Florida Supreme Court Oral Arguments- Transcripts

THE COURT WILL CALL THE NEXT CASE OF W YCH VERSUS STATE OFFLORIDA. WAIT A MINUTE WHILE , I DON'T BELIEVE YOU TO FEEL BA DLY THE COURTROOM IS CLEARING JUST AS YOU CAME UP. THIS IS ACT UALLY QUITE AN INTERESTING CASE, AND I THINK THE STUDENTS WOULD HAVE ENJO YED HEARING IT.

MAY IT PLEA SE THE COURT . COUNSEL. MY NAME IS KAY WITT AND I AM HERE ON BEHA LF OF THE PETITIONER MR . EARL WYC HE. THE ISSUE IN THIS CASE IS VERY STRAIGHTFORWARD. IT INVOLVES A CONFLICT BETWEEN THE DECISION OF THE FIRST DISTRICT COURT AND MR . WYCHE'S CASE , AND THE DECISION OF THE FO URTH DISTRICT IN STATE V McCORD .

ON THE ISSUE OF WHETHERPOLICE OFFICERS ARE ALLO WED TO USE DECE PTION AND TRICKLYREY TO OB TAIN A WAIVER OF FOURTH AMENDMENTRIGHTS. McCORD DISTINGUISHED THE U SEOF TRICKERY BY PO LICE AS INTERROGATION TOOL, AFTER A SUSPECT HAS WAIVED HIS RIGHTS FROM THE USE O F TRICKERY AND DECEPTION , TO OBTAIN A WAIVER OF RIGHTS AS IN THIS CASE , CON SENT T O SEARCH. THE COURT, ALSO , DISTINGUISHED THIS UNDER TOTALITY OF THE CIRCUMSTANCES ANAL YSIS . IN THIS C ASE , THAT WOULD BE THAT THE USE OF DEC EPTION WAS PERPETRATED UPON A SUSPEBT WH O WAS IN CUSTODY FOR THE EXPRESS PU RPOSE OF OBTAINING HIS WAIVER , CONSENT .

JUSTICE: H O W WOULD YOU PHRASE THE LE GAL ISSUE THAT IS BEFORE US? IN OTHER WO RDS, HOW , GIVE US YOUR PHRASEOLOGY. WE ARE TRYING TO DEAL WITH MATTERS OF LAW AT THIS LEVEL.

JUSTICE: OR DOES ANY DECEPTION POISON A SUBSEQUENT CONSENT, OR HOW WOULD YOU PHRASE THE LEGAL ISSUE THAT WE HAVE TO ADDRESS IN THIS CASE?

THE , YES , YOUR HONOR, THE LEGAL ISSUE WOULD B E THAT POLICE ARE ALLOWED TO USE TRICKERY IN CERTAIN CIRCUMSTANCES , AND T HAT WOULD BE GE NERALLY AFTER A WAIVER OF RIGHTS , WHEN THE , IN AN INTERROGATION , WHEN THEY ARE , THEY HAVE WAIVED THE RIGHTS. THAT IS THE ISSUE , AND THE ISSUE, HERE, THEN, IS ARE THEY ALLOWED TO USE SUCH TRICKERY TO OBTAIN A WAIVER OF RIGHTS. DOES THAT ANSWER THE FIRST QUESTION?

JUSTICE: THE A REAL ISSUE, THOUGH, WHEN YOU L OOK AT T HECASES THAT HAVE ALLOWED IT AND THEN YOUR PO SITION HERE.

JUSTICE: ARE YOU, REALLY, ARGUING THAT THE POLICE CANNOT IN THIS DECEPTION, ACTUALLY TELL A LIE, AS OPPOSED TO NOT TELL THE F ULL TRUTH?

A TOTAL FAB RICATION MADE UP OFFE NSE , FOR THE PURPOSE OF DELEWDING THE DEFEND ANT TO OR THE SU SPECT , I AM SORRY , HE WASN'T A DE FENDANT , TO HIS TRUE POS ITION FOR THE PURPOSE OF OBTAIN ING HIS CONSENT. THE LAW OFF ICER TESTI FIED UNDER OATH IN THIS CASE THAT HE DID THAT.

WE LOOK AT THE CASE LAW THAT ALL OF YOU HAVE CI TED, IT LOOKS L I KE WE HAVE A CONTINUUM, ALMO ST, AND T HAT IS THAT THERE HAS BEEN IN THE CASE LAW , AT LE AST ON APPEAL, THAT T HERE HAS BEEN A LOT OF DECEPTION THAT HAS BEEN TOLERATED .

JUSTICE: OR HE LD NOT TO HAVE AFFE CTED THE VOLUNTARINESS OF A CONSENT , FOR INSTANCE.

JUSTICE: OR THE STATEMENT OR WHATEVER MAY HAVE RESULTED , BUT THEN THERE ARE SOME CASES THAT SEEM TO D RAW A LI NE AND SAY , WELL , WHEN THE CONSENT IS OF THIS NATURE OR GETS TO THIS POINT , THAT, THEN, IT DOES INVALIDATE THE CONSENT THAT IS G IVEN , SUBSEQUENTLY BASED ON THE DECEPTION, SO WHAT , THAT IS WHY I AM AS KING FOR SOME FRAMEWORK HERE.

JUSTICE: ARE WE , IS THIS CASE JUST GOING TO BE ANOTHER DO THE ON THE LINE OF --

DOT ON THE LINE OF CONTINUUM, WHE RE WE ARE DECISION TWO CASES SPECIFICALLY ON THE CONFLICT, OR IS THERE A LA RGER LEGAL ISSUE OUT THERE THAT WE NEED TO RESOLVE?

IT IS OUR POSITION THAT THE LARGER LEGAL ISSUE IS THE FACT THAT THIS IS DECEPTION IN THE FORM OF A TOTAL FAB IATION IN DICATION TO -- FABR ICATION TO OBTAIN A WAIVER OF CONSTITU TIONAL RIGHTS.

JUSTICE: YOU K NOW WHAT INTERESTS ME ABOUT THIS CASE IS THE CASES THAT WE HAVE HAD , ESCOBAR , AND THAT LINE OF CASES, WH ICH HAVE DEALT WITH DECEPTION , AND HAVE BEEN CONFESSION CASES.

JUSTICE: AND SO I JUST WONDER IF , LIKE ONE O F THESE BRIEFS ALLUDED TO , LIKE FINGERPRINTS .

JUSTICE: DNA I SN'TSOMETHING THAT EVERYB ODY GIVES UP BECAUSE IT IS JUST THERE!IT IS NOT SOMETHING THAT YOU ARE FORCED OUT OF PE OPLE. LIKE A CONFESSION .

