STATE OF FLORIDA, APPELLANT,
v.
ANDRE JEROME, APPELLEE
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The court held that the trial court's finding that consent to search was submission to apparent police authority was not supported by a preponderance of the evidence, even though the trial court applied an incorrect standard.
The trial court granted a motion to suppress evidence obtained from a "bus-stop" search, finding that the defendant's consent was given only in submis…
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PER CURIAM.
The trial court granted a motion to suppress the fruits of a “bus-stop” search. We affirm. The issue below, and therefore here, was whether appellee’s consent to the search was voluntary. We have previously held that such a search is not per se impermissible under the fourth amendment. State v. Avery, 531 So. 2d 182 (Fla. 4th DCA 1988). Thus, the voluntariness of a consent under the circumstances is a question of fact to be determined by the trial court from the totality of all of the attendant circumstances. Denehy v. State, 400 So. 2d 1216 (Fla.1980). Consent is not voluntary if it is made only in submission to apparent police authority. See Hunter v. State, 518 So. 2d 304 (Fla. 4th DCA 1988).
An inquiry into the voluntary character of consent to search should include all the surrounding circumstances, the conduct of the police officers and the ability of the particular defendant to understand and rationally respond to the request for consent. Alvarez v. State, 515 So. 2d 286 (Fla. 4th DCA 1987).
There was a specific finding by the trial court “that the consent given by the defendant was in fact only submission to apparent police authority.” While the court applied an incorrect standard in weighing the evidence, we are satisfied that the voluntariness of the consent to search was not supported by a preponderance of the evidence, which is the standard that should have been applied. See Denehy, 400 So. 2d at 1217.
Accordingly, we affirm the order on appeal.
HERSEY, C.J., and ANSTEAD and WALDEN, JJ., concur.
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Norris Allen West v. State, 588 So. 2d 248 (Fla. 4th DCA 1991)…of proving that the consent was in fact freely and voluntarily given. Norman v. State, 379 So. 2d 643, 646 (Fla.1980). The voluntariness of a defendant’s consent to search is to be determined from the totality of the circumstances. State v. Jerome, 541 So. 2d 756 (Fla. 4th DCA 1989). Under ordinary circumstances, where there is no antecedent police misconduct, a consent to search need be shown only by a preponderance of the evidence. Elsleger v. State, 503 So. 2d 1367, 1369 (Fla. 4th DCA), cause dismissed, 5…
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State v. Schreiber, 835 So. 2d 344 (Fla. 4th DCA 2003)…rder granting Schreiber’s motion to suppress the January 5, 2001 test results is affirmed. We find no error in the lower court’s findings Schreiber’s consent was not knowing and voluntary under the totality of the circumstances. See State v. Jerome, 541 So. 2d 756, 757 (Fla. 4th DCA 1989). Furthermore, we hold Officer Seltzer lacked authority to compel Schreiber’s blood pursuant to section 316.1933(1), where the only injury resulting from the accident was Schreiber’s two fractured ankles, from which she fully…
Authorities Cited
- Denehy v. State, 400 So. 2d 1216 (Fla. 1980)
- State v. Avery, 531 So. 2d 182 (Fla. 4th DCA 1988)
- Alvarez v. State, 515 So. 2d 286 (Fla. 4th DCA 1987)
- Charles Sales Corp. & Aetna Cas. & Sur. Co. v. Filmore, 518 So. 2d 304 (Fla. 1st DCA 1987)