concluding that there is no confrontation right and, consequently, Crawford does not apply to a pretrial suppression hearing
How later courts described this case
- concluding that there is no confrontation right and, consequently, Crawford does not apply to a pretrial suppression hearing
- concluding that Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), did not intend to apply the confrontation right to pretrial hearings because "[t]he Sixth Amendment right to confrontation is a trial right"
- holding criminal defendant’s pre-trial suppression hearing was not a critical stage of criminal proceeding
- reiterating that the “right to confrontation is a trial right, which does not apply to pretrial suppression hearings”
Written by the judges who cited it.
The opinion
SANDSTROM, Justice,
concurring specially.
[¶ 36] I agree with the majority that Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), does not apply to preliminary hearings. I write separately to note that an utterance of a consent to search is a verbal act, and is not hearsay.
[¶ 37] “A verbal act is an utterance of an operative fact that gives rise to legal consequences.” 5 Weinstein’s Federal Evidence § 801.11[3] (2d ed.2006).
[¶ 38] In U.S. v. Moreno, 233 F.3d 937, 940 (7th Cir.2000), holding that the “utterance of consent to the search, and [the] subsequent retraction, amount to verbal acts, and as such are not inadmissible hearsay,” the court explained:
Moreno’s appeal focuses on the admission of testimony regarding Evaristo Moreno’s initial consent to the search of their home and the withdrawal of that consent upon the heels of her yelled remark to him. She contends that Evaristo’s out-of-court statements constitute hearsay, so that it was improper for the government to elicit his change of heart about the search, in conjunction with her own shouted comment to him, as proof of her knowledge that the home contained narcotics.
We agree with the government that Mr. Moreno’s utterance of consent to the search, and his subsequent retraction, amount to verbal acts, and as such are not inadmissible hearsay. Like the classic examples of verbal acts, offer and acceptance, see Hydrite Chem. Co. v. Calumet Lubricants Co., 47 F.3d 887 , 892 (7th Cir.1995), statements that grant *646 or withhold permission to the authorities to conduct a search carry legal significance independent of the assertive content of the words used. See generally 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence, § 385 (2d ed.1994); see also, e.g., United States v. Rojas, 53 F.3d 1212, 1216 (11th Cir.) (consent to exercise of jurisdiction over vessel), cert. denied, 516 U.S. 976 , 116 S.Ct. 478 , 133 L.Ed.2d 407 (1995); State v. Welker, 536 So.2d 1017, 1019-20 (Fla.1988) (consent to record telephone conversation); State v. Gillespie, 18 Wash.App. 313 , 569 P.2d 1174, 1175 (1977) (consent to search residence).
[¶ 39] Similarly, the U.S. District Court, in Dragani v. Bryant, 2005 WL 3542498 , *6 n. 7 (M.D.Fla. Dec.23, 2005), said:
To the extent that Petitioner claims that his counsel failed to object to the testimony of the law enforcement officers regarding Mr. Costillo’s granting permission to search his apartment for Petitioner, the claim is meritless. Mr. Cos-tillo’s consent to search his residence was admissible because it constituted a verbal act which is not hearsay under Florida law. State v. Welker, 536 So.2d 1017, 1020 (Fla.1988) (“[T]he giving of consent is a verbal act, and therefore testimony that someone has given consent is not hearsay.”); Palmer v. State, 448 So.2d 55, 56 (Fla. 5th DCA 1984) (testimony that the defendant’s wife gave consent to search was not hearsay, but a verbal act). Thus, the failure to object was neither deficient nor prejudicial.
[¶ 40] In this case, the verbal consent search is an operative fact that gives rise to legal consequences. The officer’s testimony about the consent he heard given was not hearsay.
[¶ 41] GERALD W. VANDE WALLE, C.J.