Aguilar v. State, Case No. 2D17-4086

• Citation: 259 So.3d 262
• Decision Date: 14 November 2018
• Docket Number: Case No. 2D17-4086
• Parties: Jorge AGUILAR, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

259 So.3d 262

Jorge AGUILAR, Appellant,
v.
STATE of Florida, Appellee.

Case No. 2D17-4086

District Court of Appeal of Florida, Second District.

Opinion filed November 14, 2018

Howard L. Dimmig, II, Public Defender, and Rachel Roebuck, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.

ATKINSON, Judge.

Jorge Aguilar appeals the final judgment of conviction and sentence adjudicating him guilty for possessing a firearm as a felon based upon his nolo contendere plea. He reserved the right to appeal the denial of his dispositive motion to suppress the firearm that the police obtained after searching his home. Because the State failed to establish that it discovered the weapon within the scope of the consent

259 So.3d 266

Mr. Aguilar voluntarily gave to search his home, we reverse.

On June 10, 2015, seven uniformed officers from the Manatee County Sheriff's Office arrived near Mr. Aguilar's duplex just after two o'clock in the morning in response to a 9-1-1 call that shots had been fired. The deputies were attempting to locate the source of the gunshots. There were at least six police cars parked in front of Mr. Aguilar's small duplex. Lieutenant Andrews spoke with a group of people standing in the street who indicated that the shots had come from the duplex. There had been another shooting at the same address a few weeks earlier, during which someone was shot and injured.

At the hearing on Mr. Aguilar's motion to suppress, seven law enforcement officers testified—Deputy Murges, Deputy Bichsel, Officer Schmitt, Lieutenant Andrews, Deputy Schwartz, Detective Johnson, and Detective Lidell. Deputies Murges, Bichsel, and Schwartz, along with Officer Schmitt and Lieutenant Andrews, were among the seven initial responders. Three detectives arrived approximately twenty minutes later, between 2:28 and 2:35 a.m. according to a crime scene log created by Deputy Murges.¹

Lieutenant Andrews testified that when he first arrived on scene he saw Mr. Aguilar walking nervously around outside of the duplex. He decided to order an initial security sweep:

Based on the prior incident at the house a week or two before, the fact that odor of gunpowder present in the immediate area, when [Mr. Aguilar] opened the door, there was the haze of burnt gunpowder smoke, I can see a shell casing lying on the floor from being out in the driveway, which did lead me to believe that there was obviously an exchange of gunfire and there was a potential that someone could have been hit and still inside.

At least four of the initial responders participated in the sweep—Deputies Murges, Bichsel, and Schwartz, along with Lieutenant Andrews, who supervised the deputies. Meanwhile, Officer Schmitt questioned Mr. Aguilar outside.

According to Deputy Murges, the sweep occurred within a few minutes after they arrived on scene. Once inside the residence, four deputies testified that they observed shell casings in the living room and smelled gunpowder. Deputy Bichsel went into a bedroom and observed rifle rounds scattered across the floor. Deputy Murges testified that he saw shell casings and bullet holes in the wall in the master bedroom, which he described as "the first bedroom on the left" and distinguished from "the other bedroom, which is just after that." He found Mr. Aguilar's girlfriend and children lying on the side of the bed "in the second bedroom that [he] checked." He testified that, after the deputies escorted the Mr. Aguilar's girlfriend and children out of the house, "we knew we had an actual shooting investigation to conduct." According to Deputy Murges, at this point, everyone was cleared out of the house and the area was sealed, and the house remained empty until the detectives arrived.

However, Lieutenant Andrews testified that he permitted Mr. Aguilar and his girlfriend to go back into the duplex to retrieve some items for their baby; he accompanied the couple into the duplex along with two or three other deputies.

259 So.3d 267

Afterwards, Lieutenant Andrews ordered the deputies not to go back into the house until the detectives arrived.

