Opinion
Nos. 3D08-1079, 3D08-1077.
Opinion filed October 27, 2010.
Appeals from the Circuit Court for Miami-Dade County, Rosa I. Rodriguez, Judge. Lower Tribunal Nos. 05-37152, 07-10526A.
Bill McCollum, Attorney General, and Lane Hodes, Assistant Attorney General, for appellant.
Jay Levine, for appellee.
Before COPE, SHEPHERD, and SUAREZ, JJ.
The State of Florida appeals from the trial court's grant of two separate motions to suppress filed by the defendant, Manuel Ojeda. We affirm.
In Case No. F05-37152, Ojeda pled guilty to charges of possession of cannabis, possession with intent to distribute, and possession of drug paraphernalia. The trial court initially sentenced him to nineteen months' probation, but later vacated his plea. Thereafter, Ojeda filed a motion to suppress the marijuana evidence on the ground that Ojeda's consent to search the residence was coerced by an unreasonable display of police force.
At the suppression hearing, the State called Detective Orenstein, who testified that after conducting a background check and discovering six prior contacts Ojeda had with police, he went to Ojeda's residence around 7:45 a.m. with three other detectives, one sergeant, and two uniformed officers. He did not have a warrant to search the premises. At the scene, the officers parked their marked vehicles at the front of the residence. As Orenstein approached, the uniformed officers stood about thirty feet from the entrance to the house, and the other detectives spread out around the residence. When Ojeda answered the door he appeared to have just been awakened. Orenstein explained he'd been given a tip that marijuana was being cultivated inside the residence. Ojeda calmly invited the police into the house and stated — post-Miranda — he was willing to cooperate with the investigation. Five of the officers entered the house, Ojeda signed a consent-to-search form and led police officers to a functioning marijuana lab in his garage, claiming it was left there by renters who had moved out approximately six weeks earlier.
The court granted Ojeda's motion to suppress by written order, holding that the unreasonable display of police presence outside of the residence would have made a reasonable person believe that he had no choice but to acquiesce.
In Case No. F07-10526A, Ojeda was charged with trafficking cannabis, conspiracy to traffic cannabis, and possession of cannabis. Ojeda filed a motion to suppress, claiming that the marijuana evidence recovered by police was the fruit of an unlawful warrantless entry into a home in order to arrest Ojeda.
At the suppression hearing, Detective Orenstein (again) testified that while performing a narcotics investigation he noticed Ojeda's truck parked outside of a residence. Orenstein claimed he then contacted Detective Knapp, who was apparently seeking Ojeda in connection with a separate investigation. According to Orenstein, Knapp said he was on his way to the State Attorney's office to seek an arrest warrant for Ojeda. Orenstein testified that he decided to approach the house, and was joined at the scene by Officer Benjamin. The two knocked at Ojeda's front door, Ojeda answered, and Orenstein asserted that he could immediately smell marijuana coming from the house. Orenstein testified that Ojeda told him there was no one else at the house, but Orenstein heard a door close in another room inside the residence. Orenstein then entered the house with the uniformed officer, arrested and handcuffed Ojeda, sat him at a table, and did a protective sweep that uncovered marijuana plants, hydroponics equipment, and other paraphernalia. Orenstein also found another occupant of the house, Perez, in a bathroom. Ojeda refused to sign a consent-to-search form. Orenstein obtained a warrant to search the residence after these events occurred, admitting in his testimony that he had no information prior to Ojeda's arrest that there was anything suspicious in the residence, and that the only basis for his arrest was having smelled marijuana emanating from inside the house once Ojeda opened the front door.
Detective Knapp testified that Detective Orenstein did not contact him until after Ojeda was arrested.
After hearing testimony and arguments, the trial court granted Ojeda's motion to suppress by written order, finding Detective Orenstein's testimony to be unreliable, and holding that the evidence obtained was the fruit of an unlawful warrantless entry into a home in order to make an arrest.
