THE STATE OF FLORIDA, APPELLANT,
v.
HUMBERTO E. DIAZ, APPELLEE

Fla. 3d DCA | 1989-10-03
No. 88-2875
Before SCHWARTZ, C.J., and BASKIN and COPE, JJ.
549 So. 2d 759 Florida District Court of Appeal, Third District (1989) Positive Treatment
Cited by 6 cases

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Holding

The court held that the trial court erred in suppressing evidence and statements because consent to enter was voluntary, and subsequent discovery of contraband provided probable cause.


Headnotes

[1] Police officers are not required to inform a person of their right to refuse consent to a search as a prerequisite to obtaining valid consent.

[2] Disclosure of the purpose of a search is not a prerequisite to obtaining consent; the voluntariness of consent is determined by the totality of the circumstances.

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Facts & Procedural History

Police investigated a possible drug transaction and were invited into the defendant's apartment by the defendant, who did not speak English but commun…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The State appeals the granting of defendant’s motion to suppress evidence seized by the police, as well as confessions, admissions, and statements made following his arrest. We reverse.

Two police officers were dispatched to investigate a possible drug transaction taking place in defendant’s apartment. The defendant answered the door. Because the defendant did not speak English, a Spanish-speaking officer interpreted the conversation. The officers asked if anyone else was in the apartment, and the defendant answered that his wife and children were. The defendant then asked if the officers wanted to come inside to “check them out.” The defendant opened the door and gestured for the officers to enter. Once the officers were inside, the defendant became nervous, went to a living room table and picked up a handgun, and attempted to place it in an adjacent closet. He also attempted to cover a business card lying on the table having on it what appeared to be rock cocaine. The officers seized the weapon for their own protection. When they moved defendant away from the closet, they saw more cocaine, drug paraphernalia, and a large amount of money. The officers read defendant his Miranda1 rights in Spanish and the defendant made several incriminating statements.

The trial court granted the motion to suppress the evidence and statements. The court reasoned that the officers were obliged to disclose the reason they had come to the apartment, namely, to investigate a possible drug transaction, so that the defendant’s consent was a fully informed one. The court concluded that an extra measure of care must be observed when dealing with persons who are not English-speaking.

As to the first point, it is settled that the police need not advise a person that he or she has the right to refuse to consent to a search, Schneckloth v. Bustamonte, 412 U.S. 218, 134, 93 S.Ct. 2041, 2051, 36 L.Ed.2d 854 (1973), nor must it be shown that the person independently had knowledge of the right to refuse consent. Finney v. State, 420 So. 2d 639, 643 (Fla. 3d DCA 1982). Such a warning or such knowledge can, of course, be taken into account as one factor in determining whether consent was freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. at 248-49, 93 S.Ct. at 2059, 36 L.Ed.2d 854; see 3 W. LaFave, Search and Seizure, § 8.2(0 (2d ed. 1987).

Likewise, the police officers need not disclose the purpose of a search as a prerequisite to obtaining consent. It is true, as the trial court suggested, that in many cases officers do disclose their exact purpose, and that such a disclosure can be taken into account on the issue of voluntariness, but disclosure of the purpose of the search is not a prerequisite to obtaining a consent. The test remains one of voluntariness under the totality of the circumstances. Schneckloth, 412 U.S. at 249-50, 93 S.Ct. at 2059, 36 L.Ed.2d 854. In the present case, the defendant invited the officers to come in and “check them out” before the officers even asked for permission to enter. Under the circumstances, there was a consent to entry by the officers.

As to the second point, the fact that a person does not speak English is a factor which can be taken into account in determining the voluntariness of the consent. That factor would come into play where the individual and the police are unable to communicate. Here, however, the Spanish-speaking officer communicated with the Spanish-speaking defendant and the entry was consensual. See Byrd v. State, 481 So. 2d 468, 472 (Fla.1985), cert. denied, 476 U.S. 1153, 106 S.Ct. 2261, 90 L.Ed.2d 705 (1986). The present case thus differs from such cases as Restrepo v. State, 438 So. 2d 76 (Fla. 3d DCA 1983), Acosta v. State, 519 So. 2d 658 (Fla. 1st DCA), review denied, 529 So. 2d 695 (Fla. 1988), and Palacios v. State, 434 So. 2d 1031 (Fla. 1st DCA 1983), in which there was a failure of communication.

The defendant urges that Garcia v. State, 186 So. 2d 556 (Fla. 3d DCA 1966) compels affirmance. The police officer in that case informed defendant that his home could not be searched without his consent. That was one factor which could appropriately be considered on the issue of voluntariness, but was not dispositive. The dis-positive issue in that case was that “appellant’s ignorance of the English language caused him no difficulty,” as he communicated with a bilingual police officer on the issue of consent. Id. at 557.

Once the police officers were inside the house, they saw objects in plain view — the handgun, the rock cocaine, and the contraband in the open closet — which provided probable cause to arrest the defendant. See Coolidge v. New Hampshire, 403 U.S. 443, 464-66, 91 S.Ct. 2022, 2037-38, 29 L.Ed.2d 564 (1971). The post-arrest statements were made by the defendant after proper Miranda warnings. The motion to suppress should have been denied.

Reversed.

. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


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Citator

Cited By

  • Garrett Jones v. State, 658 So. 2d 178 (Fla. 1st DCA 1995)
    …ether a reasonable person would have believed he was not free to leave. State v. Daniels, 576 So. 2d 819, 822 (Fla. 4th DCA 1991). Deputy Spurlock was not required to tell appellant that he had a right to refuse the request to search. State v. Diaz, 549 So. 2d 759, 760-61 (Fla. 3d DCA 1989), rev. denied, 560 So. 2d 232 (Fla.1990). In this case, competent and substantial evidence supports the trial court’s finding that no indicia of coercion are present. Deputy Spurlock did not display a badge, pull a gun, or…
  • Stubbs v. State, 661 So. 2d 1268 (Fla. 5th DCA 1995)
    …er to support a finding of voluntary consent. Schneckloth v. Bustamante, 412 U.S. 218, 234, 93 S.Ct. 2041, 2051, 36 L.Ed.2d 854 (1973); Nosey v. State, 627 So. 2d 1289, 1291 (Fla. 5th DCA 1993), rev. denied, 639 So. 2d 978 (Fla.1994); State v. Diaz, 549 So. 2d 759, 760-61 (Fla. 3d DCA 1989), rev. denied, 560 So. 2d 232 (Fla.1990). Accordingly, the fact that the officers did not advise Stubbs of his right to refuse consent to a search of his luggage does not render his consent involuntary. Lastly, although St…
  • Monnit Louis v. State, 567 So. 2d 38 (Fla. 3d DCA 1990)
    …cocaine. While being transported to the police station, the defendant confessed in English. When the State relies upon consent to justify a search, it has the burden of proving that the consent was voluntarily and freely given. See State v. Diaz, 549 So. 2d 759 (Fla. 3d DCA 1989), review denied, 560 So. 2d 232 (Fla.1990); State v. Santamaria, 464 So. 2d 197 (Fla. 3d DCA 1985); Restrepo v. State, 438 So. 2d 76 (Fla. 3d DCA 1983). In determining whether the consent was voluntary, the totality of the circumst…

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