Appendix — Wych v. Florida (No. 08-466)

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APPENDIX A

FLORIDA SUPREME COURT OPINION

Supreme Court of Florida

No. SC05-1509

EARL WYCHE,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

[July 10, 2008]

WELLS, J.

We have for review Wyche v. State, 906 So. 2d

1142 (Fla. 1st DCA 2005), in which the First District

Court of Appeal certified conflict with the Fourth

District Court of Appeal’s decision in State v.

McCord, 833 So. 2d 828 (Fla. 4th DCA 2002). We

have jurisdiction. See art. V, § 3(b4), Fla. Const.

For the reasons expressed below, we approve the

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First District’s decision in Wyche that affirmed the

denial of the motion to suppress and distinguish the

Fourth District’s decision in McCord that affirmed

the granting of the motion to suppress.

FACTS AND PROCEDURAL HISTORY

The facts of this case are set forth in the opinion

of the First District:

While Wyche was detained in Columbia

County for a probation violation, Lake City

Police Department Investigator Clint

VanBennekom asked Wyche for a saliva

sample, stating that he was suspected of

committing a burglary at a Winn-Dixie

supermarket. In fact, VanBennekom had

manufactured the fficttious Winn-Dixie

burglary in order to obtain Wyche’s consent to

take swabs for a sexual-assault investigation.

No DNA match was obtained in the sexual-

assault case; as a consequence, Wyche was

exonerated as to it.

During VanBennekom’s investigation,

Lake City Police Department Investigator

Joseph Moody was also investigating a

[burglary'Jof The Pink Magnolia, a gift shop

1 In its summary of the facte of this case, the First District

erroneously stated that Investigator Moody was investigating a

robbery of The Pink Magnolia. Wyche, 906 So. 2d at 1143. The

record indicates that The Pink Magnolia case was a burglary

investigation, not a robbery investigation. In Wyche’s motion

to suppress and the State’s reply to the motion to suppress,

both parties state that Wyche’s saliva swabs were used to

investigate the burglary of The Pink Magnolia. Moreover,

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in Lake City, and asked VanBennekom to

send the saliva swab that he had obtained to

the FDLE lab for a comparison with blood

drops taken from the crime scene. FDLE

acquired a match. Based on the results,

Wyche was accused of the [burglary] ....

Wyche, 906 So. 2d at 1143.

Wyche then filed a motion to suppress the

saliva swabs and DNA test results, arguing that

VanBennekom gained his consent through trickery

and that suppression was appropriate pursuant to

the Fourth District’s decision in State v. McCord,

833 So. 2d 828 (Fla. 4th DCA 2002). Wyche, 906 So.

2d at 1144.

In McCord, a _ police’ investigator was

investigating a series of robberies that he suspected

McCord had committed. McCord was in county jail

on unrelated charges. The investigator told McCord

that he was a suspect in a rape case and that DNA

evidence could exclude him from the rape

investigation. This rape case was invented by the

investigator. McCord gave a saliva sample. DNA

from this sample matched blood recovered at the

scene of one of the robberies, and McCord was

charged with the robberies. McCord filed a motion

to suppress the DNA evidence on the ground that his

consent was involuntary and obtained in violation of

his due process rights as a result of the investigator’s

deceit in telling him that the DNA would be used in

a rape investigation. The trial court granted

Wyche was charged and convicted of burglary and grand theft,

not robbery.

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McCord’s motion to suppress. McCord, 833 So. 2d at

829. The State appealed the granting of the motion

to suppress, and the Fourth District affirmed. Id. at

831.

In contrast, in Wyche, the trial court denied the

defendant’s motion to suppress and granted the

State’s motion for denial “on its face.”2 Wyche was

tried and convicted of burglary, grand theft, and

criminal mischief. Wyche then appealed his

convictions to tie First District, contending that the

trial court erred by denying his motion to suppress

evidence of the saliva swabs and DNA test results

and by denying his motion for judgment of acquittal

on the charge of grand theft. Wyche, 906 So. 2d at

1143. The First District affirmed the conviction,

expressly declining to follow the Fourth District’s

decision in McCord and certifying conflict. Id. at

1144.

2 The trial court’s order does not state the grounds upon which

the defendant’s motion was denied and the State’s motion was

granted. McCord had been decided at the time of the hearing

on the motion to suppress. McCord had not been decided at the

time Investigator Van Bennekom obtained Wyche’s consent.

The State argued that the investigator could not have been

bound to follow McCord since it had not been decided at the

time of the consent search. The First District did not rule on

that issue, and we likewise do not decide it. The State also

argued that the motion was untimely because it was not filed

by the defendant in time to be heard before jury selection had

started. Again, like the First Districi, we do not decide this

timeliness issue because we hold that the defendant’s motion

was properly denied on its merits.

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STANDARD OF REVIEW

The standard of review for motions to suppress is

that the appellate court affords a presumption of

correctness to~a trial court’s findings of fact but

reviews de novo the mixed questions of law and fact

that arise in the application of the historical facts to

the protections of the Fourth Amendment.?

Fitzpatrick vy State, 900 So. 2d 495, 510 (Fla. 2005).

The conflict issue to be resolved in this case is

whether the defendant’s motion to suppress must be

granted because the police investigator told the

defendant that his DNA was needed in the

investigation of a fictitious burglary. We review this

legal question de novo.

ANALYSIS

Our analysis begins with Schneckloth v.,

Bustamonte, 412 U.S. 218, 227 (1973), in which the

Supreme Court wrote:

Similar considerations lead us to agree

with the courts of California that the question

whether a consent to a search was in fact

“voluntary” or was the product of duress or

coercion, express or implied, is a question of

fact to be determined from the totality of all

the circumstances. While knowledge of the

right to refuse consent is one factor to be

taken into account, the government need not

establish such knowledge as the sine qua non

of an effective consent. As with police

questioning, two competing concerns must be

3 U.S. Const. amend. IV.

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accommodated in determining the meaning of

a “voluntary” consent—the legitimate need

for such searches and the equally important

requirement of assuring the absence of

coercion.

A few years later, in United States v, Watson, 423

U.S. 411 (1976), the Supreme Court reaffirmed its

holding that the voluntariness of a defendant’s

consent to search is a question of fact to be

determined from the totality of the circumstances.

In that case, the Supreme Court found that a

defendant’s consent to search was voluntary,

explaining:

There was no overt act or threat of force

against Watson proved or claimed. There were

no promises made to him and no indication of

more subtle forms of coercion that might flaw

his judgment. He had been arrested and was

in custody, but his consent was given while on

a public street, not in the confines of the police

station. Moreover, the fact of custody alone

has never been enough in itself to demonstrate

a coerced confession or consent to search.

Similarly, under Schneckloth, the absence of

proof that Watson knew he could withhold his

consent, though it may be a factor in the

overall judgment, is not to be given controlling

significance. There is no indication in this

record that Watson was a newcomer to the law,

mentally deficient, or unable in the face of a

custodial arrest to exercise a free choice. He

was given Miranda [v. Arizona, 384 U.S. 436

(1966),] warnings and was further cautioned

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that the results of the search of his car could be

used against him. He persisted in his consent.

Id, at 424-25 (footnote omitted). This Court has

likewise held that the issue of whether consent is

voluntary under the Fourth Amendment is to be

determined from the totality of the circumstances.

See, e.g., Washington v, State, 653 So. 2d 362, 364

(Fla. 1994).

The motion to suppress in this case was based

upon stipulated facts. The stipulated material

circumstances were:+*

1. Wyche was in custody (on an unrelated

charge).

2. Police were investigating a rape, and

Wyche was a suspect.

3. To obtain DNA for the rape

investigation, Wyche was told that the police

were investigating a burglary of a Winn-Dixie

grocery store and was asked to give saliva

swabs that could be tested for DNA and used

in the Winn-Dixie investigation.

4. The Winn-Dixie burglary was made up

by the investigator.

* Though Justice Lewis’s dissent extensively discusses facts

that were not before the trial court at the suppression hearing,

we do not do so because at that hearing counsel for both Wyche

and the State agreed that the motion could be heard on the

basis of stipulated facts orally presented by the attorneys.

Most notably, there was nothing presented to the trial court at

the suppression hearing that accused, as the dissent does, the

Lake City Police Department of being on a “crime shopping

spree.” Lewis, J., dissenting op. at 56.

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5. The saliva swab cleared Wyche in the

rape investigation.

6. The saliva swab was given to another

investigator who was investigating a burglary

at The Pink Magnolia, a gifi shop where

Wyche had worked.

7. The saliva swab did have a positive

match with the DNA from The Pink Magnolia

burglary.

8. The DNA match was then sought to be

used in the prosecution of The Pink Magnolia

burglary.

The focal issue is whether the fact that Wyche

consented to the saliva swabs upon being told that

the DNA sample was for use in a fictitious burglary

investigation requires that the saliva swabs

containing Wyche’s DNA not be used in the

prosecution of an actual burglary. As Schneckloth

frames the issue: was the consent to the saliva swabs

under these circumstances voluntary or coerced?

Though Washington did not involve a fictitious

investigation, our decision in Washington did involve

the similar issue of whether a biological sample

collected in one investigation may be used by police

in an unrelated investigation. While he was

incarcerated on other charges, Washington was

interviewed by a detective and two police officers.

Washington did not know and the officers did not tell

him that he was suspected in the beating death of a

ninety-three-year-old woman. ihe __—ipolice

interviewed Washington regarding an unrelated

sexual battery. The officers told Washington that

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hair and blood samples could prove or disprove his

guilt in the sexual battery case, and Washington

provided the requested samples. When the State

sought to use the samples in the murder prosecution,

Washington filed a motion to suppress the samples.

Washington, 653 So. 2d at 363-64. On appeal, this

Court considered the totality of the circumstances

and found that Washington’s consent to the

collection of the samples was voluntary. Id, at 364.

The fact that Washington had not been informed

that he was a suspect in the murder case did not

render his consent involuntary.

We further held in Washington that once the

samples were validly obtained, they could be used in

the unrelated murder prosecution. Id, Thus,

Washington established that when a defendant

validly consents to the giving of the bodily substance,

whether saliva, hair, or blood, for use in a criminal

investigation, the characteristics of the substance

can be used in investigations unrelated to the one for

which the defendant was told the sample was

collected. This holding is logical because the DNA

profile derived from a bodily substance like saliva,

hair, or blood is a constant identifying fact that does

not change or disappear.

As in Washington, Wyche’s consent to search was

requested for the purpose of investigating one

alleged crime, and the results of the search were

used in the investigation and prosecution of another

crime. In both cases, the defendants consented to

the collection of bodily fluids after being told that the

samples were to be used in a criminal investigation.

The circumstances of Wyche’s consent are actually

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less concerning than the circumstances in

Washington because Wyche was told that the

requested saliva swab was to be used in

investigating a burglary, and the saliva was in fact

used to investigate and prosecute a burglary. Wyche

was not misled into thinking that DNA evidence

would not be relevant to a burglary investigation, a

crime one may not intuitively associate with

biological evidence, and the saliva swabs were not

used in the investigation and prosecution of some

other type of crime—except to clear Wyche in the

rape investigation.

The only issue not clearly resolved by

Washington is whether Wyche’s_ otherwise

apparently voluntary consent was_ rendered

involuntary by the fact that the Winn-Dixie burglary

and investigation were fictitious.6 For Wyche to

prevail on his motion to suppress, we would have to

hold that the sole fact that Wyche was told that the

saliva swabs were to be used in the investigation of a

fictitious burglary made his consent to the saliva

swabs coerced, although the circumstances of

Wyche’s consent were otherwise similar to

Washington’s consent. We do not believe that

suppressing the saliva swabs and the DNA test

results on the basis of this one fact conforms to the

totality of the circumstances analysis mandated by

Schneckloth and Washington.

5 As defense counsel! admits in Wyche’s initial brief to this

Court, defense counsel did not believe there was a legal basis

for filing a motion to suppress the samples on the basis of

voluntariness until counsel discovered the McCord decision.

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Moreover, as the First District discussed in its

opinion, to hold that the police officers’ invention of a

Winn-Dixie burglary rendered Wyche’s consent

involuntary would not be in accord with the holdings

of the United States Supreme Court and this Court

that police deception alone does not negate

voluntariness. In Frazier v. Cupp, 394 U.S. 731, 739

(1969), the Supreme Court held that a confession

was voluntary where the defendant received partial

warning of his constitutional rights, the questioning

was of short duration, and the defendant was a

mature individual of normal intelligence, despite the

fact that the police had misrepresented the

substance of a codefendant’s statement. In

Fitzpatrick v. State, 900 So. 2d 495, 511 (Fla. 2005),

this Court upheld a trial court’s denial of a motion to

suppress a statement induced by a detective’s false

suggestion that he would be able to arrange a

satellite system to show that the defendant was at

the scene of the crime. In Conde v. State, 860 So. 2d

930, 952 (Fla. 2003), we found the defendant’s

confession voluntary where a detective exaggerated

the amount of DNA evidence against the defendant.

In Davis v. State, 859 So. 2d 465, 472 (Fla. 2003), we

held a confession voluntary even though the

defendant claimed police officers informed him that

they were investigating a missing person’s case

when in fact they were investigating a murder. In

Nelson v. State, 850 So. 2d 514, 521-22 (Fla. 2003),

we held a confession voluntary where an investigator

wrote “DNA evidence” on a “pro and con” list on a

board during an interrogation even though DNA

analysis had not yet been performed on the evidence

collected for DNA testing. In Escobar v. State, 699

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So. 2d 988, 994 (Fla. 1997), we affirmed the trial

court’s denial of a motion to suppress a confession

where “police detectives deluded [the defendant]

before he gave his statements by falsely stating that

they had obtained physical evidence and by failing to

inform him that he could be sentenced to death.”

Finally, in Burch v. State, 343 So. 2d 831, 833 (Fla.

1977), we upheld the admission of a confession when

the police misrepresented to the defendant that the

defendant’s partner in crime had confessed. Like

any voluntariness analysis, these cases were decided

by reviewing the totality of the circumstances. See

Schneckloth, 412 U.S. at 233 (“[I]t is only by

analyzing all the circumstances of an individual

6 We have also recognized that a confession is not voluntary

where the totality of the circumstances reveals that the police

used improper influence to overpower the will of the defendant.

In Thomas y, State, 456 So. 2d 454, 458 (Fla. 1984), we stated:

A confession that is obtained by coercion may not be

used in evidence. Techniques calculated to exert

improper influence, to trick, or to delude the suspect as

to his true position will also result in the exclusion of

self-incriminating statements thereby obtained. To

render a confession inadmissible, however, the delusion

or confusion must be visited upon the suspect by his

interrogators; if it originates from the suspect’s own

apprehension, mental state, or lack of factual knowledge,

it will not require suppression.

(Citations omitted.) However, in Thomas, as here, we

ultimately found that the defendant’s confession was voluntary

because there was no evidence of threats, promises, or other

improper influences. Id,

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consent that it can be ascertained whether in fact it

was voluntary or coerced.”).

Our decision to affirm the First District’s holding

in the instant case is consistent with these

precedents. The First District correctly considered

police deception as one of many factors to be

reviewed when analyzing the voluntariness of

consent. We agree with the First District’s findings

that:

[Wyche] was clearly aware of the fact that the

officer wanted the DNA sample in order to

investigate a crime, and the officer did not

misrepresent the fact that he had no search

warrant. The officer did not indicate that

appellant had no choice regarding whether to

provide a DNA sample. Appellant did not

acquiesce to a claim of lawful authority.

Wyche, 906 So. 2d at 1147. Wyche was not a

stranger to police procedure, and he knew that his

DNA was requested for use in a criminal

investigation. Wyche was not deluded as to the

import of his consent to search or as to the intensity

of the search. The police were very explicit as to

what they were searching for, saliva swabs from

which to extract Wyche’s DNA. Given these factors,

we further agree that the custodial setting of

Wyche’s consent and the investigator’s failure to

inform Wyche of the actual purpose of the search

were not factors so controlling as to overpower

Wyche’s will. See Watson, 423 U.S. at 424 (“[T}he

fact of custody alone has never been enough in itself

to demonstrate a coerced confession or consent to

search.”) We find that Wyche’s consent was “the

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product of an essentially free and unconstrained

choice by its maker.” Schneckloth, 412 U.S. at 225.

Moreover, Wyche’s case materially differs from

cases in which consent has been held not valid due to

a coercive show of authority, such as Bumper v._

North Carolina, 391 U.S. 543 (1968). In Bumper,

law enforcement officers told the defendant’s

grandmother, with whom the defendant lived, that

they had a search warrant to enter the house. The

officers did not have a search warrant. The Supreme

Court held:

When a law enforcement officer claims

authority to search a home under a warrant,

he announces in effect that the occupant has

no right to resist the search. The situation is

instinct with coercion—albeit colorably lawful

coercion. Where there is coercion there

cannot be consent.

Id. at 550. Wyche was never told that the

investigator had a warrant for the saliva swabs. To

the contrary, Wyche was asked to consent and did

consent to the saliva swabs for use in a burglary

investigation. Investigator VanBennekom truthfully

represented that the police desired a sample of

Wyche’s DNA for purposes of an ongoing

investigation. Wyche was informed that the

requested evidence could match or exclude him in

respect to a crime and that he was a suspect in a

police investigation. Thus, Wyche was not deluded

as to the import of his consent to the saliva swabs.

