Opinion
No. 3D08-1079 Consolidated: 3D08-1077 Lower Tribunal No. 05-37152 Lower Tribunal No. 07-10526A
05-01-2013
The State of Florida, Appellant, v. Manuel Ojeda, Appellee.
Pamela Jo Bondi, Attorney General, and Lane Hodes and Nikole Hiciano, Assistant Attorneys General, for appellant. Jay Levine, for appellee.
This opinion is not final until disposition of any further motion for rehearing
and/or rehearing en banc. Any previously filed motion for rehearing en banc is
deemed moot.
Appeals from the Circuit Court for Miami-Dade County, Rosa I. Rodriguez, Judge.
Pamela Jo Bondi, Attorney General, and Lane Hodes and Nikole Hiciano, Assistant Attorneys General, for appellant.
Jay Levine, for appellee. Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
Judge Rothenberg did not participate in oral argument.
ON MOTION FOR REHEARING
SHEPHERD, J.
Upon consideration of the State of Florida's motion for rehearing in these consolidated cases, we grant the State's motion for rehearing in Case No. 3D08-1077 (lower tribunal number 05-37152) and deny the State's motion for rehearing in Case No. 3D08-1079 (lower tribunal number 07-10526A). We reverse the order granting the motion to suppress in lower tribunal number 05-37152 and affirm the order granting the motion to suppress in lower tribunal number 07-10526A. We substitute the following opinion for that issued on October 27, 2010.
This is the State's consolidated appeal of adverse rulings in two suppression hearings involving the same defendant, Manuel Ojeda. Ojeda's business is hydroponic marijuana farming. He had an extensive criminal history, including at least six felony and misdemeanor convictions, before his arrest in Case No. 05-37152. He is well known to the local authorities, down to the type of vehicle he drives. Miami-Dade County Police Department Detective Edward Orenstein was the sole State witness at each suppression hearing. We treat the State's appeal from each order in turn.
Case No. 05-37152
On November 30, 2005, Detective Orenstein received an anonymous tip that marijuana was being grown at a private residence located at 7621 S.W. 136th Avenue, Miami-Dade County, Florida. A background check on Ojeda—who Orenstein had been investigating as a suspect in the grow house business and who Orenstein apparently knew or learned either owned, resided at, or otherwise was associated with the residence—revealed Ojeda's prior felony and misdemeanor offenses. Armed with this information, Orenstein, along with three other detectives, one sergeant, and two uniformed officers, went to Ojeda's residence at 7:45 a.m. that morning.
Orenstein and one other detective went to the front door. Two uniformed officers were standing on the sidewalk at the front of the residence, about twenty to thirty feet from the front door, their marked police cars parked behind them at the side of the road. The officers and their vehicles were visible to anyone who chose to look out of the residence. The other three detectives were deployed around the sides of the house, prepared to stop any fleeing suspects.
Ojeda, who had just gotten out of bed, responded to Detective Orenstein's knock on the front door. According to Orenstein, when Ojeda opened the door, Orenstein explained the purpose of his visit, in response to which Ojeda replied, "Come on inside." As Detective Orenstein and his colleague at the door entered the house, the three detectives emerged from the sides of the house and also entered. All five detectives were dressed in 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.
Once inside the house, 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, "Come, 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 claimed he recently had moved back into the house, after having leased it to someone, and found the garage in this condition. He could neither 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 to have 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. There was no evidence of odor detection before the door to the garage was opened.
Miranda v. Arizona, 384 U.S. 436 (1966).
The search of the vehicles was non-productive.
The trial court granted the motion to suppress on the ground consent to search the premises was unlawfully procured through an overwhelming show of police authority, exacerbated by an unnecessary administration of Miranda on the defendant. The trial court also held Orenstein's testimony was not credible. On de novo review, according a presumption of correctness to the trial court's finding of historical facts, as we are required to do, we conclude the defendant's consents to search were objectively voluntary. We also conclude the trial court erred in finding Detective Orenstein's testimony was not credible in this case.
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. 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.
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 he knew his rights. See 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 of Miranda 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); see also Ladson v. State, 63 So. 3d 807, 809 (Fla. 3d DCA 2011) ("[T]he administration of Miranda warnings, as a matter of law, does not transform a consensual encounter into a seizure."); accord Ruiz v. State, 50 So. 3d 1229, 1232 (Fla. 4th DCA 2011). Upon consideration of the totality of the circumstances of this case, we conclude the administration of Miranda warnings to Ojeda did not compromise his decision-making faculties. Although the warnings given 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 with the authorities in a cooperative spirit 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 ultimately may 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. Detective Orenstein testified he and just one other detective were at the door, and that the other three detectives emerged and entered the house after Orenstein and his companion were invited to enter. Ojeda was read his Miranda rights and the consent to search requested. Ojeda's counsel argues the presence of five officers in the house at the time the consent to search was requested, together with the presence of two uniformed officers on the sidewalk, overpowered Ojeda's decision-making faculties. We disagree on the facts in this case.
The inherent danger involved in a narcotics investigation compels the use of caution. It seems entirely reasonable to order a complement of seven law enforcement officers to investigate a tip of this nature. In fact, 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. 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, 751 (11th Cir. 2002) (stating the presence of five officers did not render consent involuntary); United States v. Pena, 143 F.3d 1363, 1367 (10th Cir. 1998) (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. 2d 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 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.
We also conclude the trial court erred by finding Detective Orenstein's testimony was not credible. Although the evidentiary hearing in this case was one of three such hearings directly or indirectly involving Detective Orenstein, held in tandem by the trial judge on the same day, and while taken together the trial judge appropriately had some cause for concern about Detective Orenstein's credibility, counsel agreed at the beginning of the hearings that each matter would proceed and be argued "case by case." Although defense counsel argued Detective Orenstein was not a credible witness, he introduced no evidence impeaching or contradicting Orenstein's testimony in this case. 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 in this case 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. For all of these reasons, we reverse the order granting the motion to suppress in Case No. 05-37152.
Case No. 07-10526A
Case No. 07-10526A can be treated with greater dispatch. The record in this case reveals that on March 23, 2007, eighteen months after Detective Orenstein and his squad conducted their warrantless search of Ojeda's residence, located at 7621 S.W. 136th Avenue, Orenstein and his squad travelled to a nearby residence, where Orenstein then believed Ojeda might be found, for the purpose of arresting him on ten-day-old charges in another marijuana grow house case, Case No. 07- 10525, if Ojeda answered the door. 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. As he testified, his sole purpose for approaching the door of the residence was to "arrest [Ojeda] on Knapp's case [Case No. 07-10525] . . . if he was there."
On this date, Ojeda was on probation in Case No. 05-37152 pursuant to a plea. The plea was subsequently vacated.
Orenstein's sole ground for his suspicion was that he "knew [Ojeda] owned the house" and that he had "arrested him in 2005." When asked whether he had "any information . . . that there was anything in the house," Orenstein replied, "No, not that there was anything in that house." A warrant would have been unobtainable on these facts. See Illinois v. Gates, 462 U.S. 213, 238 (1983) (requiring a fair probability that contraband or evidence of a crime will be found in a particular place to support a finding of probable cause for issuance of a search warrant).
Accompanied by Officer Benjamin, Orenstein knocked on the front door of the house. Ojeda answered. An unmistakable odor of marijuana wafted across the threshold. Without asking permission, Orenstein entered the house, ordered Ojeda to put his hands behind his back, and handcuffed him. Confronted by conflicting statements by Ojeda and suspicious sounds, Detective Orenstein placed Ojeda in the custody of Officer Benjamin and performed a protective sweep of the house for officer safety, producing an additional arrest. The grow house, which resulted in the charges that spawned the subject of the motion to suppress, was discovered in a second sweep of the house conducted five or ten minutes later once additional backup officers arrived. At the time, Detective Orenstein crossed the threshold and arrested Ojeda, Detective Orenstein "knew Knapp didn't have [a warrant]." He, of course, also did not know of the contraband Ojeda seeks to maintain as suppressed in this appeal.