Detective Johnson testified that upon his arrival he briefly spoke with Lieutenant Andrews in the driveway, entered the residence without "break[ing] stride," and directed everyone to leave in order to secure the scene and begin his investigation—testimony suggesting that law enforcement officers or others might still have been inside the home upon his arrival. The crime scene log indicated that Detective Johnson arrived on scene at 2:28 a.m., but he testified that he thought that it was earlier. Detective Johnson testified that he entered the residence "to get everybody out and secure the crime scene, and then to begin our investigation," adding that "[t]here has to be some sort of a fact-finding, look at everything to see what kind of crime that occurred, what's the evidence, at least initially, however very brief, what do we have on scene." He also testified that this entry was not part of the protective sweep.

Detective Liddell testified that he arrived on scene (at 2:35 a.m., according to the crime scene log) and was briefed by Detective Johnson. Detective Liddell then asked Mr. Aguilar to walk him through the house and show him what had happened, and Mr. Aguilar obliged. Mr. Aguilar did not challenge the trial court's finding that Detective Liddell's reentry into the home was consensual.

Mr. Aguilar explained that he was sleeping in the back room on the floor with his girlfriend and children because he had "been targeted previously several times as a shooting victim." Mr. Aguilar's girlfriend told Detective Liddell that she heard someone in the house. Mr. Aguilar got out of bed to check, and he "saw a black male climbing into the window or standing on the couch." The "person was shooting at him, so he went back into the room."

According to Detective Johnson's probable cause affidavit, he found "a loaded AK-47 style automatic assault rifle," which was "located just underneath the edge of the mattress in the master bedroom, where the defendant sleeps." Neither the State nor the defense adduced any testimony from Detective Johnson about the circumstances surrounding this discovery.

Lieutenant Andrews ordered Deputy Schwartz to obtain consent to search the home from Mr. Aguilar. Deputy Schwartz approached Mr. Aguilar, who was seated in a chair located in the carport about four to five feet from the front door. Deputy Schwartz testified that he read the consent form to Mr. Aguilar "word-for-word," told him he did not have to consent, and watched him sign the form at 2:47 a.m. The form contained the following: "I fully understand my constitutional rights in regard to the search and it is my intention to fully and completely waive such rights by this consent. l give this consent freely and voluntarily, without compulsion or threat of any kind."

By this time, there were ten officers at the scene; however, Deputy Schwartz testified that no one else was nearby when he obtained Mr. Aguilar's signature on the consent form. When asked whether there were any officers inside the duplex when he first approached Mr. Aguilar, Deputy Schwartz replied, "I don't recall knowing anybody was inside the house."

Mr. Aguilar testified that when Deputy Schwartz asked him to sign the consent form "in order to start an investigation," he initially refused because they had already taken "pictures of the crime scene, front bedroom, the window, the vase, the couch with the footprint on it, and [he] didn't see" any "reason why [he needed to sign] if they had already done their job."

259 So.3d 268

Then he explained that Deputy Schwartz approached him again and told him that if Mr. Aguilar wanted them to start a burglary investigation, they needed him to sign the form. Mr. Aguilar testified that he told the deputy that it was just for "the front bedroom and the living room" and attempted to write that on the consent form but was rushed by the deputy. The words "just for" are written on the form. Deputy Schwartz testified that it was not his own writing. He did not recall telling Mr. Aguilar that it was necessary for him to sign the form in order for the scene to be processed; he testified that Mr. Aguilar did not express any concerns about signing the form and did not place any limitations on the scope of the search.

Detective Johnson's initial entry into the house did not produce the weapon in question. However, the legality of his entry, which occurred after the sweep but before consent was obtained, bears upon the State's burden to establish that the consent was voluntarily given.

When ruling on the defendant's motion to suppress the firearm, the trial court stated the following:

And then it's my understanding from what appears to be the more convincing force and effect that ... the house was sealed [after the retrieval of the supplies for the children]. Assuming for the moment that the Defense version that then Detective Johnson entered the house and that this rose to the level of an unlawful search is a little difficult for me to conclude. If he did go in, he was the detective, [and] ... by his remarks,

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