Wyche’s case also materially differs from cases

such as Lynumn vy. Illinois, 372 U.S. 528 (1963),

Spano v, New York, 360 U.S. 315 (1959), and Samuel

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v. State, 898 So. 2d 233 (Fla. 4th DCA 2005), where

a consent to search or a confession was found to be

involuntary because the defendant was promised

some benefit or lack of repercussion for giving his or

her consent or confession. In Lynumn, the Supreme

Court found the defendant’s confession to be

involuntary where, while surrounded in her

apartment by three law enforcement officers, she

confessed “only after the police had told her that

state financial aid for her infant children would be

cut off, and her children taken from her, if she did

not ‘cooperate.” 372 U.S. at 534. In Spano, the

Supreme Court found the defendant’s confession to

be involuntary where he was questioned “until

almost sunrise” by a series of law enforcement

officers and district attorneys who ignored Spano’s

requests for counsel and played on his sympathies by

falsely informing him that the job of one of the

officers, a childhood friend of Spano, was in jeopardy

because of Spano. 360 U.S. at 322-23. The

childhood friend played the “part of a worried father,

harried by his superiors” who could benefit from

Spano’s confession for over an hour to obtain the

desired confession. Id. at 323. In Samuel, the

defendant was suspected of having committed

between seven and nine robberies, but a law

enforcement officer told Samuel that he was

suspected in fifteen robberies and that if Samuel

“discussed the five or six robberies, he would not

charge him with the others.” 898 So. 2d at 235. The

Fourth District held that the confession was

involuntary because the defendant did not reveal the

specifics of the robberies until after the officer’s

promise not to prosecute. Id, at 237.

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In contrast to those cases, the stipulated facts in

the instant case do not demonstrate that Wyche was

induced to consent by threat or promise.? While

recognizing that a promise or threat need not be

“direct” to invalidate consent, see Almeida v. State,

737 So. 2d 520, 524 (Fla. 1999), this Court has held

that informing a suspect of potential charges against

him does not constitute a threat to prosecute or a

promise not to prosecute if the suspect cooperates.

For example, in Peterka v. State, 640 So. 2d 59, 67

(Fla. 1994), we held that the defendant’s consent was

given voluntarily where the law enforcement officer

“truthfully informed Peterka of the different degrees

of homicide and that law enforcement was seeking to

charge him with first-degree murder” and the record

sh»wed that the officer “made no promises of

leniency in return for any statements, did not

threaten Peterka, and did not use violence to induce

the statements.” Here, Investigator VanBennekom

informed Wyche that he was suspected of

committing a burglary, albeit a fictitious burglary,

and requested a saliva sample. He did not threaten

Wyche or make any promises of leniency in exchange

for Wyche’s consent. Accordingly, no threat or

promise influences our evaluation of the totality of

the circumstances of Wyche’s consent.

7 Justice Lewis errs in stating that the majority concedes that

“law enforcement, for all intents and purposes, promised

[Wyche] that he could clear his name in the fabricated burglary

case by submitting a saliva sample.” Lewis, J., dissenting op.

at 83. We rely on the stipulated facts, which do not indicate

that Investigator VanBennekom promised or even implied that

Wyche could clear his name by submitting a saliva sample.

The record is silent on this point.

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While we approve the First District’s decision in

Wyche, we distinguish rather than disapprove the

Fourth District’s decision in McCord. We find that

there are circumstances in McCord upon which that

court could have determined under the totality of the

circumstances that McCord’s consent was coerced.

McCord was suspected in a substantial number of

robberies. While McCord was in custody on

unrelated charges, an investigator told him that he

was a suspect in a rape, which was fictitious, and

that a saliva sample could exclude him from the rape

investigation. At no time did the investigator tell

McCord that he was a suspect in the robberies.

McCord was thereafter charged in the robberies, and

the saliva sample was used in the prosecution. The

investigator testified that he believed McCord

consented to the saliva sample only because he

wanted to clear his name in the fictitious rape case.

This candid testimony supports a finding that the

investigator's deception caused McCord to feel

coerced into consenting.

While we do not believe that a defendant’s

consent to a search should be interpreted as being

conditioned on the resulting evidence being used

only in investigations of crimes that the defendant

knows that he or she did not commit, we recognize

that a defendant’s understandable desire to clear his

or her name of the stigma of a rape accusation is a

circumstance to consider. McCord’s being told that

he was a suspect in a serious sex crime for which

DNA could clear him is a circumstance relevant to

the analysis of whether McCord’s consent was

voluntary or coerced that distinguishes McCord from

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the instant case. The trial court in Wyche could

have reasonably concluded that being accused of

burglary does not entail the same pressure as being

accused of rape. Again, the analysis is based upon

the totality of the circumstances.

CONCLUSION

In sum, we approve the First District’s decision to

affirm the trial court’s denial of Wyche’s motion to

suppress the saliva swabs and the DNA test results

on the basis of our analysis of the totality of the

circumstances and for the reasons set forth in this

opinion. However, we do not disapprove the Fourth

District’s decision in McCord because that decision

likewise properly defers to the trial court’s factual

findings and considers the totality of the

circumstances surrounding McCord’s motion to

suppress.

It is so ordered.

QUINCE, C.J., and CANTERO and BELL, JJ.,

concur.

BELL, J., specially concurs with an opinion, in which

QUINCE, C.J., concurs.

ANSTEAD, J., dissents with an opinion, in which

PARIENTE and LEWIS, JJ., concur.

LEWIS, J., dissents with an opinion, in which

ANSTEAD and PARIENTE, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE

REHEARING MOTION, AND IF FILED,

DETERMINED.

BELL, J., specially concurring.

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Given the limited, stipulated facts of this case

and the reality that this Court's decision is

constrained by applicable United States Supreme

Court precedent, I concur with the majority opinion.

However, I must write separately to make it clear

that my concurrence is with serious reservations. As

is Justice Anstead, I am disturbed by the level of

intentional police misrepresentation in this case.

Such tactics, if they were to become commonplace,

would destroy the integrity of the criminal justice

system.

This type of intentional deception by law

enforcement risks “the criminal law [being] used as

an instrument of unfairness.” Schneckloth v.

Bustamonte, 412 U.S. 218, 225 (1973). As the

Supreme Court explained,

“voluntariness” has reflected an

accommodation of the complex of values

implicated in police questioning of a suspect.

At one end of the spectrum is_ the

acknowledged need for police questioning as a

tool for the effective enforcement of criminal

laws. ... At the other end of the spectrum is

the set of values reflecting society’s deeply felt

belief that the criminal law cannot be used as

an instrument of unfairness, and that the

possibility of unfair and even brutal police

tactics poses a real and serious threat to

civilized notions of justice.

Id, at 224-25 (citations omitted).

My hope is that law enforcement will resist the

temptation to interpret this decision as an

endorsement of intentional deception as acceptable,

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routine police practice. Indeed, the indiscriminate

use of such tactics poses “a real and serious threat to

civilized notions of justice.” Id.

QUINCE, C.J., concurs.

ANSTEAD, J., dissenting.

For the reasons expressed below, I would quash

the First District’s decision in Wyche v. State, 906

So. 2d 1142 (Fla. lst DCA 2005), and would approve

the Fourth District’s decision in State v. McCord,

833 So. 2d 828 (Fla. 4th DCA 2002).

PROCEEDINGS TO DATE

Wyche was detained in Columbia County for a

probation violation and was questioned by

Investigator Clint VanBennekom. Wyche, 906 So. 2d

at 1143. Although without proof or evidence of any

kind, VanBennekom suspected that Wyche may have

committed a sexual assault that was pending

investigation. Id. In order to induce Wyche to

provide a saliva sample to conduct a DNA test,

VanBennekom made up a story that Wyche was a

suspect in a local supermarket burglary. Id, In

reality there had been no such burglary, but

VanBennekom implied that he could be cleared as a

suspect in the burglary if he submitted a DNA

sample. Id. at 1148 (Ervin, J., dissenting). Wyche

complied and provided VanBennekom with the

saliva sample. Id. at 1143 (majority opinion).

VanBennekom then tested the sample for a match

with DNA obtained from the sexual assault and

found no such match. Id.

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However, the use of the DNA did not stop there.

Aware that Wyche’s DNA profile had been secured,

Investigator Joseph Moody asked VanBennekom for

Wyche’s sample to compare it to blood drops taken

from the crime scene of a recent but unrelated

burglary® of a gift shop in Lake City. Id, This time

the DNA test revealed a positive match connecting

Wyche to the gift shop burglary, and Wyche was

subsequently charged and convicted of burglary,

grand theft, and criminal mischief. Id. During those

proceedings Wyche sought to suppress the DNA

evidence, asserting the deception of the police in

securing his saliva sample. Id. He relied on the

Fourth District’s decision in McCord, which held

that suppression was appropriate in such

circumstances. Id. at 1144. Despite McCord’s

binding effect on the trial court,? the motion to

suppress was denied. Id. at 1143. Wyche appealed

his convictions to the First District, which addressed

® The First District erroneously described the crime at the gift

shop as a robbery. See Wyche, 906 So. 2d at 1143. In fact, the

record reveals that Investigator Moody was investigating a

burglary at the gift shop.

8 The trial court issued its order denying Wyche’s motion to

suppress on October 15, 2003, and McCord had been decided on

December 11, 2002, almost a year earlier. The trial court in

Wyche was legally bound to follow the Fourth District’s

decision in McCord. See Pardo v. State, 596 So. 2d 665, 666

(Fla. 1992) (noting that “[t]he decisions of the district courts of

appeal represent the law of Florida unless and until they are

overruled by this Court” and concluding that “in the absence of

interdistrict conflict, district court decisions bind al) Florida

trial courts” (quoting Stanfill v. State, 384 So. 2d 141, 143 (Fla.

1980), and citing Weiman v. McHaffie, 470 So. 2d 682, 684 (Fla.

1985))).

E

;

22a

only whether the trial court erred in denying

Wyche’s motion to suppress the saliva sample. Id.

The First District affirmed the conviction and

expressly declined to follow the Fourth District’s

decision in McCord and certified conflict with it. Id.

at 1144. Judge Ervin dissented. Id. at 1148-49

(Ervin, J., dissenting).

In McCord, police suspected the defendant of

committing a string of armed robberies. 833 So. 2d

at 829. While the defendant was detained on

unrelated charges, police falsely informed him that

he was a suspect in a fictional rape case and asked

him to provide a saliva sample in order to exonerate

himself. Id. The defendant provided the sample,

and, rather than comparing the DNA in the bogus

rape case, the police tested the sample against DNA

recovered from the scene of several armed robberies.

Id. Although the DNA matched the blood found at

the scene of the robberies, the trial court refused to

admit the DNA evidence on the grounds that the

defendant’s consent to the DNA testing was not

voluntary because of the police deception. Id, On

appeal, the Fourth District affirmed:

[T)he detective ir **is case fabricated a rape

charge to obtain McCord’s consent. Even the

detective testified that McCord consented to

giving a sample only because he wanted to

clear his name in a non-existent case. We

agree with the trial court that this deception,

while McCord was in jail, was so manipulative

that his “consent” did not “validate the search.”

Id. at 830.

23a

STANDARD OF REVIEW

An appellate court must give a presumption of

correctness to the trial court’s ruling on motions to

suppress with regard to the trial court’s findings of

fact, but the appellate court should independently

review the mixed questions of law and fact that

ultimately arise in determining whether the

protections provided by the Fourth Amendment have

been violated. Fitzpatrick v. State, 900 So. 2d 495,

510 (2005) (quoting Nelson v. State, 850 So. 2d 514,

521 (Fla. 2003)); see also State v. Glatzmayer, 789

So. 2d 297, 302 n.7 (Fla. 2001) (“[TJhe ultimate

ruling [on a motion to suppress] must be subjected to

de novo review but the court’s factual findings must

be sustained if supported by competent substantial

evidence.”). Moreover, unless a ruling turns

exclusively on an issue of fact, or for instance

whether there was a factual dispute regarding

whether any consent was actually given, the

ultimate question of the voluntariness of consent to a

search may become a legal rather than a factual

question, to which a de novo standard applies.

Connor v. State, 803 So. 2d 598, 608 (Fla. 2001). In

this case, for example, there is no dispute about

whether consent was given; instead, the dispute is

whether the consent was voluntary.

ANALYSIS

The Fourth Amendment of the United States

Constitution states that it is “(t]he right of the

people to be secure in their persons, houses, papers,

and effects, against unreasonable seizures. . . and no

Warrants shall issue, but upon probable cause.”

U.S. Const. amend. IV. Evidence obtained in

24a

violation of the Fourth Amendment shall not be

admissible at trial. See Mapp v. Ohio, 367 U.S. 643,

657 (1961) (“{T]he exclusionary rule is an essential

part of both the Fourth and _ Fourteenth

Amendments... .”); Sing v. Wainwright, 148 So. 2d

19, 20 (Fla. 1962) (“This Court long ago concluded

that evidence obtained as the product of an

unreasonable search is not admissible in a criminal

proceeding. Florida has long recognized the so-called

‘exclusionary rule’ regarding the inadmissibility of

such evidence.” (citing Thurman v. State, 156 So.

484 (Fla. 1934); Jackson v. State, 99 So. 548 (Fla.

1924); Chacon v. State, 102 So. 2d 578 (Fla. 1958))).

Extractions of bodily fluids, as occurred in this

case, implicate essentially the same principles

applicable to searches and seizures. Schmerber v.

California, 384 U.S. 757, 767 (1966). Further, once

samples are obtained validly, they can be used for

investigations of other crimes. Washington v. State,

653 So. 2d 362, 364 (Fla. 1994) (“We also find that

once the samples were validly obtained, albeit in an

unrelated case, the police were not restrained from

using the samples as evidence in [a different] case.”).

In order to comply with the Fourth Amendment,

a search and seizure must be conducted with

probable cause and with a warrant, “subject only to a

few specifically established and well-delineated

exceptions.” Katz v. United States, 389 U.S. 347,

357 (1967). Moreover, “[iJt is equally well settled

that one of the specifically established exceptions to

the requirements of both a warrant and probable

cause is a search that is conducted pursuant to

consent.” Schneckloth v. Bustamonte, 412 U.S. 218,

25a

219 (1973). Hence, the issue this Court must

address in the present case is whether Wyche’s

initial consent to give the saliva swabs was given

voluntarily and freely.

CONSENT TO SEARCH

When the State desires to rely upon consent to

justify a search, the State has the burden of proving

that the consent was freely and voluntarily given,

and showing mere acquiescence to authority is not

enough to discharge this burden. Bumper v. North

Carolina, 391 U.S. 543, 548-49 (1968); see also

Florida v. Royer, 460 U.S. 491, 497 (1983) (holding

that the State must prove consent was voluntary,

not simply a submission to authority); Jorgenson v.

State, 714 So. 2d 423, 426 (Fla. 1998) (holding that

the State must prove voluntariness by a

preponderance of the evidence (citing Brewer v.

State, 386 So. 2d 232, 236 (Fla. 1980))). Moreover,

the State has the burden of proving that the consent

was “not the result of duress or coercion, express or

implied.” Schneckloth, 412 US. at 248.

Voluntariness is a question of fact, which is to be

determined from the totality of all of the

circumstances. Id, at 248-49.

The voluntariness of a consent to search should

be evaluated in much the same fashion as the

voluntariness of a confession. Washington, 653 So.

2d at 364 (“Although a warrantless search is per se

unreasonable under the Fourth Amendment, the

search will be considered lawful if conducted

pursuant to consent which was given voluntarily and

freely.” (citing Norman v. State, 379 So. 2d 643 (Fla.

1980))); see also Schneckloth, 412 U.S. at 223-24

26a

(turning to the body of case law about the

voluntariness of confessions in order to evaluate the

meaning of voluntariness in the context of a consent

to search). “The standard for measuring the scope of

a suspect’s consent [to search] under the Fourth

Amendment is that of ‘objective’ reasonableness—

what would the typical reasonable person have

understood by the exchange between the officer and

the suspect?” Florida v. Jimeno, 500 U.S. 248, 251

(1991) (citing Dlinois v. Rodriguez, 497 U.S. 177,

183-89 (1990)). “[Wihile [the courts} have

enumerated a number of (non-exclusive) factors that

may bear on the issue of voluntariness, the absence

of official coercion is a sire qua non of effective

consent, as it is axiomatic that ‘[w)here there is

coercion, there cannot be consent.’” United States v.

Gonzalez, 71 F.3d 819, 828 (11th Cir. 1996) (citation

omitted) (quoting Bumper, 391 U.S. at 550, and

citing Florida v. Bostick, 501 U.S. 429, 438 (1991)).

In essence, the inquiry is whether the consent was

“the product of an essentially free and unconstrained

choice by its maker.” Schneckloth, 412 U.S. at 225.

The voluntariness of consent has been addressed

by the courts in a variety of contexts. For example,

it has been held that knowledge of a right to refuse a

search is not a prerequisite of a voluntary consent to

search. Id, at 234; see also United States v. Drayton,

536 U.S. 194, 206 (2002) (holding that defendant’s

consent to search his person while on board an

interstate bus was voluntary even though the police

did not tell the defendant of his right to refuse

consent); Ohio v. Robinette, 519 U.S. 33, 39-40

(1996) (holding that a detained defendant’s consent

27a

to search his car was voluntary even though the

police did not tell him he was free to leave).

On the other hand, the United States Supreme

Court has held that consent will be considered

involuntary if given in response to a police assertion

of an intent to search the premises. See Amos v.