The outcome of this appeal is governed by Payton v. New York, 445 U.S. 573 (1980), and its progeny. The issue before the United States Supreme Court in Payton was the constitutionality of a New York statute that authorized police officers to enter a private residence without a warrant and with force, if necessary, to make a routine felony arrest. In Payton, New York detectives, after two days of extensive investigation, had evidence sufficient to establish probable cause to believe Theodore Payton had murdered the manager of a gas station two days earlier. Id. at 576. The next morning, at about 7:30 a.m., six officers went to Payton's apartment in the Bronx to arrest him. Id. They had not obtained a warrant. Id. Although light and music emanated from the apartment, there was no response to their knock on the metal door. Id. They summoned emergency assistance and, about thirty minutes later, used crowbars to open the door and enter the apartment. Id. No one was there. Id. In plain view, however, was a .30-caliber shell casing that was seized and later admitted into evidence at Payton's murder trial. Id. at 576-57.
Significantly for our purposes, the United States Supreme Court in Payton consolidated and decided another case, Riddick v. New York, 445 U.S. 573 (Fla. 1980). The facts of Riddick are legally indistinguishable from those in our case. In Riddick, Obie Riddick was arrested on two armed robberies that had occurred in 1971. Id. at 578. He was identified by the victims in 1973, and in January 1974 the police learned his address. Id. They did not obtain a warrant for his arrest. Id. At about noon on March 14, 1974, a detective, accompanied by three other officers, knocked on the door of the Queens house where Riddick was living. Id. When his young son opened the door, they could see Riddick sitting in bed, covered by a sheet. Id. Without asking permission, they entered the house and placed Riddick under arrest for the robberies. Id. Before permitting Riddick to dress, they opened a chest of drawers two feet from the bed in search of weapons and found narcotics and related paraphernalia. Id.
Out of these consolidated cases came the pronouncement of the United States Supreme Court that absent exigent circumstances, the textually clear and specific Fourth Amendment constitutional "right of the people to be secure in their . . . houses," id. at 584, "prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." Id. at 576. The Supreme Court reversed and remanded both the Payton and Riddick cases for further proceedings. As in both Payton and Riddick, the animating reason for Detective Orenstein's warrantless intrusion into the privacy of Ojeda's home was a prior felony—ten-day-old charges on another grow house case. No exigent circumstance existed. There is not a scintilla of evidence in the record before us that before Detective Orenstein aroused Ojeda with a knock on his front door, Ojeda knew Detective Orenstein was in the vicinity, that Ojeda was about to destroy evidence, or that he was about to flee. When questioned by the court, Detective Orenstein was unable to articulate any exigency to justify his warrantless intrusion. In fact, by his own account, Orenstein knew Detective Knapp was at that moment in transit to the Miami-Dade County State Attorney's office to obtain a warrant. The trial court's inquiry of Detective Orenstein regarding this fact is prescient:
On remand from the United States Supreme Court, the only substantial issue remaining in each case was whether there were exigent circumstances for the entry. See People v. Payton, 51 N.Y.2d 169, 173 (N.Y. 1980).
Detective Orenstein testified:
Q Now, you called Knapp, Knapp tells you he is going to get a warrant, but you know he doesn't have it, right?
A Right.
Q You decide to get a marked unit and approach the front door at this point, right?
A That is correct.
Q Now your purpose in approaching the door of the residence was to go ahead and effectuate the arrest on Knapp's case, correct?
A To see if he was there, to arrest him if he was there.
Q. There was nothing, sir, that prevented you from surveilling that house until Knapp got the warrant, right? Did anything prevent you from parking outside the house and watching it until Knapp called you and said, "I have got the arrest warrant"? Did anything prevent you from doing that? It is okay to say no if the answer is no.That, of course, was all Detective Orenstein had to do.
A. I didn't even think about it.
The lynchpin of the dissenting opinion is the contention "the officers' presence on the defendant's front porch, knock on the defendant's front door, and conversation with the defendant while standing on the porch outside of the defendant's residence . . . did not implicate the Fourth Amendment, and did not require probable cause, reasonable suspicion, or a warrant and were therefore lawful." See infra p. 33. In short, absent a physical or announced barrier to entry—e.g., a hedge, fence, wall, no trespassing sign, or other barrier to entry—the dissent holds forth that an officer of the law has the right to walk up to the front door of a person's home and knock for any reason or no reason at all. The dissent is incorrect. As the Supreme Court eloquently recounted in Payton, the Fourth Amendment to the United States Constitution was adopted to prohibit the precise conduct the dissent would countenance in this case. Our High Court explained:
"Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of British tax laws. They were denounced by James Otis as 'the worst instrument ofPayton, 445 U.S. at 584 n.21.
arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book,' because they placed 'the liberty of every man in the hands of every petty officer.' The historic occasion of that denunciation, in 1761 at Boston, has been characterized as 'perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. "Then and there," said John Adams, "then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born."' Boyd v. United States, 116 U.S. 616, 625, 6 S. Ct. 524, 529, 29 L. Ed. 746 [(1886)]." Stanford v. Texas, 379 U.S. 476, 481-482 (1965).
After further elucidating the historical development of the Fourth Amendment to the United States Constitution, the United States Supreme Court in Payton concluded, pertinent to the case before us:
[A]s originally proposed in the House of Representatives, the draft contained only one clause, which directly imposed limitations on the issuance of warrants, but imposed no express restrictions on warrantless searches or seizures. As it was ultimately adopted, however, the Amendment contained two separate clauses, the first protecting the basic right to be free from unreasonable searches and seizures and the second requiring that warrants be particular and supported by probable cause. See N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 100 n. 77 (1937). As explained, that "the prohibition against 'unreasonable searches' was intended, accordingly, to cover something other than the form of the warrant is a question no longer left to implication to be derived from the phraseology of the Amendment." Id. at 103.
It is thus perfectly clear that the evil the Amendment was designed to prevent was broader than the abuse of a general warrant. Unreasonable searches or seizures conducted without any warrant at all are condemned by the plain language of the first clause of the Amendment. Almost a century ago the Court stated in resounding terms that the principles reflected in the Amendment "reached farther than the concrete form" of the specific cases that gave itPayton, 445 U.S. at 585-86 (emphasis added).
birth, and "apply to all invasions on the part of the government and its employés of the sanctity of a man's home and the privacies of life." Boyd v. United States, 116 U.S. 616, 630, 6 S. Ct. 524, 532, 29 L. Ed. 2d 746 [(1886)]. Without pausing to consider whether that broad language may require some qualification, it is sufficient to note that the warrantless arrest of a person is a species of seizure required by the Amendment to be reasonable. Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142 [(1964)]. Cf. Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 [(1979)]. Indeed, as Mr. Justice POWELL noted in his concurrence in United States v. Watson, the arrest of a person is "quintessentially a seizure." 423 U.S. [411,] 428, 96 S. Ct.[820,] 830 [(1976)].
The simple language of the Amendment applies equally to seizures of persons and to seizures of property. . . . As the Court reiterated just a few years ago, the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. [U.S. Dist. Ct.], 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L. Ed. 2d 752 [(1972)]. And we have long adhered to the view that the warrant procedure minimizes the danger of needless intrusions of that sort.