WELL, EXCUSE ME , YOURHONOR , IN THIS CASE IT WAS FORCED , IT WAS BECAUSE MR . WYCHE WAS IN CUST ODY ON A TOTALLY UNRE LATED MA TTER , AND HE HAD NO LEGAL OBLIGATION TO GIVE HIS DNA. THERE WAS NO LAW THAT REQUIRED HIM TO. AND EVERYONE ASSOCIATED WITH THIS CASE KN EW THAT THEY NEEDED HIS --

I AM SURE , WHEN HE WAS APPROACHED BY THIS OFFICER FOR THE PURPOSE OF , I CAN SKIP TO THE FAC TS. THE FACTS, REALLY, ARE - -

CHIEF JUSTICE: -- WHERE YOU HAVE ISSUES OF THE RELIABILITY OF WHE THERSOMEONE IS BEING C O ERCED , WHY ISN'T THIS M OR E LIKE YOU ARE GETTING AR RESTED FOR SOMETHING AND YOU GIVE YOUR FINGERPRINTS OR YOU HAVE TO DO THIS , THAT IT I S DNA. IT IS NOT SOMETHING THAT CA N BE CHANGED , SO THAT AS A PRODUCT OF THE UNLAWFUL COERCION, THAT SOME HOW THE DNA IS T AINTED . I DON'T KNOW IF THAT --

I THINK THE ANSWER WOULD BE AND McCORD WOULD A GREETHAT, IT IS BECAUSE THE FOURTH AM ENDMENT APPLIES. IN OTHER WORDS, THEY HAD NO LAWFUL WA Y TO GET HIS DNA. IT IT IS SO FACT-SPECIFIC, THIS CASE. HE WAS IN CUSTODY ON A TOTALLY UNRELATED MATTER. HE WAS APPROACHED BY A N OFFICER WHO WAS INVESTIGATING A SE XUAL BATTERY , AND THIS OFFICER WANTED MR . W YCHE'S DNA. MR. WYCHE WAS NOT CH ARGED WITH THAT SE XUAL BATT ERY. THERE WAS NO WAY THAT THEY COULD , OTHER THAN GETTING HIS CONSENT , THEY COULD GET HIS DNA. SO WHAT THE OFFICER DID WAS DECIDE TO INCREASE HIS CHANCES OF GETTING CONSENT , BY INDUCING MR . WYCHE T O GIVE HIS CONSENT.

JUSTICE: DO YOU KN OW OF ANY U.S. SUPREME COURT CASES THAT HAVE HELD THAT IT IS A VIOLATION OF THE FOURTH AMENDMENT TO RE QUIRE A PERSON TO GIVE THEIR DNA?

I AM NOT A WARE OF ANY , YOUR HONOR . THIS ISSUE ALWA YS COMES BACK TO THE TOTALITY OF THE CIRCUMSTANCES .

JUSTICE: DOE SN'T TAKE REFLECT SOMEWHAT, THE PRACTICAL APPR OACH THAT THE FOURTH AMENDMENT HAS BEEN GIVEN IN THIS CON TINUUM ? YOU LOOK A T THE FOURTH AMENDMENT, AND YOU HAVE A VERY STERILE VIEW THAT THIS RIGHTEOUS CONCEPT DEALS WITH PRINCIPLE ED TERMS , SUCH AS UNREASONABLE SEARCHES AND SEIZURES, AND THAT HAS BEEN INTERPRETED.IT SE EMS TO ME , LOOK ING AT THESE CASES , THAT IN POLICE INVESTIGATORY WORK AND IN COLLECTING FINGERPRINTS AND DNA , THAT IT IS NOT UNREASONABLE , AND IT SEEMS AS THOUGH Mc CORD KIN D OFSTEPS TO THE SIDE , ALTHOUGH IT MAY LEAVE A BAD TA STE IN OUR MOUTH WITH RE GARD TO T HEDECEPTION OR UNTRUTH FULNE SS, BUT ISN'T THAT WHERE THESE CASES GO? I AM HAVING A HARD TIME FINDING LEGAL SUP PORT , OTHER THAN, T O , THAT SUPPOR TS THIS , ALTHOUGH IT SOUNDS VE RY NICE. I MEAN THERE, IS NO QUESTION THIS RICHESNESS OF THE PROTECTION OF THE -- THE RIGHTEOUSNESS OF THE PROTECTION OF THE FOU RTH AMENDMENT, THE CASE LAW , THE U.S. SUPREME COURT DOE SN'TSEEM TO GO THERE.

OUR POSITION WOULD BE THAT THE CRUX OF THE ISSUE IS THE FACT THAT A WAIVER OF FOURTH AMENDMENT RIGHTS BY CONSENT , CONSENT TO A SE ARCH , IS THE SAME KIND OF WAIVER THAT, TO A FIFTH AMEN DMENT RIGHT THAT A MIRA NDA WAIVER IS, AND WHEN A PERSON IS DECEIVED, W HEN A PERSON I S COMPLETELY DECE IVED ABOUT THE CRIME FOR WH ICH HE IS A SUSPECT, FOR THE EXPRESS PURPOSE OF OBTA INING HIS DNA TO USE IN ANOTHER OFFENSE, IN OTHER WORDS, HE IS TOTALLY NOT , HE IS TOTALLY DECEIVED , THE OFFICER WA NTS HIS DNA S O THAT HE CAN USE IT I N THIS O N EROUS CASE, THIS MUCH MORE, I T IS A SEXUAL BA TTERY , SO HE TEL LS HIM THAT HE IS A SUSPEC T IN A BURG LARY THAT NEVEROCCURRED, BECAUSE HE KNOWS MR. WYCHE KNOWS HE DIDN'T COMMIT THIS CRIME , AND WE CAN'T GET INTO MR. WYCHE'S HEAD BUT WE CAN BE 99 .9 PERCENT ASSURE THAT WHAT HE WAS THINKING WAS -- PERCENTSURE THAT WHAT HE WAS THINKING WAS I HAVE NOTHING TO LOSE IF I GIVE MY CONSENT .

JUSTICE: IT SEEMS YOU AGREE THAT WE ANALOGIZE CONSENT IN SEA RCH AND SEIZURE CASES TO CONSENT TO CONFESSIONS , AND WE HAVE SEVERAL CASES IN OUR COURT DATING BACK TO 1977, W HEREWE HAVE UP HELD DECEPTION IN OBTAINING CONFESSIONS , AND SPECIFICALLY IN A CASE WHEREWE SA ID THAT IT IS ALL RIG HTTO TE LL A PERSON THAT HIS PARTNER IN CRIME HAD ALR EADY CONFESSED TO THE CRIME , AND , I CAN THINK OF FEW MORE EGREGIOUS CIRCUMSTANCES OF CONFESSION THAT IS DESIG NED TO ELICIT A CONFESSION THAN SAYING YOUR PARTNER HAS ALREADY CONFESSED TO A CRIME SO YOU HAVE GOT NOTHING T O LOSE IN CONFESSING , YOURSELF, SO IF THAT IS NOT EN OUGH T O TAINT A CONFESSION , WHY I S SAYING THAT HE IS SUS PECTED OF ANOTHER CRIME AND WE WOULD LIKE TO G ET YOUR DNA, WHY IS THAT MORE EGREGIOUS THAN THE OTHER CIRCU MSTANCE ?

H E DIDN'T TELL HIM THAT HE WAS A SUSPECT IN THE OTHER CRIME. HE, BUT, I LOS T, I WANTED , THE DISTINCTION I S A MATERIAL DISTINCTION, BECAUSE IN ALL TH OSE CONFESSION CASES , I AM G OING TO SAY EVERY ONE , THE PERSON HAS ALREADY WAIVED HIS RIGHTS, SO SU RELY THE N IN AN INTERROGATION TOOL, THE LAW ENFORCEMENT OFFICER CAN SAY , YES, WE HAVE AN EYEWITNESS. WE HAVE YOUR FINGERPRINTS. WE HAVE YOUR DNA, BECAUSE THEY ARE ELIC ITING SOME INFORMATION, BUT THEY ARE , THE PERSON KNOWS THEY ARE A SUSPECT . THEY WAIVED THEIR RIGHTS.

JUSTICE: IN ALL THOSE CASES IT SEEMS DOU BTFUL THAT THE DE FENDANT WOULD HAVE CONFESSED, IF HE HAD N OTBEEN TOLD YOUR PA RTNER HASALREADY CONFESSED SO YOU HAVE GOT NOTHING TO LOSE. WE ALREADY KNOW YOU DID IT. YOUR PAR TNER SAID IT THE. YOU MIGHT AS WELL CONFESS IT AND THAT WASN'T TRU E.