A ruling on a motion to suppress comes to the appellate court as presumptively correct as to disputed facts and all reasonable inferences and deductions drawn from them. Pagan v. State, 830 So. 2d 792 (Fla. 2002). On the other hand, we review the trial court's application of the law to the facts under the de novo standard. State v. Lennon, 963 So. 2d 765 (Fla. 3d DCA 2007). The dispositive issue in either case is whether the facts present an exception to the search warrant requirement. This is a mixed question of law and fact and should be reviewed under the de novo standard. Fitzpatrick v. State, 900 So. 2d 495, 510 (Fla. 2005) ("[A]ppellate courts should . . . accord a presumption of correctness to . . . the trial court's determination of historical facts, but appellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment[s].") (quotingNelson v. State, 850 So. 2d 514, 521 (Fla. 2003)) (quoting Connor v. State, 803 So. 2d 598, 608 (Fla. 2001)).
The Fourth Amendment to the United States Constitution prohibits warrantless searches and seizures, rendering them per se unreasonable unless an exception applies. Katz v. United States, 389 U.S. 347 (1967). The analysis for a search requires a two-step inquiry where probable cause is required and, if it exists, a search warrant must be obtained unless an exception applies. "If the State fails to satisfy either step, the evidence seized in the unreasonable search must be suppressed." Mapp v. Ohio, 367 U.S. 643 (1961). Common exceptions include consensual encounters with police officers and investigatory or Terry stops. See Popple v. State, 626 So. 2d 185, 186 (Fla. 1993) (identifying three levels of police-citizen encounters, including (1) a consensual encounter, (2) a temporary detention or investigatory stop, and (3) an arrest).
In Case No. F05-37152, the record reflects that there were no exigent circumstances present at the time Detective Orenstein confronted the Defendant at his residence. Because the police had no warrant to search the property, the State argues that the subsequent search was made pursuant to the defendant's valid consent. See Lewis v. State, 979 So. 2d 1197 (Fla. 4th DCA 2008) (holding that a warrantless search constitutes a prima facie showing that shifts to the state the burden of proving the search's legality); Miles v. State, 953 So. 2d 778, 779 (Fla. 4th DCA 2007). Once the State has presented its evidence of consent to search, the burden of proof does not shift back to the defendant to impeach that testimony or contradict the evidence. See Lewis, 979 So. 2d at 1200.
We conclude that the totality of the circumstances did not preclude the officers from taking the time necessary to secure a warrant. We affirm the trial court's grant of the motion to suppress in this case.See Caldwell v. State, 985 So. 2d 602, 606 (Fla. 2d DCA 2008) (applying a totality-of-the-circumstances test to the issue of whether law enforcement's conduct amounted to "a show of authority that would have caused a reasonable person to believe that he was not free to terminate the encounter") review granted, 7 So. 3d 1097 (Fla. May 21, 2009).
The trial court properly weighed the testimony of the witnesses, and was "not required to believe the testimony of the police officers . . . even when that is the only evidence presented." Lewis, 979 So. 2d at 1200 (citing to Maurer v. State, 668 So. 2d 1077, 1079 (Fla. 5th DCA 1996)).
In Case No. F07-10526A, the record indicates that no exigent circumstances existed to justify the warrantless entry and search by the detective and uniformed officer. As discussed above, the reasonableness of an entry by police onto private property without a warrant depends on the totality of the circumstances. See Davis v. State, 834 So. 2d 322, 327 (Fla. 5th DCA 2003). Some set of facts must exist that precludes taking the time to secure a warrant. See Levine v. State, 684 So. 2d 903, 904 (Fla. 4th DCA 1996). No exigent circumstances were present in this case that would excuse the failure to secure a warrant prior to entering the defendant's home. See United States v. Standridge, 810 F.2d 1034, 1037 (11th Cir.), cert. denied, 481 U.S. 1072, 107 S. Ct. 2468, 95 L.Ed.2d 877 (1987). We are not persuaded by the State's argument that the trial court ignored certain aspects of Detective Orenstein's testimony that bolstered his credibility. The trial court, acting as fact-finder, was allowed to make such a determination. Lewis, 979 So. 2d 1197. The burden was on the State alone to show the legality of the search; the burden does not shift back to the defendant to impeach or otherwise controvert that showing. Id. at 1201 (holding that a trial court has the same ability to determine the believability of the witness as a jury; the trial court may disbelieve the only evidence offered in a suppression hearing, even if it is uncontradicted).