United States, 255 U.S. 313, 317 (1921) (holding that

consent was coerced when officers told defendant’s

wife they came to search the premises and she

allowed them to enter). Similarly, conseat has been

deemed to be coerced when the police demand entry

onto private premises. See Johnson v, United

States, 333 U.S. 10, 13-14 (1948) (holding that when

entry is “demanded under color of office” and consent

is given “in submission to authority rather than as

an understanding and intentional waiver of a

constitutional right,” consent is not voluntary).

Further, consent has been determined to be invalid

and involuntary where the police falsely assert that

they have a valid search warrant. See Bumper, 391

U.S. at 548-50 (holding consent involuntary when

police told defendant’s grandmother they had a

search warrant and she allowed them to enter and

search).

In Royer, a case originating in Florida, the

United States Supreme Court invalidated a consent

obtained by airport narcotics agents during an illegal

detention of a passenger and his luggage:

First, it is submitted that the entire encounter

was consensual and hence Royer was not being

held against his will at all. We find this

submission untenable. Asking for and

examining Royer’s ticket and his driver’s

28a

license were no doubt permissible in

themselves, but when the officers identified

themselves as narcotics agents, told Royer that

he was suspected of transporting narcotics, and

asked him to accompany them to the police

room, while retaining his ticket and driver’s

license and without indicating in any way that

he was free to depart, Royer was effectively

seized for the purposes of the Fourth

Amendment. These circumstances surely

amount to a show of official authority such that

“a reasenable person would have believed he

was not free to leave.” United States v.

Mendenhall, 446 U.S. at 554 (opinion of

Stewart, J.). |

460 U.S. at 501-02 (plurality opinion). The Court

affirmed the Third District Court of Appeal’s

“conclusion that Royer was being illegally detained

when he consented to the search of his luggage,

[and] agree{d] that the consent was tainted by the

illegality and was ineffective to justify the search.”

Id, at 507-08 (plurality opinion); see also Reynolds v.

State, 592 So. 2d 1082, 1086 (Fla. 1992) (finding a

handcuffed defendant’s consent to search his person

involuntary, even though he was informed that he

could refuse to consent, because he had been

confronted by three officers and told he was under

arrest even though there was no probable cause, and

he was then handcuffed and frisked).

On the other hand, in United States v. Watson,

423 U.S. 411 (1976), the Court concluded that a

consent to a scarch of a suspect’s car obtained while

the suspect was in lawful custody was voluntary.

29a

The Court outlined the factors relevant to its

analysis:

There was no overt act or threat of force

“—- Watson pes 4 or claimed. There

consent to search. Similarly, under

Schneckloth, the absence of proof that Watson

knew he could withhold his consent, though it

may be a factor in the overall judgment, is not

to be given controlling significance. There is

no indication in this record that Watson was a

newcomer to the law, mentally deficient, or

unable in the face of a custodial arrest to

exercise a free choice. He was given Miranda

warnings and was further cautioned that the

results of the search of his car could be used

against him. He persisted in his consent.

Id. at 424-25 (footnote omitted) (emphasis

supplied); see also United States v. Mendenhall, 446

U.S. 544, 557-59 (1980) (holding that a defendant’s

consent to accompany DEA agents from the Detroit

airport to the DEA office was voluntary when she

was asked to accompany the officers, there were no

threats or show of force, and the officers told her

twice that she could decline to consent).

30a

POLICE DECEPTION OR MISREPRESENTA-

TION

This Court and other courts have held that not all

deception will invalidate a confession. Denmark v.

State, 116 So. 757, 762 (Fla. 1928); see also Hoffa v.

United States, 385 U.S. 293, 301-02 (1966) (holding

that defendant’s statements made to an informant

were admissible even though the informant lied

about his identity); Brown v, Brierley, 438 F.2d 954,

955-57, 959 (3d Cir. 1971) (holding a consent

voluntary when a defendant, who had been warned

of his rights and knew police were investigating

murders, turned his gun over to a policeman who

suggested that he could sell the gun for the

defendant).!° In Conde v, State, 860 So. 2d 930 (Fla.

10 In Escobar v. State, 699 So. 2d 988 (Fla. 1997), abrogated on

different grounds, Conner v. State, 803 So. 2d 598 (Fla. 2001),

we affirmed the trial court’s denial of the defendant’s motion to

suppress his confession where “police detectives deluded him

before he gave his statements by falsely stating that they had

obtained physical evidence and by failing to inform him that he

could be sentenced to death.” Id, at 994. In Davis v. State, 859

So. 2d 465 (Fla. 2003), we held a confession voluntary even

though the defendant claimed police officers deceived him by

informing him that they were investigating a missing person’s

case when in fact it was a murder investigation. Id. at 472.

Similarly, we held a confession voluntary when an investigator

wrote “DNA evidence” on a “pro and con” list on a board while

interrogating him. Nelson v. State, 850 So. 2d 514, 521-22 (Fla.

2003). In that case, DNA analysis had not yet been performed

but evidence had been obtained for DNA testing; therefore this

Court found that the statement was sufficiently ambiguous and

upheld the confession. Id, at 522. In Burch v. State, 343 So. 2d

831 (Fla. 1977), we upheld the admission of a confession where

the police misrepresented to the defendant that the defendant’s

partner in crime had confessed. Id, at 833. In Fitzpatrick, this

Court upheld a trial court’s denial of a motion to suppress a

3la

2003), we held that when a detective exaggerated

the amount of DNA evidence against the defendant,

the defendant’s confession was still voluntary

because “police misrepresentations alone do not

necessarily render a confession involuntary.” Id. at

952. We concluded that the deception was minimal

because the police had a preliminary match between

blood taken from the defendant and DNA evidence

collected at the murders, and the defendant had

voluntarily given his blood sample within a couple of

hours of his arrest. Id. Therefore, when examined

under the totality of the circumstances, we held that

the confession was not rendered involuntary. Id.

However, we have also declared that deception is

an important factor to be taken into account when

determining whether a consent is voluntary,

depending on the level of deception involved."! In

defendant's statements where a detective suggested to the

defendant that he would be able to arrange a satellite system to

show the defendant was at the scene of the crime. 900 So. 2d at

§11.

11 Based upon the “totality of the circumstances” test adopted

in Schneckloth, other courts have also considered police

deception to be a relevant factor in evaluating the

voluntariness of consent. See United States v. Carter, 884 F.2d

368, 375 (8th Cir. 1989) (explaining that deception may be

considered along with other factors); United States v. Davis,

749 F.2d 292, 294 (5th Cir. 1985) (noting that any

misrepresentation by the government is a factor (citing United

States v. Andrews, 746 F.2d 247, 250 (5th Cir. 1984))); People

v. Zamora, 940 P.2d 939, 942 (Colo. Ct. App. 1996) (observing

that deception is one factor to be considered in assessing the

totality of the circumstances); State v. Reinier, 628 N.W.2d 460,

469 (lowa 2001) (finding that comments by police constituting a

“subtle form of deception” weighed against a conclusion that

the consent was voluntary); Krause v. Commonwealth, 206

32a

Thomas v. State, 456 So. 2d 454 (Fla. 1984), we

explained:

A confession that is obtained by coercion

may not be used in evidence. Brewer v. State,

$06 So. 2d 262 (Fla. 1980). _ Techniques

chtniaae mag 361 US.

199 (1960); Bram v. United States, 168 U.S.

532 (1897); Frazier v. State, 107 So. 2d 16

(Fla. 1958); Sena. 5. a 12 So. ad ao

if it por ae ctr fan the weute own

apprehension, mental state, or lack of factual

knowledge, it will not require suppression.

See State v. Caballero, 396 So. 2d 1210 (Fla.

3d DCA 1981); Ebert v. State, 140 So. 2d 63

(Fla. 2d DCA 1962).

Id. at 458 (emphasis supplied). Similarly, we

cautioned in Johnson v. State, 660 So. 2d 637 (Fla.

1995), that voluntariness may be negated and

suppression of evidence mandated where the

defendant makes a showing of “physical or

psychological coercion, intentional deception, or a

violation of a constitutional right.” Id. at 642

S.W.3d 922, 926 (Ky. 2006) (determining that the consent to

search was coerced based upon several factors).

33a

(emphasis supplied) (citing State v. Sawyer, 561 So.

2d 278 (Fla. 2d DCA 1990); Martinez v. State, 545

So. 2d 466 (Fla. 4th DCA 1989)); accord

Commonwealth v. Slaton, 608 A.2d 5, 9 (Pa. 1992)

(“Consent must be freely and intelligently given,

however, and is not voluntary if it is obtained

through deception as deception amounts to implied

coercion, which negates the necessary element of

willingness.” (citing United States v. Prudden, 424

F.2d 1021 (5th Cir. 1970))). Despite our cautions

and, with the exception of cases like Bumper, our

case law has done little to provide concrete examples

of when such trickery or intentional deception will

render a consent involuntary. 2

THIS CASE

Whether the Fourth Amendment was violated in

this case turns on a determination of whether Wyche

freely and voluntarily consented to providing a

sample for DNA analysis as contemplated by

Schneckloth, or whether his consent was the product

of “trickery” or “intentional deception” as

contemplated in Thomas and Johnson. I would

conclude that the degree and the flagrant nature of

the deception intentionally used by the police to

secure Wyche’s consent prevented that choice from

being “the product of an essentially free and

unconstrained choice by its maker.” Schneckloth,

12 The United States Supreme Court has never addressed how

a government official’s deception as to the purpose of the

official's action or investigation may affect the voluntariness of

an individual’ s consent toa eococh. ses ¢ 4 beep m. —

8. 2(n), at 183 (4th ed. 2004).

34a

412 U.S. at 225. In common terms, Wyche was

tricked into giving a sample by the use of intentional

deception specifically crafted to secure the consent.

This appears to be precisely the kind of police

misconduct contemplated by our statements in

Thomas and Johnson.

The State cites and the majority opinion relies on

Washington for the proposition that a DNA sample

secured in one case may be used in an investigation

of another case. However, while the defendant in

Washington was implicated in and convicted of a

different crime from the one as to which he

consented to provide a sample, the use of the DNA

sample was approved in the other case only after it

was determined to have been properly obtained in

the first instance. There was no issue of trickery or

intentional deception. The focus in Washington was

on the continuing use of a validly obtained DNA

sample, whereas the focus in McCord and Wyche

was on the voluntariness of the consent to provide a

sample in the first instance. The characteristic that

distinguishes between McCord and Wyche on the

one hand and Washington on the other is that in

both McCord and Wyche, the defendant gave a DNA

sample to be tested for a completely fabricated crime

so that the DNA testing would be certain to clear

him.

The circumstances of this case more closely

resemble the circumstances presented in Bumper.

In Bumper, the defendant’s live-in grandmother

consented to the police search of his house only after

the officers falsely claimed they had a search

warrant. 391 U.S. at 546. The Supreme Court held

35a

that this search violated the Fourth Amendment

because the consent given was involuntary when

predicated upon-a false claim of the existence of a

warrant. Id. at 550. In other words, the consent was

vitiated because it was obtained by the invocation of

a critical but false representation.

Similarly, although no claim of a warrant was

involved, Wyche consented to a search here pursuant

to a false police promise that the saliva sample

would provide the means to exonerate him as to any

participation in a burglary of a local supermarket.

However, the supermarket burglary case was

actually a fiction, an intentional deception

concededly created solely for the purpose of inducing

the defendant to provide a DNA sample. Because it

could only result in the defendant’s exoneration of

participation in a nonexistent crime, the defendant

had everything to gain and nothing to lose. Of

course, this is precisely why this particular deception

was intentionally used by the police to induce the

defendant to provide the sample. I would conclude

that, as in Bumper, consent simply cannot be

established as having been given freely and

voluntarily when it is predicated upon such a critical

misrepresentation.

A comparison of cases from other courts to the

instant case further supports my conclusion. Several

courts have addressed the voluntariness of a consent

to search where the police have fabricated a crime or

said that the object of a criminal investigation was

something other than what it actually was in order

to induce the subject’s consent. While courts have

come to different conclusions regarding the

:

;

:

36a

voluntariness of a consent, they have all emphasized

the importance of the particular facts of the case.

For example, in Carter, postal inspectors, who were

investigating the disappearance of mail, placed

several marked bills and a bearer check in the mail

trays at the bank where the defendant worked as a

mailroom employee. 884 F.2d at 369. After the

inspectors identified the defendant as a possible

suspect, he was summoned to the office of the bank

president where he was interviewed by the

inspectors. Id. The inspectors told the defendant

that they were investigating the disappearance of

Canadian money and asked whether they could look

in the defendant’s wallet. Id. The defendant

complied, and the investigators discovered the

marked items. Id. The Eighth Circuit held that the

inspectors’ deceptive statements as well as other

circumstances, including the fact that the defendant

underwent custodial interrogation, supported the

district court’s order suppressing the evidence. Id, at

375.

In Krause, the police fabricated a false story of a

rape in order to search the suspects’ residence for

drugs. 206 S.W.3d at 923-24. In order to gain access

to the residence, the police knocked on the door of

the suspects at 4 a.m. and informed them that a

young girl had just reported being raped by one of

the occupants in the residence. Id. at 924. The

police officer asked if he could look around the

residence to determine whether her description of

the residence was accurate. Jd, Once inside, the

police discovered drugs in “plain view.” Id,

However, the Kentucky Supreme Court vacated the

defendant’s convictions and sentence, holding that

37a

the deception employed by the police was so unfair

as to be coercive and that the consent to search was

unconstitutionally invalld. Id. at 927-28. The

court’s belief that the consent to search was coerced

was based on the following factors: (1) given the time

and nature of the ruse, the defendant and his

roommate were in a particularly vulnerable state; (2)

the tactics were unnecessary and not based on

pressing or imminent tactical considerations; and (3)

if the type of ruse used by the police were sanctioned

by the court, citizens would be discouraged from

aiding in the apprehension of criminals. Id, at 926.

The court emphasized that its holding was limited

and narrow and noted that the distinguishing

feature of the case compared to most other ruse

cases was the fact that the police “exploited a

citizen’s civic desire to assist police in their official

duties for the express purpose of incriminating that

citizen.” Id. at 927.

Even though the Kentucky court found that the

use of such a ruse rendered the defendant’s consent

invalid, other courts have not found that this type of

misrepresentation, taken in conjunction with other

factors, invalidates consent to search. For example,

in Andrews, federal agents who were executing a

search warrant handcuffed the defendant and led

him into his hotel room. 746 F.2d at 247. An agent

advised the defendant that he was not under arrest

but also advised the defendant of his Miranda"

rights. Id. at 248. When the agents found a gun in

the room, they asked the defendant if it was his.

Andrews, 746 F.2d at 248. Although the defendant

‘3 Miranda y. Arizona, 384 U.S. 436 (1966).

38a

said it was not, he also stated that he owned two

guns, which were at his home, and described one of

them as being a sawed-off shotgun. Id, The agent

asked the defendant if he would mind if the agent

examined the shotgun, telling the defendant that a

person fitting the defendant’s description had been

connected to robberies in which a sawed-off shotgun

was used. Id, In fact, the agent’s purpose in asking

to inspect the shotgun was to establish the

defendant’s possession of firearms so that the

defendant could be charged with illegal possession of

a firearm by a felon. Id, The agents and the

defendant drove separate cars to the defendant’s

home, where the defendant led the agents into his

residence and produced the shotgun. Id. The agents

seized the weapon, and the defendant was indicted

for possession of a firearm by a convicted felon. Id,

The defendant appealed, but the Fifth Circuit

rejected his argument that the evidence should have

been suppressed because it was obtained through

fraud, trickery, and deception. Id, at 247. Although

the Fifth Circuit acknowledged that

misrepresentation is a factor to be considered in

evaluating the circumstances surrounding consent,

the court ultimately found that the defendant’s

consent was voluntary because he was not under

arrest when he produced the gun, he voluntarily

waived his Miranda rights, the agents had not forced

him to produce the gun, and two hours passed

between the initial consent and the actual

production of the gun. Andrews, 746 F.2d at 249-50.

Similarly, in Zamora, a Colorado appellate court

upheld the use of a ruse in which the police told a

man suspected of kidnapping and _ sexually

39a

assaulting a child in his home that they wished to

see the layout of his apartment to aid in their

investigation of a domestic dispute at an adjacent

apartment. 940 P.2d at 941. The defendant let the

police inside, and the police observed that the

apartment’s layout and the empty waterbed frame in

the bedroom matched the victim’s description. Id,

The defendant was subsequently arrested and

convicted for kidnapping and sexual assault. Id. On

appeal, the defendant argued that his consent to the

entry of his apartment was invalid because it was

obtained through deception. Id. The court, however,

found that the defendant’s consent was voluntary

based upon the totality of the circumstances. Id, at

942-43. The court reasoned that although the

officers may have partially misrepresented their

purpose, they were truthful in saying they desired to

see the layout of the apartment. Id, at 943. The

court also observed that the officers did not exceed

the scope of the consent. Id.

Because the cases in which the police fabricated a

crime in order to obtain a subject’s consent are the

most closely analogous to the instant case, the facts

upon which those cases turn are of particular

importance to the analysis of the instant case. For

example, while Wyche was not in a particularly

vulnerable state like the suspects in Krause, he was

in custody for a violation of probation just as the

suspect in Carter was in custody. See Wyche, 906

So. 2d at 1143. In contrast to the suspect in Carter

and to Wyche, the suspect in Zamora was never in

police custody. Moreover, unlike the defendant in

Andrews, who admitted he owned a shotgun before

the agents ever told him about the alleged robberies

40a

in which a shotgun was used, Wyche never

volunteered any information or a sample to the

police before they informed him that he was a

suspect in a fictitious burglary. See Wyche, 906 So.

