State v. Jardines

• Decision Date: 22 October 2008
• Docket Number: No. 3D07-1615.,3D07-1615.
• Citation: 9 So.3d 1
• Parties: The STATE of Florida, Appellant, v. Joelis JARDINES, Appellee.
• Court: Florida District Court of Appeals

9 So.3d 1

The STATE of Florida, Appellant, v. Joelis JARDINES, Appellee.

No. 3D07-1615.

District Court of Appeal of Florida, Third District.

October 22, 2008.

Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellant.

Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Jorge Rodriguez and Mariam Deghani, Certified Legal Interns, for appellee.

Before COPE, WELLS, and SALTER, JJ.

WELLS, Judge.

The State of Florida appeals from an order suppressing evidence seized pursuant to a search warrant executed on the home of Joelis Jardines. We reverse because the trial court erred in ruling that the magistrate lacked probable cause to issue the warrant and because the evidence suppressed was admissible under the "inevitable discovery" doctrine.

On December 5, 2006, William Pedraja, an officer with the Miami-Dade Police Department, obtained a search warrant from Miami-Dade County Court Judge George Sarduy. The warrant was supported by a probable cause affidavit which identified the premises to be searched, detailed Officer Pedraja's extensive experience in detecting hydroponic marijuana laboratories and the methods and equipment used in such laboratories, and stated:

"Your Affiant's" reasons for the belief that "The Premises" is being used as [a marijuana hydroponics grow lab] and that "The Property [consisting of marijuana and the equipment to grow it]" listed above is being concealed and stored at "The Premises" is as follows:

On November 3, 2006, "Your Affiant" detective William Pedraja, # 1268, received information from a crime stoppers tip that marijuana was being grown at the described residence.

On December 5, 2006, "Your Affiant" conducted surveillance at the residence and observed no vehicles in the driveway. "Your Affiant" also observed windows with the blinds closed. "Your Affiant" and Detective Doug Bartelt with K-9 drug detection dog "FRANKY" approached "The Premises" in an attempt to obtain a consent to search. While at front door [sic], "Your Affiant" detected the smell of live marijuana plants emanating from the front door of "The Premises." The scent of live marijuana is a unique and distinctive odor unlike any other odor. Additionally, K-9 drug detection dog "FRANKY" did alert to the odor of one of the controlled substances he is trained to detect. "Your Affiant," in an attempt to obtain a written consent to search, knocked on the front door of "The Premises" without response. "Your Affiant" also heard an air conditioning unit on the west side of the residence continuously running without recycling. The combination of these factors is indicative of marijuana cultivation.

Based upon the positive alert by narcotics detector dog "FRANKY" to the odor of one or more of the controlled substances that she is trained to detect and "FRANKY" [sic] substantial training, certification and past reliability in the field in detecting those controlled substances, it is reasonable to believe that one or more of those controlled substances are present within the area alerted to by "FRANKY." Narcotics Canine handler, Detective Bartelt, Badge number 4444, has been a police officer with the Miami-Dade Police Department for nine years. He has been assigned to the Narcotics Bureau for six years and has been a canine handler since May 2004. In the period of time he has been with the Department, he has participated in over six hundred controlled substances searches. He has attended the following training and received certification as a canine handler....

Since becoming a team, Detective Bartelt and narcotics detector canine "FRANKY" have received weekly maintenance training.... Narcotics detector canine "FRANKY" is trained to detect the odor of narcotics emanating from the following controlled substances to wit: marijuana.... To date, narcotics detector canine "FRANKY" has worked approximately 656 narcotics detection tasks in the field. He has positively alerted to the odor of narcotics approximately 399 times. "FRANKY'S" positive alerts have resulted in the detection and seizure of approximately 13,008 grams of cocaine, 2,638 grams of heroin, 180 grams of methamphetamine, 936,614 grams of marijuana, both processed ready for sale and/or live growing marijuana.

WHEREFORE, Affiant prays that a Search Warrant be issued ... to search "The Premises" above-described....

(Emphasis added).

