State v. Brehm

PER CURIAM. The State brings this appeal from an order of the lower court suppressing certain evidence, to-wit, marijuana. The lower court in its order held that there was no ground for stopping the vehicle operated by appellee in which the marijuana was found. We agree with the trial court in this conclusion. The State argues, however, that a free and voluntary consent was given by the ap-pellee to the police authorities to search the automobile. The trial court held that the consent was not given freely and voluntarily “inasmuch as no prior warning was given defendant pursuant to the Miranda decision and related authority.” In the recent case of State v. Spanierman, Fla.App.1972, 267 So.2d 102, this court in an opinion by Judge McNulty held: “In any case, even if it be assumed that the officer had no right to stop the van under any theory, a valid search and subsequent seizure may nevertheless be predicated upon a free and voluntary consent; provided, however, that such consent was not obtained by the exploitation of any prior unlawful actions of the officer.3 A finding of a voluntary con- “3. See, Wong Sun v. United States (1903), 371 U.S. 471, at p. 488, 83 S.Ct. 407, 9 L.Ed.2d 441. See, also, Davis v. California (9th Cir. 1965), 341 F.2d 982. sent, therefore, might well have obviated any question of an illegal stopping or arrest.4 “4. See, Longo v. State (1946) [157 Fla. 668], 26 So.2d 818, and State v. Custer (Fla.App.1971), 251 So.2d 287.” In Spanierman, supra, we remanded the cause to the trial court for a finding as to the voluntariness of the consent but precluded the court from finding that the consent was involuntary merely because the officer did not advise the defendant of his Fourth Amendment rights. In view of Spanierman, supra, we remand this cause to the lower court for a determination as to the voluntariness of the consent and direct the trial court to proceed with his determination in accordance with the guidelines set out in Spanier-man, supra. Reversed and remanded. — 130 — HOBSON, J., and PIERCE, J. (Ret.), concur. MANN, C. J., dissents with opinion.