We affirm the trial court's grant of the defendant's motion to suppress in case numbers F07-10526A and F05-37152.
Affirmed.
Not final until disposition of timely filed motion for rehearing.
I entirely agree with the panel members in affirming the suppression order in Miami-Dade County Circuit Court case number 07-10526.
In Miami-Dade County Circuit Court case number 05-37152, the trial court's oral pronouncement was that the court was granting the motion to suppress on authority of Miller v. State, 865 So. 2d 584 (Fla. 5th DCA 2004), and Gonzalez v. State, 578 So. 2d 729 (Fla. 3d DCA 1991). The facts were that when defendant-appellee Manuel Ojeda answered the front door, he could see the two detectives at the front door plus two uniformed officers standing twenty or thirty feet away on the front sidewalk. When he invited the officers in, four detectives and one police sergeant entered the home. He was read his Miranda rights and was asked to execute the consent form. The trial court could reasonably conclude, under the authority of the cited cases, that the consent was a submission to authority and was not voluntary.
Miranda v. Arizona, 384 U.S. 436 (1966)
I am in doubt about that part of the majority opinion which relies onLewis v. State, 979 So. 2d 1197 (Fla. 4th DCA 2008). Our court has said, in the context of an evidentiary hearing on a motion to suppress evidence, that "[a] court must accept evidence which, like the material testimony of the police officers, is neither impeached, discredited, controverted, contradictory within itself, or physically impossible." State v. Fernandez, 526 So. 2d 192, 193 (Fla. 3d DCA 1988). Here, the trial court cases were consolidated before a single judge, but a separate evidentiary record was developed in each case. While the trial court made an adverse credibility finding against the detective in case number 07-10526, there does not appear to be a record basis to do so in 05-37152.
Therefore I concur entirely in Miami-Dade County Circuit Court case number 07-10526, and concur in the result in Miami-Dade County Circuit Court case number 05-37152.
This is the State's consolidated appeal of adverse rulings in two suppression hearings involving the same defendant. I concur in the majority's affirmance of Case No. F07-10526A. I respectfully dissent in Case No. F05-37152.
The case before us actually consists of two consolidated appeals involving the same Appellee, Manuel Ojeda. The suppression hearings in these two cases, and one other case in which Ojeda was a defendant, Case No. F07-10525 (the "separate investigation" referenced at page 3 of the majority opinion), were conducted serially, but separately on the same day by the same trial judge. All three prosecutions are marijuana grow house prosecutions. The trial judge granted Ojeda's motion to dismiss in all three cases. The State did not appeal Case No. F07-10525.
The defendant in these proceedings is Manuel Ojeda. His business is hydroponic marijuana farming. He has an extensive criminal history, including at least six felony convictions, before his arrest in Case No. F05-37152. He is well-known to the local authorities, down to the type of vehicle he drives.
In Case No. F07-10526A, Detective Orenstein approached the house in this case with the intent to arrest Ojeda on ten-day-old charges in another marijuana grow house case. Although Orenstein harbored a suspicion the house was being used for nefarious purposes, he made no effort to obtain a warrant to conduct a search. Instead, accompanied by Officer Benjamin, Orenstein elected to knock on the front door of the house and arrest Ojeda on prior charges if he appeared. While awaiting someone to open the door, Orenstein detected the odor of marijuana. Ojeda answered the door. Without asking permission, Orenstein and Benjamin entered, handcuffed Ojeda, and performed the protective sweep, which resulted in the grow house charges, which are the subject of the motion to suppress.
The following exchange occurred on redirect examination of Orenstein: Q. When you went to the front door of the house and knocked you smelled the odor outside of the house, correct? A. Yes, I did.
It is unquestionable that the actions of the detective and officer in this case were inexcusable and the seizure unreasonable. It is axiomatic that Orenstein had no authority to arrest Ojeda on the earlier charge absent a warrant. Engle v. State, 391 So. 2d 245, 246 (Fla. 5th DCA 1980) ("All searches conducted without a warrant are per se unreasonable unless conducted within the framework of a few specifically established and well delineated exceptions.") (citing Katz v. United States, 389 U.S. 347 (1967)). Although Orenstein and Benjamin had probable cause to believe unlawful drug activity was occurring at the location, its presence alone did not strip the occupant of this dwelling of his constitutional guarantees against a warrantless search. See Johnson v. United States, 333 U.S. 10, 13 (1948) (citing Taylor v. United States, 286 U.S. 1 (1932)). A short period of watching was all that was necessary to effectuate a valid search in this case.