The dissent ignores these expressions of constitutional jurisprudence by our Highest Court. Instead, the dissent is of the view "the defendant's [Ojeda's] property . . . was open to the public." See infra p. 32 (emphasis added). The cases cited by the dissent for this view—Bennett v. City of Eastpointe, 410 F.3d 810 (6th Cir. 2005); Davis v. United States, 327 F.2d 301 (9th Cir. 1964); State v. Morsman, 394 So. 2d 408 (Fla. 1981); Nieminski v. State, 60 So. 3d 521 (Fla. 2d DCA 2011); State v. Navarro, 19 So. 3d 370 (Fla. 2d DCA 2009); Hardin v. State, 18 So. 3d 1246 (Fla. 2d DCA 2009); Luna-Martinez v. State, 984 So. 2d 592 (Fla. 2d DCA 2008); State v. Triana, 979 So. 2d 1039 (Fla. 3d DCA 2008); State v. Pereira, 967 So. 2d 312 (Fla. 3d DCA 2007); and Murphy v. State, 898 So. 2d 1031 (Fla. 5th DCA 2005)—are inapposite. Eight of the ten cases—Davis, Morsman, Nieminski, Luna-Martinez, Navarro, Hardin, Triana, and Murphy—are "knock and talk" cases. A knock and talk is a procedure ordinarily used by police officers to investigate a complaint where there is no probable cause for a search warrant. Murphy, 898 So. 2d at 1032 n.4. Courts generally have upheld the procedure as a legitimate effort to obtain a suspect's consent to search. See, e.g., Kentucky v. King, 131 S. Ct. 1849, 1860 (2011) (asking an occupant of the premises for a consent to search is simpler, faster, and less burdensome than applying for a warrant). Importantly, the use of the procedure is constitutionally cabined by the requirement of a tip, complaint, or some other evidence of ongoing illegal activity. In contrast to these authorities, no report of ongoing illegal activity impelled Detective Orenstein to Ojeda's front door in this case. Unlike a postal worker delivering the mail, a neighbor, a solicitor or a political candidate, Detective Orenstein had no lawful reason to enter upon Ojeda's property. See United States v. Redmon, 138 F.3d 1109, 1130 (7th Cir. 1998) (citing Oregon v. Portrey, 896 P.2d 7 (Or. Ct. App. 1995)); United States v. Peter, No. 3:11-CR-132 JD, 2012 WL 1900133, at *10-*11 (N.D. Ind. May 24, 2012) (explaining that such individuals are implied invitees). He was a trespasser who entered the property to commit an unlawful act—make a warrantless arrest if he could. A trespass by a government agent in combination with an unlawful purpose implicates the Fourth Amendment. Florida v. Jardines, No. 11-564, 2013 WL 1196577, *1,*5 (U.S. Mar. 26, 2013) ("[T]he scope of a license [to enter upon property] is limited not only to a particular area but also to a specific purpose."); United States v. Jones, 132 S. Ct. 945, 951 n.5 (2012) (finding unlawful the attachment by police of a GPS monitor device to the undercarriage of a target's vehicle for the purpose of obtaining information violates the Fourth Amendment.); see also United States v. Perea-Rey, 680 F.3d 1179 (9th Cir. 2012) (finding border patrol agents' entry onto residential property constituted an illegal search; individuals seized upon agents' orders to vacate residence were illegally seized). A short period of watching was all that was necessary to effectuate a valid seizure of Ojeda in this case.
Bennett, 410 F.3d at 810, is a section 1983 case involving the stop of two juveniles on bicycles on suspicion of criminal activity. The issue in Pereira, 967 So. 2d at 314, was whether probable cause existed for the issuance of a search warrant. Our case, in contrast, involves a warrantless search and arrest. These two cases are dispositive of nothing in the case before us. In fact, in two cases relied upon by the dissent—Morsman, 394 So. 2d at 408, and Hardin, 18 So. 3d at 1246, the respective courts found, as we do here, the actions of law enforcement violated the Fourth Amendment.
I might note the rule the dissent would have is not without support. The argument for the rule of the dissent was presented elegantly by the dissenters (Justice White, joined by Chief Justice Burger and Justice Rehnquist) in Payton. In fact, prior to Payton, Florida was one of two states, New York being the other, that had upheld the constitutionality of warrantless searches of a person in his or her home, provided there existed probable cause to make the arrest. See Payton, 445 U.S. at 575 (citing State v. Perez, 277 So. 2d 778 (Fla. 1973), and People v. Payton, 380 N.E. 2d 224 (N.Y. 1978)). In 1989, our supreme court acknowledged that Perez, and hence the rule of the dissent, is contrary to the precedent of the United States Supreme Court. See Stevens v. State, 419 So. 2d 1058 (Fla. 1989), rev'd on other grounds, 552 So. 2d 1082, 1084 (Fla. 1989) ("It was not until 1980 in Payton v. New York, 445 U.S. 573 [] (1980), that the United States Supreme Court rejected the Florida view and held that it was unlawful to effect a routine felony arrest in a private residence absent exigent circumstances unless a warrant was obtained."); see also Saavedra v. State, 622 So. 2d 952, 956 (Fla. 1993) (post-Payton, "the rule of law is that absent consent or exigent circumstances, the police may not make a warrantless entry into a suspect's home . . . to make a felony arrest"). We are bound by Payton. See Art. I, § 12, Fla. Const. ("This right [to be free from unreasonable searches and seizures] shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court."); Bernie v. State, 524 So. 2d 988 (Fla. 1988).
The State and the dissent also argue 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). Because there can be no assurance the arrest warrant, once obtained, would have been served on Ojeda at his home—e.g., that Ojeda would not have left his home before Knapp obtained the warrant and either notified Detective Orenstein or served it himself— neither the State nor the dissent may invoke this doctrine.
Detective Orenstein and Officer Benjamin had no business going onto Ojeda's property or knocking on his door for the purpose of arresting him in Detective Knapp's case before Detective Knapp had secured a warrant for Ojeda's arrest in his case. Detective Orenstein's and Officer Benjamin's actions comprised a violation of the "right of the people to be secure in their . . . houses . . . against unreasonable searches and seizures" under the Fourth Amendment to the United States Constitution. The contraband found as a consequence of their actions was inadmissible "fruit of the poisonous tree." Art. I, § 12, Fla. Const.; Wong Sun v. United States, 371 U.S. 471 (1963). The trial court correctly granted the motion to suppress in Case No. 07-10526A.
In sum, we reverse the order granting Ojeda's motion to suppress in Case No. 05-37152 (3D08-1077), and we affirm the order granting Ojeda's motion to suppress in Case No. 07-10526A (3D08-1079).
Affirmed in part, reversed in part, and remanded for further proceedings.
SUAREZ, J., concurs.
ROTHENBERG, J., concurs with the majority as to case number F05-37152 and dissents with opinion as to case number F07-10526A.
SUAREZ, J. (specially concurring).
I agree with the analysis and outcome of these consolidated appeals. I write, however, solely to point out that State v. Periera 967 So. 2d 312 (Fla. 3d DCA 2007), and cases cited therein by the dissent, is not applicable to the facts of the present appeal of Case No. 07-10526A. In Periera, and in each of the cases cited therein, the dispositive issue was not whether the defendant had any reasonable expectation of privacy on the front porch, but whether law enforcement - acting on a tip, open observation, or some other evidence of ongoing illegal activity - had sufficient probable cause to obtain a search warrant prior to their search. See Periera, 967 So. 2d at 314 (holding that anonymous tip coupled with dog sniff at front porch provided sufficient probable cause to issue search warrant); State v. Morsman, 394 So. 2d 408 (Fla. 1981) (holding that a warrantless search occasioned by neighborhood complaint of grow house was illegal); State v. E.D.R., 959 So. 2d 1225 (Fla. 5th DCA 2007) (holding no illegal search where contraband in plain view on defendant's lap as he dozed on his front porch); Potts v. Johnson, 654 So. 2d 596 (Fla. 3d DCA 1995) (holding that police on official business could legally enter crime suspect's property to knock and talk, but could not, absent an exception, search backyard without first obtaining search warrant). As Judge Shepherd points out for the majority, the legitimate effort to obtain a suspect's consent to search "is constitutionally cabined by the requirement of a tip, complaint, or some other evidence of ongoing illegal activity." These factual elements are entirely absent from the appeal of Case No. 07-10526A.
