Younger v. State, 82-248

• Decision Date: 23 June 1983
• Docket Number: No. 82-248,82-248
• Citation: 433 So.2d 636
• Parties: Michael Thomas YOUNGER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 636

433 So.2d 636

Michael Thomas YOUNGER, Appellant, v. STATE of Florida, Appellee.

No. 82-248.

District Court of Appeal of Florida,

Fifth District.

June 23, 1983.

Daniel A. Smith of Law Offices of William J. Sheppard, P.A., Jacksonville, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.

FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from his convictions for possession of cocaine and possession of a firearm by a convicted felon.

Appellant contends that the evidence against him was discovered pursuant to an illegal search of his home in that the initial entry by police was without a warrant or his consent and the warrant which was ultimately obtained was based upon an insufficient affidavit.

The facts are as follows. On the morning of February 16, 1981, St. Johns County Deputy, Jimmy Evans, was called to a house near Switzerland, Florida, where he met Collette Pupello. She told the deputy that she had been staying at a nearby house with two men, "Frank" and "Mike." She overheard them talking about a person "Mike" had killed and they talked of killing her because she could not be trusted. Ms. Pupello said she grabbed a gun she had seen on a table, pointed it at the two men, and then ran into the woods, ultimately making her way to the house from which the police were called. After Ms. Pupello informed the deputy that she had noticed a box marked "grenades" in "Frank" and "Mike's" house, Agent Farnell of the Bureau of Alcohol, Tobacco and Firearms, was called in to assist.

The assistant state attorney was contacted the same morning, and after hearing Ms. Pupello's story, he concluded that it did not constitute probable cause so that a search warrant could be obtained. He suggested that an investigator be sent to talk to "Frank" and "Mike" and that "maybe they would let him in the house to look at the crates."

Two detectives, Stafford and Ferris, accompanied Agent Farnell to the house at about 3:00 p.m. Appellant answered the door and stepped outside. The officers identified themselves and informed appellant of Ms. Pupello's allegations, specifically the threats made against her and the presence of crates marked "grenades" inside the house. Appellant stated he did not know Ms. Pupello and that the allegations were unfounded. He also denied that anyone named "Frank" was inside the house. The officers asked to see the boxes inside the house. Appellant informed the officers that there were some crates in the boathouse and invited them to look at them. After examining these crates, Detective Ferris asked to see the boxes inside the house. According to appellant, he was told by the officers that if permission was not granted, a search warrant would be obtained. Officers Ferris and Farnell denied that any such remark was made.

Farnell and Ferris testified that appellant invited them into his house to look at the crates. ¹ Appellant denied this and claimed that the officers followed him inside.

Once inside, the officers encountered two people, one of whom was Frank Orend. Detective Stafford observed a plastic baggie of marijuana on the living room coffee table. Another baggie of marijuana was discovered in one of the table's drawers. Appellant and Orend were then placed under arrest. A loaded .357 revolver was also observed and seized.

The house was secured by the officers and a search warrant was obtained. The search revealed a varied quantity of drugs, including cocaine, and additional firearms.

Appellant unsuccessfully moved to suppress the evidence obtained through the initial entry as well as the evidence obtained pursuant to the search warrant.

As to the initial entry, appellant claims it was without his free and voluntary consent. He argues that Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), wherein the Supreme Court held that a warrantless arrest in a suspect's home is unreasonable absent exigent circumstances, applies here. It is apparently appellant's position that the state's failure to submit the matter to a judicial officer for a determination of probable cause after it became aware of Ms. Pupello's allegations, renders the entry constitutionally invalid. Appellant misconstrues Payton which only forbids a warrantless entry into a suspect's home for the purpose of making a routine felony arrest. Payton, 100 S.Ct. at 1375. It in no way prohibits the police from visiting a suspect's home and requesting entry (which the suspect is free to deny) for the purposes of investigation. That is exactly what occurred here. In any event, Payton v. New York does not apply where the suspect consents to the police officer's entry of his house. Busch v. State, 392 So.2d 272 (Fla. 1st DCA 1981). This brings us to the real issue here which is whether appellant consented to the officers' entry of his home. If so, then any contraband seen in plain view could be seized. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

A warrantless entry is valid where consent is voluntarily and freely given. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Whether consent was freely and voluntarily given is determined from the totality of the circumstances and the burden is on the state to prove voluntariness. Id.; Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). To sustain its burden, the state must prove voluntary consent by clear and convincing evidence. Norman v. State, 379 So.2d 643 (Fla.1980); State v. Brown, 408 So.2d 846 (Fla. 2d DCA 1982). The state's burden is not satisfied by showing a mere submission to a claim of lawful authority. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

However, it should also be emphasized that consent is a matter to be determined by the trial judge and his finding will not be overturned if there is sufficient evidence to support it. Chesnut v. State, 404 So.2d 1064 (Fla.1981). See also Martin v. State, 411 So.2d 169 (Fla.1982).

In the instant case, there is sufficient evidence to support the trial court's conclusion that consent was voluntarily and freely given. There was no detention of appellant, only two requests for consent and, at best, conflicting evidence as to whether the officers threatened to obtain a search warrant. See Boykin v. State, 309 So.2d 211 (Fla. 1st DCA 1975) (ample testimony, albeit conflicting, supported trial court's conclusion that consent to search was given).

Appellant next contends that the affidavit for the search warrant was insufficient. Detective Stafford stated in the affidavit that he had observed "a plastic bag of a substance that the affiant recognized to be cannabis" and which he seized and identified as cannabis. Appellant contends this was insufficient because no foundation was asserted for the affiant's training or experience in working narcotics cases.

Generally, an affidavit in support of a search warrant for a private dwelling must show probable cause on its face. Churney v. State, 348 So.2d 395 (Fla. 3d DCA 1977). Search warrants must be supported by affidavits which state facts sufficient to permit an impartial magistrate to determine whether probable cause exists. Id. To be sufficient, the affidavit must state facts, not conclusions. Id.

However, affidavits for search warrants should not be scrutinized for technical niceties. State v. Heape, 369 So.2d 386 (Fla. 2d DCA 1979). Such affidavits should be tested and interpreted by magistrates and courts in a common-sense and realistic fashion since they are usually drafted by non-lawyers in the midst of a...