LOUIS GHELFI, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ghelfi appealed the denial of his motion to vacate judgment and sentence, challenging the legality of his arrest and the validity of the search and seizure that followed. The Florida appellate court affirmed the trial court's findings that probable cause existed for the arrest and that consent was validly given for the search.
The court upheld the trial judge's findings that probable cause existed for the arrest and that valid consent was given for the search, rejecting Ghelfi's argument that his constitutional rights were violated.
“The fact that a person is in custody or under arrest "does not in and of itself deprive his consent of the free and voluntary quality which is essential."”
Establishes that custodial status alone does not invalidate consent to search
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Join FLexlaw to unlock all legal intelligenceGhelfi was arrested and a subsequent search was conducted. Ghelfi testified he never gave consent for the search, while an officer testified that cons…
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Appeal from an order denying a motion to vacate judgment and sentence pursuant to Rule 1.850, “CrPR”, 33 F.S.A. after a full evidentiary hearing.
Appellant, Ghelfi, challenges the legality of his arrest and the validity of the subsequent search and seizure of certain evidence. He urges that his constitutional rights were violated by the allegedly illegal arrest and search and seizure.
In a case involving the same issues generally, this court determined on essentially the same set of facts that the arrest of a co-defendant, Bretti, was based on probable cause and that the search therein was made with -consent. Bretti v. State, Fla.App.1966, 192 So.2d 6.
Ghelfi testified that he never gave consent for a search. The testimony of one of the officers was that consent was given. The conflict in testimony was resolved by the trial judge in favor of the officer. See Slater v. State, Fla.1956, 90 So.2d 453; Johnson v. State, 157 Fla. 685, 27 So.2d 276 (1946); and Myrick v. State, Fla.App.1965, 177 So.2d 845.
The fact that a person is in custody or under arrest “does not in and of itself deprive his consent of the free and voluntary quality which is essential.” Rinehart v. State, Fla.App.1959, 114 So.2d 487, cert. dismissed, Fla.1960, 121 So.2d 654, cert. denied 365 U.S. 849, 81 S.Ct. 812, 5 L.Ed.2d 813 (1961); accord, United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140 (1944); and Bretti v. State, supra.
We uphold the finding of the trial judge that there was probable cause to make the arrest and that there was consent given for the subsequent search. Cf. Bretti, supra.
Ghelfi also argues that the state failed to comply with the requirements of § 901.-23, Fla.Stat., F.S.A.
We find no assignment of error directed to the point that the state violated the statutory requirements of § 901.-23, Fla.Stat., F.S.A., and find no allegation in the Rule 1.850 motion that the state violated any rights or duties under that statute. Cf. Palmieri v. State, Fla.1967, 198 So.2d 633, cert. dismissed, 89 *595S.Ct. 440, 393 U.S. 218, 21 L.Ed.2d 389 (1968).
For these reasons the order denying defendant’s Rule 1.850 motion be and the same is hereby
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bailey v. State, 319 So. 2d 22 (Fla. 1975)…instances in which a valid consent can be given after an illegal arrest. We agree with the Appellate Court that voluntariness of consent is to be determined from a consideration of the totality of the circumstances. Ghelfi v. State, (Fla.App.1969) 229 So. 2d 593. There may be a few rare instances in [*28] which a valid consent could be made after an illegal arrest, provided that circumstances were so strong, clear and convincing as to remove any doubt of a truly voluntary waiver. However, ordinarily consent…
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Bailey v. State, 295 So. 2d 133 (Fla. 4th DCA 1974)…s to the voluntariness of a consent is a question to be determined from the totality of all the circumstances and a question of fact to be determined by the trial court. State v. Hysell, Fla.App. 1973, 281 So. 2d 417; Ghelfi v. State, Fla. App.1969, 229 So. 2d 593. Particularly where there is a conflict in testimony, such conflict must be resolved by the trial court which in this instance was in favor of the arresting officer. See Ghelfi v. State, supra. The difficulty in disposing of the problem of consent…
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Ghelfi v. State, 237 So. 2d 538 (Fla. 1970)…Certiorari denied without opinion. 229 So. 2d 593.…
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 (11 total)
- United States v. Mitchell, 322 U.S. 65 (U.S. 1944)
- Johnson v. State, 157 Fla. 685 (Fla. 1946)
- Rinehart v. State, 114 So. 2d 487 (Fla. 2d DCA 1959)
- McArthur Myrick v. State, 177 So. 2d 845 (Fla. 1st DCA 1965)
- Carmine Vincent Palmieri v. State, 198 So. 2d 633 (Fla. 1967)
- Palmieri v. Florida, 393 U.S. 218 (U.S. 1968)
- Slater v. State, 90 So. 2d 453 (Fla. 1956)
- Bretti v. State, 192 So. 2d 6 (Fla. 3d DCA 1966)
- Rinehart v. State, 121 So. 2d 654 (Fla. 1960)
- Pravato v. United States, 365 U.S. 849 (U.S. 1961)