The State counters that the evidence seized nevertheless is admissible on the basis of the "inevitable discovery" doctrine. For this doctrine to apply, the State must show: (1) a reasonable probability that the evidence in question would have been discovered by lawful means; and (2) that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the illegal police conduct. See United States v. Satterfield, 743 F.2d 827, 846 (11th Cir. 1984). The State meets neither of these requirements in this case. Affirmance is in order in Case No. F07-10526A.
Case No. F05-37152 is a different matter. Contrary to the suggestion in the majority opinion, only two detectives were at the front door at the time Orenstein knocked. When Ojeda opened the door, Orenstein explained the purpose of his visit. According to Orenstein, Ojeda replied, "Come on inside." It was only after this invitation that the three other detectives appeared. The detectives were wearing plain clothes, covered by a vest with the word "Police" across the front, and a badge and identification hanging around their necks. No guns were drawn, and no insistent statements or threats were uttered by any detective.
Orenstein testified, "I approached the front door with one other detective and the other detectives were on the side of the house [prepared to stop any fleeing suspects] and we had uniform officers that stood out towards the front so that their uniform presence was visible."
Once inside the house, Detective Orenstein read Ojeda the warnings required by Miranda to be given to a person in custody and asked Ojeda whether he understood them. Ojeda responded in the affirmative and, according to Orenstein, was "willing to cooperate with me with whatever I asked." Thereupon, Orenstein asked whether Ojeda would consent to a search. Ojeda agreed and signed a consent form to search the house, adding, "[c]ome, I'm going to show you around the house." As the detectives were going through the house, Orenstein additionally asked for consent to search the vehicles in the driveway. According to Orenstein, Ojeda responded, "Yes, sure," which response was confirmed by the execution of yet another consent form. Ojeda ultimately led the detectives into the garage, where they encountered a marijuana hydroponics grow operation. Ojeda's story was that he recently had moved back into the house, after having leased it to someone, and found the garage in this condition. He could not produce the name of the lessee or a lease. Nor had he called the police regarding his find. Ojeda did not appear scared, under the influence of any narcotics, to have any mental issues, or issues of understanding during the encounter. Orenstein described Ojeda's demeanor as "confident that whatever he was going to tell me about a tenant being in the house," would be credible. Orenstein was the only witness to testify at this suppression hearing.
Miranda v. Arizona, 384 U.S. 436 (1966).
The search of the vehicles was non-productive.
Whether consent is freely and voluntarily given is determined by the totality of the circumstances. Taylor v. State, 355 So. 2d 180, 183 (Fla. 3d DCA 1978) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227-29 (1973)); see also State v. Othen, 300 So. 2d 732, 733 (Fla. 2d DCA 1974). The factors to be considered include the age and maturity of the accused; whether he had a prior criminal history; the time and place of the encounter; the number of officers; whether the defendant executed a written consent form; the length of time police interrogated him before he consented; whether he was in custody; and the words and actions of the officers. Miller v. State, 865 So. 2d 584, 587 (Fla. 5th DCA 2004) (citing United States v. Broomfield, 201 F.3d 1270, 1274 (10th Cir. 2000); United States v. Glass, 128 F.3d 1398, 1406 (10th Cir. 1997)). In conducting our review, we accord a presumption of correctness to the trial court's findings of historical facts where there is substantial competent evidence to support them. State v. Glatzmayer, 789 So. 2d 297, 301 (Fla. 2001). However, our application of the law to the facts, including our determination of whether the defendant's consent was objectively voluntary is de novo.Id. Finally, because a home is an area in which a person enjoys the highest reasonable expectation of privacy, we scrutinize the factors with special care. Payton v. New York, 445 U.S. 573, 585 (1980); Gonzalez v. State, 578 So. 2d 729, 732 (Fla. 3d DCA 1991).