ROTHENBERG, Judge (dissenting).
While I agree with the majority's analysis and conclusion in lower tribunal case number 05-37152, I must respectfully dissent as to its analysis and conclusion in lower tribunal case number 07-10526(A).
Case No. 07-10526(A)
The issue presented in this case is whether the warrantless entry into the defendant's residence, and the subsequent protective sweep of his house, violated his right against unreasonable searches and seizures. Because the record reflects that prior to the warrantless entry, law enforcement had probable cause to believe that contraband or evidence of a crime would be found in the house and exigent circumstances existed, the protective sweep performed was lawful. The evidence subsequently seized was seized pursuant to a valid search warrant obtained after the premises were secured, and therefore the evidence was lawfully obtained. Moreover, because sufficient probable cause existed to support issuance of the warrant, the evidence would have "inevitably been discovered." Thus, the trial court erred in suppressing the evidence and this Court should reverse that decision. The Evidence
The evidence reflects that Detective Orenstein, of the Miami-Dade Police Department, at the time of the arrest, had twenty years of on-the-job training in law enforcement and was an experienced narcotics detective who had undergone narcotics detection training, and had investigated over one hundred marijuana cases. The defendant has an extensive criminal history, and he is a known marijuana grower, who was previously arrested on November 30, 2005, by Detective Orenstein for cultivating marijuana inside a house located at 7621 S.W. 136th Avenue, Miami, Florida. The facts regarding that arrest are contained in the majority opinion in reference to case number 05-37152.
On March 13, 2007, while the defendant was on probation in case number 05-37152, the Miami-Dade Police Department received a call from the landlord of an apartment the defendant was renting at 9187 S.W. 138th Place, reporting that the apartment contained a marijuana hydroponics lab. Detective Knapp responded to the call. Detective Knapp learned the defendant had not paid his rent since January, and the landlord, who unsuccessfully attempted to contact the defendant, believed the defendant had abandoned the property. Thus, pursuant to the lease, which provides for entry after three days' notice, the landlord entered the apartment to inspect it and he discovered the hydroponics lab. After obtaining consent from the landlord, who is also the owner of the apartment, Detective Knapp searched the apartment and confirmed that it was being used as a marijuana grow house. The search and seizure connected to this case is not an issue in this appeal.
Based on probable cause, Detective Knapp obtained permission from his supervisor to obtain a warrant for the defendant's arrest for the hydroponics lab found in the apartment. Detective Knapp, however, decided that prior to getting the warrant, he would try to locate the defendant. After ten days, when he was unable to locate the defendant, Detective Knapp decided to obtain the warrant. However, on March 23, 2007, the day he intended to obtain the warrant, Detective Knapp received a call from Detective Orenstein stating that he had located the defendant. Thereafter, Detective Knapp responded to where Detective Orenstein had the defendant secured, and Detective Knapp arrested the defendant on his case.
The arrest of the defendant on March 23rd occurred after the following. Detective Orenstein knew the defendant because Detective Orenstein had arrested the defendant for operating a marijuana grow house in case number 05-37152. When Detective Orenstein learned that Detective Knapp was trying to locate the defendant in reference to the marijuana cultivation operation in the apartment, Detective Orenstein drove by a house where he believed the defendant could be located—10195 S.W. 139th Place. When Detective Orenstein saw the defendant's truck parked in front of the house, he called Detective Knapp, informing him that he believed he had located the defendant.
Detective Orenstein called for back-up, and when Officer Benjamin arrived, they knocked on the front door of the house. When the defendant opened the front door, Detective Orenstien, who was standing on the front porch, immediately smelled the odor of marijuana coming from inside the house. Because Detective Orenstein had seen a second vehicle parked directly behind the defendant's truck, he asked the defendant if there was anyone else in the house. The defendant responded that there was someone inside, but when Detective Orenstein asked the defendant who it was, the defendant responded, "oh, no, there is nobody here."
As he was talking to the defendant, Detective Orenstein testified he heard a door slam in the house. Detective Orenstein and Officer Benjamin stepped into the foyer, and while Officer Benjamin secured the defendant, Detective Orenstein headed in the direction of the slamming door, announced his presence and ordered the occupants to come out. When there was no response to his command, Detective Orenstein proceeded to the general area where he heard the door slam and discovered Mr. Perez in a bathroom. After taking Perez into custody, Detective Orenstein called for additional back-up to secure the defendant and Perez so that Detective Orenstein could sweep the remainder of the house. When additional back-up arrived, Detective Orenstein and Officer Benjamin continued the security sweep of the house, where they observed marijuana paraphernalia, a large quantity of small marijuana plants in a bedroom, and a marijuana hydrophonics lab in the garage. After concluding the security sweep of the house, Detective Orenstein asked the defendant for consent to search the house. When the defendant did not consent, Detective Orenstein obtained and served a search warrant, which produced fifty-three pounds of marijuana found in the garage and eighty-four young marijuana plants found in a bedroom. After the defendant was arrested by Detective Orenstein, Detective Knapp responded to the scene and arrested the defendant on his case involving the marijuana hydroponics laboratory in the apartment. Suppression of the evidence
After conducting a hearing, the trial court suppressed the evidence seized as to all three cases: (1) case number 05-37152 to which the defendant initially pled guilty and was serving probation; (2) case number 07-10525, Detective Knapp's case, involving the hydroponics laboratory in the apartment; and (3) case number 07-10526(A), which is Detective Orenstein's case.
At the time the defendant was arrested for the hydroponics lab found in the apartment (case number 07-10525, Detective Knapp's case) and for the marijuana being cultivated and stored in the house at 10195 S.W. 139th place, case number 07-10526(A), the subject of this dissent, the defendant had already pled guilty to and was on probation for the charges in reference to the marijuana grow house in case number 05-37152. Although the defendant pled guilty to the charges in case number 05-37152 on January 13, 2006, the defendant filed, and the trial court granted, the defendant's motion to vacate his plea in that case after the defendant's arrests for similar charges in case numbers 07-10525 and 07-10526(A). The trial court subsequently suppressed the evidence in all three cases.
The majority concludes that, in case number 07-10526(A), although Detective Orenstein and Officer Benjamin had probable cause to believe unlawful drug activity was occurring at that location, the warrantless seizure of the defendant and the "search" of the house were unlawful. Respectfully, the majority is incorrect.
The Fourth Amendment is implicated when the government invades an area in which a person entertains a legitimate or justifiable expectation of privacy. Rakas v. Illinois, 439 U.S. 128, 143 (1978); Terry v. Ohio, 392 U.S. 1, 9 (1968); Katz v. United States, 389 U.S. 347, 353 (1967). Although the Fourth Amendment protects people, not places, it is still necessary to consider the nature of the place in which legitimate privacy expectations are being asserted. Katz, 389 U.S. at 361. As will be discussed in this dissent, when the officers entered the defendant's property, which was open to the public, and knocked at his front door, the Fourth Amendment was not implicated. When the defendant voluntarily opened the door, and the officers, who were aware of the defendant's history of operating marijuana grow houses, smelled the marijuana, they clearly had probable cause to arrest the defendant and to search the house. Although a warrantless entry to arrest the defendant and to search the house would not be constitutionally permissible on probable cause alone, where, as here, exigent circumstances existed, the seizure of the defendant and the protective sweep conducted were lawful. The evidence seized was as a result of a valid search warrant obtained after the premises and the occupants of the house were secured. Moreover, even if the seizure of the defendant and the protective sweep of the house were unlawful, the evidence seized would have been inevitably discovered by lawful means. Thus, suppression of the evidence is error. The officers' presence at the defendant's front porch and the knock on the defendant's front door did not implicate the Fourth Amendment
We begin, as we must, with the officers' presence on the defendant's front porch, knock on the defendant's front door, and conversation with the defendant while standing on the porch outside of the defendant's residence. Contrary to the majority's position, which it fails to support with case law or other authority, the law is clear in Florida that these actions did not implicate the Fourth Amendment, and did not require probable cause, reasonable suspicion, or a warrant, and the officers' actions were therefore lawful. As the Florida Supreme Court specifically held in State v. Morsman, 394 So. 2d 408, 409 (Fla. 1981), "[u]nder Florida law it is clear that one does not harbor an expectation of privacy on a front porch where salesmen or visitors may appear at any time." See also Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964), holding:
[T]here is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person's right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man's "castle" with the honest intent of asking questions of the occupant thereof—whether the questioner be a pollster, a salesman, or an officer of the law.