CHIEF JUSTICE: I AM HAVING TROUBLE IN T HEDISTINCTION THAT YOU A REMAKING THAT THE TRIC KERY CAN TAKE PLACE ONLY A FTER T HEWAIVER OF THE RIGHTS. I MEAN , IF THE POLICE WENT AND THEY SAID SOMEONE IS A SUSPECT, THEY S AID , YOU KNOW , YOUR CODE FENDANT HAS ALREADY SPILLED THE BE ANS AND SPILLED THEM ON YOU AND T HAT IS WHY YOU ARE A SUSPE CT. YOU HAVE GOT A RIGHT TO REMAIN SILENT AND THEN THEY START TALKING VERSUS WHETHER, AFTER THEY WAIVE IT, T HEY MAKE UP THAT ST OR Y , I AM N OTSURE ABOUT. THAT NOW, I THINK , I A M SHOCKED THAT THIS WAS DONE , AND I GUESS WHEN YOU LOOK AT WHAT JUDGE UR BAN HAD S AID THAT IN A CIVILIZED SOCIETYTHERE, IS SOME LINE AFTER WHICH YOU JUST GO HOW COU LD THEY BE FAB RICATE AGO ENT IRE CRIME, TO TRY -- FABR ICATING AN ENTIRE CRIME TO TRY T O TRICK THEM INTO SOM ETHING SO SEXUAL CHAR GES. I GUESS THERE MUST BE A FACT THAT, IF YOU SAY IT IS A SEXUAL CHARGE THAT, PE OPLE WON'T GIVE UP THEIR DNA. ON THE OTHER HAND , ON THE OTHER HAND , IT SEEM S TO M E THAT UNLIKE THE D ANGER THAT COMES WITH TRICKERY AF TER , IN PROCUR ING A CONFESSION , TRICKERY IN GETTING DNA, REALLY, DOESN'T TA INT THE FINAL PRODUCT. THAT IS THE DNA. AND SO I AM STILL TRYING T O GET THE V ALUE THAT, WHEN WE ARE, EVEN IF WE ARE ANALOGIZING IT TO CONFESSIONS , I WOULD THINK THAT IT IS TRIC KERY T O GET DNA IS LESS OFFENSIVE THAN TRICKERY TO GET A CONFESSION, LESS OFFENSIVE TO THE PROCESS, BECAUSE THE DNA WON'T CHANGE, SO HE LP M E WITH THAT . WE ARE , AGAIN , IN THE FOURTH AMENDMENT LAW , AND THE CONSTITUTIONAL VALUE, IT MATTERS THAT IT IS DNA VERSUS A CONFESSION .

I THINK IT MAT TERS BECAUSE OF THE WAY IT COMES BACK, IT COMES BACK TO THE WAY IT WAS OBTAINED.IN OTHER WORDS, HE WAS TOL D THAT HE WAS A SUSPEC T IN A CRIME THAT NEVER COMMITTED , THAT WAS NEVER COMM ITTED , FOR THE PURPOSE OF OBTAIN ING , LET'S SAY IT THIS WAY. HAD THE OFFICER TOLD HIM THAT HE WAS A SUSPECT IN THE SEXUAL BA TTERY , HE DIDN'T WANT TO DO THAT BECAUSE IT WAS NOT GOING TO BE AS LIKELY THAT MR . W YCHE WOULD HAVE, WOULD GIVE HIS CONSENT.HOWEVER, HAD HE DONE S O,THERE WOULD HAVE BEEN NO PROBLEMS. BUT WHAT WE HAVE HERE IS TWO STEPS REMOVED, BECAUSE HE WAS EXONERATED AS TO THE SEXUAL BATTERY .

CHIEF JUSTICE: SOME PEOPLE KNOW THAT, ON CE YOU GOT THE DNA, IT COULD B E USED FOR MA NY PURPOSES? EVEN THOU GH, AG AIN, IT SEEMS LIKE ON ITS FACE PRET TY OUTRAGEOUS, ONCE THE LAW ENFORCEMENT HAS YOUR DNA , THEY CAN, THEY ARE NOT RESTRICTED IN WHAT C RIMETHEY ARE INVESTIGATING THEY CAN USE IT WITH , ARE THEY?

OUR POSITION IS THEY ARE NOT REST RICTED , I F IT WAS OBTAINED LEGALLY IN THE FIRST PLACE, BECAUSE THAT IS WHAT HAPPENED HERE. TEN MONTHS AFTER MR . WYCHE WAS TRICKED INTO GIVING HIS DNA AND HE WAS EXONER ATED IN THE CRIME THAT WAS ACT UALLY , APPEARS HE WAS A SUSPECT IN , HE WAS IMPL ICATED WHEN THE TEST RESULTS CAME BACK , HE WAS IMPLICATED IN A BURG LARY THAT HE WAS CHARGED WITH IN THIS CASE AND CONVICTED OF.

CHIEF JUSTICE: OTHERWISEIT WOULD BE INEVITABLE DISCOVERY, WHICH IS IF THEY HAVE A SUSPICION THAT IS HE CONNECTED , THEN THEY CAN GET A SEA RCH WARRANT AND GET HIS DNA FOR THAT CASE ANYWAY.

IT WOULD CER TAINLY APPEAR THAT THEY DID NOT HAVE EVIDENCE WITHIN THE POSSESSION TO CHARGE HIM WITH THE BURG LARY. IT WAS TEN MONTHS LATER. I MEAN T HAT, IS KIND OF --

SORT OF. KIND OF. HE WAS THE O WNER OF THE STORE, NOW WE ARE TALKING ABOUT THE BURGLARY THAT HE WAS CONV ICTED OF HERE W HE REHE WAS IMP LICATED WITH THE DNA. HE WAS DOING SOME WORK FOR THE OW NER. YOU KNOW, SOME WO RK OUTSIDE , AND AS FAR AS THE EV IDENCE AT TRIAL GOES , THE DNA WAS HANDS DOWN THE MOST DAMA GING EVIDENCE.

I DON'T KNOW, BECAUSE THAT WAS, AGAIN, NOT RELA TE D TO ANY OF THESE CASES. IT WAS NOT RELATED .

JUSTICE: IT DOESN'T MATTER. IF YOU ARE ON PROBATION FOR ENUMERATED OFFENSES, FOR ANY FELONY AFTER JULY 1 OF '05 , IF YOU ARE ON PROBATION , YOU MANDATED TO GIVE SA MPLES OF DNA. JUST LIKE JUSTICE WE LLS WAS TALKING MANDATORY FINGERPRINTS. NOW THEY ARE MANDATING DNASAMPLES FOR ANYBODY THAT IS ON, IT IS STAG GERED IN T IME AS TO OTHER OFFENS ES. THAT IS WHY.

JUSTICE: THAT IS ANOTHER QUESTION BUT IT IS NOT REALLY RAISED IN THE PLEADINGS.I WAS WONDERING WHAT HE WAS ON PROBATION FOR.

IT IS CLEAR EX CEPT T HEREIS SOMETHING IN THE RECORD THAT INDI CATES, THE S CORE SHEET INDICATES THAT HE MIGHT HAVE BEEN ON PROBATIONFOR AN ATTEMPTED ROBBERY, AND I LOOKED AT THE STATUTE. I CAN'T QU OTE THE NUM BER,BUT IT IS NINE SOMETHING , AND ROBBERY WAS NOT AD DED TO THE ENUM ERATED LIST , S O --

CHIEF JUSTICE: I AM GOING REMIND YOU YOU ARE IN YOUR REBUTTAL. WE CAN CHECK THE STAT UTE, AND IF YOU WANT TO DO THAT ON REBUTTAL, BUT YOU M AYWANT TO SAVE THE REST O F YOUR TIME.

