Citations
- 987 So. 2d 23
Full opinion text
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.
BELL, J.,
specially concurring.
Given the limited, stipulated facts of this case and the reality that this Court’s decision is constrained by applicable United States Supreme Court precedent, I concur with the majority opinion. However, I must write separately to make it clear that my concurrence is with serious reservations. As is Justice Anstead, I am disturbed by the level of intentional police misrepresentation in this case. Such tactics, if they were to become commonplace, would destroy the integrity of the criminal justice system.
This type of intentional deception by law enforcement risks “the criminal law [being] used as an instrument of unfairness.” Schneckloth v. Bustamonte, 412 U.S. 218, 225, 98 S.Ct. 2041, 36 L.Ed.2d 854 (1973). As the Supreme Court explained,
“voluntariness” has reflected an accommodation of the complex of values implicated in police questioning of a suspect. At one end of the spectrum is the acknowledged need for police questioning as a tool for the effective enforcement of criminal laws.... At the other end of the spectrum is the set of values reflecting society’s deeply felt belief that the criminal law cannot be used as an instrument of unfairness, and that the possibility of unfair and even brutal police tactics poses a real and serious threat to civilized notions of justice.
Id. at 224-25, 93 S.Ct. 2041 (citations omitted).
My hope is that law enforcement will resist the temptation to interpret this decision as an endorsement of intentional deception as acceptable, routine police practice. Indeed, the indiscriminate use of such tactics poses “a real and serious threat to civilized notions of justice.” Id.
QUINCE, C.J., concurs.
ANSTEAD, J.,
dissenting.
For the reasons expressed below, I would quash the First District’s decision in Wyche v. State, 906 So.2d 1142 (Fla. 1st DCA 2005), and would approve the Fourth District’s decision in State v. McCord, 833 So.2d 828 (Fla. 4th DCA 2002).
PROCEEDINGS TO DATE
Wyche was detained in Columbia County for a probation violation and was questioned by Investigator Clint VanBen-nekom. Wyche, 906 So.2d at 1143. Although without proof or evidence of any kind, VanBennekom suspected that Wyche may have committed a sexual assault that was pending investigation. Id. In order to induce Wyche to provide a saliva sample to conduct a DNA test, VanBennekom made up a story that Wyche was a suspect in a local supermarket burglary. Id. In reality there had been no such burglary, but VanBen-nekom implied that he could be cleared as a suspect in the burglary if he submitted a DNA sample. Id. at 1148 (Ervin, J., dissenting). Wyche complied and provided VanBennekom with the saliva sample. Id. at 1143 (majority opinion). Van-Bennekom then tested the sample for a match with DNA obtained from the sexual assault and found no such match. Id.
However, the use of the DNA did not stop there. Aware that Wyche’s DNA profile had been secured, Investigator Joseph Moody asked VanBennekom for Wyche’s sample to compare it to blood drops taken from the crime scene of a recent but unrelated burglary of a gift shop in Lake City. Id. This time the DNA test revealed a positive match connecting Wyche to the gift shop burglary, and Wyche was subsequently charged and convicted of burglary, grand theft, and criminal mischief. Id. During those proceedings Wyche sought to suppress the DNA evidence, asserting the deception of the police in securing his saliva sample. Id. He relied on the Fourth District’s decision in McCord, which held that suppression was appropriate in such circumstances. Id. at 1144. Despite McCord’s binding effect on the trial court, the motion to suppress was denied. Id. at 1143. Wyche appealed his convictions to the First District, which addressed only whether the trial court erred in denying Wyche’s motion to suppress the saliva sample. Id. The First District affirmed the conviction and expressly declined to follow the Fourth District’s decision in McCord and certified conflict with it. Id. at 1144. Judge Ervin dissented. Id. at 1148-49 (Ervin, J., dissenting).
In McCord, police suspected the defendant of committing a string of armed robberies. 833 So.2d at 829. While the defendant was detained on unrelated charges, police falsely informed him that he was a suspect in a fictional rape case and asked him to provide a saliva sample in order to exonerate himself. Id. The defendant provided the sample, and, rather than comparing the DNA in the bogus rape case, the police tested the sample against DNA recovered from the scene of several armed robberies. Id. Although the DNA matched the blood found at the scene of the robberies, the trial court refused to admit the DNA evidence on the grounds that the defendant’s consent to the DNA testing was not voluntary because of the police deception. Id. On appeal, the Fourth District affirmed:
[T]he detective in this case fabricated a rape charge to obtain McCords consent. Even the detective testified that McCord consented to giving a sample only because he wanted to clear his name in a non-existent case. We agree with the trial court that this deception, while McCord was in jail, was so manipulative that his “consent” did not “validate the search.”
