06-5731 BRIAN McDONNELL and CHRISTOPHER McDONNELL v. STATE OF FLORIDA& 06-5764

SUPREME COURT CASES

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State: Florida

Court: Florida First District Court

Docket No: 06-5731

Case Date: 05/12/2008

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA BRIAN McDONNELL and CHRISTOPHER McDONNELL, Appellants, v. STATE OF FLORIDA, Appellee. ____________________________/ CASE NO. 1D06-5731 and 1D06-5764 (Consolidated Cases) NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

Opinion filed May 12, 2008. An appeal from the Circuit Court for Bay County. Glenn L. Hess, Judge. Michael Ufferman, of Michael Ufferman Law Firm, P. A., Tallahassee, for Appellants. Bill McCollum, Attorney General, and Alan R. Dakan, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.

PER CURIAM. Appellants challenge the denial of their motions to suppress evidence recovered from a search of their home and statements they made while in police custody. For the reasons discussed below, we affirm the denial of appellants' motions to suppress

the evidence found during the search of their home. We deny, without discussion, appellants' assertions that their statements were involuntary. I. BACKGROUND In 2005, appellants Brian and Christopher McDonnell (twin brothers) were charged with a number of criminal offenses, including burglary, grand theft, and aggravated assault. The appellants each filed a motion to suppress certain items found during a search of their residence. They asserted that Christopher's consent to search the home was involuntary. At the hearing on the motion to suppress, Investigator Mathis testified that on August 12, 2005, he was investigating the theft of an ATM from the Bay Point Marriott. A loss prevention officer at the Marriott had obtained the "tag number" of the truck used during the theft of the ATM, and records indicated that the truck belonged to appellants' father.1 The appellants' father stated that his son Eric had the truck and had taken it to appellants' residence to take some debris to the Marriott to be thrown away. The police went to the appellants' shared residence at about four in

Police were also in possession of a video of an earlier crime committed at the Marriott. An employee of the Marriott had identified appellants as the men in that video. 2

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the morning.2 Christopher McDonnell answered the door in a bath towel. Investigator Mathis told Christopher that he was investigating a theft of an ATM from the Marriott and asked him if he had anything in the house linking him to the theft. Christopher denied any involvement, at which time Investigator Mathis asked appellant for consent to search the home. When Christopher refused, Investigator Mathis left to obtain a warrant while the other officers stayed behind. Christopher stayed on the front porch in his bath towel while Officer Mathis went to secure a warrant. At some point, about an hour and half to two hours later, while waiting for Officer Mathis to return with a warrant, another officer requested and received permission from Christopher to search the home. A warrant for the search was never obtained. Inside the home, officers found a number of incriminating items linking appellants to a number of offenses. At the conclusion of the hearing, the trial court denied the motions to suppress. The trial court ruled, in essence, that even though a search warrant was never obtained, the police were in the process of getting a warrant, and would have done so because they had sufficient probable cause: All right, here's what we've got. We have a video tape of the ATM being stolen. The video tape shows the type of truck, it shows the
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Investigator Mathis testified that he was accompanied by at least three other officers, although there could have been more. 3

ident

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