HERNAN PEREZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1988-12-27
No. 88-169
Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
536 So. 2d 359 Florida District Court of Appeal, Third District (1988) Positive Treatment
Cited by 23 cases

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Synopsis

Perez appealed his cocaine possession conviction, challenging whether a warrantless vehicle search was based on valid voluntary consent. The Florida appellate court affirmed, finding the trial court properly weighed conflicting testimony on consent and deferred to its credibility determinations.


Holding

The trial court's finding that Perez gave voluntary and intelligent consent is supported by the record and should not be reversed on appeal, as it represents a credibility determination that is the exclusive province of the trial court.


Headnotes

[1] A trial court's ruling on a motion to suppress is presumed correct on appeal and should not be substituted with the appellate court's judgment.

[2] Appellate courts must defer to a trial court's findings of fact and credibility determinations when reviewing a motion to suppress.

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Key Quotes

“the ruling comes to the appellate court with a presumption of correctness and a reviewing court should not substitute its judgment for that of a trial court, but, rather, should defer to the trial court's authority as a factfinder”

Establishes the deferential standard of review applicable to trial court findings on suppression motions

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Facts & Procedural History

Perez was stopped following surveillance of suspicious activities in a shopping center. An officer claimed Perez verbally consented to a narcotics sea…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

One point raised in this appeal from a conviction for possession of cocaine merits discussion: whether the warrantless search of a vehicle was based on a valid and voluntary consent. We conclude that there is no basis in the record to reverse the trial court’s finding that the defendant gave a voluntary and intelligent consent.

The defendant, Perez, was stopped following a lengthy surveillance of suspicious activities1 in a busy Kendall shopping center. He readily produced a driver’s license upon request. The facts after that point are disputed. The officer contends that he told Perez that he was conducting a narcotics investigation and that Perez verbally agreed to a search and opened the trunk of the automobile without a specific request to do so.

When presented with a consent to search form which explained that consent could be withheld, the defendant replied that “on the advice of counsel” he would not sign anything. Otherwise there was no withdrawal of, or limitation placed on, the already given verbal consent. The officer unzipped the portfolio case which the defendant had placed under the front passenger seat and discovered two clear cellophane-wrapped kilos of cocaine.

At the hearing on the motion to suppress Perez testified that although he was cooperative he did not verbally consent to a search and that the officer conducted the search after he refused to sign a consent to search form.

In resolving the dispute the trial court was required to consider all the facts and circumstances and to weigh the credibility of the witnesses. The settled law governing review of a trial court’s decision on a motion to suppress is that the ruling comes to the appellate court with a presumption of correctness and a reviewing court should not substitute its judgment for that of a trial court, but, rather, should defer to the trial court’s authority as a factfinder. Wasko v. State, 505 So. 2d 1314, 1316 (Fla.1987); DeConingh v. State, 433 So. 2d 501 (Fla.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984); Rodriguez v. State, 189 So. 2d 656 (Fla. 3d DCA 1966), cert. denied, 389 U.S. 848, 88 S.Ct. 66, 19 L.Ed.2d 116 (1967). Review of the record shows that the case was based on sharply conflicting testimony on the consent question,2 which was solely for the trial judge and then the jury — not this court — to resolve. Tibbs v. State, 397 So. 2d 1120 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

AFFIRMED.

SCHWARTZ, C.J., and FERGUSON, J., concur. . An undercover officer in a pickup truck was surveilling a shopping center at Kendall Drive and Southwest 117th Avenue when he saw a Latin male (not the defendant) make and receive several phone calls, in a 10-15 minute span, at a pay phone outside a convenience food store. Upon completing the last call the subject walked to his car, entered, drove around the lot twice, then parked the car against the curb with the engine running.

Several minutes later, as the officer watched, the defendant approached the parked car, got in, and talked as the car was driven around the lot. When the car stopped the defendant, who had entered the car empty-handed, exited with a portfolio-type briefcase. He walked over to an old automobile, opened the passenger door, placed the case partly under the seat, and slid across to the driver seat.

. We do not say, contrary to what is said in the concurring opinion, that the initial stop was justified. It is not necessary to reach that question.

Concurrence
BASKIN, Judge

BASKIN, Judge

(specially concurring).

Unlike the majority, I find there was an absence of justification for an investigatory stop. The facts of this case closely approximate the circumstances contained in our recent opinion in Alberty v. State, 536 So. 2d 283 (Fla. 3d DCA 1988). Here, as there, while surveilling a shopping center at Kendall Drive and S.W. 117th Avenue, the officer saw a Latin male (not the defendant) use a pay phone several times, drive a car through the shopping center parking lot, and park the car at a curb. Shortly after these events, defendant Perez waved at the man and entered the car. The two men drove around the parking lot for several minutes before Perez emerged from the car with a portfolio and drove away in his own car. Defendant’s actions do not give rise to a well-founded suspicion of criminal activity, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Coladonato v. State, 348 So. 2d 326 (Fla.1977); State v. Contraras, 512 So. 2d 339 (Fla. 3d DCA 1987), and the unlawful stop tainted the subsequent search. Here, however, unlike Alberty, the taint of the unlawful search was dissipated by the ensuing proceedings. “Any taint which may arise from even an unlawful prior seizure of the defendant’s person is dissipated as a matter of law when he is advised of his constitutional right to refuse consent to search and nevertheless voluntarily does so.” State v. Gribeiro, 513 So. 2d 1323, 1324 (Fla. 3d DCA 1987).

The record shows that defendant Perez was given a consent form which advised him that he could refuse consent for the search, and the police officer testified that defendant appeared to read the form. Although the evidence is conflicting concerning whether defendant consented to the search of his vehicle, we must resolve conflicts in favor of the trial court’s ruling. Substantial competent evidence supports the trial court’s decision. Tibbs v. State, 397 So. 2d 1120 (Fla.1981). Consequently, I would hold that the taint of the unlawful stop was purged, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 2d 441 (1963), and would affirm the denial of the motion to suppress.


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Citator

Cited By (12 total)

  • State v. Scott, 641 So. 2d 517 (Fla. 3d DCA 1994)
    …and reasonable inferences and deductions derived therefrom in a manner most favorable to sustain the trial court’s ruling.” McNamara v. State, 357 So. 2d 410, 412 (Fla.1978); Gilbert v. State, 629 So. 2d 957, 958 (Fla. 3d DCA 1993); Perez v. State, 536 So. 2d 359 (Fla. 3d DCA 1988). Applying that principle, I would affirm the trial court’s order.1 . The lack of reasonable suspicion to justify the stop necessarily demonstrates a lack of probable cause to arrest.…
  • Freddy Andrade v. State, 564 So. 2d 238 (Fla. 3d DCA 1990)
    …ntarily given and were unrelated to the physical and verbal abuse which the defendant previously received at the hands of the police officers from another police department who did not participate in the subject police interrogation. Perez v. State, 536 So. 2d 359, 360 (Fla. 3d DCA 1988); Leon v. State, 410 So. 2d 201, 203 (Fla. 3d DCA), rev. denied, 417 So. 2d 329 (Fla.1982). Second, the trial court did not, as urged, commit reversible error in excusing a juror during trial and in replacing the said juror…
  • Domanico v. State, 660 So. 2d 393 (Fla. 5th DCA 1995)
    …PER CURIAM. AFFIRMED. Harvey v. State, 502 So. 2d 1305 (Fla. 1st DCA 1987); Perez v. State, 536 So. 2d 359 (Fla. 3d DCA 1988). PETERSON, C.J., COBB and W. SHARP, JJ., concur.…

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