STANDARD OF REVIEW
An appellate court must give a presumption of correctness to the trial court’s ruling on motions to suppress with regard to the trial court’s findings of fact, but the appellate court should independently review the mixed questions of law and fact that ultimately arise in determining whether the protections provided by the Fourth Amendment have been violated. Fitzpatrick v. State, 900 So.2d 495, 510 (2005) (quoting Nelson v. State, 850 So.2d 514, 521 (Fla.2003)); see also State v. Glatzmayer, 789 So.2d 297, 302 n. 7 (Fla.2001) (“[T]he ultimate ruling [on a motion to suppress] must be subjected to de novo review but the court’s factual findings must be sustained if supported by competent substantial evidence.”). Moreover, unless a ruling turns exclusively on an issue of fact, or for instance whether there was a factual dispute regarding whether any consent was actually given, the ultimate question of the voluntariness of consent to a search may become a legal rather than a factual question, to which a de novo standard applies. Connor v. State, 80S So.2d 598, 608 (Fla.2001). In this case, for example, there is no dispute about whether consent was given; instead, the dispute is whether the consent was voluntary.
ANALYSIS
The Fourth Amendment of the United States Constitution states that it is “[t]he right of the people to be secure in then-persons, houses, papers, and effects, against unreasonable seizures ... and no Warrants shall issue, but upon probable cause.” U.S. Const, amend. IV. Evidence obtained in violation of the Fourth Amendment shall not be admissible at trial. See Mapp v. Ohio, 367 U.S. 643, 657, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (“[T]he exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments .... ”); Sing v. Wainwright, 148 So.2d 19, 20 (Fla.1962) (“This Court long ago concluded that evidence obtained as the product of an unreasonable search is not admissible in a criminal proceeding. Florida has long recognized the so-called ‘exclusionary rule’ regarding the inadmissibility of such evidence.” (citing Thurman v. State, 116 Fla. 426, 156 So. 484 (1934); Jackson v. State, 87 Fla. 262, 99 So. 548 (1924); Chacon v. State, 102 So.2d 578 (Fla.1958))).
Extractions of bodily fluids, as occurred in this case, implicate essentially the same principles applicable to searches and seizures. Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Further, once samples are obtained validly, they can be used for investigations of other crimes. Washington v. State, 653 So.2d 362, 364 (Fla.1994) (“We also find that once the samples were validly obtained, albeit in an unrelated case, the police were not restrained from using the samples as evidence in [a different] case.”).
In order to comply with the Fourth Amendment, a search and seizure must be conducted with probable cause and with a warrant, “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Moreover, “[i]t is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Hence, the issue this Court must address in the present case is whether Wyche’s initial consent to give the saliva swabs was given voluntarily and freely.
CONSENT TO SEARCH
When the State desires to rely upon consent to justify a search, the State has the burden of proving that the consent was freely and voluntarily given, and showing mere acquiescence to authority is not enough to discharge this burden. Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); see also Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (holding that the State must prove consent was voluntary, not simply a submission to authority); Jorgenson v. State, 714 So.2d 423, 426 (Fla.1998) (holding that the State must prove voluntariness by a preponderance of the evidence (citing Brewer v. State, 386 So.2d 232, 236 (Fla.1980))). Moreover, the State has the burden of proving that the consent was “not the .result of duress or coercion, express or implied.” Schneckloth, 412 U.S. at 248, 93 S.Ct. 2041. Voluntariness is a question of fact, which is to be determined from the totality of all of the circumstances. Id. at 248-49, 93 S.Ct. 2041.