CHIEF JUSTICE: I HAVENEVER SEEN THAT TECHNI QUE , WRITING NOTES ON THE YEL LO W , OUTSIDE OF YOUR --

CHIEF JUSTICE: WE ARE GOING TO DO SOMETHING HERE BECAUSE OUR MARS HAL FOR SOME REASON IS NOT IN THE ROO M, SO WE WILL HAVE TO, STA RTING AT TWO MINUTES AND WE WILL KNOW WHAT TO DO. SO IT IS GOIN G TO BE A LITTLE CONFUSING . I WILL HE LP YOU OUT.

THANK YOU, YOUR HONOR . I AM HERE ON BEHALF OF THE STATE.I THINK I WILL STAR T, YOUR HONORS, BY RESPONDING TO JUDGE ANSTEA D'S QUESTION ABOUT WHAT THE LA RGER LEGALISSUES, HOW YOU SHOULD F RAME T I WOULD ASK THIS COURT TO CONSTRUE THIS ISSUE AS T O WHETHER THE POLICE , A POLICE MISREPRESENTATION AS AMATTER OF FACT ONLY , A FACTUAL MATTER ONL Y HERE IN THIS CASE , REALLY RELATING TO WHAT TYPE OF CASE IS BEING INVESTIGATED , RE NDERS CONSENT TO PROVIDING , LET ME USE THE TE RM BIOLOGICAL SPECIMENS, WHICH WOULD INCLUDE BLOOD , SALIVA OR WHATEVER, INVOLU NTARY. THAT IS ALL THERE IS TO IT , AND WE ASK THE COURT , OF COURSE, TO DISAPPROVE Mc CORD AND AFFIRM WHAT THE FI RST DCA DID .

JUSTICE: AND LET'S S AYYOU HAVE, IN THIS CASE , THIS GENTLEMAN WAS HABITUAL IZED .

JUSTICE: CONVICTION OFTHIS OFFENSE , SO HE HAD A PRIOR REC ORD.HE IS IN CUST ODY.

JUSTICE: THE STATE COMES AND COMPLE TELY FABR ICATES A NONEXISTENT CRIME IN O RDERTO GET THE SAMPLE.

WELL , LET ME SAY I AM N OTSHOCKED AT ALL BY THIS. I DON'T CONSIDER IT ANY WHERE EVEN NEAR EGRE GIOUS COND UCT FOR SEVERAL REASONS. FIRST OFF , I THINK IT MOST IMPORTANT, THE TOTALITY OF THE CIRCUMSTANCES OF THIS CASE ALSO FOCUSES ON WHAT WOULD A REASON ABLE PERSON PERCEIVE, IF YOU WILL , THE SUSPECT PERCEIVE.

JUSTICE: IF HE I S LOOKING AT SPENDING THE REST OF HIS LIFE IN PR ISON IF CONVICTED OF A RAPE AND HE KN EW HE DID NOT COMMIT THE RAPE. WHAT IF THE OF FICER SAID YOU ARE LOOKING AT DE ATH , IT IS AN EGRE GIOUS CRIME , AND I F THERE IS NO M URDER , NO BLT O F DEATH SENTENCE AND THIS TYPE OF CONSENT IS GIVEN. WOULD YOU SAY THAT I S APPROPRIATE, TOO?

UNLE SS IT ROSE TO SO EXTREME IT ROSE TO PSYCHOLOGICAL COER CION A NDTHIS IS VERY , VERY FAR SH ORT OF THAT, YOUR HONOR. THE POINT I WANTED TO MA KE IS THAT A SUSPECT BEING TOLD BY POLICE THAT THEY ARE INVESTIGATING A CRIME, AS A PRACTICAL MATTER HAVE GOT TO CONSIDER IT IS A REAL CRIME. THE FACT THAT THIS CRIME WAS, QUOTE, FICTITIOUS , I THINK IS VERY SUSPECT .

JUSTICE: WHY WOULD YOU CONSIDER IT INSIGNIFICANT ? IF THE POLICE CAME T O Y OUAND SAID YOU ARE A SUSPECT IN A CRIME AND YOU BE LIEVE IT IS A REAL CRIME THAT WAS COMMITTED, AND AS JUSTICE BELL SAID , I T WOULD CA RRY A SUBSTANTIAL PENALTY, HOW IS THAT INSIGNIFICANT?

AS LONG AS THE POLICE DON'T SAY ANYTHING THAT DEPRIVES YOU OR LESS EN S YOUR CHOICE TO SAY NO , THE N IT IS SIMPLY A FACTUAL MISREPRESENTATION OF THE CONSTITUTION - -

JUSTICE: YOU DON'T THINK THAT A REASON ABLE PERSON W HOKNOWS THAT THEY DID NOT COMMIT A RAPE , WOULD NOT SAY , SURE, GO A HEAD , CHECK MY DNA?

WELL, THEN , YOUR HONOR , YOU ARE ACTUAL LY, I THINK , IRONICALLY ARGU ING THE STATE'S SIDE, BECAUSE HERE THE INVESTIGATOR WAS INDEED INVESTIGATING A RAPE, AND IF THE INVESTIGATOR HAD SAID THAT IS WHAT I AM DOING , HEWOULD HAVE F ELT MORE PRESSURE TO CONSENT THAN HAD A FICTITIOUS BURGLARY THAT IS THE SAME AS WHAT HE IS ULTIMATE CH ROIN CONVICTED FOR.

NO, YOUR HONOR. THEY USED THAT AS A TECHNIQUE TO GET CONSENT AND THAT IS EXACTLY THE POINT , AS LO NG AS THE POLICE DO NOT MISREPRESENT THE LA W AND THEREBY DETRACT FROM A SUSPECT'S RIGHT TO SAY NO , AND I --

JUSTICE: ISN'T IT A WAY TO EXCLUDE HIM FROM THE CASE , IN OTHER WORDS, TO SAY THERE IS A RAPE.YOU ARE A SUSPECT IN IT. WOULD YOU B E WILLING TO GIVE A DNA SAMP LE.

THERE ARE REASONS TO DO THAT, YOUR HONOR, BUT ALSO WHY THEY ARE NOT LEGITIMATE , AND LET ME HA STEN TO ADD THERE IS NO WHERE OUT THERE ANYWHERE IN CONTEXT OF CONSENT TO SE ARCH O R CONSENT TO ANY TYPE OF BIOLO GICAL SUSPICION OR AS A CONFESSION THAT, SAYS THE POLICE HAVE TO DISCLOSE ANYTHING IN PARTICULAR. THE POLICE COULD BE TOT ALLY SILENT.

JUSTICE: I AGREE WITH THAT. IT IS THE INTEN TIONAL FABRICATION IS MY CONCER N. I THINK THERE IS MUCH DIFFERENCE BETWEEN A W HITELIE OR NOT REVE ALING ALL YOUR CARDS, SO TO SPE AK , THAN COMPLETELY FABRICATING AND L YING IN ORDER T O GET --

YOUR HONOR, POLICE TRICKERY, AS L ONG AS IT IS CONSTITUTIONAL, IS A VERY EFFECTIVE ME ASURE OF LAW ENFORCEMENT AND IN FACT YOU MIGHT GO SO FAR AS TO SAY I T IS A LAUD ABLE TECHNIQUE TO ENFORCE THE LAW. I AM GIVE YOU AN EXA MPLEWITH NO FACTUAL B E ARING ON THIS CASE BUT LOTS OF RE CENT PUBLICITY. --

JUSTICE: SO IT IS NOT A TOTALITY OF THE CIRCUMSTANCE CASE. YOU ARE ARGUING THAT IS REASONABLE FOR POLICE OFFICERS TO BE ABLE TO LIE, FABRICATE , USE DECEIT , WHATEVER THEY WANT TO, AS LONG AS THERE IS NOTHING E LSE INVOLVED. WHAT I AM SAYING IS YOU ARE BASICALLY DOING WHAT THE FIRST D CA, THE MAJORITY HERE, SAYS ANY DECEP TION, LIE, FABRICATION IS APPROPRIATE. THEY DID NOT COERCE A WAIVER . OR MISREPRESENT AUTHORITY.