2d at 1143. Taken together, these cases support the

conclusion in the instant case that Wyche’s consent

was not freely and voluntarily given.

I would also concur in Judge Ervin’s observation

in his dissent below that, historically, the case law

finding police deception failing to negate consent has

involved a factual misrepresentation of the

circumstances under investigation rather than a

complete fabrication of the basis under which the

defendant gave consent:

In my judgment, the present case is a

classic example of police overreaching that

requires suppression of the DNA sample. The

officer’s deliberate misrepresentation was not

a factual misstatement in an ongoing case in

which appellant was a suspect, but its

purpose was to delude him of his true position

by informing him he was a suspect in a crime

that had never been committed so that

incriminating evidence might be obtained

from him in an altogether unrelated case,

which, as events developed, also revealed his

non-complicity. It was not until the

investigation of yet another unrelated case

that the officer’s deception bore fruit and a

match was finally obtained. Such crime

shopping, in my opinion, cannot be condoned

in an ordered society.

;

s

Ss

.

;

M,

*

7

.

4la

Wyche, 906 So. 2d at 1149 (Ervin, J., dissenting). I

would agree with Judge Ervin’s distinction between

“police misstatements which delude a defendant as

to the import of his or her confession, and are thus

improper, and police misstatements of relevant facts,

which can be proper.” Id. at 1148 (Ervin, J.,

dissenting) (citing State v. Manning, 506 So. 2d

1094, 1097-98 (Fla. 3d DCA 1987)). In other words,

contrary to our caution in Thomas, the police here

engaged in a technique calculated to trick or to

delude the suspect as to his true position.

The First District majority in Wyche, while

recognizing our holdings that not all deception will

render a confession or a consent to search

involuntary, failed to recognize any limitations on

government misconduct or to recognize our cautions

in Johnson and Thomas, warning against

“intentional deception” and “[t]echniques calculated

to exert improper influence, to trick, or to delude the

suspect as to his true position.” Those cautions

appear to apply precisely to the actions of the

government in securing Wyche’s consent.

Further, in addition to our cautions against the

government’s use of trickery and _ intentional

deception in Johnson and Thomas, I would also

agree with the “bottom-line” analysis of Judge Gross

in his specially concurring opinion in McCord:

The bottom line in this consent case is, as

Professor LaFave has written, that the test the court

has applied is “to ask if the deception is ‘fair,’ . . . the

question which must be asked under the

Schneckloth formulation.” Lafave, § 8.2(n). As the

Court noted in Schneckloth:

42a

there is no “ready definition of the meaning of

‘voluntariness’ ”; rather, that term merely

reflects an accommodation between the need

for effective enforcement of the criminal law

and “society's deeply felt belief that the

criminal law cannot be used as an instrument

of unfairness.”

LaFave, § 8.2(n) (quoting Schneckloth, 412 U.S.

at 224-25). McCord, 833 So. 2d at 831-32 (Gross, J.,

concurring specially); accord People v. Daugherty,

514 N.E.2d 228, 233 (Tl. App. Ct. 1987) (holding that

under the circumstances, the deception was so unfair

as to be coercive); Krause, 206 S.W.3d at 927 (finding

that the deception employed by the police was so

unfair and unconscionable as to be coercive). As

noted above, I would conclude in this instance that

the level of police trickery and use of intentional

deception prevented Wyches consent from

constituting “the product of an essentially free and

unconstrained choice by its maker” as required by

Schneckloth’s fairness analysis.

CONCLUSION

I would hold that consent is not voluntary where

the government obtains it by intentionally and

falsely informing a person in custody that the person

is suspected of a completely fabricated crime. In the

instant case, Wyche gave Investigator

VanBennekom a saliva sample in direct response to

the intentional misrepresentation that the DNA

would be used to investigate a burglary at a

supermarket, a nonexistent and completely

fabricated crime. Because VanBennekom

manufactured the crime, he intentionally misled the

43a

defendant and did not validly obtain the DNA

sample with Wyche’s voluntary consent.

Accordingly, because I would conclude that

Wyche’s consent was not “the product of an

essentially free and unconstrained choice,” I would

quash the decision below, and would approve of the

Fourth District’s decision in McCord.

PARIENTE and LEWIS, JJ., concur.

LEWIS, J., dissenting.

Although upon first reading the majority opinion

appears both persuasive and plausible, a more

detailed analysis causes me great concern and leads

me to disagree with the majority in several respects.

In my dissent, I conclude that after proper analysis

it is apparent that the broad and overly generalized

holding of the First District in Wyche v, State, 906

So. 2d 1142 (Fla. lst DCA 2005), is simply incorrect

in light of federal Fifth Amendment decisions and

the derivative holding of Schneckloth v. Bustamonte,

412 U.S. 218, 225-26 (1973), which adopted the Fifth

Amendment voluntariness standard as_ the

controlling paradigm for this Fourth Amendment

consent-search context. The majority approves the

decision of the First District below and therefore

bases its opinion upon a defective cornerstone. Such

an edifice will not stand the test of time. As more

fully explained, I dissent for the following reasons.

First, the majority fails to consider a number of

voluntariness factors (in addition to police

deception), which were established during the

suppression hearing and which militate in favor of

44a

the conclusion that Wyche did not voluntarily

consent to the saliva-swab search here.'4 Second, in

at least two decisions, the United States Supreme

Court has found that affirmative police

misrepresentations were relevant and sufficient to

vitiate the voluntariness of a defendant’s confession.

Hence, in my view, the First District’s absolutist, per

se holding that “[djeception does not negate”

voluntariness is simply an _ inaccurate, bold

overstatement that constitutes a faulty foundation

upon which to craft a majority opinion.

Furthermore, both federal and Florida decisions

support the conclusion that police deception is a

relevant voluntariness factor.

Third, the very nature of police coercion or duress

is—in the words of the United States Supreme

Court—often “subtle,” “implied,” and “psychological”;

therefore, the First District’s characterization of

police coercion as inherently “overt and direct”

ignores the plain language and import of the High

Court’s voluntariness decisions. Fourth and finally,

the majority does not address or explain the varying

significance of different types and gradations of

police deception, and instead merely distinguishes

two conflicting district court decisions (Wyche and

State v. McCord, 833 So. 2d 828 (Fla. 4th DCA

‘4 Voluntariness inquiries are heavily fact-intemsive and case-

specific. Accordingly, I primarily address the additional

voluntariness factors in the factual-background section of this

dissenting opinion. Furthermore, the trial proceedings, while

not a direct basis for my suggested reversal of the decision of

the First District, provide additional confirmation of the

evident constitutional dilemma created by the police

investigators in this case.

45a

2002)). However, these conflicting decisions are

irreconcilable with regard to the status vel non of

police deception as a totality-based voluntariness

factor. Therefore, the majority’s failure to articulate

a clear holding with regard to the relevance of police

deception in determining voluntariness relegates the

lower courts of this State to choosing between Wyche

and McCord on the basis of which decision more

closely resembles the facts of the given case. This is

an exceedingly difficult, if not impossible, task given

the numerous factual similarities between these

decisions. Consequently, if I were to draft the

majority opinion, I would quash the erroneous

decision of the First District in Wyche, approve the

decision of the Fourth District in McCord, and hold

that police deception is a relevant voluntariness

factor to be considered in light of “all the

surrounding circumstances,” as required by the

United States Supreme Court’s Schneckloth

decision. |

I. BACKGROUND

While I appreciate the practical reliance of the

majority upon only the opinion of the First District

to supply the facts for our consideration, my analysis

of Wyche’s suppression motion and the suppression-

hearing transcript indicates that the factual account

presented by the First District is lacking in several

significant respects and fails to identify or

sufficiently consider the following factors that

militate in favor of an involuntariness finding: (1)

intentional police fabrication of an extrinsic felony

offense for the purpose of inducing the defendant's

consent; (2) the defendant’s custodial status and

46a

custodial interrogation; and (3) the apparent absence

of warnings pursuant to Miranda v. Arizona, 384

U.S. 436 (1966), or explanation of the defendant’s

constitutional rights with regard to the consent.

Moreover, while it does not provide a direct basis for

my conclusion that we must reverse the erroneous

decision of the First District, the complete record on

appeal further confirms that the police investigators

lacked a reasonable suspicion, probable cause, or any

cause to detain or arrest the defendant concerning

the Pink Magnolia burglary. Given the dispositive

role that facts play in the totality-of-circumstances

consent-search context, I believe that it is necessary

to more fully describe the factual milieu involved in

this case as actually disclosed by the suppression

motion, the suppression-hearing transcript, and the

pth raion angie the a ae

ieaeek the jin facially denied Wyche’s 5 aan to

suppress. The dispositive, clear-cut facts of this case

are present in the suppression materials, and the

record on appeal further reveals the unconstitutional

tactics that the police investigators used to coerce

Wyche’s consent to the saliva-swab search. I merely

consider them within the confines of the proper legal

inquiry—whether Wyche’s consent was voluntary

based upon an analysis of “all the surrounding

circumstances.” Schneckloth, 412 U.S. at 226, 229

(emphasis supplied).

Upon examination of the suppression materials

and the record, it is apparent to me that little

genuine investigative work occurred in this case.

The majority's finding that Mr. Wyche voluntarily

47a

consented to the saliva-swab search based upon “all

the circumstances” thus lends tacit approval to many

questionable practices and calls into doubt the basis

of our ee criminal — ayetem:

system’ and . Ana , eenttinds, ‘eetiins for eliciting

inculpatory [evidence] must fall within the broad

constitutional pocmnmerite — by the moueteenth

Miller v. Fenton. 474 U. S. 104, 110 (1985) “rs sane

supplied) (making this observation in a confession

case; however, as stated in Schneckloth, the pre-

Miranda voluntariness standard drawn from

confession cases controls Fourth Amendment

consent-search determinations) (quoting Rogers v.

Richmond, 365 U.S. 534, 541 (1961)); see also

Reddish v. State, 167 So. 2d 858, 863 (Fla. 1964).

Further, the majority glosses over the fact that the

“circumstances” of this case include the stipulated

truth that a police detective fabricated an illusory,

yet ostensibly valid felony offense for the express

purpose of inducing an in-custody defendant’s

“consent.” Cf, Lynumn vy, Illinois, 372 U.S. 528, 529-

34 (1963) (police misrepresentation that a suspect

would be deprived of state financial aid for her

dependent children if she failed to cooperate with

authorities rendered her subsequent confession

involuntary); Spano v. New York, 360 U.S. 315, 320-

23 (1959) (coercive police behavior vitiated the

voluntariness of the defendant’s confession, a major

component of which was a police fabrication,

deception, or misrepresentation); Samuel v. State,

898 So. 2d 233, 234-37 (Fla. 4th DCA 2005) (the

police vitiated the voluntariness of the defendant’s

48a

confession by inducing his seli-incrimination through

the use of fabricated robbery offenses and the

promise that they would only charge the defendant

with the robberies to which he confessed).

A. The Circumstantial-Evidence Case

The facts here emphasize the importance of the

invalidly obtained saliva swabs, which were the only

items of evidence that enabled law enforcement to

connect Mr. Wyche to the burglary involved in this

case. The majority castigates me for considering

facts not presented during the suppression hearing

and inaccurately implies that the only relevant fact

presented during the hearing was the bare

allegation that the police investigators used trickery

to obtain Wyche’s DNA. Such allegations are

contrary to the facts presented in the suppression

materials. In relevant part, Wyche’s suppression

motion stated:

On December 11, 2001[,] Investigator

VanBennekom was investigating an unsolved

sexual assault and thought [Wyche] may be a

suspect. After [Wyche] was arrested/detained

by another officer on a warrant for alin)

[unrelated] violation of probation in Columbia

os Me Rpts org enDencahenn

49a

Dixie. The saliva swab was compared to the

samples in Investigator VanBennekom|’s] open

sexual assault case, where no match was

obtained, and at the request of Investigator

Moody, Investigator VanBennekom also had

FDLE*> compare the swab samples to samples

from a(n) [actual] burglary at the Pink

Magnolia.

(Emphasis _ supplied.) Similarly, during the

suppression hearing, counsel for Wyche stated:

Officer VanBennekom .. . engaged in = in

order to get iWyehe) to consent to a saliva swab. .

burglary that we're here on. And the [Winn-Dixie]

burglary that he used as a ruse in order to get

Wyche to consent was a fictitious burgiary .

[T]he alleged incident occurred on December 5th,

2001. While there may have been some suspicion

that Mr. Wyche was involved, no warrant was

obtained for him at that time. No warrant was

obtained [by the Lake City Police] until... they

actually had the DNA. And that occurred roughly in

October of 2002. ... [T]hey took the DNA results on

December 11th lof 2001), seven days after the

alleged er int the Pink a Shes_used

They filed them with FDLE. And pe fen

46 The Florida Department of Law Enforcement.

50a

montis feo pated pes ~ rooulte. ae aan See

patie sparen Tare But shar dida’s have

pees er: move perme and then the [supposed]

conmaaiiens _— this ge [Tihere are no

(Emphasis supplied.) Thus, the suppression motion

and hearing disclose the dispositive facts upon which

my dissent rests: (1) Investigator VanBennekom

affirmatively deceived Wyche—an in-custody suspect

who was detained with regard to an unrelated

offense—by accusing him of a wholly fictitious, yet

ostensibly valid and_ serious’ felony; (2)

VanBennekom did so for the express purpose of

inducing Wyche’s consent either expressly or

impliedly through the promise of exoneration; (3) the

investigation with regard to Wyche’s alleged

involvement in the Pink Magnolia burglary was

purely based upon speculative suspicion (ie., “a

hunch”), and not upon probable cause or, in my view,

even an articulable suspicion; (4) the police

investigators had nothing to tie Wyche to this case

save for the invalidly obtained saliva swabs; and (5)

the police “crime shopped” until they could tie

Wyche’s DNA to evidence obtained from some

pending investigation. Instead of applying the

requisite totality-of-cireumstances voluntariness

test, which requires a careful sifting of the unique

Sla

facts of the case at bar, the trial court facially denied

Wyche’s suppression motion without supplying a

single line of legal analysis. Further, this total lack

of analysis was directly contrary to the binding, well-

reasoned decision of the Fourth District in State v.

McCord, 833 So. 2d 828 (Fla. 4th DCA 2002), which

Wyche had attached to his suppression motion.

As explained in my analysis, the facts disclosed

during the suppression hearing are sufficient under

governing doctrine to warrant the suppression of the

saliva-swab evidence in this case. I merely reference

additional facts that are present in the record to

further communicate the fundamental significance of

this dissent: the deceptive police practices endorsed

by the majority are contrary to established Fourth

and Fifth Amendment precedent, and, if continued,

this type of inquisitorial misadventure will lead to

the wholesale abandonment of a central aspect of our

accusatorial system.

The factual background that follows is a complete

summary of this case. In Lake City, Florida, on

either the night of December 4, 2001, or during the

early-morning hours of December 5, 2001, someone

burglarized a local gift boutique known as the Pink

Magnolia. It appears that the perpetrator threw an

ornamental duck through a window at the front of

the store to gain entry and removed what amounted

to sixteen to twenty pieces of 10- and 14-carat gold

jewelry, each piece valued at under $100.00. Joyce

Lookingbill, a sales clerk, reported the break-in.

Officer Mike Adams was the first to respond and the

scene was secured. However, the next law

enforcement officer to arrive, Investigator Joseph M.

52a

Moody, testified that no other officers were present

when he arrived and Officer Adams was summoned

to return to the Pink Magnolia. Based on his trial

testimony, Investigator Moody arrived at the shop

between 8:30 and 9 a.m. He entered the shop and

collected three samples of what appeared to be drops

of blood scattered at various points from the front

door of the shop to immediately behind the sales

counter. According to a later FDLE analysis, only

two of the three samples actually contained blood.

Investigator Moody did not take pictures of the crime

scene and did not label the individual blood samples

to show the location from which they were recovered

within the Pink Magnolia; instead, he merely

numbered them sequentially based upon what he

described as his path from the front door to the sales

counter. Other than the testimony of Investigator

Moody, there is no clear indication in the record with

regard to where the blood was actually located

within the shop.

Mr. Wyche was a day laborer who had performed

yard work at the Pink Magnolia on two or three

occasions. He testified below that while he was

performing work at that location he cut his hand

pulling weeds and, after doing so, entered the Pink

Magnolia to request that the owner supply him with

gloves. Wyche did not travel more than several feet

into the shop when he requested the gloves, so the

lack of photographs and evidence-location labels

becomes important, as the absence of those items

prevented the State from definitively establishing

where the sampled blood was located within the

Pink Magnolia.

53a

There were never any fingerprints recovered from

the Pink Magnolia, there were no eye witnesses to

the crime, and there is no indication in the record

that the police interviewed anyone other than the

shop’s owner and employees. The jewelry was never

recovered, and Investigator Moody neither

questioned Mr. Wyche nor recovered any evidence

from Wyche. The only significant event contained in

the record that led Investigator Moody to include

Wyche as a person of interest in the Pink Magnolia

burglary was an anonymous phone call received by a

Sergeant Ostendorf. Evidently, Sergeant Ostendorf

then contacted Investigator Moody and related to

Moody the details of the anonymous phone call. The

caller allegedly stated that Wyche was in the north

end of Lake City attempting to sell jewelry and that

Wyche was cut on his arm and bleeding. However, it

is important to note that when Moody attempted to

corroborate the anonymous tip, he discovered that

Wyche was not on the north end of Lake City and

that he was not attempting to sell jewelry in that

vicinity.'6 Consequently, on this record, the police

lacked probable cause, a reasonable, articulable

suspicion, or any cause to arrest or detain Mr.