The voluntariness of a consent to search should be evaluated in much the same fashion as the voluntariness of a confession. Washington, 653 So.2d at 364 (“Although a warrantless search is per se unreasonable under the Fourth Amendment, the search will be considered lawful if conducted pursuant to consent which was given voluntarily and freely.” (citing Norman v. State, 379 So.2d 643 (Fla.1980))); see also Schneckloth, 412 U.S. at 223-24, 93 S.Ct. 2041 (turning to the body of case law about the voluntariness of confessions in order to evaluate the meaning of voluntariness in the context of a consent to search). “The standard for measuring the scope of a suspect’s consent [to search] under the Fourth Amendment is that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801,114 L.Ed.2d 297 (1991) (citing Illinois v. Rodriguez, 497 U.S. 177, 183-89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)). “[W]hile [the courts] have enumerated a number of (non-exclusive) factors that may bear on the issue of volun-tariness, the absence of official coercion is a sine qua non of effective consent, as it is axiomatic that ‘[w]here there is coercion, there cannot be consent.’ ” United States v. Gonzalez, 71 F.3d 819, 828 (11th Cir.1996) (citation omitted) (quoting Bumper, 391 U.S. at 550, 88 S.Ct. 1788, and citing Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)). In essence, the inquiry is whether the consent was “the product of an essentially free and unconstrained choice by its maker.” Schneckloth, 412 U.S. at 225, 93 S.Ct. 2041.
The voluntariness of consent has been addressed by the courts in a variety of contexts. For example, it has been held that knowledge of a right to refuse a search is not a prerequisite of a voluntary consent to search. Id. at 234, 93 S.Ct. 2041; see also United States v. Drayton, 536 U.S. 194, 206, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) (holding that defendant’s consent to search his person while on board an interstate bus was voluntary even though the police did not tell the defendant of his right to refuse consent); Ohio v. Robinette, 519 U.S. 33, 39-40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (holding that a detained defendant’s consent to search his car was voluntary even though the police did not tell him he was free to leave).
On the other hand, the United States Supreme Court has held that consent will be considered involuntary if given in response to a police assertion of an intent to search the premises. See Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 65 L.Ed. 654 (1921) (holding that consent was coerced when officers told defendant’s wife they came to search the premises and she allowed them to enter). Similarly, consent has been deemed to be coerced when the police demand entry onto private premises. See Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (holding that when entry is “demanded under color of office” and consent is given “in submission to authority rather than as an understanding and intentional waiver of a constitutional right,” consent is not voluntary). Further, consent has been determined to be invalid and involuntary where the police falsely assert that they have a valid search warrant. See Bumper, 391 U.S. at 548-50, 88 S.Ct. 1788 (holding consent involuntary when police told defendant’s grandmother they had a search warrant and she allowed them to enter and search).
In Royer, a case originating in Florida, the United States Supreme Court invalidated a consent obtained by airport narcotics agents during an illegal detention of a passenger and his luggage:
First, it is submitted that the entire encounter was consensual and hence Royer was not being held against his will at all. We find this submission untenable. Asking for and examining Royer’s ticket and his driver’s license were no doubt permissible in themselves, but when the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver’s license and without indicating in any way that he was free to depart, Royer was effectively seized for the purposes of the Fourth Amendment. These circumstances surely amount to a show of official authority such that “a reasonable person would have believed he was not free to leave.” United States v. Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870 (opinion of Stewart, J.).
460 U.S. at 501-02, 103 S.Ct. 1319 (plurality opinion). The Court affirmed the Third District Court of Appeal’s “conclusion that Royer was being illegally detained when he consented to the search of his luggage, [and] agree[d] that the consent was tainted by the illegality and was ineffective to justify the search.” Id. at 507-08, 103 S.Ct. 1319 (plurality opinion); see also Reynolds v. State, 592 So.2d 1082, 1086 (Fla.1992) (finding a handcuffed defendant’s consent to search his person involuntary, even though he was informed that he could refuse to consent, because he had been confronted by three officers and told he was under arrest even though there was no probable cause, and he was then handcuffed and frisked).
On the other hand, in United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), the Court concluded that a consent to a search of a suspect’s car obtained while the suspect was in lawful custody was voluntary. The Court outlined the factors relevant to its analysis:
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 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) (emphasis supplied); see also United States v. Mendenhall, 446 U.S. 544, 557-59, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (holding that a defendant’s consent to accompany DEA agents from the Detroit airport to the DEA office was voluntary when she was asked to accompany the officers, there were no threats or show of force, and the officers told her twice that she could decline to consent).