THE FOURTH AMENDMENT, IT IS A VOLUNTARINESS QUESTION. AS LONG AS THEY DON'T MISREPRESENT THE LAW T O DETRACT FR OM SOMEBODY'S OPPORTUNITY TO SAY NO , IT IS OKAY.

JUSTICE: IS THAT ONLY I N CONNECTION, THEN, WITH THE FABRICATION OF I HAVE A WARRANT WHEN THEY REALLY DON'T.IS THAT THE ONLY EDGE HERE? YOU MAKE A VERY B ROAD STATEMENT THAT IS A LAUD ABLEAND THAT POLICE , WE SHOULD BE HAPPY THAT THEY ARE LYING AND DECEIVING THE P UBLIC .

JUSTICE: I THINK A LOT OF FLORIDIANS WOULD BE SURPRISED WITH THAT , TO BE VERY HONEST WITH YOU , BUT , AGAIN , THE CASE LAW AND YOU BEING EDUCATED IN THE LAW, THAT REALLY THE EDGE , THAT IF THEY FRAUDULENTLY , THEY MAKE A MISREPRESENTATION , THEY DO IT INTENTIONALLY WITH SOMEONE INTENDING THAT THEY REALLY ON IT , THE INDIVIDUAL RELIES ON IT , IS IT ONLY IN CASES OF MISREPRESENTATION OF "I HAVE A WARRANT" O R "I AM A POLICE OFFICER", THAT THIS MISREPRESENTATION WILL OPERATE TO V IOLATE OR TO EVISCERATE CONSENT OR HOW BROAD IS THIS ? WHEN DO YOU STEP OVER IT?

THERE IS TWO-WAYS. I CAN GIVE YOU A COUPLE OF EXAMPLES. THE WARRANT IS THE BU MPER NORTH CAROLINA CASE , THE POLICE WANT TO SEARCH A HOUSE AND SAY THEY HAVE A WARRANT AND THEY DON'T REALLY DON'T. THAT MISREPRESENTS T HEAUTHORITY TO DO THE SEARCH. IF THE POLICE FA INS AN EMERGENCY.THEY HAVE -- FEIGNS AN EMERGENCY. IF THEY SAY WE HAVE A 9 11CALL AND WE WANT TO COME IN.

I AM NOT SAYING THAT THE POLICE SAY THEY HAVE A 911 CALL, BUT AUTH ORITY T O ENTER A PLACE WITHOUT CONSENT I S BEYOND AUTHORITY OF A CTUAL CIRCUMSTANCES, SO I WOULD SAY THAT FEI GNING EMERGENCY IS A MISREPRESENTATION TO ENTER.

CHIEF JUSTICE: YOU MUST AGREE THAT THE POLICE DID NOT HAVE A UTHORITY, JUST BECAUSE HE WAS IN CUSTODY, TO OBTAIN HIS DNA , BEC AUSE THIS WOULDN'T AND IS SUE OTHERWISE , BECAUS E IT I S NOT LIKE, AT THIS POINT AT LE AST IT IS NOT LI KE A PHOTOGRAPH , TAKING A MUG SHO T OR THE FINGERPRINT.

I AM GO ING TO HAVE TO SAY YES AND NO, YOUR HONOR. THE RECORD HERE REALLY IS NOT REALLY - -

CHIEF JUSTICE: THAT WOULD BE A NONISSUE. IN OTHER WO RDS, IF THEY COULD HAVE DONE IT , THEY WOULDN'T HAVE NEEDED TO DELEWD HIM AS TO WHY -- DELUDE HIM AS TO WHY , TO GET A CONSENT.

HE WAS IN CUSTODY ON PROBATION. IN 1995 HE HAD A BURGLARY FOR WHICH HE RECEIVED FOUR YEARS' PROBATION AND WAS RESENTENCED IN ' 99 TO TWO YEARS IN PR ISON , RELE ASED I N JUNE OF ' 01 , A BOUT A M ONTH BEFORE --

CHIEF JUSTICE: LE T'S CUT TO THE CHASE BECAUSE THE POLICE MUST HAVE TH OUGHT THEY NE EDED HIS CONSENT, CORRECT?

I DON'T KNOW WHAT THE POLICE THOUGHT, BUT IF YOU DO HAVE CONSENT -- CHIEF I F THEY COULD HAVE DONE, IT THEY WOULD HAVE DONE IT .

CHIEF JUSTICE: SO THEY HAD TO USE A SEARCH WARRANT OR GET HIS CONSENT. THAT IS THE PARADIGM WE ARE DEALING WITH AND THE CONFLICT BETWEEN THE TWO CASES.

CHIEF JUSTICE: THEY COULDN'T GET A SEARCH WARRANT AND GO BEFORE A NEUTRAL MAGISTRATE, A NEUTRAL JUDGE AND SAY WE HAVE GOT THIS MADE-UP C RIMETHAT WE WANT, THEY WOULD HAVE TO TELL THE POLICE, I MEAN THE MAGISTRATE , THE JUDGE, THE TRUE POS ITION. THAT IS WHAT THEY WERE INVESTIGATING , COR RECT, BEFORE THEY GET A SEARCH WARRANT?

CHIEF JUSTICE: I AM TRYING TO UNDERSTAND IN TERMS OF THE PROCESS, HOW WE CAN HAVE AN OUTRIGHT FABRICATION OF A NONEXISTENT CRIME , TO GET, QUOTE , SOMEONE'S VOLUNTARY CONSENT. SOMETHING ABOUT THAT , THAT JUST DO ESN'T SET WELL WITH ME, AND HELP ME , AG AIN, ON HOW THAT IS CONSISTENT WITH THE, OUR TR ADITION IN FOURTH AMENDMENT, OF YOU KNOW , SAYING THAT SEARCHES AND SEIZURES NEED TO BE VOLUNTARY AND REASONABLE UNDER THE CIRCUMSTANCES .

THE CONSENT TO A SEARCH IS BASED ON WLOFERNT THE POLICE SAY - - ON WHETHER ORNOT THE POLICE SAY ANYTHING TO YOU THAT DEPRIVES YOU OF YOUR RIGHT TO SAY NO. THEY SAID NOT HING HERE TO MR . WYCHE THAT WOULD INDICATE THAT HE COU LD NOT REFUSE. THAT IS WHAT THE FO URTH AMENDMENT REQUIRES FROM A REASONABLE STANDPOINT.I WOULD POIN T YOU TO SE VERAL RECENT CASES BY THIS COURT , FAIRLY RECENT THAT WOULD UPHOLD THAT POSITION, YOUR HONOR , AND THE ESCO BAR CASE FROM ' 97 , THE POLICE FALSELY TOLD THE DEFE NDANT THEY HAD PHYSICAL EVIDENCE AND THEN THEY TOLD HIM THAT HE COULD BE SE NSED TO DE AT H . -- SENTENCED TO DECH LT THE COURT RULED THAT HIS CONFESSION WASN'T VOLUNT ARY . AND ANOTHER CASE THEY SAID THAT THEY WERE INVESTIGA TING A MISSING PERSON AND THE MISSING PERSON WAS DEAD. I THINK THE OFF ICER WAS INVESTIGATING A FICTITIOUS BURGLARY AND FROM THE SUSPECT'S PERSPECTIVE HE HAD TO AS SUME WAS TRUE, ANY WAY, BECAUSE HE DOESN'T KNOW. THAT IS DISTINCTION WITHO UT A DIFFERENCE .

