273 So. 2d 128 | Fla. Dist. Ct. App. | 1973
Lead Opinion
The State brings this appeal from an order of the lower court suppressing certain evidence, to-wit, marijuana.
The lower court in its order held that there was no ground for stopping the vehicle operated by appellee in which the marijuana was found. We agree with the trial court in this conclusion.
The State argues, however, that a free and voluntary consent was given by the ap-pellee to the police authorities to search the automobile. The trial court held that the consent was not given freely and voluntarily “inasmuch as no prior warning was given defendant pursuant to the Miranda decision and related authority.”
In the recent case of State v. Spanierman, Fla.App.1972, 267 So.2d 102, this court in an opinion by Judge McNulty held:
“In any case, even if it be assumed that the officer had no right to stop the van under any theory, a valid search and subsequent seizure may nevertheless be predicated upon a free and voluntary consent; provided, however, that such consent was not obtained by the exploitation of any prior unlawful actions of the officer.3 A finding of a voluntary con-
“3. See, Wong Sun v. United States (1903), 371 U.S. 471, at p. 488, 83 S.Ct. 407, 9 L.Ed.2d 441. See, also, Davis v. California (9th Cir. 1965), 341 F.2d 982.
sent, therefore, might well have obviated any question of an illegal stopping or arrest.4
“4. See, Longo v. State (1946) [157 Fla. 668], 26 So.2d 818, and State v. Custer (Fla.App.1971), 251 So.2d 287.”
In Spanierman, supra, we remanded the cause to the trial court for a finding as to the voluntariness of the consent but precluded the court from finding that the consent was involuntary merely because the officer did not advise the defendant of his Fourth Amendment rights.
In view of Spanierman, supra, we remand this cause to the lower court for a determination as to the voluntariness of the consent and direct the trial court to proceed with his determination in accordance with the guidelines set out in Spanier-man, supra.
Reversed and remanded.
Dissenting Opinion
(dissenting).
This is a harmless error case if I ever saw one.
As time goes on the work load of this court increases, markedly impairing the precision of language with which we state the law. So it is with trial judges, and when a trial judge has reached the only result sustainable on the record, the ascription of a reason to the order which is not precisely correct should not furnish a basis for reversal. This was a patently unlawful arrest, based on hearsay not even offered as reliable, resulting in stopping a car for going down an alley, which is not alleged to be a crime anyhow. The car’s occupants were arrested for loitering, which they weren’t doing and which any policeman who has read the newspapers knows is now a patently phony charge unsustainable in court.
. See Papachristou et al. v. City of Jacksonville, 1972, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110.
. See Judge Hobson’s opinion in Talavera v. State, Fla.App.2d 1966, 186 So.2d 811.
. See Holmes v. State, Fla.App.2d 1972, 256 So.2d 32, aff’d Fla., 273 So.2d 753 (1972); Nell v. State, Fla.App.2d 1972, 266 So.2d 404.