In State v. Triana, 979 So. 2d 1039 (Fla. 3d DCA 2008), this Court held that "a knock on the door and subsequent discussion is a purely consensual encounter, which officers may initiate without any objective level of suspicion," and "[t]he fact that a consensual encounter takes place at the entrance of an individual's home does not call into question or in any way lessen the propriety of a consensual encounter." Id. at 1043; see also State v. Periera, 967 So. 2d 312, 314 (Fla. 3d DCA 2007) (wherein Judge Suarez, who is a panel member in the instant appeal, wrote in the unanimous opinion: "We follow those cases which hold that there is no reasonable expectation of privacy at the entrance of property which is open to the public, including the front porch").
Recently, the Second District in Nieminski v. State, 60 So. 3d 521 (Fla. 2d DCA 2011), examined whether law enforcement may open a closed, but unlocked gate and walk to the front door of a house to engage in a "knock and talk." The court concluded that "a citizen's encounter, including a knock and talk, is not regarded as a search or seizure," but rather, it is "a purely consensual encounter, which officers may initiate without any objective level of suspicion." Id. at 526-27. The court also found that absent a "no trespassing" sign or similar warning that the fence and gate were intended to keep people out, the officers may do so without violating the Fourth Amendment. Id.; see also Bennett v. City of Eastpointe, 410 F.3d 810, 821 (6th Cir. 2005) ("A purely consensual encounter between a police officer and a citizen does not implicate the Fourth Amendment."); Murphy v. State, 898 So. 2d 1031, 1032 n.4 (Fla. 5th DCA 2005) (recognizing that a "knock and talk" conducted at Murphy's motel room is a procedure used by law enforcement as an investigative tool where there is no need for probable cause or a warrant).
In order to initiate a "knock and talk," there is no requirement, as the majority posits, that law enforcement must be investigating a possible crime being committed on the premises. Because a knock and talk is not based on probable cause or even a reasonable suspicion, no citizen complaint or tip from an informant is required. In State v. Navarro, 19 So. 3d 370, 373-74 (Fla. 2d DCA 2009), the Second District reversed the trial court's order suppressing evidence of a grow house where the "knock and talk" was based on nothing more than a hunch. Specifically, the Second District found that "the circuit court's conclusion that a knock and talk cannot be based on a hunch and must stem from a tip or complaint finds no support in the case law." Id. at 373. Specifically, the Second District held:
The circuit court's ruling conflicts with the proposition that police officers may approach a residence and speak to the residents just as any private citizen may. Thus, the circuit court fell into error when it ruled that the knock-and-talk encounter at issue in this case amounted to illegal police conduct.
Id.
However, as this Court and others have recognized, a "knock and talk" consensual encounter may evolve into a "constructive entry" when the police, while not entering the house, use tactics that essentially force the occupant out of the house. Triana, 979 So. 2d at 1044. As to what constitutes constructive entry, the court explained:
Constructive entry has been found when a suspect emerged from a house "in response to coercive police conduct." Coercive police conduct occurs where there is "such a show of authority that [t]he Defendant reasonably believed he had no choice but to comply."Id. (citations omitted).
[However], [t]he presence of police officers alone, absent any indication of coercive words or acts, misrepresentation, deception, or trickery is insufficient to raise an inference of submission to police authority.
The question of whether the show of force exhibited by the police elevates a consensual encounter to a non-consensual encounter rests on various factors including the number of officers present and where they were positioned during the encounter; whether any weapons were drawn; whether there were any coercive actions, demands, or raised voices; and the time of the day or night. Id. at 1044-45. For example, although the initial knock and talk in Hardin v. State, 18 So. 3d 1246, 1250 (Fla. 2d DCA 2009), was found lawful, the length of the encounter and the subsequent intimidation of the occupants was found to have vitiated the consent to search granted during the encounter. Similarly, in Luna-Martinez v. State, 984 So. 2d 592, 598-99 (Fla. 2d DCA 2008), the Second District held:
The key to the legitimacy of the knock-and-talk technique—as well as any other technique employed to obtain consent to search—is the
absence of coercive police conduct, including any express or implied assertion of authority to enter or authority to search. In properly initiating a knock-and-talk encounter, the police should not "deploy overbearing tactics that essentially force the individual out of the home." United States v. Thomas, 430 F.3d 274, 277 (5th Cir. 2005). Nor should "overbearing tactics" be employed in gaining entry to a dwelling or in obtaining consent to search.
The majority attempts to dismiss these cases as "inapposite" on the premise that a knock and talk "is constitutionally cabined by the requirement of a tip, complaint, or some other evidence of ongoing illegal activity." The majority cites to no Florida case in support of this proposition, and none of the cases relied on in this dissent so holds. In fact, in Navarro, the opinion expressly notes that when the deputies in that case approached the residence and knocked on the door, they had not received a tip or a complaint:
Here, the deputies did not decide to conduct the knock and talk based upon a tip from an informant or a citizen's complaint . . . . [T]he knock and talk under review in this case was not based on probable cause or even a reasonable suspicion. Instead, the deputies acted based on what might be described as an "educated guess" or a "hunch."Navarro, 19 So. 3d at 372. The Navarro court therefore concluded that the trial court erred in suppressing the evidence (marijuana plants discovered after the officers conducted a knock and talk at the residence). Id. at 374; see also Triana, 979 So. 2d at 1043 (holding that a knock and talk "is a purely consensual encounter, which officers may initiate without any objective level of suspicion"); United States v. Cruz-Mendez, 467 F.3d 1260, 1264 (10th Cir. 2006) ("[A] 'knock and talk' is a consensual encounter and therefore does not contravene the Fourth Amendment, even absent reasonable suspicion."); United States v. Cormier, 220 F.3d 1103, 1109 (9th Circ. 2000) ("[N]o suspicion needed to be shown in order to justify the 'knock and talk.'").
The majority relies on a United States District Court Memorandum Opinion and Order, United States v. Peter, No. 3:11-CR-132 JD, 2012 WL 1900133 (N.D. Ind. May 24, 2012); two United States Circuit Court opinions, United States v. Perea-Rey, 680 F.3d 1179 (9th Cir. 2012), and United States v. Redmon, 138 F.3d 1109 (7th Cir. 1998); and a recent United States Supreme Court opinion, United States v. Jones, 132 S. Ct. 945 (2012). The majority's reliance on these cases is misplaced.
What the District Court in Peter concluded was that an "officer may use the route which any visitor to a residence would use, for the purpose of making a general inquiry or for some other legitimate reason." Id. at *11. The court held that because the front walk and porch were impliedly held open to social and business invitees, "the police certainly could have walked up Peter's front walk and onto his porch in order to contact Peter or someone else at the home as part of a general inquiry and as an implied invitee, just as could any social or business visitor." Id. However, the police did not approach Peter's residence to contact Peter (who was in custody) or anyone else at the residence. They used a narcotics- detection dog to "sniff" the outside of the house, on the front porch, a detached garage to the north of the residence, and a rear door. The court thus concluded that the Fourth Amendment was implicated, but ultimately found no violation and denied the defendant's motion to suppress the evidence. Id. at *18.