A search conducted pursuant to the warrant resulted in seizure of live marijuana plants and the equipment used to grow them, and resulted in Jardines being charged with trafficking in cannabis and theft for stealing the electricity needed to grow it.

Jardines, relying primarily on State v. Rabb, 920 So.2d 1175 (Fla. 4th DCA 2006), moved to suppress¹ arguing that no probable cause existed to support the warrant because: (1) the dog "sniff" constituted an illegal search; (2) Officer Pedraja's "sniff" was impermissibly tainted by the dog's prior "sniff"; and (3) the remainder of the facts detailed in the affidavit were legally insufficient to give rise to probable cause.

We reverse the trial court's determination that "the use of a drug detector dog at the Defendant's house door constituted an unreasonable and illegal search" and that the evidence seized at Jardines' home must be suppressed. We do so because, first, a canine sniff is not a Fourth Amendment search; second, the officer and the dog were lawfully present at the defendant's front door; and third, the evidence seized would inevitably have been discovered.

A Canine Sniff Is Not A Fourth Amendment Search

In Illinois v. Caballes, 543 U.S. 405, 408, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), the United States Supreme Court expressly rejected the notion that a "dog sniff itself infringed [a] ... constitutionally protected interest in privacy." In doing so, the Court confirmed that because a dog sniff detects only contraband, and because no one has a "legitimate" privacy interest in contraband, a dog sniff is not a search under the Fourth Amendment.

Official conduct that does not "compromise any legitimate interest in privacy" is not a search subject to the Fourth Amendment. [United States v. Jacobsen, 466 U.S. 109, 123, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)]. We have held that any interest in possessing contraband cannot be deemed "legitimate," and thus, governmental conduct that only reveals the possession of contraband "compromises no legitimate privacy interest." Ibid. This is because the expectation "that certain facts will not come to the attention of the authorities" is not the same as an interest in "privacy that society is prepared to consider reasonable." Id., at 122, 104 S.Ct. 1652 (punctuation omitted). In United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), we treated a canine sniff by a well-trained narcotics-detection dog as "sui generis" because it "discloses only the presence or absence of narcotics, a contraband item." Id., at 707, 103 S.Ct. 2637; see also Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). Respondent likewise concedes that "drug sniffs are designed, and if properly conducted are generally likely, to reveal only the presence of contraband."

Caballes, 543 U.S. at 408-9, 125 S.Ct. 834 (some citations omitted).

Based on this reasoning, we reject the notion that Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), relied on in Rabb, makes a dog's detection of contraband while standing on a front porch open to the public, a search which compromises a legitimate privacy interest. Kyllo involved the use of a mechanical device which detected heat radiating from the walls of a home. There, the Court was concerned with the use of constantly improving technological devices that, from outside a home, could intrude into the home and detect legitimate as well as illegal activity going on inside. Kyllo, 533 U.S. at 40, 121 S.Ct. 2038 ("Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a `search' and presumptively unreasonable without a warrant.").

A dog's nose is not, however, a "device," nor is it improved by technology. Dogs have been used to detect scents for centuries all without modification or "improvement" to their noses. That, perhaps, is why the Supreme Court describes them as "sui generis," in Place. Place, 462 U.S. at 707, 103 S.Ct. 2637. Moreover, and unlike the thermal imaging device at issue in Kyllo, a dog is trained to detect only illegal activity or contraband. It does not indiscriminately detect legal activity.

These differences prompted the Court in Caballes to note that its conclusion that the dog sniff involved there was lawful was consistent with its earlier decision in Kyllo:

This conclusion is entirely consistent with our recent decision that the use of a thermal-imaging device to detect growth of marijuana in a home constituted an unlawful search Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2083 [2038], 150 L.Ed.2d 94 (2001). Critical to that decision was the fact that the device was capable of detecting lawful activity-in that case, intimate details in a home, such as "at what hour each night the lady of the house takes her daily sauna and bath." Id., at 38, 121 S.Ct. 2038. The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent's hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.

Caballes, 543 U.S. at 409-10, 125 S.Ct. 834.

As recently observed in People v. Jones, 279 Mich.App. 86, 755...