JUSTICE: I T AKE IT THAT EFFECTIVE JULY 1 , 20 05 STATUTE , OBVI ATES THIS ISSUE .

YES, YOUR HONOR , ON ITS FACE IT WOULD APP LY TO PEOPLE WHO ARE CONVIC TED OF QUALIFYING OFFE NSES AT ANY TIME IN THE PAST , WHICH - -

JUSTICE: WHICH SAYS THAT ANY PERSON CONVICTED OR PREVIOUSLY CONVICTED IN THE STATE OF ANY OFFENSE ENUMERATED IN PARA GRAPH B , AND THEN IT HAS IN FIVE , EFFECTIVE JULY 1 AND CONTINGENT ON APPROPRIATION OF ANY FELO NY OFFENSE. NOW.

YES, YOUR HONOR, I W OULDADD TO THAT THAT AS OF JULY 1 , 2 000 , THE LEGISLATURE ADDED BURGLARY TO THE LIST OF CRIMES AND HE HE DID HAVE A BURGLARY CONVICTION FROM '95 , SO A S JULY 1 , 20 00, THIS DNA STATUTE WOULD HAVE BEEN TRIGGERED UNDE R THE FACTS OF THE CASE , AT LE AST ONCE HE WAS BROUGHT B ACK INTO CUSTODY ON V IOLATION OF MORE RECENT DRUG-RELATED OFFENSES .

JUSTICE: W HAT IS TO KE EP LAW ENFORCEMENT , EV ERY JAI L IN THE STATE OF FLORIDA GOING TO EVERY I N MATE AND SAYING YOU ARE SUSPECTED OF THIS FABRICATED CRIME. WOULD YOU SUBMIT A DNA SAMPLE AND JUST GET DNA SAMPLES FROM EVERYBODY INCARCERATED OR EVEN JUST BROUGHT IN FOR INTERROGATION .

WELL , AS FAR AS REQUESTING DNA SA MPLES FROM PEOPLE AL READY IN CUSTOD Y, THIS CAUGHT STAUT , PROBATION -- -- THIS STATUTE,PROBATION -- JUST JUST I AM TALKING ABOUT SOMEBODYPICKED UP FOR A FELONY, CHARGED, WITH LET'S SAY, NOTA FELONY BUT CHARGED WITH A DUI.WHAT IS TO KEEP THECORRECTIONS PEOPLE IN EVERY JAIL IN EVERY 67 COUNT IES IN THE STATE FROM GOING TO A DEFENDANT AND SAYING WE SUSPECT YOU OF THIS MA JOR CRIME. WOULD YOU GIVE A DNA SAM PLE?

ASS UMING THEY DON'T MISREPRESENT, TELL THE PERSON IN ANY WAY THAT THEY CANNOT REFUSE , THEN , NO , THE POLICE CAN DO THAT. AND IT IS CONSTITUTIONAL, AND IT IS A FACT OF LAW ENFORCEMENT, AND, AGAIN, YOUR HONOR, IT IS NOT, A ND, OF COURSE -- .

JUSTICE: SO IF WE ACCE PT YOUR POSITION, THEN WHAT I AM SAYING IS TRUE.THEY WOULD NOT HAVE TO TELL HIM THEY HAVE THE RIGHT TO REFUSE. THEY COULD GO TO EVERY , EVERYBODY INCARCERATED , EVERY JAIL, EVERYBODY BROUGHT IN FOR INVESTIGATION AND FABRICATE THAT T HEY ARE SUSPECTS OF A MAJ OR CRIME , AND ASK THEM TO SUBMIT FOR DNA SAMP LE.

I AM HESI TANT TO SAY,QUOTE , QUITE THAT FA R. IF SOMEBODY IS VOLUNTARY AT THE POLICE STATION AND THEY ARE JUST THERE, AS IF YOU WILL , PERHAPS A PERIPHERAL WITNESS , AND THE COPS HAVE ABSOLUTELY NO SUSP ICION AT ALL, THERE MAY HAVE COME A POINT WHERE THE CONDUCT BECOMES SO IS HE EGREGIOUS THAT ON DUE PRO CESS GROUNDS, WHICH OF COURSE HAS NOT EVER BEEN RAISED IN THIS CASE , I THINK IT WAS IN THE LATE '80s THIS COURT CI TED A CASE WHERE THE POLICE FABRICATED LAB REPORTS OR SOMETHING LIKE THAT AND YOU ALL S AID THE DIFFERENCE BET WEEN FABRICATING PHYSICAL EVIDENCE AND VERBAL MISREPRESENTATION WAS SIGNIFICANT AND FOUND THAT CON DUCT SO EGRE GIOUS IT VIOLATED THE FL ORIDA DUE PROCESS CLAUSE THAT, APPROACH HAS NEVER BEEN RAISED IN THIS CASE, YOUR HONOR.

I WAS GOING TO SAY GENERALLY, SHORT OF EX TREME CONDUCT THAT WOULD RISE TO EGREGIOUS DUE PRO CESSVIOLATION, TO ANSWER YOUR QUESTION, IT WOULD BE YES, AT LEAST LET'S MAYBE LIMIT IT TO SUSPECTED FELONS OR SOMETHING LIKE THAT , BUT - -

JUSTICE: WHAT IF IN THIS CASE THEY HAD GONE TO THE DEFENDANT AND SAID YOU ARE A SUSPECT IN A CRIME, AND THERE IS SOMEBODY THAT HAS PICKED YOU OUT OUT OF A PHOTO ID , AND WHAT I AM SAYING IS MAKE THE OTHER EVIDENCE OF THE FABRICATED CRIME, MAKE I T LIKE IT IS THEY HAVE GOT YOU AS A DEAD RINGER BUT IT IS COM PLETELY FABRICATED.

I DON'T SEE WHE RE THAT IS ANY DIFF ERENT THAN TE LLING SOMEBODY A CODEFENDANT HAS CONFESSED WHEN THEY HAVE N' T,YOUR HONOR.

AT LEAST VERBAL MISREPRESENTATIONS, NO, AND CERTAINLY FROM A FO URTH AMENDMENT ANALYSIS, WHICH IS ALL WE ARE TALKING ABOUT HERE, YOUR HONOR , N O. AND I DON'T THINK T HEMENTION AFTER FICTI TIOUS CRIME HERE COMES ANY WHERE NEAR EGREGIOUS COND UCT THAT WOULD RISE TO THE DUE PROCESS VIOLATION. THE CASE , THE FI RST DCA FOLLOWED THE MIAMI- DADE VERSUS MARTIN EZ , THE THI RD DCA DECISION FROM 2000 3 RX THE POLICE REPRESENTED THE -- FROM 2000 , THE POLICE REPRESENTED THE PURPOSE OF A CONSENTUAL SEARCH. IT IS ANOT HER FACT UAL MISREPRESENTATION. THEY SAID THEY WERE LOOKING FOR WEAPONS INSTEAD OF DRUGS OR VICE VERSA. YOU KNOW, AS LO NG AS IT IS A VERBAL MISREPRESENTATION AND THE POLICE DON'T DO ANYTHING THAT DETRAC TS FROM THE PERSON'S OPPORTUNITY TO SAY NO , THE FOURTH A M ENDMENT IS SATISFIED . AND THAT IS REALLY ALL THERE IS TO IT. NOW, I THINK McCORD E RRED , WHEN ALL THEY DID WAS TOOK OUT ONE CIRCUMSTANCE , THEFACT THAT THE CRIME WAS FICTITIOUS, AND TH EY SAID THAT MAKES THIS , THAT CONSENT TO , I THINK IT WAS SALIVA SAMPLES THERE , THE CONSENT WAS NOT VOLU NTARY .