Perea-Rey is equally unavailing. In that case, the Ninth Circuit held that border patrol agents violated the Fourth Amendment when, absent exigent circumstances, they entered the gated property, walked through the front yard and around the side of the house and into the enclosed carport, and with guns drawn, ordered the occupants to exit the house. Perea-Rey, 680 F.3d at 1186-89. In reaching this conclusion, the court specifically noted that while officers "may encroach upon the curtilage of a home for the purpose of asking questions of the occupants," id. at 1187 (quoting Davis v. United States, 327 F.2d 301, 305 (9th Cir. 1964)), "once an attempt to initiate a consensual encounter with the occupants of a home fails, 'the officers should end the knock and talk and change their strategy by retreating cautiously, seeking a search warrant, or conducting further surveillance."' Perea-Rey, 680 F.3d at 1188 (quoting United States v. Titemore, 335 F. Supp. 2d 502, 505-06 (D. Vt. 2004)).
The Redmon case involved the search and seizure of Redmon's garbage housed in garbage cans located next to an attached garage. The court concluded that Redmon had no reasonable expectation of privacy in trash left for collection in an area accessible to the public, and affirmed the denial of the motion to suppress. Redmon, 138 F.3d at 1114-15.
In Jones, the United States Supreme Court held that the "[g]overnment's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitute a 'search.'" Jones, 132 S. Ct. at 949 (footnote omitted). The device had been installed on the vehicle while it was parked on public property. The Court's concern was whether the device, which was installed to collect information, was an unreasonable, and therefore, unlawful search under the Fourth Amendment. Id. at 949.
In sum, this dissent identifies several cases that are directly on point and which expressly support the conclusions articulated in this dissent. In contrast, the majority relies on two cases that are in conflict with its position and two cases that rely on very different facts and thus have no relevance to the instant appeal.
In the instant case, Detective Orenstein and Officer Benjamin initially entered the defendant's property, which was not gated and was thus open to the public, approached and knocked on the defendant's front door, and the defendant opened the door to speak with the officers. This encounter was a consensual encounter. Moreover, it was daytime, and the two plain-clothed officers did not have their guns drawn, did not have a drug sniffing canine with them, and did not use coercive tactics to force the defendant to open the door. Therefore, as the initial encounter did not implicate the Fourth Amendment, it was lawful. During the initial encounter probable cause was established
When the defendant opened the front door to speak with the officers, the officers immediately smelled the odor of marijuana coming from inside the house. Detective Orenstein is an experienced law enforcement officer trained in the detection of narcotics who has investigated over one hundred marijuana cases. Additionally, the defendant's residential marijuana cultivation business was well-known to Detective Orenstein because he had previously arrested the defendant for operating a marijuana grow house in roughly the same neighborhood, and Detective Orenstein also knew that Detective Knapp was looking for the defendant to arrest him for operating a grow house in an apartment the defendant was renting close by. Thus, it is clear, and the defendant does not dispute, that prior to any entry into the house, the officers developed probable cause unrelated to Detective Knapp's case. The warrantless entry and protective sweep based on exigent circumstances
The majority contends that the warrantless entry into the defendant's residence and the protective sweep conducted by Detective Orenstein were unlawful. I disagree. Although a basic principle of the Fourth Amendment is that searches and seizures inside a home without a warrant are presumptively unreasonable, Payton v. New York, 445 U.S. 573, 586 (1980), the United States Supreme Court has recognized that this presumption may be overcome in some circumstances because the "ultimate touchstone of the Fourth Amendment is 'reasonableness."' Kentucky v. King, 131 S. Ct. 1849, 1856 (2011) (quoting Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006)). Seizure of the defendant and the warrantless protective sweep of the house were lawful
As Justice Black stated in Vale v. Louisiana, 399 U.S. 30, 36 (1970) (Black, J., dissenting):
The Fourth Amendment to the United States Constitution prohibits only "unreasonable searches." A warrant has never been thought to be an absolute requirement for a constitutionally proper search. Searches, whether with or without a warrant, are to be judged by whether they are reasonable, and, as I said, speaking for the Court in Preston v. United States, 376 U.S. 364, 366-367, 84 S. Ct. 881, 882-883, 11 L. Ed. 2d 777 (1964), common sense dictates that reasonableness varies with the circumstances of the search. See, e.g., Henry v. United States, 361 U.S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 134 (1959).(footnote omitted).
"Accordingly, the warrant requirement is subject to certain reasonable exceptions." King, 131 S. Ct. at 1856. One well-recognized exception is exigent circumstances. Id. A warrantless entry, therefore, may be justified where both probable cause and exigent circumstances exist. United States v. Burgos, 720 F.2d 1520, 1525 (11th Cir. 1983); Mercier v. State, 579 So. 2d 308, 309 (Fla. 3d DCA 1991) ("A warrantless entry must be justified by probable cause and exigent circumstances.").
Although the majority lectures on warrantless searches and seizures, there is no disagreement in this dissent, or below, that warrantless, nonconsensual entry into a suspect's home to make a routine felony arrest is prohibited absent exigent circumstances. The majority, however, contends there were no exigent circumstances in this case, and in support of this conclusion, the majority cites to the United States Supreme Court's decisions in Payton and Riddick v. New York, both reported at 445 U.S. 573 (1980). The majority also posits that the facts in Riddick are "indistinguishable" from the instant case. As neither case presents similar facts, they are distinguishable.
In Payton, when the officers responded to Payton's apartment to arrest him on probable cause but without a warrant, they knocked on the door and when Payton did not answer, they used crowbars to forcibly enter the apartment. Payton, 445 U.S. at 576-77. However, in the case before this Court, the officers knocked on Ojeda's front door. When Ojeda opened the door, the officers smelled marijuana, thus giving rise to probable cause to arrest Ojeda on drug charges separate from the crimes that had brought the officers to Ojeda's home in the first place. Prior to obtaining a warrant, the following exigent circumstances existed justifying the securing of Ojeda and the protective or security sweep of his house: the second vehicle parked behind Ojeda's vehicle; Ojeda's contradictory answers regarding whether there was anyone else in the house (first he said yes and then he said no); hearing a door slam within the house; the nature of narcotics which can be easily destroyed; and the possibility that someone in the house could present a danger to the officers. In Payton, the defendant did not open the door and the issue of exigent circumstances was specifically not considered by the Court.
Before addressing the narrow question presented by these appeals, we put to one side other related problems that are not presented today. Although it is arguable that the warrantless entry to affect Payton's arrest might have been justified by exigent circumstances, none of the New York courts relied on any such justification. The Court of Appeals majority treated both Payton's and Riddick's cases as involving routine arrests in which there was ample time to obtain a warrant, and we will do the same. Accordingly, we have no occasion to consider the sort of emergency or dangerous situation, described in our cases as "exigent circumstances," that would justify a warrantless entry into a home for the purpose of either arrest or search.Id. at 582-83 (footnotes omitted).
In Riddick, the officers, armed with probable cause but no warrant, entered Riddick's home without permission after Riddick's three-year-old son opened the door in response to the officers' knock. After arresting Riddick on probable cause that he had committed certain robberies, the officers searched Riddick's dresser for weapons and, instead, found drugs and drug paraphernalia. Id. at 578. As in Payton, and unlike the facts in our case, the issue of whether there were exigent circumstances justifying the warrantless entry, arrest, and search, was specifically not addressed by the Court because the lower courts did not rely on this justification in upholding the arrests and search. Id. at 582-83.
It is, therefore, axiomatic that neither Payton nor Riddick are "indistinguishable" from the instant case, nor do these cases provide any insight as to whether the facts in the instant case provided exigent circumstances justifying the warrantless entry into Ojeda's house.