Wyche for questioning concerning the Pink Magnolia

burglary. See, eg., State v. Maynard, 783 So. 2d

226, 229 (Fla. 2001) (“Because an anonymous caller’s

basis of knowledge and veracity are typically

unknown, these tips justify a stop only once they are

‘sufficiently corroborated’ by police.” (emphasis

16 In response to a defense motion in limine, the State agreed

not to reference the anonymous tip during the trial

proceedings.

54a

supplied) (quoting Alabama v. White, 496 U.S. 325,

330 (1990))); J.L. v. State, 727 So. 2d 204, 207 (Fila.

1998), affd, 529 U.S. 266 (2000) (“An anonymous tip

can provide the basis for an nesta, sare stop —

the tip, as : endent p

exhibits sufficient indicia of reliability to forniah

police with a reasonable suspicion that the

defendant is engaged in criminal activity.” (emphasis

supplied) (quoting Butts v. State, 644 So. 2d 605, 606

(Fla. lst DCA 1994))); Illinois v. Gates, 462 U.S. 213,

241-46 (1983) (emphasizing the importance of police

corroboration of anonymous tips in creating the

probable cause necessary to secure a _ search

warrant).

B. The Invalid Acquisition of the Saliva Swabs

and the Erroneous Admission of this Evidence

On December 11, 2001 (six to seven days after

the Pink Magnolia burglary), Lake City police

officers approached and arrested Mr. Wyche on the

basis of then-active, unrelated warrants. Once the

police took Wyche into custody, he was transported

to a police station and Investigator Clint

VanBennekom subjected him to _ custodial

interrogation.17 Based on the record before us,

17 The circumstances surrounding any allegedly voluntary

confession or consent to search include whether the purported

confessor or consenter is subjected to custodial interrogation.

See, e.g., Bram v. United States, 168 U. S. 532, 558 (1897) (“[A]s

statements of the prisoner were voluntary.”); United States v.

Watson, 423 U.S. 411, 424 (1976) (identifying custodial status

as one relevant, non-dispositive voluntariness factor, and

contrasting consents given while in custody in a public place

55a

Investigator VanBennekom lacked probable cause, a

reasonable, articulable suspicion, or any cause to

arrest or detain Mr. Wyche with regard to the Pink

Magnolia burglary. See, e.g., Maynard, 783 So. 2d at

229. Further, as the State and defense counsel have

stipulated, Investigator VanBennekom testified

under oath during his September 29, 2003,

deposition—which occurred approximately two

weeks before Wyche’s trial—that he intentionally

lied to Mr. Wyche by accusing him of a fabricated

burglary for the purpose of inducing Wyche to

consent to a saliva-swab search. Cf. United States v.

Montoya, 760 F. Supp. 37, 39-40 (E.D.N.Y. 1991)

(“[O]fficers cannot use a ruse to gain access unless

they have more than mere conjecture that criminal

activity is underway.” (emphasis supplied) (quoting

United States v. Maldonado Garcia, 655 F. Supp.

1363, 1367 (D. P.R. 1987))); 1 Criminal Practice

Manual § 25.91 (Thomson-West 2008 ed.) (“One

prerequisite common to all of these [deception-

induced] searches is that the pelice must have a

reasonable basis to believe criminal activity is

ongeing in the place to be searched; they cannot

simply _be on a ‘fishing’ expedition.” (emphasis

supplied)). VenBenackem was actually

from those given within the “confines of [al police station”

(emphasis supplied)); United States v. Carter, 884 F.2d 368,

370-71, 375 (8th Cir. 1989) (identifying custodial atmosphere

and police interrogation as relevant voluntariness factors); cf,

Moran y. Burbine, 475 U.S. 412, 426 (1986) (“[T]he Court has

recognized that the interrogation process is ‘inherently coercive’

and that, as a consequence, there exists a substantial risk that

the police will inadvertently traverse the fine line between

legitimate efforts to elicit admissions and constitutionally

impermissible compulsion.” (emphasis supplied)).

56a

investigating an unrelated sexual-assault case, and

the record contains no indication that he possessed

probable cause, a reasonable, articulable suspicion,

or any cause whatsoever to justifiably believe that

Wyche committed that offense, nor is there any

indication that VanBennekom questioned Wyche

with regard to that offense. In fact, Wyche’s genetic

material exonerated him with regard to the sexual

assault. The major theme of this case—the apparent

lack of genuine, honest investigative work—starkly

contrasts with the readily identifiable presence of

police fishing expeditions, or as Judge Ervin stated

in his dissenting opinion below—‘“crime shopping.”

Wyche, 906 So. 2d at 1149 (Ervin, J., dissenting).

It was VanBennekom’s goal to bait Wyche with

the evanescent, false hope of exonerating himself

with regard to a fabricated, yet ostensibly valid and

serious felony offense. Cf. United States v, Carter,

884 F.2d 368, 375 (8th Cir. 1989) (police deception,

ruses, and misrepresentations “may be considered

along with other factors as part of the totality of

circumstances”); United States v. Bosse, 898 F.2d

113, 115 (9th Cir. 1990) (“Special limitations apply

wan a woaneageog et — obtaina_entry _by

exremnenath. saicsiion, Alecess gained by a

government agent, known to be such by the person

with whom the agent is dealing, violates the fourth

amendment’s bar against unreasonable searches and

seizures if such entry was acquired by affirmative or

deliberate misrepresentation of the nature of the

government’s investigation.’ ” (emphasis supplied)

(quoting United States v. Little, 753 F.2d 1420, 1438

(9th Cir. 1984))). Investigator VanBennekom never

57a

questioned Mr. Wyche concerning the Pink Magnolia

burglary and never informed Wyche that he was a

suspect with regard to that offense. Moreover,

Investigator Moody—perhaps' unintentionally—

aided in the concealment of VanBennekom’s

fabrication by stating in a sworn complaint—dated

October 2, 2002—that “[Wyche] was arrested and

brought to the police station and interviewed by Inv.

C. Vanbennekom. [Wyche] denied any knowledge of

the crime and gave two swab saliva sample’s [sic] to

Inv. Vanbennekom who then turned them over to

me.” (Emphasis supplied.) Moody was investigating

the Pink Magnolia burglary and the sworn complaint

related to that crime, while VanBennekom was

“investigating” a fabricated burglary case and an

actual sexual-assault case. Hence, Moody’s sworn

complaint inaccurately and misleadingly insinuated

that Wyche was questioned with regard to the Pink

Magnolia burglary, that he denied his involvement,

and that he yoluntarily consented to a saliva-swab

search.'® This characterization of that interrogation

was and is simply false.

The Seadutent aes having failed with

ge 2 “ass ase, Investigator

Vaaiienasiaa= aia probable cause, articulable

suspicion, or any justifiable basis—then transferred

the saliva swabs to Investigator Moody, who in turn

submitted the swabs to FDLE for DNA analysis in

comparison to the two blood samples recovered from

the Pink Magnolia. Moody submitted the swabs on

‘8 The police report reiterates this same misleading

characterization of the interrogation of Mr. Wyche but adds

that “no other information was found.” (Emphasis supplied. )

wi

tide Alin tthe ed ail

58a

December 27, 2001, a little over two weeks after

VanBennekom’s deceptive custodial interrogation of

Wyche. Investigator Moody received the FDLE test

results on October 2, 2002, which disclosed a match

between the invalidly obtained saliva swabs and the

two Pink Magnolia blood samples. In sum,

Investigator Moody—without any discernable,

genuine investigative work—‘“got lucky” in the

“crime-shopping spree” then unfolding at the Lake

City Police Department.

Also noticeably absent from the record is any

indication that Mr. Wyche—an in-custody suspect—

was informed of his Miranda rights, that he executed

a consent-search form, or that he was otherwise

informed of his constitutional rights. While none of

these factors are dispositive under Schneckloth, they

are nevertheless well-established considerations that

inform a_ totality-of-circumstances voluntariness

inquiry and are simply not addressed in the

majority's analysis. See, eg., United States v.

Watson, 423 U.S. 411, 424-25 (1976) (identifying

whether the defendant received proper Miranda

warnings and whether the defendant knew he or she

could withhold his or her consent as relevant

voluntariness factors); United States v. Davis, 749

F.2d 292, 296 (5th Cir. 1985) (identifying “the

defendant’s awareness of his right to refuse to

consent to the search” as a relevant voluntariness

factor); United States v. Juarez, 573 F.2d 267, 274

(5th Cir. 1978) (identifying receipt of proper Miranda

warnings and knowledge of the constitutional right

to refuse consent as relevant voluntariness factors);

United States v. Worley, 193 F.3d 380, 386-87 (6th

Cir. 1999) (substantially similar). We do, however,

59a

have Investigator VanBennekom and the State’s

bold claim that VanBennekom was _justifiably

ignorant of the fact that police deception is a factor

which contributes to involuntary consents and

confessions. Below, during argument on the motion

to suppress, the State relied on Frazier v. Cupp, 394

U.S. 731 (1969), to justify this protestation of

igneranes; Py yer even that case recognised that

739. ecto onder Peay eee ge High Court held that

an instance of intrinsic police deception!® did not

vitiate the voluntariness of the defendant's

confession under the totality of circumstances

present in that case, see Id.° Frazier does not

stand for the unsubstantiated legal proposition that

the police possess carte blanche to deceive suspects

into relinquishing their constitutional rights under

‘9 “Intrinsic” and “extrinsic” refer to whether the fabricated

facts relate to the offense the suspect knows the police are

actually investigating (“intrinsic fabrication”) or, in contrast, to

facts outside of and unrelated to the offense the police are

actually investigating (“extrinsic fabrication”).

20 After recounting the voluntariness factors present in

Frazier—(1) the defendant received a partial warning with

regard to his constitutional rights; (2) the questioning was of

short duration; and (3) the defendant was mature and of

normal intelligence—the Court held that “[t}he fact that the

police misrepresented the statements that [the defendant's

cousin} had made is, while relevant, insufficient in our view to

make this otherwise voluntary confession inadmissible. These

cases must be decided by viewing the ‘totality of the

circumstances,’ and on the facts of this case we can find no

error in the admission of petitioner's confession.” 394 U.S. at

739 (emphasis supplied) (citation omitted).

60a

all circumstances. See Id.; see also Schneckloth, 412

U.S. at 225 (noting that the police do not possess

“carte blanche to extract what they can from a

suspect”); Lynumn, 372 U.S. at 529-34 (police

misrepresentation with regard to financial

assistance to, and custody of, suspect’s children

rendered suspect's incriminatory statements

involuntary); Spano, 360 US. at 320-23

(misrepresentation by the suspect’s childhood

friend—a_police officer—that the friend would lose

his job as a law enforcement officer if the suspect

failed to cooperate rendered the _ suspect's

incriminatory statements involuntary).

It is constitutionally mandated that we follow

federal Fourth Amendment jurisprudence;

specifically, that of the United States Supreme

Court. See art. I, § 12, Fla. Const. Further,

Schneckloth’s voluntariness test is a derivative

doctrine drawn from Fifth Amendment confession

jurisprudence. See 412 U.S. at 225-26. Thus, I do

not find it unreasonable or unnecessarily

burdensome for this Court to require that the law

enforcement personnel of this State possess at least

a rudimentary understanding that not all instances

of police deception are permissible under federal

Fourth and Fifth Amendment doctrine. Florida law

enforcement personnel, in my view, = are

sophisticated, talented, and well advisea and

informed. The Federal Bureau of Investigation does

not appear to entertain any doubts on this subject,

and that agency provides the following guidance to

its special agents: “Use of physical force or threats .

. will render a consent involuntary. Likewise,

fraud, deceit. or misrepresentation will taint the

6la

consent. But a consent to enter, obtained by such

means in an pemgrsagead ——- is proper.” FBI,

=f°4: rents § 5-4.5, at 19

(photo. reprint 2003) (copy on file with Florida

Supreme Court Library) (emphasis supplied).2!_ As

explained below, much if not all of the federal case

21 The Legal Handbook certainly does not carry the

independent force of law, but its goal is to provide an accurate

summary of the federal law that FBI agents must follow in

conducting federal investigations. See id, § 0-1, at 1. The legal

summaries presented in the text are “based on [United States]

Supreme Court decisions or, in those areas where the Supreme

Court has not addressed a particular legal issue, on an analysis

of lower federal court decisions.” Id,

In prior cases, the United States Supreme Court has relied

upon the experience of the FBI in rationalizing the existence of

the exclusionary rule. For example, in Elkins y. United States,

364 U.S. 206, 218-19 n.8 (1960), the High Court rebuffed the

contention that the exclusionary rule had rendered federal law

enforcement ineffective by quoting the comments of former FBI

Director J. Edgar Hoover. The observations of the Director

remain apropos here given Investigator VanBennekom’s

intentional deception of Wyche for the purpose of inducing his

relinquishment of the constitutional right to be free from

unreasonable searches and seizures:

One of the quickest ways for any law enforcement

officer to bring public disrepute upon himself, his

organization and the entire profession is to be found guilty

of a violation of civil rights. Our people may tolerate many

mistakes of both intent and performance, but, with

Gis uabaih |

punish, certainly leads down the road to totalitarianism.

364 U.S. at 220 n.8 (emphasis suppiied) (quoting FBI Law

Enforcement Bull, Sept. 1952, at 1-2).

62a

law that the Legal Handbook undoubtedly relied

upon predates the events of this case, most of which

occurred during 2001 and 2002. However, even if

VanBennekom and his colleagues were unaware of

applicable federal case law, our own confession case

law and other Florida decisions, many of which

predate 2001, consider the type and extent of police

deception a relevant voluntariness factor. If we are

to remain faithful to our duty to protect the

constitutional rights of the citizens of this State, we

cannot hold Florida’s police officers to a lesser

standard of required knowledge.

Wyche officially became a suspect in the Pink

Magnolia burglary on October 2, 2002. He was later

arrested on April, 7, 2003, was arraigned on April

15, 2003, and pled not guilty in response to a three-

count information.22 On October 14, 2003, Wyche

submitted a timely motion to suppress the saliva

swabs, which he predicated upon the Fourth

District’s then-binding McCord opinion. The motion

to suppress was timely under Florida Rule of

Criminal Procedure 3.190(hX4), despite the trial

court’s facial ruling to the contrary. The rule merely

states that “[tjhe motion to ‘suppress shall be made

ho AE = the court may entertain Stes tidlien

or an appropriate objection at the trial.” Fla. R.

22 The State charged Mr. Wyche with burglary of a structure

(section 810.02, Florida Statutes (2001)) (Count I), third-degree

grand theft (section 812.014(2Xc)1., Florida Statutes (2001))

(Count II), and criminal mischief (section 806.13, Florida

Statutes (2001)) (Count IIT).

63a

Crim. P. 3.190(hX4) (emphasis supplied). Here,

defense counsel was not aware of the fact that

Investigator VanBennekom had fabricated a felony

offense to induce Wyche’s consent to the saliva-swab

search until September 29, 2002, which was a mere

fifteen days before defense counsel submitted

Wyche’s motion to suppress on October, 14, 2003.

Moreover, defense counsel submitted the motion to

suppress before the jury was sworn _and_ before

jeopardy had attached. This timeframe included ten

business days,?* which is well within the reasonably

required amount of time to properly research and

draft a motion to suppress. Jury selection also took

place during this timeframe, further accounting for

defense counsel’s supposed delay in submitting the

motion to suppress. In my view, the facial denial of

the motion to suppress as untimely did not comport

with the dictates of rule 3.190(h\4).

Similarly, the motion to suppress did not seek

retroactive application of case law. Since at least the

mid-to-late 1970s, police deception has been a

relevant voluntariness factor for federal courts in

applying a Schneckloth totality analysis, and this

Court is bound by our State Constitution to interpret

and apply federal Fourth Amendment doctrine. See,

e.g., Schneckloth, 412 US. at 226-49 (mandating

that the totality-based voluntariness test include

examination and consideration of “all the

surrounding circumstances” (emphasis supplied));

United States v. Bosse, 898 F.2d 113, 115 (9th Cir.

23 Ten business days not including the day on which defense

counsel submitted the motion to suppress to the trial court (i.e.,

October 14, 2003).

64a

1990) (identifying police deception as a relevant

voluntariness factor); United States v. Carter, 884

F.2d 368, 370-71 (8th Cir. 1989) (same); United

States v. Andrews, 746 F.2d 247, 250, 250 n.4 (5th

Cir. 1984) (same), abrogated on other grounds by

United States v. Hurtado, 905 F.2d 74, 75 (Stk Cir.

1990); United States v. Griffin, 530 F.2d 739, 742-43

(7th Cir. 1976) (same); United States v. Hrdlicka,

520 F. Supp. 403, 409 (W.D. Wis. 1981) (same).4

24 See also United States v. Esquivel, 507 F.3d 1154, 1159 (8th

Cir. 2007) (identifying a non-exhaustive list of Schneckloth

voluntariness factors and including inter alia: “whether the

police made promises or misrepresentations”); United States v.

