Here in Central Florida, Orlando in particular, consent to search is fairly common. But from my side of the desk, it’s just as common for an Accused to tell me “I never told that cop he could search my car!”. I’ve heard this so many times in my 18 years of criminal defense work that it’s scary.
So, does anyone care that–most likely–some officers are not telling the truth when it comes to supposed “consent” to search?
Yes, someone does care.
Let’s start with Chief Judge Robert Gross of the Fourth DCA. His opinion in Ruiz v. State, 50 So.3d 1229 (Fla. 4th DCA 2011) states that the police testimony about the defendant’s consent to search his home “unbelievable”. What’s sad about this is the fact that the trial court said just the opposite, that the police testimony was “credible”. Imagine that?
Ok, I’m going to get a little preachy here, but bear with me. Trial court judges can make or break our beloved Constitution. If trial court judges don’t have the balls to grant Motions to Suppress and Motions to Dismiss–why have a Constitution?! With that in mind, let’s go back to the Ruiz case, where the trial court is quoted as saying that he found the officer’s testimony at the motion to suppress “very credible”, and the defendant Ruiz’s testimony “not credible.”
So, once again, after reading the transcript, how did the appeals court view the matter? The Chief Judge, once again, tells it like it is: “The profusion of consent cases requires trial judges, the gatekeepers of the Fourth Amendment, to critically evaluate the testimony given at hearings. Cases like this one call into question the fairness of some trial court proceedings…Yet, as an appellate court, we must defer to the express finding of credibility made by the trial court. We were not there. We did not see the witnesses testify. If believed, the detectives’ testimony supports the court’s ruling. This case demonstrates the importance of an independent judiciary. ….Without an unbiased and objective evaluation of testimony, judges devolve into rubber stamps for law enforcement.”
Yep. I see it all the time. Judges think that the phrase “I find the officer’s testimony credible” is their magical rubber stamp. If all a judge does is rubber stamp all police testimony as “credible”, how tough of a job is that? A judge is the defender of our Constitution. It’s a tough job. The job requires the court to call cops a liar when they’re lying. It’s not easy to do, but doing the right thing never is easy. Thank God for appellate court judges like Robert Gross.