CHIEF JUSTICE: W HAT I WOULD LIKE TO KNOW AND ASK YOU, I ASSUME THAT Y OUDIDN'T RA ISE BELOW THE DOCTRINE OF INEVITABLE DISCOVERY, THAT IS THAT THEY HAD SOME OT HER, THAT THEY COULD HAVE CONNECTED HIM ENOUGH TO THIS CRIME TO HAVE SUBSEQUENTLY RECE IVED HIS DNA SAMPLE.

I THOUGHT ABOUT IT, YOUR HONOR. THE RECORD IS A LITT LE THIN IN THAT RE GARD AND TEN MONTHS DID GO BY BEFORE IT OCCURRED TO THEM TO COMPARE THE SA LIVA , THE DNA ANALYSIS OF THE SALIVA S WABS , TO THE DNA ANAL YSIS OF THE B LOOD DROPLETS IN THE SHOP , AND UNDER THE CIRCUMSTANCES, I T SEEMED LIKE TOO CL OSE AFTER CALL, AND THE RECORD REALLY WASN'T TOO SO LID , I DIDN'T THINK, S O RAISE I N EVIDENCEABLE DISCOVERY, AND THAT IS WHY THAT WASN'T RAISED. -- INEVITABLE DISCOVERY ANDTHAT IS WHY THAT WASN'T RAISED. I WOULD ALSO HAVE THIS C OURTLOOK TO , I WANT TO MAKE T HEDISTINCTION HERE, OP POSING COUNSEL MADE THE DISTINCTION THAT, IN THE CONFES SION CASE THEY HAD ALREADY WAIVED THEIR RIGHT. THAT, I THINK, IS AN IMMATERIAL DISTINCTION, PRESUMABLY ALL OF THESE PEOPLE HAVE BEEN G IVEN THEIR MIRANDA WARNI NGS BUT FOR WHATEVER REASON THEY WEREN'T CONFESSING AND THEN THE POLICE MADE FA LSE REPRESENTATIONS TO GET T HOSEPEOPLE TO , WHO OTHERWISE WEREN'T WILLING TO T ALK, T O CONFESS. LOOKING AT ALL OF THE OTHER CIRCUMSTANCES, THERE ARE FACTS M ORE ON POINT HERE.

CHIEF JUSTICE: COULD THEY TELL SOMEONE THEY WERE A SUSPECT IN A CRIME THAT DIDN'T EX IST AND SAY, THEN , GIVE THEIR MI RANDA RIG HTS FOR THAT, AND BE, ALL THE TIME KNOWING THEY ARE A SUSPECT IN ANOTHER CRIME , AND THAT , A GAIN , THE SAME THING.IT WOULD BE, THAT WOULD BE PERFECTLY OKAY. THAT IS, AGAI N, WE PR ETTY WELL SUSPECT THIS PERSON OF A MUR DER .

CHIEF JUSTICE: BUT WE WITH THAT WANT TO SORT OF GET TH ROUGH THE BACK DORAN MAKE UP A CRIME THAT WE KN OW HE IS NOT GOING TO BE UNCOMFORTABLE TALKING ABOUT AND HE DIDN'T COMMIT IT BECAUSE THERE IS NO SU CH CRIME AND TELL HIM YOU ARE A SUSPECT IN A WINN-DIXIE BURGLARY, AND WE, YOU HAVE THE RIGHT TO RE MAIN SILENT WITH THAT, AND THEN, BUT ALLTHE TIME , TR YING TO GET HIM TO TALK ABOUT WHERE HE MIGHT HAVE BEEN FOR THAT OTHER CRIME.IS THAT VOLUNTARY? IN OTHER WO RDS, AG AIN , WE KNOW THE OTHER CRIME WAS NOT THE SAME EXACT THIN G AS HERE BUT, AGAIN, A CONFESSION. AGAIN, THE SAME THING , PERFECTLY FINE?

SOUN DS TO ME, YOUR HONOR, IF I UNDERSTAND THE NUA NCES OF YOUR HYPOTHETICAL - -

CHIEF JUSTICE: YOU ARE GIVING THEM MILES AN HOUR AND AND WARNINGS AS IF THEY WERE A SUSPECT IN A CRIME THAT DIDN'T EXI ST.

SO THEY HAVE BEEN G I VEN THEIR MIR ANDA WARNINGS. IT SOUNDS TO ME VERY SIMILAR TO THIS COURT'S DECISION IN THE WASHINGTON CASE FROM ' 94 , WHEN THE POLICE, THE GUY WAS ALREADY IN CUSTO DY, A PR ISON PRISONER WHO COMMITTED A RAPE/MURDER DURING, I THINK , WORK RELE ASE AND THEY ULTIMATELY GOT BL OOD SAMPLES , AND THIS COU RT, THE POLICE TOLD HIM THEY WANTED TO T AL K TO HIM ABOUT WHAT THIS COURT DESCRIBED AS AN UNRE LATED SEXUAL BA TTERY , AND IF YOU READ THE OP INION CLOSELY IT IS NOT CLEAR TO ME THAT HE WAS EVEN A SUSPECT. HE MAY OR MAY NOT HAVE B EEN BUT THEY TOLD HIM THIS WOULD DISPROVE YOUR INNOCENCE OR GUILT, MORE OR LESS CLEAR YOUR NAME .

JUSTICE: OF TWO OFFENSES AND THEY SI MPLY MENTIONED THE ONE CASE WHE RE HE WAS A SUSPECT.

THAT IS WHAT I AM SAYING , YOUR HONOR. THE COURT DESCRIBE S THE OTHER CASE THAT WAS MENTIONED AS AN UNR ELATED SEXUAL BATTERY. I READ THAT CASE A NUMBER O F TIMES, AND I DON'T AG REE THAT WASH INGTON WAS NECESSARILY A SUSPECT IN THAT WAY ONE . NOW, MAYBE WE CAN DISA GREE OVER THE READ ING OF T HAT CASE, BUT IF YOU READ THAT CASE VERY CAREFULLY, THE RAPE/MURDER WAS ONE C RIMEAND THEN THERE WAS AN UNRELATED SE XUAL BATT ERY.

JUSTICE: B EFORE YOU SIT DOWN , CAN I ASK YOU , W E HAVE HAD A LOT OF QU ESTIONS ABOUT THE N EW STATUTORY S CHEME REQUIRING IN MATES HAVING BEEN CONVICTED OF CERTAIN OFFENSES, TO GIVE DNA IN OTHER MATTERS. HAS THE STATE EVER CLAIMED THAT THERE WAS SOME OTHER LEGAL BA SIS TO OB TAIN THE BLOOD HERE , OTHER THAN THE CONSENT THAT WAS GIVEN ? HAS THE STATE EVER CLAIME D? OTHER LAWFUL BASIS , SO --

THE WHOLE IDEA, YOUR HONOR, OF THE PROBATIONSTATUTE, IF YOU WILL, WAS A FOOTNOTE IN THE FIRST D CA'S DECISION.

JUSTICE: IT IS THE CONSENT THAT HAS ALWAYS BEEN THE STATE'S CLAI M AS THE BASIS FOR HAVING LAWFUL LY OBTAINED THIS BLOO D, T HAT CORRE CT?

