County Case No. MM99-00241A-XX
Appeal No. BB-45
April 14, 2000

MARIA WARDEN,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

_______________________

This is an appeal from the county court of Polk County, Judge Steven Selph presiding. Appellant, Maria Warden, argues that the trial court erred by failing to grant her motion to suppress certain evidence. This court has jurisdiction. Fla. R. App. P. 9.030(c). The ruling of the county court is affirmed.

Polk County Sheriff’s Deputies Wyant and Goff responded to an anonymous telephone tip that Maria Warden was smoking marijuana inside her apartment. When deputies arrived at Appellant’s apartment, a male guest told deputies that Appellant was not at home but was expected shortly. The male guest invited the deputies inside where they remained until Appellant arrived. Later, Deputy Wyant stepped outside to speak with Appellant.

Testimony established that Wyant told Appellant that he was a police officer investigating an anonymous tip that she had been smoking marijuana. He then asked for consent to search the apartment. Appellant testified,

He said that if I had anything in the home and I gave it to him, that he would not take me to jail that night. And I asked him - - and he said that I had the right to ask them to leave - - I said, if I tell you to leave, that means you’re just going to stay here until I call the canine unit. He told me that was a possibility, they could. And that if I [sic] didn’t just go ahead and let them in, they would have to keep coming back.

Following this exchange, Appellant lead Wyant into her bedroom where she kept a small amount of marijuana. Wyant did not arrest Appellant that night, but later charged her by information. The trial judge concluded that the Appellant’s testimony established that she initiated the discussion of jail and the canine unit; the officer responded reasonably with truthful answers to Appellant’s suppositions.

A trial judge’s ruling on a motion to suppress is presumptively correct and will be affirmed if based upon competent substantial evidence. Escobar v. State, 699 So. 2d 984, 987 (Fla. 1999); c.f., Ramirez v. State, 739 So. 2d 568 (Fla. 1999) (dissenting opinion arguing that record does not support majority finding). To succeed on appeal, Appellant must show that the ruling of the trial court is not supported by competent evidence. Id.

The voluntariness of consent is determined by the totality of the circumstances. Bailey v. State, 319 So. 2d 22 (Fla 1975). To establish a waiver of rights, the state must show clear and convincing evidence that the search was voluntarily permitted, or expressly invited. Id. Appellant argued that consent was not voluntary because the evidence tended to show that the deputies threatened or coerced her with talk of jail and canine searches. However, a review of the record does not bear out Appellant’s argument. As the trial judge noted in his findings, it was Appellant and not Wyant who initiated discussion of jail and canine searches. The trial judge found that the deputy’s responses were informative without being threatening. C.f. Bailey, 319 So. 2d 22, (reversing based on evidence of coercion and search despite lack of consent). Competent evidence supports the ruling of the trial court.

Accordingly, it is ORDERED that the ruling of the county court is AFFIRMED.

ORDERED 14 April 2000.

Charles B. Curry

Chief Judge