POLICE DECEPTION OR MISREPRESENTATION
This Court and other courts have held that not all deception will invalidate a confession. Denmark v. State, 95 Fla. 757, 116 So. 757, 762 (1928); see also Hoffa v. United States, 385 U.S. 293, 301-02, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) (holding that defendant’s statements made to an informant were admissible even though the informant lied about his identity); Brown v. Brierley, 438 F.2d 954, 955-57, 959 (3d Cir.1971) (holding a consent voluntary when a defendant, who had been warned of his rights and knew police were investigating murders, turned his gun over to a policeman who suggested that he could sell the gun for the defendant). In Conde v. State, 860 So.2d 930 (Fla.2003), we held that when a detective exaggerated the amount of DNA evidence against the defendant, the defendant’s confession was still voluntary because “police misrepresentations alone do not necessarily render a confession involuntary.” Id. at 952. We concluded that the deception was minimal because the police had a preliminary match between blood taken from the defendant and DNA evidence collected at the murders, and the defendant had voluntarily given his blood sample within a couple of hours of his arrest. Id. Therefore, when examined under the totality of the circumstances, we held that the confession was not rendered involuntary. Id.
However, we have also declared that deception is an important factor to be taken into account when determining whether a consent is voluntary, depending on the level of deception involved. In Thomas v. State, 456 So.2d 454 (Fla.1984), we explained:
A confession that is obtained by coercion may not be used in evidence. Brewer v. State, 386 So.2d 232 (Fla.1980). 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 sel-fincriminating statements thereby obtained. Blackburn v. Alabama, 361
U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960); Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897); Frazier v. State, 107 So.2d 16 (Fla.1958); Harrison v. State, 152 Fla. 86, 12 So.2d 307 (1943). 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. See State v. Caballero, 396 So.2d 1210 (Fla. 3d DCA 1981); Ebert v. State, 140 So.2d 63 (Fla. 2d DCA 1962).'
Id. at 458 (emphasis supplied). Similarly, we cautioned in Johnson v. State, 660 So.2d 637 (Fla.1995), that voluntariness may be negated and suppression of evidence mandated where the defendant makes a showing of “physical or psychological coercion, intentional deception, or a violation of a constitutional right.” Id. at 642 (emphasis supplied) (citing State v. Sawyer, 561 So.2d 278 (Fla. 2d DCA 1990); Martinez v. State, 545 So.2d 466 (Fla. 4th DCA 1989)); accord Commonwealth v. Slaton, 530 Pa. 207, 608 A.2d 5, 9 (1992) (“Consent must be freely and intelligently given, however, and is not voluntary if it is obtained through deception as deception amounts to implied coercion, which negates the necessary element of willingness.” (citing United States v. Prudden, 424 F.2d 1021 (5th Cir.1970))). Despite our cautions and, with the exception of cases like Bumper, our case law has done little to provide concrete examples of when such trickery or intentional deception will render a consent involuntary.
THIS CASE
Whether the Fourth Amendment was violated in this case turns on a determination of whether Wyche freely and voluntarily consented to providing a sample for DNA analysis as contemplated by Schneckloth, or whether his consent was the product of “trickery” or “intentional deception” as contemplated in Thomas and Johnson. I would conclude that the degree and the flagrant nature of the deception intentionally used by the police to secure Wyche’s consent prevented that choice from being “the product of an essentially free and unconstrained choice by its maker.” Schneckloth, 412 U.S. at 225, 93 S.Ct. 2041. In common terms, Wyche was tricked into giving a sample by the use of intentional deception specifically crafted to secure the consent. This appears to be precisely the kind of police misconduct contemplated by our statements in Thomas and Johnson.
The State cites and the majority opinion relies on Washington for the proposition that a DNA sample secured in one case may be used in an investigation of another case. However, while the defendant in Washington was implicated in and convicted of a different crime from the one as to which he consented to provide a sample, the use of the DNA sample was approved in the other case only after it was determined to have been properly obtained in the first instance. There was no issue of trickery or intentional deception. The focus in Washington was on the continuing use of a validly obtained DNA sample, whereas the focus in McCord and Wyche was on the voluntariness of the consent to provide a sample in the first instance. The characteristic that distinguishes between McCord and Wyche on the one hand and Washington on the other is that in both McCord and Wyche, the defendant gave a DNA sample to be tested for a completely fabricated crime so that the DNA testing would be certain to clear him.
The circumstances of this case more closely resemble the circumstances presented in Bumper. In Bumper, the defendant’s live-in grandmother consented to the police search of his house only after the officers falsely claimed they had a search warrant. 391 U.S. at 546, 88 S.Ct. 1788. The Supreme Court held that this search violated the Fourth Amendment because the consent given was involuntary when predicated upon a false claim of the existence of a warrant. Id. at 550, 88 S.Ct. 1788. In other words, the consent was vitiated because it was obtained by the invocation of a critical but false representation.