The exigent circumstances doctrine recognizes several common situations obviating the need to obtain an arrest or search warrant. Burgos, 720 F.2d at 1523. One recognized situation is where there is a risk of removal or the destruction of narcotics. United States v. Rubin, 474 F.2d 262, 268 (3d Cir. 1973). As the Supreme Court noted in King, "[d]estruction of evidence issues probably occur most frequently in drug cases because drugs may be easily destroyed by flushing them down a toilet or rinsing them down a drain." King, 131 S. Ct. at 1857; see also U.S. v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991) (quoting United States v. Young, 909 F.2d 442, 446 (11th Cir. 1990)) (holding that in narcotics cases, "the need to invoke the exigent circumstances exception to the warrant requirement is 'particularly compelling in narcotics cases' because narcotics can be so quickly destroyed").
Whether exigent circumstances existed is evaluated based on the totality of the circumstances. Seibert v. State, 923 So. 2d 460, 468 (Fla. 2006). The test is an objective one, Tobin, 923 F.2d at 1510, and the "appropriate inquiry is whether the facts . . . would lead a reasonable, experienced agent to believe the evidence might be destroyed before a warrant could be secured." Tobin, 923 F.2d at 1510 (quoting U.S. v. Rivera, 825 F.2d 152, 156 (7th Cir. 1987)).
In the instant case, the warrantless entry, seizure of the defendant, and the protective sweep were lawful based on probable cause and exigent circumstances. The officers had probable cause to believe the defendant was growing and/or storing marijuana in the house. The odor of marijuana emanating from the house and onto the front porch when the defendant opened the front door was strong enough to be easily detected by Detective Orenstein's ordinary sense of smell. Detective Orenstein had previously arrested the defendant for operating a marijuana grow house, and on that very same day, Detective Knapp intended to obtain a warrant for the defendant's arrest for a separate marijuana cultivating operation. Additionally, the defendant gave conflicting answers when asked if there was anyone else in the house. First, he said there was, and then he maintained there was not. The defendant's claim that there was no one else in the house justifiably elevated Detective Orenstein's concern that the evidence might be destroyed, where he had observed a second vehicle parked behind the defendant's truck, clearly indicating that the defendant was not alone in the house, and the defendant, who had previously been arrested by the same detective, knew the detective was aware of his criminal past and had smelled the marijuana in the house. Under these circumstances, a reasonable, experienced officer would be justified in his belief that some of evidence might be destroyed before a warrant could be secured.
This conclusion is amply supported by case law. The facts in Tobin are similar to the facts in this case. While conducting surveillance in the neighborhood of co-defendant Ackerson's house, but unrelated to Ackerson's house, the agents observed Tobin approach Ackerson's house and engage in suspicious behavior and then enter the house through the garage. The agents decided to investigate. They knocked at the front door, Ackerson opened the door, and while the agents were speaking with Ackerson they smelled marijuana coming from the inside of the house. When the agents told Ackerson what they had observed (which involved the suspicious off-loading of bags into the garage), Ackerson denied the activity had occurred, and denied that anyone else was in the house. Ultimately the agents arrested Ackerson and conducted a warrantless search of the house. The Eleventh Circuit held that the initial discussion between Ackerson and the agents was a consensual encounter; the odor of marijuana coming from inside the house gave rise to probable cause; and based on the presence of three vehicles on the scene and Ackerson's false responses about Tobin's presence, exigent circumstances existed justifying the warrantless protective sweep of the house. "[T]he defendants and anyone else who might have been present in the house would have been aware of the agent's suspicions at that moment. Danger that the defendants or someone else inside the house might destroy the evidence thus provided the exigent circumstances required to justify a warrantless search." Tobin, 923 F.2d at 1512.
Also instructive is Gilbert v. State, 789 So. 2d 426 (Fla. 4th DCA 2001). In Gilbert, the Fourth District noted that "[e]xigent circumstances are one exception to the warrant requirement. While there is no exhaustive list of what constitutes exigent circumstances to permit a warrantless entry of a constitutionally protected space, imminent destruction of evidence is one such circumstance." Id. at 428. Applying this standard, the Fourth District concluded that exigent circumstances existed, stating:
[W]e have no difficulty in determining that the facts were such as to lead a reasonable police officer to believe that the evidence would have been destroyed before a warrant could be obtained. The officers were dispatched to appellant's motel room, not on a suspicion of narcotics but by a call that the occupant of the room wished to surrender on other warrants. Appellant opened the door, allowing the officers to see the contraband that was only two to three feet from the door. Obviously, appellant also became aware that the officers viewed the contraband, and under any objective view of the facts the officers acted reasonably in immediately entering and seizing the contraband before appellant had the opportunity to dispose of it.Id. at 429 (emphasis added).
As these cases demonstrate, whether exigent circumstances existed is an objective test based on the totality of the circumstances; drugs can be easily destroyed when the occupants of a residence are alerted to the presence of law enforcement who by sight or smell have probable cause to obtain a warrant. Under the facts of this case, it is reasonable for an experienced officer to believe the evidence might be destroyed before a warrant could be secured. Thus, the warrantless entry and protective sweep of the residence were lawful. The officer's subjective intent in approaching the front door is not dispositive
The trial court and the majority have unfortunately gone astray by focusing on Detective Orenstein's subjective intent when conducting the knock and talk. The majority and the trial court concluded that the knock and talk was unlawful because Detective Orenstein was not investigating a crime separate from Detective Knapp's investigation (that the defendant was operating a marijuana grow house at a separate location); no arrest warrant had yet been obtained for that offense; and Detective Orenstein's only motivation in initiating the encounter with the defendant was to arrest him on Detective Knapp's case. The law, however, is well-settled that whether a police officer has commenced a search or a seizure or has violated the Fourth Amendment, turns not on the officer's subjective intent, but rather on whether he has in fact invaded an area in which the defendant has a reasonable expectation of privacy. Terry, 392 U.S. at 9; see also United States v. Mendenhall, 446 U.S. 544, 554 n.6 (1980) (holding that the officers' intention to detain the suspect is irrelevant to whether a reasonable person would believe he was being seized). And, as has already been discussed in great detail, the defendant had no reasonable expectation of privacy on the unenclosed front porch of his unfenced home.
Because Detective Orenstein had no warrant when he knocked at the defendant's front door, it is clear he could not have entered the defendant's house to arrest the defendant on Detective Knapp's case. Further, Detective Orenstein did not coerce or trick the defendant to exit the house to allow him to effectuate the arrest. There was nothing prohibiting the officers from standing on the defendant's front porch outside the house and informing the defendant that Detective Knapp was in the process of obtaining an arrest warrant and inquiring of the defendant if he would willingly surrender. Such a request would not have been unrealistic, especially since an arrest warrant may be executed anywhere and at any time; Detective Orenstein was aware the defendant was periodically at that location; and the defendant would not have wanted the warrant executed at a location where he was operating a marijuana grow house, thus subjecting himself to additional charges.
Although Detective Orenstein approached the house with the intent of arresting the defendant on Detective Knapp's case, there is no evidence in the record how Detective Orenstein intended to fulfill his objective. Unfortunately for the defendant, when he opened his front door to speak with Detective Orenstein, the officers smelled the marijuana, which led to probable cause to believe the defendant was also growing marijuana at that location. Based on the exigent circumstances already discussed, the defendant was taken into custody, a protective sweep was conducted, and a search warrant obtained. The officers would not have had the lawful authority to enter absent a warrant if: (1) the defendant did not open the door (which he was legally free to refuse to do); or (2) he had opened the door to speak with the officers, but the officers did not smell the marijuana and the defendant had not given contradictory answers about who was in the house. But as the saying goes, "If wishes were fishes, we'd all cast nets in the sea." http://www.wtv-zone.com/phyrst/audio/nfld/09/wishesfishes.htm. Inevitable discovery
As already demonstrated, the officers' warrantless entry and protective sweep of the residence, which were based on probable cause and exigent circumstances, were lawful. However, even if they were not, the inevitable discovery rule would protect the evidence from suppression.