BUT, YOUR HONOR , THE , STILL , WE ARE GOI NG TO G O BACK TO THE POINT THAT TRICKERY BY THE POLICE WHE N IT IS NOT A MISREPRESENTATION OF THE LAW AND DETRACTS FROM SOMEONE'SRIGHT TO SAY NO TO CONSENT , WHETHER IT IS A SEARCH OR TO TALK AND CONFESS , IS CONSTITUTIONALLY ACCEPTABLE. POLICE TRIC KERY CAN EVEN BE PRACTICALLY THE ONLY EFFECTIVE WAY TO EN FORCE IMPORTANT LAWS. I AM G OING TO THROW OFF T HIS EXAMPLE.WHEN THE POLICE PRETEND TO BE CHILDREN ON THE INTERNET SO THEY CAN C A TCH CHILD SEX ABUSERS, THAT TO ME IS A MUCH, IS TRICKERY THAT - -

CHIEF JUSTICE: YOU A REWAY OUT OF YOUR TIME. YOU HAVE TWO MINU TES OF MS. WITT'S TIME.

THAT IS FINE, YOUR HO NOR. I JUST HAVE A COUPLE OF POINTS. THAT IS FINE AT TWO MINUTES OF HE IS GOING TO DO IT. OKAY. THAT IS ALL RIGHT. JUST TO RESP OND TO THE DISCUSSION ABOUT THE LAW THAT MIGHT OR MIGHT NOT HAVE BEEN IN PLACE, THIS HAPPENED IN 2001. AND NO RESEA RCH THAT I DID TURNED UP ANYTHING THAT WOULD HAVE REQUIRE D HIM T O SUBMIT DNA , AND IT IS CLEARFROM THE CIRCUMSTAN CES THATTHERE WAS NO ONE, THE OFFICER TESTIFIED UN DER OAT H AND THIS WAS DISCUSSED AT THE SUPPRESSION HEA RING THAT,HE DID USE THIS TRIC KERY, AND HE TRICKED HIM INTO CONTENT SE NTING , BE CAUSE IT -- CONSEN TING BEC AUSE IT HADN'T BEEN OUT LAWED AT THE TIME.

JUSTICE: I AM STILL REALLY TROU BLED WITH THIS , THAT EVEN THOUGH AS DISTASTEFUL AS IT MAY SE EM, THAT THE EXTENT OF THE MISREPRESENTATION SEEMS NOT TO BE THE CRITERIA , BUT I T IS THE NA TURE , THE SUBJECT MA TT ER. WHAT IS THE NATUR E? WHAT IS THE SU BJECT OF THE MISREPRESENTATION, AS THE STATE HAS SUGGESTED THAT SEEMS TO BE THE DEFI NING POINT, AND THAT IS THOSE CASES.I HAVE A SEARCH WAR RANT. WHERE IT ESTABLISHES MISREPRESENTATION AS TO AUTHORITY, AS OPPOSED TO OTHER TYPES OF F A CTUAL MISREPRESENTATIONS. ISN'T THE FO URTH DISTRICT CASE HERE THAT WE ARETALKING ABOUT, THE CONF LICT , REALLY, THE ONLY ONE THAT GOES DOWN THAT PATH ? AGAIN , A S DISTAS TEFUL AS IT MAY BE, BUT ISN'T THAT THE ONLY ONE ?

I THINK IT WOULD BE FAIR TO SAY THAT , IT COULD, I T COULD BE , AND IT GOES BA CK TO THE TOTA LITY OF THE CIRCUMSTANCES. I MEAN, THEY CITED THE SCHNECKLOTH , AND THOSE CASES , AND I WOULD ALMOST BE WILLING TO SAY THAT IT IS LIMITED TO THE FACTS OF McCORD AND THE FACTS IN MR . WYCHE'S CASE. JUST JUST BUT THIS AREA OF TRICKERY OR DECEPTION O R WHATEVER, DOESN'T SEEM TO G O DOWN THE PATH OF A , WHAT THE DECEPTION IS. OTHER THAN THE B RIGHT LINE , THE AUTHOR ITY .

JUSTICE: IT COULD B E DECEPTION AS TO A LOT OF DIFFERENT THINGS , BUT AS LONG AS IT DOE SN'T GO TO AUTHORITY, IT SEEMS AS THOUGH THE CASE LAW AND PLEASE CORR ECT ME IF I AM MISREADING IT , SEE MS TO FALL UNDER THE ARE A THAT IT DOES NOT SAY CONSENT . -- DOES NOT S HAPE CONSENT .

JUSTICE: IF I CAN ASK A RELATED QUESTION, I DIDN 'T SEE ANY CITED IN YOUR B RIEF BUT DO YOU KNOW OF ANY FEDERAL CASES AR OUND T HECOUNTRY, I KNOW THE U .S. SUPREME COURT DOESN'T HAVE IT , BUT ANY OTHER CASES W ITH A LOWER HOLDING THAT TRICKERY WAS INVOLVED WAS UNCONSTITUTIONAL, VIOLAT EDTHE FOURTH AMENDMENT?

NO, I HAVEN'T , AND WHEN I FIRST STA RTED WOR KING ON THIS, WORKING ON THE BR IEFS , EVEN, I , AT ONE PO INT, I THOUGHT ABOUT EVEN SAYING THAT IT MIGHT HAVE BEEN, I T MIGHT BE CONSID ERED A CASE OF FIRST IMPRESSI ONS .

JUSTICE: WELL, I T CERTAINLY SEEMS TO BE A CASE OF FIRST IMPRE SSION I F WE RULE IN YOUR FA VOR .

RIGHT, IT M IGHT BE , AND , AGAIN , THE TOTA LITY WOULD BE LIMITED , I WOULD SAY , TRUTHFULLY, THAT IT WOULD , IT WOULD ALMOST BE LIMITED TO THE FACTS IN McCORD AND THE FACTS IN MR . WYC HE'S CASE, WHICH ARE VIRTUALLY IDENTICAL.

CHIEF JUSTICE: ON THE FLIP SIDE OF THAT IN LOOKING AT CASES AND MAYBE THERE IS A REA SON FO R THE DER TH O F CASES, IS THAT IT SEEMS TO BE STANDARD POLICE P R ACTICE THAT IS APPROVED IN THESE CASES, THAT THIS TYPE O F LEVEL OF DECEPTION THAT IS MAKING UP A CRIME , A NONEXISTENT CRIME IN O RDERTO GET A CONSENT , IS CONDONED IN CASES AROUND THE COUNTRY ?

WELL , I WOULD SAY I REALLY HAVEN'T, I HA VEN'T SEEN , I MEAN , I THINK IT IS A CASE OF FIRST IMPRESSION THAT WAY, TOO. I THINK THAT IT IS , BECA USE IT IS A WA IVER OF RIGHTS , AS OPPOSED TO TRICKERY AS AN INTERROGATION TOOL, TRICKERY IN AN ON GOING INVESTIGATION , MISREPRESENTATION OF FACTS.

CHIEF JUSTICE: MR. McCOY SAID THIS WAS A LAUDABLE LAW ENFORCEMENT TECHNIQUE, SO I WONDERED IF THAT WAS SOMETHING AROUND THE COU NTRY THAT WAS RECOGNIZED AS BEING A LAU DABLE LAW ENFORCEMENT TECHNIQUE. YOUR RESE ARCH DIDN'T S HOW ANYTHING.

WE WOULD ARGUE , OF COURSE , THAT IT MIGHT BE LAUD ABLE IN THOSE OTHER INSTANCES B UTNOT TO OBTAIN A WAIVER.

CHIEF JUSTICE: THANK YOU VERY MUC H FOR YOUR TIME AND WE WILL TAKE THIS CASE UNDER ADVISEMENT AND WE WILL TAKE OUR M ORNING RECESS. THANK YOU.