Similarly, although no claim of a warrant was involved, Wyche consented to a search here pursuant to a false police promise that the saliva sample would provide the means to exonerate him as to any participation in a burglary of a local supermarket. However, the supermarket burglary case was actually a fiction, an intentional deception concededly created solely for the purpose of inducing the defendant to provide a DNA sample. Because it could only result in the defendant’s exoneration of participation in a nonexistent crime, the defendant had everything to gain and nothing to lose. Of course, this is precisely why this particular deception was intentionally used by the police to induce the defendant to provide the sample. I would conclude that, as in Bumper, consent simply cannot be established as having been given freely and voluntarily when it is predicated upon such a critical misrepresentation.
A comparison of cases from other courts to the instant case further supports my conclusion. Several courts have addressed the voluntariness of a consent to search where the police have fabricated a crime or said that the object of a criminal investigation was something other than what it actually was in order to induce the subject’s consent. While courts have come to different conclusions regarding the volun-tariness of a consent, they have all emphasized the importance of the particular facts of the case. For example, in Carter, postal inspectors, who were investigating the disappearance of mail, placed several marked bills and a bearer check in the mail trays at the bank where the defendant worked as a mailroom employee. 884 F.2d at 369. After the inspectors identified the defendant as a possible suspect, he was summoned to the office of the bank president where he was interviewed by the inspectors. Id. The inspectors told the defendant that they were investigating the disappearance of Canadian money and asked whether they could look in the defendant’s wallet. Id. The defendant complied, and the investigators discovered the marked items. Id. The Eighth Circuit held that the inspectors’ deceptive statements as well as other circumstances, including the fact that the defendant underwent custodial interrogation, supported the district court’s order suppressing the evidence. Id. at 375.
In Krause, the police fabricated a false story of a rape in order to search the suspects’ residence for drugs. 206 S.W.3d at 923-24. In order to gain access to the residence, the police knocked on the door of the suspects at 4 a.m. and informed them that a young girl had just reported being raped by one of the occupants in the residence. Id. at 924. The police officer asked if he could look around the residence to determine whether her description of the residence was accurate. Id. Once inside, the police discovered drugs in “plain view.” Id. However, the Kentucky Supreme Court vacated the defendant’s convictions and sentence, holding that the deception employed by the police was so unfair as to be coercive and that the consent to search was unconstitutionally invalid. Id. at 927-28. The court’s belief that the consent to search was coerced was based on the following factors: (1) given the time and nature of the ruse, the defendant and his roommate were in a particularly vulnerable state; (2) the tactics were unnecessary and not based on pressing or imminent tactical considerations; and (3) if the type of ruse used by the police were sanctioned by the court, citizens would be discouraged from aiding in the apprehension of criminals. Id. at 926. The court emphasized that its holding was limited and narrow and noted that the distinguishing feature of the case compared to most other ruse cases was the fact that the police “exploited a citizen’s civic desire to assist police in their official duties for the express purpose of incriminating that citizen.” Id. at 927.
Even though the Kentucky court found that the use of such a ruse rendered the defendant’s consent invalid, other courts have not found that this type of misrepresentation, taken in conjunction with other factors, invalidates consent to search. For example, in Andrews, federal agents who were executing a search warrant handcuffed the defendant and led him into his hotel room. 746 F.2d at 247. An agent advised the defendant that he was not under arrest but also advised the defen-’ dant of his Miranda rights. Id. at 248. When the agents found a gun in the room, they asked the defendant if it was his. Andrews, 746 F.2d at 248. Although the defendant said it was not, he also stated that he owned two guns, which were at his home, and described one of them as being a sawed-off shotgun. Id. The agent asked the defendant if he would mind if the agent examined the shotgun, telling the defendant that a person fitting the defendant’s description had been connected to robberies in which a sawed-off shotgun was used. Id. In fact, the agent’s purpose in asking to inspect the shotgun was to establish the defendant’s possession of firearms so that the defendant could be charged with illegal possession of a firearm by a felon. Id. The agents and the defendant drove separate cars to the defendant’s home, where the defendant led the agents into his residence and produced the shotgun. Id. The agents seized the weapon, and the defendant was indicted for possession of a firearm by a convicted felon. Id. The defendant appealed, but the Fifth Circuit rejected his argument that the evidence should have been suppressed because it was obtained through fraud, trickery, and deception. Id. at 247. Although the Fifth Circuit acknowledged that misrepresentation is a factor to be considered in evaluating the circumstances surrounding consent, the court ultimately found that the defendant’s consent was voluntary because he was not under arrest when he produced the gun, he voluntarily waived his Miranda rights, the agents had not forced him to produce the gun, and two hours passed between the initial consent and the actual production of the gun. Andrews, 746 F.2d at 249-50.