Laine, 270 F.3d 71, 75 (1st Cir. 2001) (identifying the absence

of police “trickery” as a voluntariness factor); United States vy,

Lace, 669 F.2d 46, 52 (2d Cir. 1982) (identifying “the absence of

any deception, coercion, or other overreaching on the part of the

police” as a voluntariness factor), Brown v. Brierley, 438 F.2d

954, 957-59 (3d Cir. 1971) (considering police deception as a

relevant issue, but ultimately finding consent valid under the

circumstances); Vizbaras v. Prieber, 761 F.2d 1013, 1014-15,

1017 (4th Cir. 1985) (holding that no _ intentional police

misrepresentation occurred); United States v. Buchanan, 904

F.2d 349, 355 (6th Cir. 1990) (“The government has the burden

of showing that consent was not contaminated by any duress,

coercion, or trickery.” (emphasis swppiied)); United States v.

Sanchez-Jaramillo, 637 F.2d 1094, 1098 (7th Cir. 1980) (“[The

defendant] presented no evidence that agents made any threats

or promises to affect his judgment, nor are there claims of any

other form of coercion or misrepresentation” (emphasis

supplied)); United States v. Wellins, 654 F.2d 550, 557 (9th Cir.

1981) (noting that “there were no threats or misrepresentations

made which would have induced [the defendant's} consent”

(emphasis supplied)), United States y. Smith, 199 Fed. Appx.

759, 763 (11th Cir. 2006) (unpublished opinion) (“The record

indicates that [the police officer] did not attempt to coerce or

intimidate (the defendant) into consenting to the search. On

the contrary, [the officer] and [the defendant's] interaction

65a

Further, confession cases from the U~-ted States

Supreme Court and from Florida’s appellate courts

hold that the type and extent of police deception is a

relevant voluntariness factor to consider under the

totality of circumstances. See, e.g., Frazier, 394 U.S.

at 739; Lynumn, 372 U.S. at 529-34; Spano, 360 U.S.

at 320-23; Johnson v. State, 660 So. 2d 637, 642 (Fla.

1995); Thomas v. State, 456 So. 2d 454, 458 (Fla.

1984); Brewer v. State, 386 So. 2d 232, 235-36 (Fla.

1980); Chambers v. State, 965 So. 2d 376, 378 (Fla.

4th DCA 2007) (“{[Wle reach the inescapable

conclusion that Chambers’[] confession which almost

er. ensued from what was oe .

he told the truth rendered his recorded moc

and confession unconstitutional as coerced and

involuntary.” (emphasis supplied)); State v.

Cayward, 552 So. 2d 971, 973-75 (Fla. 2d DCA 1989),

review dismissed, 562 So. 2d 347 (Fla. 1990);

Samuel, 898 So. 2d at 234-37.25

appears to have been polite and cooperative. Nor did [the

(emphasis supplied)).

25 The majority attempts to factually distinguish Lynumn,

Spano, and Samuel. See majority op. at 13-15. However, the

majority fails to appreciate the significance of my reliance upon

these and other police--nisrepresentation decisions. I reference

these decisions because they clearly demonstrate that the

presence, type, and extent of affirmative police

misrepresentation constitutes a relevant voluntariness factor,

not because they bear an uncanny factual resemblance to the

case at bar. As the United States Supreme Court stated in

Schneckloth, every voluntariness case is inherently unique and,

consequently, such cases demand a “careful sifting of the

unique facts and circumstances of each case.” Schneckloth, 412

ae ee eee ee

;

;

66a

The State’s final two bases for requesting “facial”

denial of the motion to suppress were equally

tenuous: (1) the defendant voluntarily consented to

the saliva-swab search because the trial court and

trial counsel were allegedly certain beyond cavil that

the defendant knew he committed a burglary, just

not the fabricated crime the police admittedly used

to induce his consent; and (2) even if the trial court

had granted the defendant’s motion to suppress, the

State could have compelled him to provide genetic

samples pursuant to a rule of criminal procedure

and, therefore, the State would inevitably have

discovered the defendant’s DNA. First, as explained

in the analysis section below, police deception did

induce Wyche’s consent to the saliva-swab search.

Logically, in this type of situation, suspects who

know that they are innocent as to the felony of which

they stand accused will submit to saliva-swab

“consent” searches and correspondingly surrender

their Fourth Amendment rights to avoid remaining a

suspect with regard to a fabricated, yet ostensibly

genuine felony offense. See, e.g., John Wesley Hall,

Jr., Search and Seizure § 8.3, at 488 (3d ed. 2000)

(“[T]he police well know that too many innocent

U.S. at 233 (emphasis supplied). The effort of the majority to

factually distinguish these cases does not, and cannot, alter the

jurisprudential premise that police deception is a relevant

factor to consider within the totality of gl] the circumstances

present in a given consent-search or confession case.

26 Counsel for the State overlooked the fact that he presented

this contention before any proof of Wyche’'s involvement with

the Pink Magnolia burglary had been established—no evidence

had been presented, no witnesses had testified, and in fact, the

jury had not even been sworn.

Sa ee” OU ea se eS ree ts Ue ee ee ee. ee a

67a

citizens will give up their rights and consent to a

search not knowing they have a right to refuse and

thinking that ‘I have nothing to hide so why not get

this over with and go on?’ ”).

Second, counsel for the State misconstrued the

inevitable-discovery doctrine and the exclusionary

rule by claiming that even if the trial court had

granted the motion to suppress, the State could then

simply have required that Mr. Wyche provide

additional “blood, hair, and other materials of the

defendant’s body finvolving] no unreasonable

intrusion thereof.” Fla. R. Crim. P. 3.220(cX1\G).

This argument assumes the very component it

lacks—the independent existence of probable cause,

a reasonable, articulable suspicion, or any justifiable

basis to suspect Wyche of having committed the Pink

Magnolia burglary. Under the inevitable-discovery

doctrine, the State bears the burden of establishing

that “the evidence would ultimately have been

discovered by legal means.” Maulden v. State, 617

So. 2d 298, 301 (Fla. 1993) (emphasis supplied). On

this record, Investigator Moody did not have any

reliable basis to suspect the defendant with regard to

the Pink Magnolia burglary until after he received

the very evidence which should have been

suppressed. His only real lead—the anonymous

phone call—was wholly uncorroborated, was in fact

dispelled by subsequent investigation, and was

insufficient as a matter of law.

Hence, little in the way of explanation is needed

with regard to why Wyche became an official suspect

in the Pink Magnolia burglary as of October 2, 2002.

That was the same date on which Investigator

68a

Moody received the DNA analysis results from

FDLE. Without the invalidly obtained saliva swabs,

the Lake City police would not have had any basis

beyond a legally insufficient “hunch” to consider the

defendant a suspect with regard to the Pink

Magnolia burglary. Cf. Terry v. Ohio, 392 U.S. 1, 27

(1968) (contrasting “specific reasonable inferences”

with an “inchoate and unparticularized suspicion or

‘hunch’ ”). Without the improper evidence, there

would not have been any inevitable discovery. The

very evidence that is properly subject to suppression

may not serve as the cornerstone of the State’s

inevitable-discovery claim. See, e.g., Bumper v.

North Carolina, 391 U.S. 543, 548 n.10 (1968) (“Any

idea that a search can be justified by what it turns

up was long ago rejected in our constitutional

jurisprudence. ‘A search prosecuted in violation of

the Constitution is not made lawful by what it brings

to light . . . .’” (quoting Byars v. United States, 273

U.S. 28, 29 (1927))); Wong Sun v. United States, 371

U.S. 471, 484 (1963) (substantially similar). Rule

3.220(cK1) does not modify this result. That rule

merely permits the State to require that the

defendant provide samples of genetic material

“lalfter the filing of the charging document and

subject to constitutional limitations[.]” (Emphasis

supplied.) No information would ever have been

filed in this case had it not been for the invalidly

obtained saliva swabs, and the above-mentioned

“constitutional limitations” language subjects rule

3.220(cX1) to this Court’s interpretation of the

demarcated limits of the Fourth Amendment.

Despite the evident merit of Wyche’s motion to

suppress, the trial judge, with only the most

69a

perfunctory explanation, stated that “the motion is

denied . . . I want to be very clear on the record|,] [iJf

this state had not filed their motion—their reply to

the motion, asking that it be denied on its face, I still

would have granted—I would have denied the

motion to suppress.” In this explanation, the trial

judge did not even purport to apply the requisite

totality-of-circumstances test, did not list what, if

any, voluntariness factors he considered, and did not

so much as suggest that he consulted the Fourth

District's McCord decision, which was then-binding

precedent for the trial court, and which Wyche relied

upon and attached to his motion to suppress. During

the course of the trial, Wyche lodged at least three

specific, contemporaneous objections to the

admission of the saliva swabs and DNA evidence,

which the trial court similarly overruled.2”7 After

completion of the trial—which began and concluded

on October 15, 2003—the jury convicted Wyche as to

all three counts of the information. On November

12, 2003, the trial court imposed a ten-year sentence

as to Counts I and III, credited Wyche with 220 days

time served, and ordered a five-year term of

probation as to Count II. The trial court also

adjudicated Wyche a habitual felony offender under

section 775.04, Florida Statutes.

On appeal, the First District issued a broad

opinion with sweeping language, which affirmed the

denial of the motion to suppress and held that

deception is largely if not totally irrelevant for

27 Wyche renewed this objection for a fourth time in a

subsequent motion for new trial, which the trial court denied

on December 1, 2003.

soo Se | lCU

70a

purposes of conducting a voluntariness inquiry. See

Wyche, 906 So. 2d at 1144 (holding without

qualification that “[djeception does not negate

consent”), In my view, the decision of the First

District, which the majority approves and builds

upon, is distinguishable and out of step with the

majority of federal and Florida decisions concerning

the appropriate consideration of police deception

within a_ totality-of-circumstances voluntariness

inquiry. The First District’s per se, absolutist

approach that deception and coercion are mutually

exclusive is inconsistent with both the mandate of

Schneckloth to consider all of the relevant

circumstances and with the recurrent recognition of

the United States Supreme Court that coercion may

be subtle and psychological in addition to overt and

physical. See, e.g., Blackburn v, Alabama, 361 U.S.

199, 206 (1960) (noting that “coercion can be mental

as well as physical” (emphasis supplied)); Haynes v.

Washington, 373 U.S. 503, 515 (1963) (“The line

between proper and permissible police conduct and

techniques and methods offensive to due process is,

at best, a difficult one to draw, particularly in cases .

. where it is aneenny to make vor i as to

the effect of ps ercive 3

inducements on the —_ and will of an aened”

(emphasis supplied)).

C. Our Task in this Case

In this case, we confront a decisive doctrinal

crossroads. We are called upon to choose between

two diametrically opposed approaches. On the one

hand, we have the overly broad and simply incorrect

per se approach articulated by the First District in

ht Bee |

——

, ee Se? ee ee

Tila

Wise. which te holds that all vasiaties and

in tirade wader an gee consenter freely

and voluntarily relinquished his or her Fourth

Amendment protection against unreasonable

searches and seizures. In other words, according to

the First District, “[djeception does not negate

consent.” [d, at 1144; but cf. United States v.

Drayton, 536 U.S. 194, 201 (2002) (“{Flor the most

part per se rules are inappropriate in the Fourth

Amendment __ context. The proper inquiry

necessitates a consideration of ‘all the circumstances

surrounding the encounter. ” (emphasis supplied)

(quoting Florida v. Bostick, 501 U.S. 429, 439

(1991))).

On the other hand, we have a pragmatic, case-by-

case approach articulated by the Fourth District in

McCord, which upholds the totality-of-circumstances

— and stands for — oat the

ail Schneckloth ey aioe the lower federal court

precedent applying that decision. See McCord, 833

So. 2d at 830 (“[Tlhe use of police trickery may result

in the exclusion of the confession depending upon

the level of trickery employed.” (emphasis supplied)

(citing Thomas v. State, 456 So. 2d 454, 458 (Fla.

1984))). As explained below, it is my conclusion that

only a pragmatic, case-by-case inquiry, which deems

police deception a relevant consideration, comports

with the Schneckloth totality-of-circumstances test

and preserves the palpable distinctions that should

exist between our accusatorial system and the type

ee ee a a ee ee eo ee >.

i le

72a

of unreasonable police inquisition that occurred in

this case.

TL ANALYSIS

A. Police Fabrication and the Totality of Cir-

cumstances

In Schneckloth v. Bustamonte, the High Court

held that its Fifth Amendment confession cases

supply the totality-of-circumstances test that is

required to determine the voluntariness of consent

searches, while also holding that no single factor

represents a “controlling criterion.” 412 U.S. at 225-

29, 248. Schneckloth thus drew upon and adopted

an already existing line of Fifth Amendment

voluntariness decisions, which included Spano v.

New York, 360 U.S. 315 (1959), and Lynumn vy.

Illinois, 372 U.S. 528 (1963). Spano and Lynumn

each considered affirmative police deception or

fabrication a relevant voluntariness factor, and in

each decision, the High Court ultimately concluded

that the affirmative police misrepresentations, along

with other relevant factors, vitiated the

voluntariness of the defendant’s incriminatory

statements. See Lynumn, 372 U.S. at 529-34;

Spano, 360 U.S. at 320-23. Relatedly, Schneckloth

and half a century of confession cases have

recognized that police coercion may be “implied,”

“subtle,” and “psychological.” See, e.g., Schneckloth,

412 US. at 226-29; Haynes, 373 U.S. at 515;

Blackburn, 361 U.S. at 206. Therefore, the First

District’s per se assertions that (1) “[a,eception does

not negate consent,” (2) deception and coercion are

mutually exclusive, and (3) that coercion is “by its

nature ... overt and direct” are, in my view,

73a

incorrect statements of the law in light of United

States Supreme Court precedent. Wyche, 906 So. 2d

at 1144. Schneckloth itself did not involve any police

deception, and the High Court did not attempt to

delineate a comprehensive list of relevant

voluntariness factors; instead, the Court indicated

on several occasions that any voluntariness inquiry,

whether in the Fourth or Fifth Amendment context,

must include a careful case-by-case “sifting” of “the

totality of all the surrounding circumstances.” 412

U.S. at 226-27, 229, 233, 248-49 (emphasis supplied).

Based upon common sense and prior High Court

confession decisions, this fact-intensive standard

would necessarily include consideration of any

affirmative misrepresentations made by the police in

an attempt to influence a suspect’s decision to

confess or consent to a search. Such a recognition

also furthers society's “deep-rooted feeling that the

police must obey the law while enforcing the law;

that in the end life and liberty can be as much

endangered from illegal methods used to convict

those thought to be criminals as from the actual

criminals themselves.” Spano, 360 U.S. at 320-21.

Schneckloth stands equally for the proposition

that society's fundamental sense of “fairness” is a

guiding consideration in determining voluntariness.

Id. at 225. For example, it is generally fair in terms

of due process for the police to mislead a suspect

regarding the extent of en then in police

the sullen ate suteaiie ianeatianiion (is e., intrinsic

fabrication). In the confession context, this is the

type of police deception that this Court and the

United States Supreme Court have previously held

74a

does not by itself per se vitiate voluntariness. See,

e.g., Frazier v. Cupp, 394 U.S. 731, 739 (1969)

(holding that the fact that police falsely told

defendant that his companion had confessed to the

crime under investigation, though relevant, was

insufficient to render otherwise voluntary confession

inadmissible); Burch v. State, 343 So. 2d 831, 833

(Fla. 1977) (substantially similar holding addressing

“failed polygraph” ruse). This form of police

deception is fair because it is similar to merely

bluffing in a poker game: it does not compel

suspects to incriminate themselves any more than a

large bet in a poker game compels an opponent to

believe that the betting player has a stronger hand

and that he or she should correspondingly fold.

On the other hand, when the police induce

consent by fabricating an extrinsic felony offense and

then claim that the suspect can clear him- or herself

by submitting to a DNA test, the police have unfairly

crossed the due-process fundamental-fairness line

that the Supreme Court has drawn in its confession

and consent-search cases. See Colorado v. Connelly,

479 U.S. 157, 163 (1986) (“[Bly virtue of the Due

Process Clause ‘certain interrogation techniques,

SO ee ati f = ae oe

offensivé to a civilized system of justice that they

must be condemned.’ ” (emphasis supplied) (quoting

Miller _v. Fenton, 474 U.S. 104, 109 (1985)));

Lynumn, 372 U.S. at 529-34; Spano, 360 U.S. at 320-

23.28 This is the proper conclusion in the type of

28 Cases that do not follow the general predictive parameters of

the intrinsic-versus-extrinsic framework are either

75a

extrinsic-fabrication case currently before the Court

because such a fabrication essentially dangles a

compelling false promise” before the suspect, which

is a circumstance the High Court has previously held

impacts a voluntariness inquiry. See Bram v.

United States, 168 U.S. 532, 543, 557-58 (1897)

(holding that promises, inducements, and improper

distinguishable based on the totality of circumstances or, in my

opinion, were incorrectly decided. See, e.g., United States v,

Andrews, 746 F.2d 247, 247-48 (5th Cir. 1984) (defendant,

felon-in-possession,

before the police ever mentioned to him that he was a suspect

in a fabricated burglary investigation; further, defendant was

not in custody); People y. Zamora, 940 P.2d 939, 941-44 (Colo.

Ct. App. 1996) (holding—incorrectly in my opinion—that

consent was voluntary where police used extrinsic fabrication

to gain admittance to defendant’s apartment). However, at a

minimum, Zamora is distinguishable for at least two reasons:

(1) in that case, the defendant was not in custody; and (2) the

police did not offer the defendant the completely illusory

promise of clearing himself with regard to a totally fabricated,

yet ostensibly valid felony offense (the police merely stated that

they wished to examine the interior of the defendant's

So to ns in the sings as - a domestic dispute

porte x ye ent). See id, at

941-42.

