Opinion
No. 2D19-3104
03-11-2022
Terrance Vaughn SMITHERMAN, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Karla D. Ellis, Special Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Karla D. Ellis, Special Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa, for Appellee.
NORTHCUTT, Judge.
Terrance Smitherman appeals his convictions on four counts of trafficking or possession of various controlled substances. We affirm one of those convictions but reverse the other three because the evidence supporting those convictions was the product of an unconstitutional search and should have been suppressed.
The events leading to Smitherman's arrest began when a customs agent at an airport in Chicago intercepted a suspicious package that was sent to Smitherman at an address on Duquesne Drive in Fort Myers. A test of the contents revealed that the package contained MDMA. A second Chicago customs agent forwarded the package to law enforcement in Lee County, Florida, who arranged for a controlled delivery to Smitherman's address.
Law enforcement left a particular amount of the narcotics in the package and installed a tracking device inside the box. A postal inspector then delivered the package to Smitherman's home on Duquesne Drive. A woman answered the door, confirmed that Smitherman lived there, and accepted delivery of the package. Using a drone to surveil the home, law enforcement observed Smitherman arrive at the home and then leave with the unopened package.
Smitherman drove to a home on Cal Cove Drive that he had been house-sitting and living in for the past several months. Once inside the home, he opened the package. Law enforcement then approached the property and apprehended Smitherman in the home's open garage. Smitherman was holding both the tracking device and the narcotics that law enforcement had left in the package. Law enforcement then obtained a warrant to search the Cal Cove house, and the subsequent search revealed more narcotics. The State ultimately charged Smitherman with (1) trafficking in phenethylamines (400 grams or more), (2) trafficking in phenethylamines (10 grams or more), (3) possession of a controlled substance (oxymetholone), and (4) possession of marijuana (less than 20 grams).
Smitherman moved to suppress the fruits of the search of the Cal Cove home, contending that the search warrant was unconstitutionally broad and that the affidavit filed in support of the application for the search warrant failed to demonstrate probable cause for the search. The trial court denied the motion. The State presented the evidence at Smitherman's jury trial. Smitherman was found guilty on all four counts, and the trial court entered the related judgment and sentences.
In this appeal, Smitherman raises two issues. First, he contests the denial of his motion to suppress. Second, he challenges the denial of his motion for judgment of acquittal, in which he alleged that discrepancies in witnesses' descriptions of the package's contents and in the weight of the contents at various points in the chain of custody demonstrated probable tampering.
Motion to Suppress
Smitherman first asserts that the trial court erred in denying his motion to suppress the contraband found in the Cal Cove Drive home, which formed the basis for the charges in counts two, three, and four. Smitherman argues both that law enforcement lacked probable cause for the search and that the warrant authorizing the search of the entire Cal Cove property for a wide range of contraband, electronics, and paperwork was unconstitutionally broad. We agree with the first argument and view the vagueness of the authorization as merely a symptom of the true problem with the search of the Cal Cove home, which was simply that law enforcement lacked probable cause to believe they would find evidence of drug trafficking at the property. In other words, the warrant failed to specify a particular object of the search precisely because law enforcement lacked probable cause and did not have any particular object in mind.
When reviewing the denial of a motion to suppress evidence seized pursuant to a search warrant, our undertaking "consists of ‘a legal examination of the evidence in the affidavit to determine whether it establishes probable cause—with a presumption of correctness given to the trial court, which in turn gave great deference to the magistrate.’ "
Goesel v. State , 305 So. 3d 821, 823 (Fla. 2d DCA 2020) (quoting Coronado v. State , 148 So. 3d 502, 505 (Fla. 2d DCA 2014) ).
When assessing whether there is probable cause to justify a search, "the trial court must make a judgment, based on the totality of the circumstances, as to whether from the information contained in the warrant there is a reasonable probability that contraband will be found at a particular place and time." Pagan v. State , 830 So. 2d 792, 806 (Fla. 2002). "This determination must be made by examination of the four corners of the affidavit." Id.
Id. at 823–24.
The search warrant affidavit in this case did not establish a reasonable probability that further evidence of drug trafficking would be found in the Cal Cove residence. The affidavit provided a detailed account of law enforcement's discovery of MDMA in the package addressed to Smitherman's Duquesne Drive address, as well as the resulting controlled delivery of the package to that home. In contrast, the portion of the affidavit concerning the Cal Cove property was devoid of any allegation suggesting a probability that the Cal Cove home was involved in any illegal conduct beyond the presence of Smitherman's parcel, which law enforcement had already recovered when they applied for the warrant. In relevant part, the affidavit stated:
At 1434 hours, Terrance Smitherman with a date of birth of [XX/XX/XXXX], at the [Duquesne Drive] residence, entered for a few moments, and exited the residence with the package in his hand. Smitherman entered his black Lincoln MKX bearing Florida license plate #JTAT48 and left the residence. Surveillance units in the area followed Smitherman to 858 Cal Cove Drive,
where he parked in the drive way, and entered the residence holding the package. At 1456 hours, the package was opened and Detectives converged on the residence. As Detective Bates entered through the open garage door he observed Smitherman exiting the residence into the garage with the container that contained the 414 grams of MDMA in one hand and the GPS tracking device in another. Smitherman was detained and the residence is currently being held pending a search warrant.
