THE STATE OF FLORIDA, APPELLANT,
v.
GARY SHULAR, APPELLEE
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The State appeals the suppression of a juvenile defendant's confession and dismissal of charges. The appellate court reverses, holding that the confession was admissible because any taint from the arrest was purged through adequate parental contact and attorney consultation before the statement was voluntarily made.
The court reversed, holding that any taint from the arrest was sufficiently attenuated by the opportunity for Shular to meet alone with his parents for over an hour and to consult with his attorney before making the statement. The court also reversed the dismissal order because the State filed a sworn traverse denying the material factual matters in Shular's sworn motion to dismiss.
[1] A confession following an unlawful arrest is admissible if the state proves the confession was not caused by the unlawful arrest.
[2] The causal connection between an arrest and a subsequent statement may be sufficiently attenuated to purge any taint from the arrest.
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Join FLexlaw to unlock all legal intelligence“When a confession follows an unlawful arrest, the state must prove that the confession was not caused by the unlawful arrest.”
Establishes the burden of proof on the State when a confession follows an unlawful arrest
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Join FLexlaw to unlock all legal intelligenceOfficer Askew pursued a gray Toyota and collapsed from a heart attack during or after the chase. Officer Orrett found Askew walking with defendant Gar…
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PER CURIAM.
The State appeals from orders of the circuit court suppressing inculpatory statements and dismissing an information. We reverse.
Responding to a radio report that Officer William Askew was involved in the chase of grey Toyota, Officer Charles Orrett arrived at the described location and saw Officer Askew’s car in the middle of the street and a small car resting against a fence. Orrett also observed Askew walking toward his vehicle with the defendant, appellee Gary Shular. Officer Askew then collapsed with a heart attack and died a short while later.1
Schular was given Miranda warnings and taken to the Public Safety Department Building. After ascertaining that Schular was a juvenile, an officer called Schular’s parents and told them they could come to the police station. Schular spoke with his parents for about one to one and one-half hours. The public defender arrived and very shortly thereafter Detective Roadruck advised Schular, his parents, and his attorney that Schular had to be fingerprinted before being transferred to Youth Hall. As Roadruck was taking Schular to be fingerprinted, Schular started to cry, said he was sorry, that he had not meant for the policeman to die and that he had only taken the car because he did not want to walk home. The trial court granted Schular’s motion to suppress the statement made to Detective Roadruck.
When a confession follows an unlawful arrest, the state must prove that the confession was not caused by the unlawful arrest. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed. 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). If the taint of the original illegal activity is purged, the evidence may be admissible. See, e. g., United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Wimberly v. State, 393 So. 2d 37 (Fla. 3d DCA 1981); State v. Maier, 378 So. 2d 1288 (Fla. 3d DCA 1979).
Applying the totality of circumstances test of Brown, supra, we find the causal connection between the arrest and statement sufficiently attenuated as to purge any taint from the arrest. On this record there appears no flagrant police misconduct. There is no evidence that Schular was threatened or subjected to lengthy or repetitive interrogation or that he was overwhelmed by his surroundings. Subsequent to the arrest and prior to volunteering the statement, Schular met alone with his parents for over an hour and spoke with his attorney. Under these circumstances, we hold that it was error to suppress Schu-lar’s statement to Detective Roadruck.
We also find error in granting Schu-lar’s motion to dismiss pursuant to Florida Rules of Criminal Procedure 3.190(c)(4) where the state had filed a sworn traverse specifically denying material factual matters related in the sworn motion to dismiss. Fla.R.Crim.P. 3.190(d). State v. Power, 369 So. 2d 96 (Fla. 2d DCA 1979); State v. Cook, 354 So. 2d 909 (Fla. 2d DCA 1978); State v. Whitehead, 353 So. 2d 900 (Fla. 3d DCA 1977); Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA 1977), cert. denied, 352 So. 2d 175 (Fla.1977).
Reversed and remanded for further proceedings consistent with this opinion.
. Since Askew died without communicating the reasons for Schular’s arrest, the trial court found the arrest without probable cause. The state did not contest the court’s finding by this appeal.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Thomas, 405 So. 2d 462 (Fla. 3d DCA 1981)…ausally tainted by the Payton violation, or, in terms of the Florida Constitution, that it was not “obtained in violation” of Thomas’ right to be secure from an unreasonable seizure. It should therefore not have been suppressed. See State v. Shular, 400 So. 2d 781 (Fla. 3d DCA 1981) (unlawful arrest does not require suppression of subsequent confession when taint is dissipated by intervening events); State v. Barry, 86 N.J. 80, 429 A. 2d 581 (1981) (same); People v. Rogers, 52 N.Y.2d 527, 439 N.Y.S.2d 96, 421…
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Leon v. State, 410 So. 2d 201 (Fla. 3d DCA 1982)…red “free of the primary taint” and thus admissible into evidence as the expression of a free and voluntary act. E.g., Lyons v. Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481 (1944); State v. Oyarzo, 274 So. 2d 519 (Fla.1973); State v. Shular, 400 So. 2d 781 (Fla. 3d DCA 1981). We hold that the trial judge properly found that the threats and violence which took place at the scene of the arrest did not constitutionally infect the later confessions and that this rule is therefore applicable here. In reac…
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Lightsey v. State, 413 So. 2d 842 (Fla. 3d DCA 1982)…PER CURIAM. Affirmed. State v. Shular, 400 So. 2d 781 (Fla.3d DCA 1981); State v. F.E.J., 399 So. 2d 47 (Fla.5th DCA 1981); Gerrard v. State, 345 So. 2d 849 (Fla.3d DCA 1977); Ponder v. State, 323 So. 2d 296 (Fla.3d DCA 1975); State v. Mullin, 286 So. 2d 36 (Fla.3d DCA 1973); United States v. Watson, 4…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Wong SUN v. United States, 371 U.S. 471 (U.S. 1963)
- Dunaway v. New York, 442 U.S. 200 (U.S. 1979)
- Brown v. Illinois, 422 U.S. 590 (U.S. 1975)
- Nardone v. United States, 308 U.S. 338 (U.S. 1939)
- United States v. Ceccolini, 435 U.S. 268 (U.S. 1978)
- Ellis v. State, 346 So. 2d 1044 (Fla. 1st DCA 1977)
- State v. Cook, 354 So. 2d 909 (Fla. 2d DCA 1978)
- The Sch. Bd. OF Pinellas Cnty. v. State of Fla. Pub. Emps. Relations Comm'n & Pinellas Cnty. Custodial Union No. 1221 of the Int'l Bhd. of Firemen & Oilers, 354 So. 2d 909 (Fla. 2d DCA 1978)
- Bialowas v. Nat'l R.R. Passenger Corp., 378 So. 2d 1288 (Fla. 3d DCA 1979)
- State v. Maier, 378 So. 2d 1288 (Fla. 3d DCA 1979)