29 | disagree with the contention of the majority that Wyche

does not involve any police “promises.” See majority op. at 11

n.6 (“However, in Thomas, as here, we ultimately found that

the defendant’s confession was voluntary because there was no

evidence of threats, promises, or other improper influences.”

(emphasis supplied)). The investigator’s accusation of an in-

custody suspect with a completely fabricated felony offense

along with the implied or perhaps even explicit promise of the

opportunity for exoneration of a crime that the suspect knew he ©

did not commit is a “promise” under my reading of the state

and federal confession cases. Judge Ervin’s dissent below and

Justice Anstead’s dissent here express similar views.

76a

influences on the part of the police are relevant

voluntariness factors); Arizona v. Fulminante, 499

U.S. 279, 285-86 (1991) (disapproving the “but-for”

test articulated in Bram, but leaving intact the

holding that promises, inducements, and improper

influences are relevant voluntariness factors).

This is completely different in terms of fairness

from honestly informing a suspect of the offense the

police believe he cr she committed and then

misrepresenting the extent or quality of the

inculpatory evidence (i.e., intrinsic fabrication).

Assuming the absence of other improper police

coercion (e.g., sleep deprivation, truth-serum

administration, or extensive interrogation while

refusing rest or breaks), generally only a guilty

suspect would confess when faced with intrinsic

fabrication. See, e.g., State v. Kelekolio, 849 P.2d 58,

71-74 (Haw. 1993). Contrastingly, even innocent

suspects will likely submit to consent searches and

correspondingly surrender the cherished right of

privacy the Fourth Amendment protects to avoid

remaining a suspect with regard to an extrinsic,

fabricated, and yet ostensibly genuine felony offense.

See, e.g., John Wesley Hall, Jr., Search and Seizure

§ 8.3, at 488; § 8.17, at 525-26 (3d ed. 2000 & Supp.

2007); 29 Am. Jur. 2d Evidence § 744 (2008)

(“Whether deception renders a _ confession

involuntary depends upon whether the deception

interjected the type of extrinsic considerations that

would overcome a defendant’s will by distorting an

otherwise rational choice of whether to confess or

remain silent.” (emphasis supplied) (citing Lynumn

v Illinois, 372 U.S. 528 (1963))).

77a

Of additional concern is the fact that because

consent searches do not require probable cause or

even a reasonable, articulable suspicion,®° decisional

affirmation of instances of extrinsic police deception

has the perverse effect of encouraging police fishing

expeditions. To combat these fishing expeditions,

some courts have imposed the requirement that

police officers possess a reasonable, articulable

suspicion that a crime is afoot before resorting to a

ruse, fabrication, or deception to obtain consent to

search. See, e.g., United States v. Montoya, 760 F.

Supp. 37, 39-40 (E.D.N.Y. 1991) (“[O]fficers cannot

use a ruse to gain access unless they have more than

mere conjecture that criminal activity is underway.”

(quoting United States v. Maldonado Garcia, 655 F.

Supp. 1363, 1367 (D. P.R. 1987)); State v. Ahart, 324

N.W.2d 317, 319 (Iowa 1982) (“[N]Jot all warrantless

entries gained by ruse are valid, Certainly, such an

entry is not allowable if it is arbitrary.” (emphasis

supplied)). In Wyche, the police investigators

apparently lacked probable cause, an articulable

suspicion, or any legal cause with regard to Wyche

concerning each of the crimes they claimed to have

been investigating (i.e., the fabricated Winn-Dixie

burglary, the sexual assault, and the Pink Magnolia

% United States v. Cruz-Mendez, 467 F.3d 1260, 1265 (10th

Cir. 2006) (holding that consent searches do not require

probable cause to justify the search of a home); United States v.

Simpson, 259 Fed. Appx. 164, 165 (11th Cir. Nov. 30, 2007)

(unpublished decision) (“[I]n the absence of probable cause or

reasonable suspicion, law enforcement officers may search an

individual or his property without a warrant, so long as the

individual voluntarily consents to the search. (emphasis

supplied)).

. ‘ . ee sai

i i at Be et Pe Bk ale Ba ne De es, ee

78a

burglary).*! Although it is a question the United

States Supreme Court has not explicitly addressed,

it appears that the voluntariness cases in which it

has approved some form of police deception or

misrepresentation have involved suspects that the

police suspected of committing crimes based upon

reasonably specific, articulable facts. See, eg.,

Frazier, 394 U.S. at 737-38 (suspect arrested on the

basis of probable cause and subjected to police

questioning with regard to an actual murder

investigation). Thus, based upon my research, the

United States Supreme Court does not appear to

have either approved or disapproved’ the

requirement that police officers at a minimum

possess a reasonable, articulable suspicion before

31 If this were a game of baseball, a .333 average might not be

such a bad thing, but when the police lack any discernable

basis to investigate an individual already in custody on

unrelated charges, they fabricate a felony offense to induce

consent to a DNA test, and they then test the DNA for

apparently baseless crime after apparently baseless crime and

“get lucky” with regard to one, it yields support to the cynicism

with which some citizens and even Supreme Court Justices

have viewed the criminal justice system. As Justice

Frankfurter observed in opposition to an instance of perceived

police misconduct:

Of course criminal prosecution is more than a game.

But in any event it should not be deemed to be a dirty

game in which ‘the dirty business’ of criminals is

outwitted by ‘the dirty i ’ of law officers. The

be 44 ©:

On Lee v. United , 343 US. 747, 758-59 (1952)

(Frankfurter, J., di ting) (emphasis supplied).

il i lh il ite ot ine

“i PN ee ee oe eS ee ee ee

79a

resorting to ruses, deception, or fabrications to

obtain a suspect’s consent to a search. Therefore, in

cases involving police deception and ruses, this

Court should consider the lack of reasonable

suspicion or probable cause a factor militating

against voluntariness because this type of behavior

is a _ significant part of the totality of all

circumstances leading to the alleged consent search

or confession.

Recognizing police fabrication as an important

factor that informs Schneckloth’s totality-based

voluntariness inquiry is a conclusioft that comports

with the majority of existing federal precedent.

Further, the failure to recognize police deception as a

voluntariness factor is not in keeping with

Schneckloth’s command to consider “all the

circumstances” bearing upon voluntariness. See

Schneckloth, 412 U.S. at 226-27, 229, 233, 248-49

(emphasis supplied). In contrast, the First

District’s holding, which the majority approves,

states that deception is largely if not totally

irrelevant to a voluntariness inquiry and,

consequently, is an outlier which is out of step with

the majority of existing case law. In Wyche, police

deception is actually but one factor to consider in

addition to other factors that are also pertinent

considerations under existing case law (factors that

the First District declined to explore). The facts of

Wyche evidence the following relevant voluntariness

factors in addition to the mere existence of police

deception: (1) the type and extent of the police

deception concededly present; (2) the continuing

32 See note 11, supra, and accompanying text.

|

80a

question with regard to ow ~ cotentant ws was

rights; (3) ehaibar the ‘itudent was in aan

subjected to police questioning; (4) whether the

police possessed probable cause or a reasonable,

articulable suspicion to suspect the defendant of

having committed the offenses they claimed to have

been investigating; and (5) from confession

jurisprudence, whether the police offered the

defendant any __promises—overt _or _implied—to

induce his acquiescence to the search.

However, contrary to Schneckloth’s command to

take all relevant circumstances into account, the

majority approves and expands upon the decision of

the First District, which enunciated a per-se,

absolutist rule that “[djeception does not negate

consent.” Wyche, 906 So. 2d at 1144. Moreover, the

United States Supreme Court cases the First

District relied upon in support of this overbroad

holding are inapposite to the issue of whether police

deception as to the purpose of a consent search may

bear upon Schneckloth’s totality-of-circumstances

inquiry. See Wyche, 906 So. 2d at 1144 (citing, e.g.,

Hoffa v. United States, 385 U.S. 293 (1966); Lewis v.

United States, 385 U.S. 206 (1966); On Lee v. United

States, 343 U.S. 747 (1952)). The important and

contextually necessary explanation that the First

District neglected to include is that Hoffa, Lewis,

and On Lee represent a very distinct doctrinal line.

Those cases merely stand for the recognized,

prosaic rule of law that one engaged in criminal

wrongdoing who voluntarily exposes’. that

wrongdoing to a supposed co-conspirator or criminal

oan

— ~~ st ——ee eT

8la

confederate assumes the risk that the supposed ally

is actually an undercover government agent or is an

individual who will report this wrongdoing to the

appropriate law enforcement authorities. See

Wayne R. LaFave, Search and Seizure: A Treatise

on the Fourth Amendment, § 8.2(m) at 127 (4th ed.

2004). These decisions do not address the situation

in which police officers have a defendant in custody

and then fabricate an extrinsic felony offense for the

~——- _—. . inducing the prea through

prc = a yom of the defendant's 8 bodily fluids.

We must recognize that Hoffa, Lewis, and On Lee

present a different juridical state of affairs than the

circumstances currently confronting this Court in

Wyche. Compare LaFave, supra, § 8.2(m), at 124-32

“Deception as to identity,” with § 8.2(n), at 133-41

“Deception as to purpose” (distinguishing between

situations “where the consenting person is unaware

of the fact that the other party is a law enforcement

officer or one who has already agreed to act on behalf

of a law enforcement agency, [and] that in which

some form of deceit or trickery is practiced by a

person known to be a federal, state, or local official”).

The holding of the First District wipes away the

consideration of deception as a_ relevant

voluntariness factor by distinguishing the federal

precedent referenced in McCord, and by relying upon

a Peay os ge g decision from the Third District.

See Wyche, 906 So. 2d at 1144-48 (citing Miami-

Dade Police Dep’t v. Martinez, 838 So. 2d 672, 673-

75 (Fla. 3d DCA 2003) (holding consent valid under

the totality of circumstances where police allegedly

misrepresented that they were only looking for

82a

weapons, not currency, and where consenter was not

in custody, and was not offered the false hope of

exoneration with regard to a completely fabricated

offense), review dismissed, 851 So. 2d 729 (Fla.

2003)). In my opinion, this approach is a selective

identification of cases to support an outcome-

determinative predilection instead of a proper

consultation of the wider breadth of existing,

persuasive precedent addressing the issue before us.

The First District simply did not consider all of the

federal and state precedent indicating that police

deception is a relevant factor to consider with regard

to the presence of compulsion. For that reason

alone, the majority should disapprove the First

District’s reasoning even if the majority ultimately

holds that Wyche’s consent was voluntary under the

totality of circumstances. The type and extent of

police fabrication is a recognized factor under a

totality-based inquiry, and the vast majority of

courts addressing the issue have not enunciated the

First District’s absolutist mandate that the presence

or absence of police deception does not bear upon

that determination of whether the defendant’s

confession or consent to search was compelled or

involuntary.

In contrast to the approach of the First District,

the intrinsic-versus-extrinsic framework is not a per

se rule. Rather, there are situations in which the

fabrication is admittedly extrinsic to the crime the

police are actually investigating but where the

defendant’s consent is nevertheless voluntary under

the totality of circumstances. For example, post-

Schneckloth, in United States v. Andrews, the Fifth

Circuit stated that “any misrepresentation by the

83a

Government is a factor to be considered in

evaluating the [totality of] circumstances,” but went

on to hold that the defendant’s consent was

voluntary despite the presence of exxrinsic police

fabrication. 746 F.2d at 247-51 (emphasis supplied).

There, law enforcement personnel misrepresented

the fact that they wanted to examine the defendant’s

shotgun to determine if it matched the

characteristics of a weapon used in a series of

robberies, when in fact the officers sought to

establish the defendant’s status as a felon in

possession of a firearm. 746 F.2d at 248. However,

unlike Wyche, there were numerous voluntariness

factors which abated the police misrepresentation

present in Andrews: (1) pre-misrepresentation, the

defendant had already volunteered his status as a

gun owner; (2) the defendant was not in custody

when he initially consented to produce the shotgun

or later when he actually produced the weapon; (3)

' the defendant was told that he was free to go after

the police completed their search; and (4) the police

had provided the defendant with Miranda warnings,

and he had voluntarily waived his related rights.

See work Here, igen > Barak sennaeenen Nis.silaend

ionaial in this case c. the Pink Magnolia

burglary), ee is | ba_indieation. thet. iiee._pilice

sample, Wyche was 5 decidedly in: noliee eustedy and

subjected to police questioning before he consented

to the search, and the police expressly or impliedly

promised Wyche that he could exonerate himself

with regard to a completely fabricated, yet ostensibly

valid felony offense. These are all relevant factors

84a

under a totality-of-circumstances inquiry. See also

Brown v. Brierley, 438 F.2d 954, 957-59 (3d Cir.

1971) (pre-Schneckloth, extrinsic-fabrication decision

holding that a _ police officers partial

misrepresentation of purpose did not vitiate the

voluntariness of the defendant’s consignment of a

firearm to the officer for the purpose of sale); People

v. Avalos, 55 Cal. Rptr. 2d 450, 453-57 (Cal. Ct. App.

1996) (holding that where the police partially

misrepresented the purpose of their search but

possessed reasonable, articulable suspicion, if not

full-blown probable cause, that the defendant was

distributing methamphetamines, an_ extrinsic,

partial misrepresentation as to purpose did not

negate consent). Therefore, when considering the

type and extent of police deception involved in each

individual case, some extrinsic-fabrication cases will

nonetheless result in findings of voluntariness under

Schneckloth’s totality test. However, that is not the

proper result here given the facts present in Wyche

and McCord.

B. The Totality-of-Circumstances Test Applied

to Wyche

In Wyche, law enforcement, for all intents and

purposes, promised the suspect that he could clear

his name in the fabricated burglary case by

submitting a saliva sample (a fact which the

majority concedes by quoting the facts from the First

District’s decision below). See majority op. at 2.9

33 The majority contends that I “err” by recognizing its

concession to the fact that Investigator VanBennekom used the

hope of exoneration to induce Wyche’s alleged “consent.” See

majority op. at 14 n.7. However, the majority quotes and relies

~~ ia

85a

This promise induced Wyche to consent to the saliva-

swab search, and absent this affirmative fabrication,

Wyche would in all probability have refused to

consent. In both Wyche and McCord, the police

essentially confronted the defendants with the

following fabricated state of affairs—you are a

suspect in a potentially serious felony investigation,

and you have two options: (1) refuse to submit to a

saliva-swab search and thereby remain a viable

suspect with regard to this felony investigation; or

(2) if you are confident in your innocence, submit to

the saliva-swab search and exonerate yourself as to

this suspected felony as almost any person who

knows that he or she is innocent of these allegations

would do. Wyche and McCord are thus archetypal

extrinsic-fabrication cases.

Moreover, the confession cases the majority relies

upon are wholly distinguishable. Many of these

confession cases involve situations where the police

lie to the suspect by falsely claiming that a

upon the following factual description from the decision of the

First District: “VanBennekom had manufactured the fictitious

Winn-Dixie burglary in order to obtain Wyche’s consent to take

swabs for a sexual-assault investigation.” Majority op. at 2

(emphasis supplied) (quoting Wyche, 906 So. 2d at 1143).

Thus, in response to the assertion of the majority that the

record is silent as to Investigator VanBennekom’s motive for

meen ir 4 — gaara I would = ge J ask,

VanBennekom have had?” The facts of this case do not suppert

any other motive than that ascribed to VanBennekom explicitly

in my dissent and implicitly in the majority opinion: the

investigator baited Wyche into “consenting” to the saliva-swab

search with the promise of exoneration concerning a fabricated,

yet ostensibly valid felony offense.

86a

codefendant has already confessed and implicated

the suspect, so the suspect might as well come clean.

See, e.g., Frazier, 394 U.S. at 739; Burch, 343 So. 2d

at 833 (substantially similar, but involving “failed

polygraph” ruse). Even in those cases that do not

involve this precise species of misrepresentation, the

misrepresentation is still intrinsic to the case the

police are actually investigating. See, 2.g., Escobar

v. State, 699 So. 2d 988, 994 (Fla. 1997) (holding

that “[plolice misrepresentation alone does not

necessarily render a confession involuntary,” in the

context of a case where police allegedly

misrepresented that they possessed physical

evidence of the crime at issue), abrogated on other

grounds by Conner v. State, 803 So. 2d 598, 605-07

(Fla. 2001); Fitzpatrick v. State, 900 So. 2d 495, 511

(Fla. 2005) (citing Escobar for the proposition that

“police misrepresentations alone do not necessarily

render a confession involuntary,” but rendering this

holding in the context of a case in which the police

investigator misrepresented the extent of the

inculpatory evidence in the case he was actually

investigating); Davis v. State, 859 So. 2d 465, 472

(Fla. 2003) (confession voluntary despite law

enforcement’s characterization of the situation

confronting the defendant as a “missing-person

case”; the detectives accurately informed the

defendant of the identity of the missing person and

simply neglected to inform him that they already

knew the victim was dead); Nelson v. State, 850 So.

2d 514, 521-22 (Fla. 2003) (holding confession

voluntary despite police misrepresentation of the

then-unknown inculpatory nature of the applicable

DNA evidence). In short, the common theme linking

87a

each of these confession cases—a theme

conspicuously absent in cases like Wyche and

es _ that the alleged _ police

Conversely, in Wyche, Investigator

VanBennekom intentionally fabricated an extrinsic

burglary offense—of which the defendant knew he

was completely innocent—for the purpose of

presenting the defendant with the Hobson’s choice of

either consenting to the search and thereby clearing

his name, or refusing to consent and thereby

remaining a viable suspect with regard to the

ostensive burglary case. The above-referenced

confession cases, upon which the majority opinion

relies, are thus distinguishable because unlike

Wyche they do not involve lies that were based upon

extrinsic inducements for the suspect to offer

evidence in the false hope that the suspect could

clear him- or herself of culpability for a completely

fabricated offense. See majority op. at 9-10 (relying

upon this litany of distinguishable intrinsic-

fabrication cases).

