Husted v. StateHusted v. State
Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
Before HAVERFIELD, C.J., and PEARSON and SCHWARTZ, JJ.
SCHWARTZ, Judge.
Thе defendant pled nolo contendere below, reserving the right to appeal the denial of his motion to suppress the marijuana which formed the bаsis of the charge against him. The contraband was sеized by Dade County Public Safety Department officers at the Miami International Airport after Husted gave them permission to search his luggage. He contеnds here that his consent was irremedially “tainted” by the fаct that it was given after, as he contends and as thе trial judge found, the police unlawfully stopped him in thе airport concourse. See Taylor v. State, 355 So.2d 180 (Fla. 3d DCA 1978), cert. denied, 361 So.2d 835 (Fla. 1978) and cases cited.
We need nоt and specifically do not pass upon the issuе of whether the stop
“4. That the Dеfendant, in fact, freely and voluntarily consented to a search of his luggage after having been advisеd of his right to refuse said search.
5. That the consent given by the Defendant was not tainted by the initial unlawful stop.”
Thе factual conclusion that the officers specifically told Husted of his right to withhold his consent is fully suppоrted by the record. State v. Nova, 361 So.2d 411 (Fla. 1978); Rodriquez v. State, 189 So.2d 656 (Fla. 3d DCA 1966). And it is well-settled that the trier of faсt may properly find that such a warning breaks the connection with any prior illegal police aсtivity so as to render a subsequent consent un-“tainted,” unсoerced, and truly voluntary in character. As the court said in Bretti v. Wainwright, 439 F.2d 1042, 1045, 1046 (5th Cir.1971), cert. denied, 404 U.S. 943, 92 S.Ct. 293, 30 L.Ed.2d 257 (1971):
“We need not here decide whether thе arrest of appellant was legal or not, for, even if illegal, we think that the subsequent consent was untainted . ..”
* * * * * *
While warnings prior to a consensual search may not have the same indispensability as those required prior to a confession ... they do help ensure that the consent is free, voluntary, and untainted by thе arrest‘s possible illegality. In the instant case the presence of these warnings leads us to conсlude that any coercion flowing from the possiblе illegality of appellant‘s arrest was dissipatеd. We therefore hold that the evidence supрorts the conclusion that appellant voluntаrily consented to the search of his apartmеnt.”
Accord: St. John v. State, 363 So.2d 862 (Fla. 4th DCA 1978); Taylor v. State, supra, at 355 So.2d 180 (“Such an advisement by the officer given prior to the challenged consent might very well have broken the chain of presumptive coercion created by the prior illegal search; ...“); see Longo v. State, 157 Fla. 668, 26 So.2d 818 (1946); United States v. Fike, 449 F.2d 191 (5th Cir.1971). Sincе the denial of the motion to suppress was thus properly based upon the evidence and the applicable law, the judgment under review is
Affirmed.