Case No.: MM00-02162A-XX
Appeal No.: DD-3
WILLIAM WOFFORD,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________________________
OPINION OF THE COURT
This is an appeal from the county court of Polk County, Judge Mary Catherine Green presiding. Appellant, William Wofford, by and through appellate counsel, argues that the trial court erred in denying his motion to suppress because the appellant=s consent to search was not voluntary. This court has jurisdiction. Fla. R. App. P. 9.030(c). The ruling of the county court is affirmed.
I.
On February 28, 2000, Corporal Jeffrey Brock of the Florida Highway Patrol conducted a stop of the appellant for driving 74 miles per hour in a 55 mile per hour zone. (V1/R24-25) After the car was stopped, Brock noticed that Mr. Wofford=s eyes were bloodshot. The corporal did not detect any specific smell, although he told the appellant that the thought he could smell Asomething.@ (V1/R29) Brock testified that heAwas not sure what it was Abut it smelled like it was possible that there was some marijuana in the vehicle.@ (V1/R29) Brock acknowledged, however, that at that point, he did not have probable cause to search the car based solely on his belief that there was a particular odor. (V1/R29) Brock testified that when he first asked the appellant consent to search the vehicle, the appellant refused. (V1/R30) When asked on cross-examination A[w]hen did [the appellant] change his mind, sir?,@ Brock responded that he suspected it was when he heard him requesting a canine unit. (V1/R30) Brock testified that he was watching the appellant and he appeared to be considerably nervous when he heard the corporal ask for a canine unit. (V1/R30) At that point, the appellant told the corporal AI=ll tell you why you don=t need to bring anybody here. . . . I have a small amount of marijuana in the vehicle.@ (V1/R30) The canine unit was called off and the marijuana was seized. The corporal testified that he did not force the appellant to consent. (R1/30) The corporal also testified that the appellant was not free to leave at the time because he had not yet completed the traffic ticket. The corporal estimated that the stop lasted about an hour and a half from the time he turned on his lights until the time appellant was given a notice to appear. (R1/V32) The entire stop was videotaped and the tape was played at the hearing. (V1/R26)
II.
The determination of the voluntariness of a consent to search is a question of fact for the trial judge. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). A trial judge=s ruling on a motion to suppress is presumptively correct and will be affirmed if based upon competent substantial evidence. See Escobar v. State, 699 So. 2d 984, 987 (Fla. 1999); c.f., Ramirez v. State, 739 So. 2d 568 (Fla. 1999). To succeed on appeal, Appellant must show that the ruling of the trial court is not supported by competent evidence. Id. An appellate court will view the evidence and the inferences and deductions drawn therefrom by the trial court in a manner most favorable to sustaining the trial court=s ruling. Johnson v. State, 438 So.2d 774, 776 (Fla. 1983).
III.
The appellant argues that the search and seizure was illegal because the appellant did not freely and voluntarily consent to the search. The appellant relies on Monroe v. State, 578 So.2d 847 (Fla. 2d DCA 1991) in support of his argument. However, this court finds Monroe distinguishable on the facts. In Monroe, the Polk County Sheriff=s Department was dispatched to a used car lot in response to an anonymous tip. Upon arriving, they observed the appellant and her boyfriend, Kenneth May, standing next to a blue Toyota. The vehicle was owned by May=s mother but the appellant had been driving it. The officer=s looked inside the vehicle but did not see anything suspicious. The officer=s questioned the appellant and advised her that they wanted to search the trunk because, according to the tip, there was marijuana in the vehicle. At first, the appellant declined. The officers then advised the appellant that they would stay there for as long as it took to determine whether there was marijuana in the car. They also said that they would call a canine unit to smell the marijuana unless appellant would consent to a search. The appellant again declined. After at least one hour had passed, the officers asked May, appellant=s boyfriend, to sign a written consent allowing the trunk to be searched. The officer wrote on the form that May was the driver when he clearly was not. May signed the consent and the trunk was searched. Appellant was charged with possession of marijuana and moved to suppress on the grounds that May=s consent was not voluntary. The trial court denied the motion. The Second District Court of Appeal reversed and found that, on the facts presented, consent was not voluntarily given . The court stated that Athe very length of the detention before the consent was signed is sufficient to cast significant doubt on the voluntariness of May=s consent@. Id. at 848. However, the court went further and stated that the length of the detention Ain addition to the officers= coercive threatening methods and May=s lack of authority to consent to search@ leads to the conclusion that the consent to search was not voluntary. Id. at 848-849. Since the officer=s did not have probable cause to search, the search was illegal. Those facts are different from the case at bar. In this case, there was no evidence that the corporal threatened or coerced the appellant to consent. Of significant importance here is the fact that the trial court had the distinct advantage of viewing the stop as well as the circumstances under which the consent was given. Having reviewed the file and the applicable law, this court finds that the trial court did not err in denying the appellant=s motion to suppress. Schneckloth.
Accordingly, the trial court=s order denying the motion to suppress is AFFIRMED.
ORDERED November 2001.
Charles B. Curry, Chief Judge