I similarly disagree with the majority’s heavy

reliance upon Washington v. State, 653 So. 2d 362,

364-65 (Fla. 1994), because that case assumes the

presence of validly obtained DNA samples, which

evades the very question at issue in Wyche: Did the

police validly obtain Petitioner Wyche’s saliva

sample? In Washington, this Court merely held that

once a suspect’s DNA samples are “validly obtained”

the police are not restrained from using those

88a

samples in other cases. 653 So. 2d at 364-65

(emphasis supplied). The decisive distinguishing

factor is that Washington did not involve any police

fabrications; rather, the police suspected the

defendant of unrelated murder and sexual-battery

offenses and requested that he consent to providing

hair and blood samples with regard to the actual,

vaiid sexual-battery case. The police merely decided

not to inform Washington of the murder case, which

is not a distinction without a difference. The

extrinsic fabrication at issue in Wyche renders this

difference dispositive because in Washington, the

police did not offer the defendant the false hope of

exonerating himself with regard to a completely

fabricated, yet ostensibly valid felony offense;

instead, they were investigating Washington

concerning two clearly valid offenses. This

distinction is determinative because in addressing

the totality-based question of voluntariness,

contpasien-onee pevlapredence rooney reties wan the

This distinction also exposes the State’s

doomsday-like premonitions as the paper tigers that

they actually are—there is no requirement that the

police inform a potential consenter of the purpose of

their desire for a consent search, further there is no

rule of law that compels the police to disclose every

crime for which they are investigating a suspect.

See Respondent’s Answer Brief at 10-11 (contending

that if this Court were to hold that police deception

vitiated consent in Wyche, this holding would

require police to disclose all actual investigations to

a potential consenter); cf. Colorado v. Spring, 479

89a

U.S. 564, 576 & n.8 (1987) (“This Court has never

held ne manta silence blame seein, seein

‘trickery’ sufficient to ieeadbhabe 4 a panes s waiver of

Miranda rights, and we expressly decline so to hold

today. ... [However,] lin certain ime the

Court has found affirr > mis :

the police sufficient to invalidate a ora: S waiver

of the Fifth Amendment privilege.” (emphasis

supplied) (citing Lynumn vy. Illinois, 372 U.S. 528

(1963); Spano v. New York, 360 U.S. 315 (1959))).

Recognizing that silence does not necessarily equate

with trickery does not lead to a conclusion that this

Court must approve the very different situation in

which the police intentionally fabricate an offense for

the express purpose of engendering the false hope of

exoneration in the suspect and thereby obtain his or

her consent.

In sum, the approach, reasoning, and conclusion

of the current majority opinion are suspect for the

following reasons: (1) the majority overlooks the

importance of false police promises in confession

cases and glosses over the fact that police deception

remains a relevant factor under a totality-based

inquiry; (2) it never explores the potentially

dispositive distinction between different types of

police deception, which appears to be a necessary

exercise given that the relevant test requires

consideration of “all the circumstances” bearing upon

voluntariness; (3) it does not address the fact that in

the confession context, the United States Supreme

Court has held that _ affirmative _ipolice

misrepresentations may vitiate voluntariness; and

(4) the majority indicates that it could only find lack

90a

of consent in this case based upon “the sole fact” of

police misrepresentation (this claim overlooks the

other multiple voluntariness factors at issue in this

case).

Additionally, even under the totality analysis

presented in the majority opinion, the correct result

should be that Wyche’s consent was involuntary.

The majority’s attempted distinction between Wyche

and McCord on the ground that McCord involved a

fabricated sexual battery rather than a fabricated

burglary is, in my opinion, wholly unconvincing.

Why should the type or degree of the fabricated

felony matter when in fact all felony offenses may

cause serious and at times life-altering repercussions

for a criminal defendant? Compare majority op. at

16 (“McCord’s being told that he was a suspect in a

serious sex crime for which DNA could clear him is a

circumstance relevant to the analysis of whether

McCord’s consent was voluntary or coerced that

distinguishes McCord from the instant case.”

(emphasis supplied)), with Petitioner’s Brief on the

Merits at 10 (Wyche received a ten-year sentence for

the Pink Magnolia burglary charge, which is hardly

a non-serious or trivial crime given the sentence and

its related repercussions (e.g., habitual-offender

status for Mr. Wyche)). I fail to see that this is a

valid basis for distinguishing McCord and Wyche.

When a police detective falsely informs an

individual who is currently confronted with the

“inherently coercive” atmosphere of custodial

interrogation™ that the individual is suspected of

3% Miranda, 384 U.S. at 458 (identifying “the compulsion

inherent in custodial surroundings”).

9la

having committed a felony offense—with all its

attendant negative stigmas (e.g., potentially lengthy

incarceration, large fines, and suspension of civil

rights)—of which the individual knows he or she is

completely innocent, the type of fabricated felony is

largely irrelevant. Thus, even the majority analysis

should have led to a holding that Wyche’s consent

was involuntary under the totality of circumstances.

McCord and Wyche are not validly distinguishable:

each defendant submitted to a saliva test in the

misplaced hope that their DNA would clear them as

a suspect with regard to an admittedly fabricated yet

ostensibly valid felony offense, when in actuality the

police intended to use the defendants’ DNA to

inculpate them with regard to undisclosed, unrelated

criminal investigations.

Il. CONCLUSION

Here, under “the totality of all the surrounding

circumstances,” the police fabrication was extrinsic

to the crime actually under investigation (i.e., the

type of fabrication), the fabrication completely

misrepresented the crime under investigation (i.e.,

the extent of the fabrication), and the police offered

this fabrication to an_in-custody individual to

engender the false hope of clearing himself with

regard to an offense that both he and the police

knew that he did not commit. This renders each of

the confession cases relied upon in the majority

opinion distinguishable because those cases involved

misrepresentations intrinsic to the crime under

investigation and further did not involve the false

police enticement that a defendant could clear his or

her name concerning a completely fabricated offense.

92a

Only a pragmatic, case-by-case inquiry, which

deems police deception a relevant voluntariness

consideration, comports with the Schneckloth

totality-of-circumstances test and sustains our

accusatorial system of justice. Thus, given the

proper totality of circumstances, some forms of police

deception may vitiate consent. In particular, such a

holding is in keeping with Schneckloth’s totality test

because certain forms of police deception represent

“an instrument of unfairness” that “poses a real and

serious threat to civilized notions of justice.” 412

U.S. at 225; see also Krause v. Commonwealth, 206

S.W.3d 922, 923-28 (Ky. 2006) (following

Schneckloth totality standard and holding

defendant’s consent to search involuntary where

police fabricated an extrinsic rape case), cert, denied,

127 S. Ct. 2975 (2007). Each police-fabrication case

should be decided based upon its own facts in

keeping with the totality test, but the facts of Wyche

and McCord are so egregious and so similar that, in

my opinion, each defendant’s consent was rendered

involuntary.

The per se approach of the First District is simply

incorrect: police deception is a_ relevant

voluntariness factor. Therefore, I would quash the

decision of the First District in Wyche v. State, 906

So. 2d 1142 (Fla. ist DCA 2005), and approve the

decision of the Fourth District in State v. McCord,

833 So. 2d 828 (Fla. 4th DCA 2002), which

articulates and adopts the appropriate case-by-case

analysis.°5 Finally, I take this occasion to remind

35 The United States Supreme Court exercises definitive control

over the proper approach for this type of Fourth Amendment

93a

lower courts, such as the First District below, that

“the State has the burden of proving that the

necessary consent was... freely and voluntarily

given,” Washington, 653 So. 2d at 364 (quoting

Reynolds v. State, 592 So. 2d 1082, 1086 (Fla. 1992)),

and that “[i]t is the duty of courts to be watchful for

the constitutional rights of the citizen, and against

any stealthy encroachments thereon. Their motto

should be obsta_principiis [Tesist the first

encroachments].” Boyd v. United States, 116 U.S.

616, 635 (1886), abrogated in part by Warden v.

Hayden, 387 U.S. 294, 301-10 (1967).

Accordingly, I dissent.

ANSTEAD and PARIENTE, JJ., concur.

case. Should the defendant so desire, and should the High

Court see fit, the Supreme Court possesses discretionary

jurisdiction to review the decision of the majority concerning

this federal question. See U.S. Const. art. III, § 2; 28 U.S.C. §

1257(a) (2000).

94a

Application for Review of the Decision of the District

Court of Appeal - Certified Direct Conflict of

Decisions

First District - Case No. 1D03-5211

(Columbia County)

Nancy A. Daniels, Public Defender, and G. Kay Witt,

Assistant Public Defender, Second Judicial] Circuit,

Tallahassee, Florida,

for Petitioner

Bill McCollum, Attorney General, Robert R.

Wheeler, Assistant Attorney General, Bureau Chief,

and Charlie McCoy, Senior Assistant Attorney

General, Tallahassee, Florida,

for Respondent

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4

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Phe Fe 2Gae

95a

APPENDIX B

FLORIDA DISTRICT COURT OF APPEAL

OPINION

IN THE DISTRICT COURT OF

APPEAL

FIRST DISTRICT, STATE OF

FLORIDA

nan. Were. NOT FINAL UNTIL TIME EX-

Appellant, ring lO FOR REHEAR

ING AND

DISPOSITION THEREOF IF

FILED

/

Vv.

STATE OF FLORIDA,

Appellee.

CASE NO. 1D03-5211

Opinion filed June 20, 2005.

An appeal from the Circuit Court for Columbia

County.

Paul S. Bryan, Judge.

Nancy A. Daniels, Public Defender, and G. Kay Witt,

Assistant Public Defender, Tallahassee, for Appel-

lant.

Charles J. Crist, Jr., Attorney General, and Charlie

McCoy, Senior Assistant Attorney General,

Tallahassee, for Appellee.

7

96a

BARFIELD, J.

Earl Wyche appeals his convictions for bur-

glary, grand theft, and criminal mischief, following

trial by jury, contending the trial court erred by (I)

denying his motion to suppress evidence of saliva

swabs and DNA test results, because the swabs were

obtained by police deception, thus rendering his con-

sent involuntary, and (II) denying his motion for

judgment of acquittal on the charge of grand theft,

because the state did not present sufficient evidence

to prove that the value of items stolen was greater

than $300. We affirm and address only the merits of

the first issue.

While Wyche was detained in Columbia

County for a probation violation, Lake City Police

Department Investigator Clint VanBennekom asked

Wyche for a saliva sample, stating that he was sus-

pected of committing a burglary at a Winn-Dixie su-

permarket. In fact, VanBennekom had manufac-

tured the fictitious Winn-Dixie burglary in order to

obtain Wyche’s consent to take swabs for a sexual-

assault investigation. No DNA match was obtained

in the sexual-assault case; as a consequence, Wyche

was exonerated as to it.

During VanBennekom’s investigation, Lake

City Police Department Investigator Joseph Moody

was also investigating a robbery of The Pink Magno-

lia, a gift shop in Lake City, and asked VanBenne-

kom to send the saliva swab that he had obtained to

7 7

oH

x

97a

the FDLE lab for a comparison with blood drops

taken from the crime scene. FDLE acquired a match.

Based on the results, Wyche was accused of the rob-

bery, and his subsequent motion to suppress the evi-

dence, on the ground that it had been obtained by

deception, was denied.

Deception does not negate consent. Absent co-

ercion, threats or misrepresentation of authority, the

courts have long recognized deception as a viable

and proper tool of police investigation. Hoffa v. U.S.,

385 U.S. 293 (1966) (government informant in de-

fendant’s hotel room); Lewis v. U.S., 385 U.S. 206

(1966) (government agent misrepresented identity to

get invited into defendant's home for narcotics

transaction); On Lee v. U.S., 343 U.S. 747 (1952) (de-

ception by eavesdropping undercover agent, wearing

a wire, trusted by defende it); Alexander v. U.S., 390

F. 2d 101 (5 Cir. 1968) (postal inspectors lie to de-

fendant to get him to consent to their looking into

his wallet); People v. Zamora, 940 P.2d 939 (Colo.

App. 1996) (police obtained consent by misrepresent-

ing reasons for entering defendant’s apartment).

This court will not follow State v. McCord, 833

So. 2d 828 (Fla. 4 DCA 2002). In McCord the court

equated deception with coercion. There is no threat

of force or other compulsion involved in deception. To

the contrary, the use of subterfuge avoids coercion

which by its nature is overt and direct. The notion

that deception is somehow morally reprehensible

when practiced by the police in fighting crime un-

fairly impugns the motives of those seeking to up-

hold the law. Schneckloth v. Bustamonte, 412 U.S.

218 (1973) does not hold otherwise. In addressing

the obtaining of consent the court specifically

98a

couches its test in terms of coercion and force, not

deception. Because a suspect is outsmarted by police

does not mean the suspect somehow loses the will to

refuse consent.

The reliance on McCord by the appellant is

unwarranted. The authority cited in McCord to sup-

port the statement that a “detective’s misrepresenta-

tions as to the nature of the investigation may pro-

vide evidence of coercion,” is United States v. Briley,

726 F.2d 1301 (8 Cir. 1984). In Briley, Briley be-

came a suspect in a bank robbery based on an

anonymous telephone call. An investigator went to

the address given by the caller. A woman named

Rosalie Rivera came to the door and let the investi-

gator in. Briley (who was in the apartment) identi-

fied himself, talked to the investigator for some time,

and denied any involvement in the crime. No arrest

was made at that time. After witnesses to the rob-

bery indicated that Briley could be the robber based

on a photospread, a “probable cause pickup” for

Briley was listed in the Daily Operations Report sup-

plied to officers as they come on duty. Two police of-

ficers returned to the apartment building, checked

the mailboxes, and found the name “Rivera” was

listed for Apartment 13. The caretaker led the offi-

cers to his apartment. A woman in the apartment

named Rosalie Rivera replied that she did not know

where Briley was at that time, mentioned she was

Briley’s girlfriend, and asked why they wanted to see

him. The officers replied only that it was an impor-

tant matter. As the officers turned to leave the

apartment and the building, Rivera said, “All right,

he’s in my apartment. Come with me.” She took

them to Apartment 13, opened the door and gestured

99a

with her hand at Briley, who was standing in the

apartment. The officers arrested Briley. Briley ar-

gued the warrantless arrest in his home violated his

fourth amendment rights, and that his confession

and any identifications resulting from fhe subse-

quent lineup had to be suppressed. The trial judge

held that Rivera’s consent negated any illegality that

may have attended Briley’s warrantless arrest. On

appeal, Briley argued that Rivera’s consent was in-

valid because the officers only told her they wanted

to talk to Briley and did not say they would arrest

him. The panel in dictum quoted United States v.

Turpin, 707 F.2d 332, 334 (8 Cir. 1983), in which

that panel stated “[mlisrepresentations about the

nature of an investigation may be evidence of coer-

cion.” (Emphasis added). Briley’s argument was re-

jected, however, because the panel on appeal deter-

mined there was no deceitful misrepresentation and

Rivera’s consent was voluntary. The officers were in

uniform and the cryptic statement that they had im-

portant matters to discuss with Briley did not ap-

pear to have been said with the intention of tricking

Rivera into consenting to an entry. At the time of the

statement, the officers were simply trying to locate

Briley; they were not yet seeking permission to enter

Briley’s apartment. The officers did not misrepresent

the fact that they had no search or arrest warrant.

The panel on appeal then stated: “The foregoing is

not meant to imply that Rivera’s consent would be

considered voluntary had the police intentionally at-

tempted to trick her by falsely stating their purpose.

A different case might be presented had the police

specifically told Rivera they were not seeking to ar-

rest Briley or that he was not a suspect. We hold

100a

only that, in these particular circumstances, Rivera’s

consent was not coerced.” 726 F.2d at 1305 (empha-

sis added).

In Turpin, Turpin argued the trial judge erred

in failing to suppress physical evidence found in his

house because officers obtained his consent to enter

and search the house by deceit; the alleged deception

was that the officers did not tell him that the victim

had been killed and that he was a homicide suspect.

The panel on appeal rejected his argument because

the officers accurately told Turpin that the victim

had been in a train accident and that they were in-

vestigating the accident, and appellant did not ask

any questions at that time and agreed to let the offi-

cers inside. The trial judge specifically noted that the

sheriff told Turpin’s attorney that Turpin was not a

suspect, even though officers in fact considered him

to be a suspect in the killing, but concluded that

other evidence strongly supported the finding that

Turpin’s consent to the search was voluntary. The

panel on appeal determined it could not say the trial

judge’s finding was clearly erroneous, stating: “We

agree that the sheriffs denial of appellant’s status as

a suspect was somewhat misleading. However, as

noted by the district court, the sheriff did supply the

attorney with other information which clearly im-

plied that appellant might become a suspect in the

future. The officers misrepresented neither the fact

that they were investigating a homicide nor that

they wanted to search the house as part of their in-

vestigation. In particular, the officers did not mis-

represent the fact that they had no search or arrest

warrant.”

o>

10la

In making the statement that misrepresenta-

tion may be evidence of coercion, the panel in Turpin

cited another

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