STATE OF FLORIDA, APPELLANT,
v.
PHYLLIS O. BLAN, APPELLEE
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The Florida Court of Appeal reversed a trial court's suppression order, holding that the trial court applied an incorrect legal standard when evaluating whether a defendant voluntarily consented to a vehicle search. The court clarified that consent must be shown by a preponderance of the evidence under ordinary circumstances, not by clear and convincing proof unless there is antecedent police misconduct.
Under ordinary circumstances where there is no antecedent police misconduct, consent to search need only be shown by a preponderance of the evidence. The clear and convincing standard applies only when there is prior police misconduct that presumptively taints the consent.
[1] Under ordinary circumstances, the voluntariness of consent to search must be established by a preponderance of the evidence.
[2] In cases involving antecedent police misconduct, consent to search may be held voluntary only if the taint is dissipated by a break in the chain of illegality, shown by c…
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Join FLexlaw to unlock all legal intelligence“under ordinary circumstances where there is no antecedent police misconduct a consent to search need be shown only by a preponderance of the evidence”
Establishes the correct standard of proof for voluntary consent absent police misconduct
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Join FLexlaw to unlock all legal intelligenceAt a suppression hearing, the state presented testimony to establish that the defendant voluntarily consented to a search of her vehicle. After hearin…
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WENTWORTH, Judge.
The state seeks review of an order by which the trial court granted appellee’s motion to suppress evidence. We find that the court applied an improper standard of proof, and we therefore reverse the order appealed.
At the suppression hearing the state attempted to establish that appellee voluntarily consented to a search of her vehicle. After the court received testimony the parties presented argument as to the appropriate standard of proof. Appellee asserted that the state must show consent by “clear and convincing” proof; the state asserted that the proper standard is a “preponderance of the evidence.” The court applied the standard espoused by appellee, stating:
I think that’s what the standard is. The motion is granted. I don’t think its been established by clear and convincing evidence that the consent was freely and voluntarily given.
The order granting suppression reiterated the “clear and convincing” standard.
In Norman v. State, 379 So. 2d 643 (Fla.1980), the Florida Supreme Court addressed the circumstance of a defendant’s consent to search after unlawful police activity. Norman indicates that such police action presumptively taints the subsequent consent, so that the consent will be held voluntary only if the taint is dissipated by a break in the chain of illegality, shown by clear and convincing proof. See also, Bailey v. State, 319 So. 2d 22 (Fla.1975). However, as indicated by Denehy v. State, 400 So. 2d 1216 (Fla.1981), under ordinary circumstances where there is no antecedent police misconduct a consent to search need be shown only by a preponderance of the evidence. See also, State v. Fuksman, 468 So. 2d 1067 (Fla. 3d DCA 1985); compare Palacios v. State, 434 So. 2d 1031 (Fla. 1st DCA 1983), with Wilson v. State, 470 So. 2d 1 (Fla. 1st DCA 1984).
In the present case the court did not find any antecedent police misconduct, errone ously assuming that clear and convincing proof is the usual standard with regard to consent determinations. This does not accord with the Supreme Court’s pronouncement in Denehy, supra, and the cause thus must be remanded for application of the proper standard after consideration by the trial court as to whether antecedent police misconduct was involved.
The order appealed is reversed and the cause remanded.
MILLS and NIMMONS, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bostick v. State, 554 So. 2d 1153 (Fla. 1989)…mphasis added). Accord Bailey v. State, 319 So. 2d 22 (Fla.1975); State v. Martin, 532 So. 2d 95 (Fla. 4th DCA 1988); Alvarez, 515 So. 2d at 286; Elsleger v. State, 503 So. 2d 1367 (Fla. 4th DCA), dismissed, 511 So. 2d 298 (Fla.1987); State v. Blan, 489 So. 2d 865 (Fla. 1st DCA 1986); Harris v. State, 483 So. 2d 111 (Fla. 2d DCA 1986); Tennyson v. State, 469 So. 2d 133 (Fla. 5th DCA 1985). No such clear and convincing proof exists upon this record. Indeed, the trial judge expressed his own belief that he cons…
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Gonzalez v. State, 578 So. 2d 729 (Fla. 3d DCA 1991)…d DCA 1985) (Pearson, J. and Schwartz, C.J., concurring); Jordan v. State, 544 So. 2d 1073, 1074 (Fla. 2d DCA 1989); State v. Martin, 532 So. 2d 95, 96-97 (Fla. 4th DCA 1988); Alvarez v. State, 515 So. 2d 286, 288 (Fla. 4th DCA 1987); State v. Blan, 489 So. 2d 865 (Fla. 1st DCA 1986). .We have not overlooked the fact that such advice is contained in the written consent form itself, but there is no showing whatever that this written advice was ever read to or by the defendant prior to signing the form. Indeed…
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State v. Avery, 531 So. 2d 182 (Fla. 4th DCA 1988)…a preponderance of the evidence. See generally Denehy v. State, 400 So. 2d 1216 (Fla.1980); Alvarez v. State, 515 So. 2d 286 (Fla. 4th DCA 1987); Elsleger v. State, 503 So. 2d 1367 (Fla. 4th DCA), dismissed, 511 So. 2d 298 (Fla.1987); State v. Blan, 489 So. 2d 865 (Fla. 1st DCA 1986); State v. Fuksman, 468 So. 2d 1067 (Fla. 3d DCA 1985). See also Rodriguez v. State, 519 So. 2d 1079 (Fla. 1st DCA 1988); Acosta v. State, 519 So. 2d 658, 661 n. 2 (Fla. 1st DCA 1988). However, the issue in this case is not what s…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Norman v. State, 379 So. 2d 643 (Fla. 1980)
- Bailey v. State, 319 So. 2d 22 (Fla. 1975)
- Denehy v. State, 400 So. 2d 1216 (Fla. 1980)
- State v. Fuksman, 468 So. 2d 1067 (Fla. 3d DCA 1985)
- Palacios v. State, 434 So. 2d 1031 (Fla. 1st DCA 1983)
- Wilson v. State, 470 So. 2d 1 (Fla. 1st DCA 1984)