Cote v. State

• Decision Date: 17 June 2009
• Docket Number: No. 4D08-515.,4D08-515.
• Citation: 14 So.3d 1137
• Parties: John Robert COTE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

14 So.3d 1137 John Robert COTE, Appellant,
v.
STATE of Florida, Appellee. No. 4D08-515. District Court of Appeal of Florida, Fourth District. June 17, 2009. Rehearing Denied August 11, 2009.

[14 So.3d 1138]

Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

POLEN, J.

Appellant John Robert Cote was charged by information with one count of possession of cocaine and one count of possession of drug paraphernalia. He filed a motion to suppress evidence, and a hearing was held on that motion. According to the sole witness, Detective Joshua Mijal of the City of Fort Lauderdale Police Department, an anonymous complaint came in regarding narcotics activity at

14 So.3d 1139

2895 NE 22nd St. Apt. 303 in Fort Lauderdale. The caller informed that there was constant heavy traffic at the apartment and that drug sales were taking place.

Detectives Mijal and Maldonado responded to that address and noticed that the door to the apartment was open. Cote was in the kitchen, two to five feet in front of them, wiping down the counter with a paper towel. Detective Mijal also saw a digital scale on the kitchen counter with a white powdery substance and a straw on it. Based on his training, the detective recognized the powdery substance as "suspect powder cocaine" and immediately entered the apartment and handcuffed Cote.

Detective Mijal testified that he entered the apartment without first seeking a warrant because he did not want Cote to wipe off the substance from the digital scale and destroy the potential evidence. The two detectives then searched Cote and found two bags of cocaine in his pants pocket. Cote also admitted that earlier that day he snorted some of the cocaine.

At the conclusion of Detective Mijal's testimony, Cote argued that the evidence should be suppressed because Detective Mijal failed to corroborate the anonymous tip and to obtain a warrant to search the apartment. The State responded that exigent circumstances existed in this case to excuse the lack of a warrant because Detective Mijal entered the apartment to prevent Cote from potentially destroying the evidence.

The trial court denied the motion to suppress. Thereupon, Cote pled no contest as part of a plea agreement with the State. Adjudication was withheld, and Cote was placed on two concurrent terms of twelve months probation. Cote also reserved his right to appeal the denial of his motion to suppress.

We begin our analysis with the notion that the highest level of Fourth Amendment protection lies at the entrance of one's home (or apartment). In State v. Titus, 707 So.2d 706 (Fla.1998), Senior Justice Grimes noted

The Fourth Amendment establishes "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." U.S. Const. amend. IV (emphasis added). Indeed, "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed," United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134-35, 32 L.Ed.2d 752 (1972), and "[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682-83, 5 L.Ed.2d 734 (1961).

A ruling on a motion to suppress comes to the appellate court as presumptively correct as to disputed facts and all reasonable inferences and deductions drawn from them. Pagan v. State, 830 So.2d 792 (Fla.2002). Conversely, the trial court's application of the law to the facts is reviewed under the de novo standard. Phuagnong v. State, 714 So.2d 527 (Fla. 1st DCA 1998). The dispositive issue in this case is whether exigent circumstances existed to establish an exception to the search warrant requirement. This is a mixed question of law and facts and should be reviewed under the de novo standard. Fitzpatrick v. State, 900 So.2d 495, 510 (Fla.2005) ("[A]ppellate courts should ... accord a presumption of correctness to ... the trial court's determination of historical facts, but appellate courts must independently review mixed questions of law and

14 So.3d 1140

fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment[s].") (quoting Nelson v. State, 850 So.2d 514, 521 (Fla.2003)) (quoting Connor v. State, 803 So.2d 598, 608 (Fla.2001)).

An item may be seized from a constitutionally protected place without a warrant, if (1) the police view the contraband from a place they have a legitimate right to be, (2) the incriminating character of the contraband is immediately apparent to the officer, and (3) the officer had a lawful right of access to the contraband. Murphy v. State, 898 So.2d 1031 (Fla. 5th DCA 2005). If one of these requirements is not met, then the State must establish an exception to the warrant requirement such as consent or exigent circumstances. Id. at 1033.

Cote relies on Gnann v. State, 662 So.2d 406 (Fla. 2d DCA 1995), and State v. Garcia, 866 So.2d 124 (Fla. 4th DCA 2004), to argue that no such exigency existed here and that the police should have obtained a warrant before arresting him and seizing the contraband. The State, on the other hand, relies on Gilbert v. State, 789 So.2d 426 (Fla. 4th DCA 2001) to argue that the facts of this case amounted to exigent circumstances and that Cote's Fourth Amendment rights have not been violated. The pertinent facts and the rationale in Gnann, Gilbert, and Garcia are as follows.

In Gnann,

Tampa police officers stopped an individual, Lisa, for a traffic offense. Lisa told the officers that she had information regarding the presence of cocaine at a local motel. Lisa called the motel room and arranged to purchase cocaine there. It is undisputed that at this point the officers had probable cause to obtain a warrant to arrest Gnann or obtain a warrant to search her motel room. However, the officers made a decision to not obtain a warrant and instead proceeded to the motel.

At the motel, Lisa knocked on the room door and entered. The officers were in the corridor outside the room, and through a gap in the curtains, observed Gnann cutting cocaine. Rather than obtain an arrest or search warrant based on this additional information, the officers knocked, the door was opened, the officers entered the room and arrested Gnann.

662 So.2d at 407-408.

In Gilbert,

[t]wo Fort Lauderdale police officers were dispatched to a Ramada Inn because they were given...