In this case, the trial court relied on only three factors to conclude the consent to search was involuntary: (1) the time and place of the encounter; (2) the number of officers; and (3) the words and actions of those officers. The focus of the majority opinion is upon the latter. See Majority op. at p. 6. For the reasons that follow, I am of the opinion that a full analysis of all the factors, as required by law, mandates a reversal of the order entered by the trial court in this case.
The majority also faults the authorities in this case for "[under] the totality of the circumstances" not "taking the time necessary to secure a warrant." Majority Op. at p. 6. The majority forgets the detectives and officers went to the residence in this case based upon an anonymous tip. An anonymous tip, alone, is insufficient as a matter of law to support the issuance of a search warrant. See J.L. v. State, 727 So. 2d 204, 206 (Fla. 1998) aff'd, 529 U.S. 266 (2000) (stating, "an anonymous tip can provide the basis for reasonable suspicion, provided that it can be established that the tip is reliable").
First, Ojeda's age, thirty-four at the time of the search, suggests he was of sufficient maturity and experience to make an intelligent decision. Second, there is no evidence he was intoxicated or otherwise impaired. Third, Ojeda executed a written consent form that was in English, after being asked whether he wanted it in English or Spanish.See Luna-Martinez v. State, 984 So. 2d 592, 600 (Fla. 2d DCA 2008) ("[T]he presence of a written consent tends to support the conclusion that the consent was given voluntarily."). Fourth, Ojeda had a prior criminal history, creating a presumption that he knew his rights. Wilson v. State, 952 So. 2d 564, 570 (Fla. 5th DCA 2007) ("[W]hether he had a prior criminal history — the presumption being that one who has prior criminal arrests knows his legal rights. . . ."). Fifth, Ojeda was read the warnings required by Miranda prior to executing the written consent. Although the warnings were unnecessary, see Davis v. State, 698 So. 2d 1182, 1189 (Fla. 1997) ("Miranda warnings are required whenever the State seeks to introduce against a defendant statements made by the defendant while in custody and under interrogation. Absent one or the other, Miranda warnings are not required."), recent authority from our supreme court has recognized that, depending on the circumstance, an unneeded administration ofMiranda warnings can be more protective of an individual's rights than intimidating in nature. See Caldwell v. State, 41 So. 3d 188, 201 (Fla. 2010). Upon consideration of the totality of the circumstances of this case, I am of the view that the administration of Miranda warnings to Ojeda did not compromise his decision-making faculties. Although the warnings given to him were not tailored to a consent to search, he was advised he had the right to counsel and the right to terminate the encounter at any time. He never elected to terminate the encounter. Rather, he communicated in a cooperative spirit with the authorities from the moment he opened the front door.
Sixth, Ojeda was not deprived of any convenience or sequestered for an undue length of time prior to signing the consent. The Miranda administration took just a few minutes. Ojeda then volunteered to "cooperate with whatever [he was] asked." Detective Orenstein then asked him to sign the consent form. Ojeda did so upon the first request. He read the form himself before signing. The search of the house began immediately thereafter. There is no evidence Ojeda was under undue stress. In fact, the evidence in this case reveals Ojeda signed an additional consent form to expand the scope of the search while it was ongoing. This provides at least some further support for the inference that the consent was voluntary.
To some extent, any encounter with an officer of the law may lead to some apprehension. See Oregon v. Mathiason, 429 U.S. 492, 495 (1977) ("Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is a part of a law enforcement system which may ultimately cause the suspect to be charged with a crime."). However, this fact alone cannot support a seizure under the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968).
Seventh, that the encounter between the police and Ojeda took place on Wednesday, November 30, 2005, at 7:45 a.m., is a factor in favor of the State's position. The officers did not arrive in the middle of the night. Seven forty-five on a Wednesday morning is the usual time ordinary business or working people are getting ready for work or eating breakfast. It might be that Ojeda's business is more nocturnal in nature than others. However, he has no greater constitutional right to sleep in than anyone else.