Based on the above facts, Detective Bates believes there is probable cause for the issuance of this search warrant to search the residence for additional evidence related to possession of a controlled substance and request it be approved.
Thus, the only allegations related to the Cal Cove address were simply that Smitherman brought the package containing MDMA to the home. There were no averments regarding Smitherman's background as a possible drug trafficker, his use of the home for that purpose, or even his connection to the home in general. There likewise were no recitations that law enforcement had performed any surveillance of the home, had engaged in any controlled buys at the home, or in any way had reason to believe that the home was involved in any sort of drug trafficking beyond Smitherman's bringing an unopened package there.
According to the affidavit, the investigation solely concerned the contents of the package, and the Cal Cove home's only connection to any illegal activity was that Smitherman brought the package there. Once law enforcement detained Smitherman in the garage while he was holding the contents of the package, they had obtained all the evidence of the only crime they were investigating. Based on the allegations in the affidavit, law enforcement could only speculate that additional evidence would be present in the house, and speculation alone cannot support probable cause. See Garcia v. State , 872 So. 2d 326, 330 (Fla. 2d DCA 2004) (holding that a warrant application failed to establish probable cause when it relied on speculation rather than evidence establishing a fair probability that drugs would be present).
While Smitherman's opening of the package at the Cal Cove home may have suggested some link between the home and Smitherman's alleged trafficking, that event, standing alone, did not create a probability that further narcotics or similar evidence of trafficking would be present at that location. See Dyess v. State , 988 So. 2d 146, 149 (Fla. 1st DCA 2008) (holding that the defendant's involvement in a controlled drug sale in a grocery store parking lot did not create probable cause for a search of the defendant's home, even when the defendant went straight home after the sale because "[w]hile it could certainly be inferred that Appellant might have other drugs and paraphernalia in the residence, this inference is nothing more than speculation").
The State contends that the good-faith exception to the exclusionary rule should apply to the fruits of the warrant for the Cal Cove home, asserting that "there can be no way that the detailed and accurate affidavit and warrant presented to and approved by a Circuit Judge in the case at bar can be seen as so deficient as to not meet the good faith exception." See generally United States v. Leon , 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (holding that the exclusionary rule does not apply when an officer acts in "objectively reasonable reliance on a subsequently invalidated search warrant"). But our precedent is to the contrary. "Where, as here, the supporting affidavit fails to establish probable cause to justify a search, Florida courts refuse to apply the good faith exception." Garcia , 872 So. 2d at 330 (first citing Getreu v. State , 578 So. 2d 412 (Fla. 2d DCA 1991) ; and then citing Bonilla v. State , 579 So. 2d 802 (Fla. 5th DCA 1991) ). A reasonably trained law enforcement officer would have known that the affidavit in this case failed to establish probable cause for the search, so the good-faith exception does not apply.
Accordingly, because the sworn application for the warrant to search the Cal Cove home failed to demonstrate probable cause therefor, we reverse Smitherman's convictions related to the fruits of that search (counts two, three, and four).
Motion for Judgment of Acquittal
In his second issue, Smitherman maintains that the trial court erred in denying his motion for a judgment of acquittal on count one, which concerned the MDMA inside the parcel that was the subject of the controlled delivery. Specifically, Smitherman asserts that the State failed to establish a sufficient chain of custody for the drugs and that the witnesses' differing descriptions of the narcotics and the differing weights reported at various points in the chain suggest probable tampering.
Smitherman couches this argument as a challenge to the sufficiency of the evidence, but it is in fact a challenge to the admissibility of the evidence—an argument he should have raised by contemporaneous objection when the evidence was offered at trial rather than in a subsequent motion for judgment of acquittal. After evidence is admitted without objection, an alleged fault in the chain of custody does not affect the sufficiency of the evidence for the purposes of a motion for judgment of acquittal. See State v. Hampton , 44 So. 3d 661, 665 (Fla. 2d DCA 2010) ("[I]f the attorney fails to object to the adequacy of the evidence on the issue of chain of custody and allows the trial court to admit the evidence, the attorney cannot later recast the issue, after an adverse jury verdict, as an issue of insufficient evidence.").
Although we reject Smitherman's unpreserved admissibility issue in this direct appeal, our affirmance is without prejudice to any right that Smitherman might have to bring a related claim in a postconviction motion.
Affirmed in part, reversed in part, and remanded.
LaROSE and LABRIT, JJ., Concur.