Similarly, in Zamora, a Colorado appellate court upheld the use of a ruse in which the police told a man suspected of kidnapping and sexually assaulting a child in his home that they wished to see the layout of his apartment to aid in their investigation of a domestic dispute at an adjacent apartment. 940 P.2d at 941. The defendant let the police inside, and the police observed that the apartment’s layout and the empty waterbed frame in the bedroom matched the victim’s description. Id. The defendant was subsequently arrested and convicted for kidnapping and sexual assault. Id. On appeal, the defendant argued that his consent to the entry of his apartment was invalid because it was obtained through deception. Id. The court, however, found that the defendant’s consent was voluntary based upon the totality of the circumstances. Id. at 942-43. The court reasoned that although the officers may have partially misrepresented their purpose, they were truthful in saying they desired to see the layout of the apartment. Id. at 943. The court also observed that the officers did not exceed the scope of the consent. Id.
Because the cases in which the police fabricated a crime in order to obtain a subject’s consent are the most closely analogous to the instant case, the facts upon which those cases turn are of particular importance to the analysis of the instant case. For example, while Wyche was not in a particularly vulnerable state like the suspects in Krause, he was in custody for a violation of probation just as the suspect in Carter was in custody. See Wyche, 906 So.2d at 1143. In contrast to the suspect in Carter and to Wyche, the suspect in Zamora was never in police custody. Moreover, unlike the defendant in Andrews, who admitted he owned a shotgun before the agents ever told him about the alleged robberies in which a shotgun was used, Wyche never volunteered any information or a sample to the police before they informed him that he was a suspect in a fictitious burglary. See Wyche, 906 So.2d at 1143. Taken together, these cases support the conclusion in the instant case that Wyche’s consent was not freely and voluntarily given.
I would also concur in Judge Ervin’s observation in his dissent below that, historically, the case law finding police deception failing to negate consent has involved a factual misrepresentation of the circumstances under investigation rather than a complete fabrication of the basis under which the defendant gave consent:
In my judgment, the present case is a classic example of police overreaching that requires suppression of the DNA sample. The officer’s deliberate misrepresentation was not a factual misstatement in an ongoing case in which appellant was a suspect, but its purpose was to delude him of his true position by informing him he was a suspect in a crime that had never been committed so that incriminating evidence might be obtained from him in an altogether unrelated case, which, as events developed, also revealed his non-complicity. It was not until the investigation of yet another unrelated case that the officer’s deception bore fruit and a match was finally obtained. Such crime shopping, in my opinion, cannot be condoned in an ordered society.
Wyche, 906 So.2d at 1149 (Ervin, J., dissenting). I would agree with Judge Er-vin’s distinction between “police misstatements which delude a defendant as to the import of his or her confession, and are thus improper, and police misstatements of relevant facts, which can be proper.” Id. at 1148 (Ervin, J., dissenting) (citing State v. Manning, 506 So.2d 1094, 1097-98 (Fla. 3d DCA 1987)). In other words, contrary to our caution in Thomas, the police here engaged in a technique calculated to trick or to delude the suspect as to his true position.
The First District majority in Wyche, while recognizing our holdings that not all deception will render a confession or a consent to search involuntary, failed to recognize any limitations on government misconduct or to recognize our cautions in Johnson and Thomas, warning against “intentional deception” and “[t]echniques calculated to exert improper influence, to trick, or to delude the suspect as to his true position.” Those cautions appear to apply precisely to the actions of the government in securing Wyche’s consent.
Further, in addition to our cautions against the government’s use of trickery and intentional deception in Johnson and Thomas, I would also agree with the “bottom-line” analysis of Judge Gross in his specially concurring opinion in McCord:
The bottom line in this consent case is, as Professor LaFave has wri