Lastly, there was no overwhelming display of force in this case. As previously demonstrated, the majority is under the misimpression that five detectives met Ojeda when he opened the front door. The trial court believed the entirety of the force, seven in number, was present at that moment. Detective Orenstein, the bearer of the evidence in the case, testified he and just one other detective were at the door, see supra note 3, and that the other three detectives were on the side of the house in case someone tried to exit from a different direction. The inherent danger involved in a narcotics investigation counsels caution about criticizing the staffing and deployment decisions in cases like this. It seems entirely reasonable to order up a complement of seven law enforcement officers to investigate a tip of this nature. It would seem irresponsible not to send at least two persons to the front door. Only in retrospect do we know what awaited Orenstein and the other detective who accompanied him to the door. The case law is replete with examples of circumstances where no show of force has been found to exist under similar facts. See, e.g., United States v. Thompson, 524 F.3d 1126, 1133 (10th Cir. 2008) (finding the presence of three officers did not, by itself, render consent involuntary); United States v. Thomas, 430 F.3d 274, 276 (10th Cir. 2005) (concluding presence of four officers, without more, did not render consent involuntary); United States v. Ramirez-Chilel, 289 F.3d 744 (11th Cir. 2002) (stating the presence of four officers did not render consent involuntary); United States v. Pena, 143 F.3d 1363, 1367 (10th Cir. 2002) (stating presence of four officers, including three that were armed, who came to defendant's motel room, found not to render consent involuntary); United States v. Padilla-Pena, 129 F.3d 457, 467 (8th Cir. 1997) (concluding presence of three officers did not render consent involuntary); United States v. Garcia, 56 F.3d 418, 423 (2d Cir. 1995) (finding the presence of three officers did not render consent involuntary); United States v. Iribe, 11 F.3d 1553, 1557 (10th Cir. 1993) (finding that presence of five officers did not render consent per se involuntary); United States v. Durades, 929 F.2d 1160, 1166-67 (7th Cir. 1991) (stating presence of three officers, who acted professionally at all times, in one apartment with three occupants was not coercive);Luna-Martinez, 984 So. at 600 (stating presence of three to four officers outside defendant's apartment did not render consent per se involuntary); State v. Triana, 979 So. 2d 1039, 1044-45 (Fla. 3d DCA 2008) (finding that presence of four officers did not render consent involuntary); Wilson v. State, 952 So. 2d 564, 570 (Fla. 5th DCA 2007) (finding presence of three officers who had trespassed onto property and initially accosted defendant at gunpoint did not vitiate consent to search given after time passed); Putnel v. State, 746 So. 2d 521, 523 (Fla. 2d DCA 1999) (finding presence of two officers did not render consent involuntary). In fact, most authorities opine it is not so much the police presence that upends an otherwise lawful police action, such as the one reviewed here, but rather the verbal acts of those officers.See, e.g., Luna-Martinez, 984 So. 2d at 600 ("A suspect is more likely to be overawed by one officer speaking in an insistent, demanding tone than is a suspect who is addressed in a low-key manner in an encounter with several officers."). There is no evidence in this case that any of the law enforcement personnel on the premises did or said anything a reasonable person would understand as an assertion of authority to search. I conclude that an examination of the totality of the circumstances in this case, as we are required to conduct, compels a reversal of the decision of the trial court in Case No. F05-37152.
The majority finds the trial court properly found the testimony of Detective Orenstein to be not credible. See Majority Op. at p. 6, note 3. The majority supports this finding with authorities from other district courts of appeal. Contrary to these decisions, the long-settled law of this District is that in a suppression hearing context, the trial judge must accept any evidence by a police officer "which is neither impeached, discredited, controverted, contradictory within itself, or physically impossible." See State v. Fernandez, 526 So. 2d 192, 193 (Fla. 3d DCA 1988) ("Although the trial judge purported to find the testimony of the officers at the motion to suppress `not credible,' he was not free to do so.") (citing Flowers v. State, 106 Fla. 686, 143 So. 612 (1932);Brannen v. State, 94 Fla. 656, 114 So. 429 (1927); Harris v. State, 104 So. 2d 739 (Fla. 2d DCA 1958)). The record does not reveal any evidence that the testimony of Orenstein met any of the criteria by which it could have been discounted by the trial judge, and the trial judge cites no such evidence. This error alone mandates a re-consideration of the suppression order.
In sum, I would affirm the order granting Ojeda's motion to suppress in Case No. 07-10526A and reverse the order granting Ojeda's motion to suppress in Case No. F05-37152.