Earl WYCHE, Petitioner, v. STATE of Florida, Respondent, 987 So. 2d 23

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(b)(4), Fla. Const. For the reasons expressed below, we approve the 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, Van-Bennekom had manufactured 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 ease; 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 ]of The Pink Magnolia, a gift shop in Lake City, and asked Van-Bennekom 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 Van-Bennekom 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 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.” Wyche was tried and convicted of burglary, grand theft, and criminal mischief. Wyche then appealed his convictions to the 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. STANDARD OF REVIEW The standard of review for motions to suppress is that the appellate court affords a presumption of correctness to a trial courts 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 v. 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, 93 S.Ct. 2041, 36 L.Ed.2d 854 (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 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, 96 S.Ct. 820, 46 L.Ed.2d 598 (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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),] 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, 96 S.Ct. 820 (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. 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 gift 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. The police interviewed Washington regarding an unrelated sexual battery.

The officers told Washington that 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 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. 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. 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, 89 S.Ct. 1420, 22 L.Ed.2d 684 (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 codefen-dant’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 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, 93 S.Ct. 2041 (“[I]t is only by analyzing all the circumstances of an individual 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, 96 S.Ct. 820 (“[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 product of an essentially free and unconstrained choice by its maker.” Schneckloth, 412 U.S. at 225, 93 S.Ct. 2041. 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, 88 S.Ct. 1788, 20 L.Ed.2d 797 (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, 88 S.Ct. 1788. 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 Van-Bennekom 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 v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963), Spano v.

New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959), and Samuel 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 Lyn-umn, 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, 83 S.Ct. 917.

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, 79 S.Ct. 1202. 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, 79 S.Ct. 1202. 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.

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 showed 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. 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 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. . In its

summary of the facts 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, Wyche was charged and convicted of burglary and grand theft, not robbery. .

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 VanBennekom 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 District, we do not decide this timeliness issue because we hold that the defendant's motion was properly denied on its merits. . U.S. Const, amend. IV. .

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 49. .

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. . 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 v. 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. .

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 61. 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.