket Number: No. 1D03-5211.,1D03-5211.
• Citation: 906 So.2d 1142
• Parties: Earl WYCHE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

906 So.2d 1142

Earl WYCHE, Appellant, v. STATE of Florida, Appellee.

No. 1D03-5211.

District Court of Appeal of Florida, First District.

June 20, 2005.

Rehearing Denied July 21, 2005.

Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.

Charles J. Crist, Jr., Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.

BARFIELD, J.

Earl Wyche appeals his convictions for burglary, grand theft, and criminal mischief, following trial by jury, contending the trial court erred by (I) denying his motion to suppress evidence of saliva swabs and DNA test results, because the swabs were obtained by police deception, thus rendering his consent involuntary, and (II) denying his motion for judgment of acquittal on the charge of grand theft, because the state did not present sufficient evidence to prove that the value of items stolen was greater than $300. We affirm and address only the merits of the first issue.

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 robbery 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 robbery, and his subsequent motion to suppress the evidence, on the ground that it had been obtained by deception, was denied. Deception does not negate consent. Absent coercion, threats or misrepresentation of authority, the courts have long recognized deception as a viable and proper tool of police investigation. Hoffa v. U.S., 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) (government informant in defendant's hotel room); Lewis v. U.S., 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966) (government agent misrepresented identity to get invited into defendant's home for narcotics transaction); On Lee v. U.S., 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952) (deception by eavesdropping undercover agent, wearing a wire, trusted by defendant); Alexander v. U.S., 390 F.2d 101 (5th Cir.1968) (postal inspectors lie to defendant to get him to consent to their looking into his wallet); People v. Zamora, 940 P.2d 939 (Colo.App.1996) (police obtained consent by misrepresenting reasons for entering defendant's apartment).

This court will not follow State v. McCord, 833 So.2d 828 (Fla. 4th DCA 2002). In McCord the court equated deception with coercion. There is no threat of force or other compulsion involved in deception. To the contrary, the use of subterfuge avoids coercion which by its nature is overt and direct. The notion that deception is somehow morally reprehensible when practiced by the police in fighting crime unfairly impugns the motives of those seeking to uphold the law. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) does not hold otherwise. In addressing the obtaining of consent the court specifically couches its test in terms of coercion and force, not deception. Because a suspect is outsmarted by police does not mean the suspect somehow loses the will to refuse consent.

The reliance on McCord by the appellant is unwarranted. The authority cited in McCord to support the statement that a "detective's misrepresentations as to the nature of the investigation may provide evidence of coercion," is United States v. Briley, 726 F.2d 1301 (8th Cir.1984). In Briley, Briley became a suspect in a bank robbery based on an anonymous telephone call. An investigator went to the address given by the caller. A woman named Rosalie Rivera came to the door and let the investigator in. Briley (who was in the apartment) identified himself, talked to the investigator for some time, and denied any involvement in the crime. No arrest was made at that time. After witnesses to the robbery indicated that Briley could be the robber based on a photospread, a "probable cause pickup" for Briley was listed in the Daily Operations Report supplied to officers as they come on duty. Two police officers returned to the apartment building, checked the mailboxes, and found the name "Rivera" was listed for Apartment 13. The caretaker led the officers to his apartment. A woman in the apartment named Rosalie Rivera replied that she did not know where Briley was at that time, mentioned she was Briley's girlfriend, and asked why they wanted to see him. The officers replied only that it was an important matter. As the officers turned to leave the apartment and the building, Rivera said, "All right, he's in my apartment. Come with me." She took them to Apartment 13, opened the door and gestured with her hand at Briley, who was standing in the apartment. The officers arrested Briley. Briley argued the warrantless arrest in his home violated his fourth amendment rights, and that his confession and any identifications resulting from the subsequent lineup had to be suppressed. The trial judge held that Rivera's consent negated any illegality that may have attended Briley's warrantless arrest. On appeal, Briley argued that Rivera's consent was invalid because the officers only told her they wanted to talk to Briley and did not say they would arrest him. The panel in dictum quoted United States v. Turpin, 707 F.2d 332, 334 (8th Cir.1983), in which that panel stated "[m]isrepresentations about the nature of an investigation may be evidence of coercion." (Emphasis added). Briley's argument was rejected, however, because the panel on appeal determined there was no deceitful misrepresentation and Rivera's consent was voluntary. The officers were in uniform and the cryptic statement that they had important matters to discuss with Briley did not appear to have been said with the intention of tricking Rivera into consenting to an entry. At the time of the statement, the officers were simply trying to locate Briley; they were not yet seeking permission to enter Briley's apartment. The officers did not misrepresent the fact that they had no search or arrest warrant. The panel on appeal then stated: "The foregoing is not meant to imply that Rivera's consent would be considered voluntary had the police intentionally attempted to trick her by falsely stating their purpose. A different case might be presented had the police specifically told Rivera they were not seeking to arrest Briley or that he was not a suspect. We hold only that, in these particular circumstances, Rivera's consent was not coerced." 726 F.2d at 1305 (emphasis added).

In Turpin, Turpin argued the trial judge erred in failing to suppress physical evidence found in his house because officers obtained his consent to enter and search the house by deceit; the alleged deception was that the officers did not tell him that the victim had been killed and that he was a homicide suspect. The panel on appeal rejected his argument because the officers accurately told Turpin that the victim had been in a train accident and that they were investigating the accident, and appellant did not ask any questions at that time and agreed to let the officers inside. The trial judge specifically noted that the sheriff told Turpin's attorney that Turpin was not a suspect, even though officers in fact considered him to be a suspect in the killing, but concluded that other evidence strongly supported the finding that Turpin's consent to the search was voluntary. The panel on appeal determined it could not say the trial judge's finding was clearly erroneous, stating: "We agree that the sheriff's denial of appellant's status as a suspect was somewhat misleading. However, as noted by the district court, the sheriff did supply the attorney with other information which clearly implied that appellant might become a suspect in the future. The officers misrepresented neither the fact that they were investigating a homicide nor that they wanted to search the house as part of their investigation. In particular, the officers did not misrepresent the fact that they had no search or arrest warrant."

In making the statement that misrepresentation may be evidence of coercion, the panel in Turpin cited another decision from the Eighth Circuit, United States v. Meier, 607 F.2d 215 (8th Cir.1979),cert. denied, 445 U.S. 966, 100 S.Ct. 1658, 64 L.Ed.2d 243 (1980), and Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). As one would expect, there was no misrepresentation in Meier. Meier was convicted of failing to file income tax returns. An agent for the internal revenue service sent a letter to Meier requesting an interview and copies of the missing tax returns. The first meeting took place in Meier's office. At this meeting Meier was told the Kansas City Service Center had no record of any tax returns filed by him before 1975. Meier submitted copies of his tax returns for the years in question, asserted the returns had been filed in Kansas City, and agreed to obtain microfilm copies of his cancelled checks for the payments. At a second meeting, Meier gave the agent his bank statements and said he had been unable to obtain copies of his cancelled checks. The agent then referred the matter to the Criminal Enforcement division. At a third meeting, a second agent informed Meier of his rights to remain silent and to consult an attorney, and told him that whatever he said could be used against him in a criminal ...