In Nix v. Williams, 467 U.S. 431, 444 (1984), the Supreme Court adopted the inevitable discovery rule, which allows evidence obtained as the result of unconstitutional police procedure to be admitted if the evidence would ultimately have been discovered by legitimate means. See also Moody v. State, 842 So. 2d 754, 759 (Fla. 2003). Further, in Jeffries v. State, 797 So. 2d 573, 578 (Fla. 2001), the Florida Supreme Court noted that "[i]n order to apply this doctrine, there does not have to be an absolute certainty of discovery, but rather, just a reasonable probability." Jeffries, 797 So. 2d at 578 (citing United States v. Brookins, 614 F.2d 1037 (5th Cir. 1980)).
The majority's sole argument regarding the inevitable discovery doctrine, as applied to the facts of this case, is that there could be "no assurance that the arrest warrant, once obtained, would have been served at his home - e.g., that Ojeda would not have left his home before Knapp obtained the warrant and either notified Detective Orenstein or served it himself." The majority, however, misses the point. The issue is not whether Detective Knapp's arrest warrant would have inevitably been executed at the house and whether the evidence inevitably would have been discovered during the execution of that warrant. The reliance on the inevitably discovery doctrine in this dissent relates to the actions of the officers after they knocked on the door, the defendant opened the door, and they smelled the marijuana. As the United States Supreme Court held in Segura v. United States, 468 U.S. 796 (1984), where law enforcement has probable cause to believe that evidence of criminal activity is on the premises, they may secure the premises while a search warrant is being obtained. Id. at 798. Because the evidence would not have been destroyed after the residence and its occupants were secured, the evidence would inevitably have been discovered, as it was, upon execution of a valid search warrant. The following are numerous decisions from the various District Courts of Appeal which have applied the inevitable discovery doctrine, as well as further discussion regarding the facts and holding in Segura.
In Mercier v. State, 579 So. 2d 308 (Fla. 2d DCA 1991), law enforcement officers, who had the defendant's apartment under surveillance, sent a buyer to the apartment to purchase cocaine. After the purchase, armed with probable cause but without a warrant, the officers entered the apartment, seized the defendant and the premises, and occupied the defendant's home for fifteen hours while they obtained a warrant. Whether law enforcement had probable cause was not in doubt. The issue, however, was whether the circumstances constituted exigent circumstances. The Second District ultimately concluded that whether the warrantless entry was justified based on probable cause and exigent circumstances was "not relevant to the admissibility of the challenged evidence . . . [because] [h]aving been seized under a warrant with a basis independent of the entry, the evidence was admissible." Id. at 309. In reaching this conclusion, the Second District specifically relied on Segura, 468 U.S. at 813-14, which held that evidence seized pursuant to a valid search warrant, which is based on information known to police before the illegal entry and which is wholly unrelated to entry, is not tainted. Mercier, 579 So. 2d at 309.
Numerous decisions have likewise found evidence obtained after unconstitutional police actions admissible under the inevitable discovery doctrine. See Cummings v. State, 956 So. 2d 559, 560 (Fla. 5th DCA 2007) (holding that the evidence was admissible under the inevitable discovery doctrine, as that doctrine "requires the state to establish by a preponderance of the evidence that the police ultimately would have discovered the evidence independently of the improper police conduct by 'means of normal investigative measures that inevitably would have been set in motion as a matter of routine police procedure'") (quoting Craig v. State, 510 So. 2d 857, 863 (Fla. 1987)); Carter v. State, 868 So. 2d 1276, 1278 (Fla. 4th DCA 2004) (declining to address whether the stop was lawful where there existed a reasonable probability that the evidence would have inevitably been discovered through lawful means); Connor v. State, 701 So. 2d 441, 443 (Fla. 4th DCA 1997) (finding that the trial court properly applied the inevitable discovery doctrine and "the state carried its burden of establishing by a preponderance of the evidence that the contents of the safe would have inevitably been discovered in the course of a legitimate investigation"); State v. Ruiz, 502 So. 2d 87, 87 (Fla. 4th DCA 1987) (reversing the trial court's order suppressing the evidence, concluding that the evidence should have been admitted under the inevitable discovery doctrine).
In the instant case, the evidence was seized pursuant to a valid search warrant, not during or as a result of the protective sweep conducted by the officers. Since probable cause existed prior to any unconstitutional conduct, it is clear that the evidence seized during the execution of the search warrant inevitably would have been discovered had the officers secured the residence and waited for the issuance of the warrant prior to conducting the protective sweep of the residence. While the warrantless entry was lawful in order to secure the premises, the legality of the initial entry has no bearing on whether the evidence first discovered during the protective sweep of the residence and which was later seized pursuant to a valid search warrant was lawful. See Segura, 468 U.S. at 798-99.
In Segura, the agents knocked at the apartment door, Ms. Colon answered, and they entered Segura's apartment without requesting or receiving permission. Id. at 800. The agents then conducted a limited security check of the apartment to ensure that no one else was there who might pose a threat to their safety or destroy evidence. Id. During their sweep of the premises, they observed, in a bedroom in plain view, various accouterments of drug trafficking. Id. at 801. None of the items was disturbed by the agents. Id. Ms. Colon was arrested and two agents remained in the apartment while a search warrant was obtained. Id. Upon execution of the search warrant, various items found during the search, as well as those items observed during the security check, were seized. Id. The trial court and the court of appeals determined that the initial warrantless entry and security sweep were not justified by exigent circumstance and were therefore unlawful. Id. at 803. The government did not challenge that finding. Id. Thus, the sole issue addressed by the Supreme Court was whether the evidence seized pursuant to the search warrant should be excluded as "fruit" of the illegal police conduct. Id.
First, the Court noted that where law enforcement officers have probable cause to believe that evidence of criminal activity is on the premises, it does not violate the Fourth Amendment to secure the premises to preserve the status quo while a search warrant is sought, and noted that "unless there is some kind of power to prevent removal of material from the premises, or destruction of material during this time, the search warrant will almost inevitably be fruitless." Id. at 809 n.7 (internal citation omitted). Additionally, the Court found no distinction between securing the premises from within or from outside of the residence, as in either case, it interferes to the same extent with the possessory interests of the owners. Id. at 798. Thus the Court held:
[W]here officers, having probable cause . . . arrest the occupants who have legitimate possessory interests in its contents and take them into custody and, for no more than the period here involved, secure the premises from within to preserve the status quo while others, in good faith, are in the process of obtaining a warrant, they do not violate the Fourth Amendment's proscription against unreasonable seizures.Id.
Additionally, the Court found that, assuming there was an illegal entry, suppression of the evidence was only required if the initial entry tainted the discovery of the evidence challenged. Id. at 799. In answering this question, the Court held that "the evidence discovered during the subsequent search of the apartment the following day pursuant to the valid search warrant issued wholly on information known to the officers before the entry into the apartment need not have been suppressed as 'fruit' of the illegal entry. . . ." Id. at 799.
The facts in the instant case lead to the same conclusion. Regardless of whether the initial entry and protective sweep were lawful, the evidence seized pursuant to a valid search warrant would inevitably have been found absent any unlawful police conduct. Because Detective Orenstein had probable cause to believe the residence contained evidence of illegal drug activity prior to any entry, he could have obtained, and did obtain, a search warrant. While waiting for the issuance of the warrant, he had the legal right to secure the premises. Because the evidence seized in executing the search warrant was based on probable cause developed prior to entry of the residence and absent any illegal police conduct, it was lawfully seized. The suppression of the evidence was therefore error, and the trial court's order should be reversed. Accordingly, I respectful dissent from the majority's opinion affirming the trial court's order suppressing the evidence in lower case number 07-10526(A).