Diaz v. State Of Fla., 4D09-543.

Citation34 So.3d 797
Decision Date19 May 2010
Docket NumberNo. 4D09-543.,4D09-543.
PartiesLuis J. DIAZ, Appellant,v.STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Carey Haughwout, Public Defender, and Timothy D. Kenison, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant

Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

The defendant entered a plea of no contest to trafficking in heroin and possession of drug paraphernalia, reserving the right to appeal the denial of his motion to suppress evidence. He argues that the police officers' warrantless entry into his home after the arrest of an individual outside his home was unlawful. We agree. Because the trial court erred in denying the defendant's motion to suppress, we reverse.

At the motion to suppress hearing, Detective Vincent Campos of the Broward Sheriff's Office testified that in July 2008 he was engaged in an on-going narcotics investigation of the defendant, based on complaints that the defendant was selling narcotics. While conducting undercover surveillance, Campos observed a white female, later identified as Alexis Russell, leave the defendant's residence and make contact with an unknown white male, later identified as Steadham. The officer saw Russell reach into Steadham's pocket and deposit something, which he believed to be narcotics. After Russell and Steadham parted ways, Campos made contact with Steadham. Steadham admitted that Russell delivered narcotics to him and agreed to fully cooperate with the police. He told the officer that he had contacted the defendant to buy the narcotics and explained that they had a code for drug transactions. Once Steadham learned that he would not be released for a felony charge, however, he refused to cooperate any further.

After Steadham was placed in custody, Campos informed his supervisors about the hand-to-hand drug transaction he witnessed. He told them that Steadham said there were probably more drugs inside the defendant's home and that the defendant was there with his girlfriend. Campos also told the sergeant about his prior interaction with the defendant in January 2008, when the defendant was arrested for possession of heroin after dropping narcotics to the ground when approached by police at his residence.

Members of Detective Campos's selective enforcement team continued surveillance on the defendant's home from unmarked police vehicles. Campos stayed in contact with them by radio. At that time, he did not believe he had probable cause to apply for a search warrant.

Detective Gregory Eglund arrived on the scene to assist the take-down team with the arrest of Alexis Russell, who was believed to be inside the defendant's home. Eglund was informed about her delivery of heroin and the officers' plan to wait for her to come out. Russell eventually came out and was arrested outside the defendant's home, about five feet from the front door. The front door remained open. Eglund said he could tell that there were other people inside because from the front door he could see some movement in the back bedroom. Five officers entered the home with guns drawn and performed a protective sweep. Eglund explained that the protective sweep was “for our well being, making sure nobody was armed,” and that they “went inside and detained the other people that were inside the house.”

Eglund went to the back bedroom, where he found the defendant and the defendant's girlfriend, Stephanie Scott, sitting on the bed. Containers of what appeared to be heroin were lying next to them. The defendant and Scott were detained and brought outside the house. Eglund did not see the defendant or Scott try to destroy any evidence. They did not resist; they were handcuffed and brought outside, where they remained calm and cooperative.

Sergeant Edward Grant testified that both the defendant and Scott were detained and that they were not free to leave. They were read their Miranda rights, given BSO consent forms, and advised of their right to refuse consent. After determining that both the defendant and Scott lived in the house, the officers obtained their signed consents to search the home. The defendant's handcuffs were removed to allow him to sign the consent from. This occurred within ten to fifteen minutes after the protective sweep. The police did not threaten or coerce the defendant and Scott into signing the consent forms. Neither the defendant nor Scott yelled or resisted; the defendant appeared to sign under his own free will. When Scott signed the consent form, however, she gave a false name.

Scott testified that she did not know the police were in the house until they came into the bedroom. She admitted giving a false name on the consent form, because she “didn't want to have any responsibility to sign anything, you know, because I didn't want any part of it.” She testified the officers told her if she did not sign the consent to search form, she would face the same charges as the defendant. She said that she signed it because she was a little scared.

After consent was given, the officers re-entered the home to conduct a search. Heroin was found in the bedroom on the bed, on the floor, at the foot of the bed, and around the room. Eglund stated that the heroin that they recovered was only what they had seen during the protective sweep, in addition to heroin out in the open on the floor.

Campos, who described the entry into the defendant's home as a protective sweep, explained that there are safety concerns with narcotics investigations, and that [t]ypically, with narcotics investigations, there's an unknown. You don't know if there's going to be weapons inside, if there's going to be booby traps inside. You are walking into, you know, some type of ambush, maybe, you know, and we have to take precautions for ourselves and for the public.... [I]t's dangerous business. Typically, there's guns and drugs.” On cross-examination, however, Campos acknowledged that, although he knew there were occupants inside the residence, he did not know whether or not they were armed. He recalled that the defendant did not resist arrest or pose any threat during his arrest in January 2008. Further, he did not remember any weapons being recovered from the defendant's home at that time. Campos acknowledged that in January 2008 the officers performed a protective sweep of the defendant's home after his arrest outside the home and afterwards obtained his consent to search in the same way as they did in July 2008.

At the end of the suppression hearing, the defendant argued that the officers had no right to enter his home to conduct a protective sweep since Russell's arrest occurred outside the home and the officers had no reasonable belief, based on specific and articulable facts, that the home harbored individuals that posed a danger to them. As such, he argued, any consents given after the illegal entry were invalid.

The court denied the motion. It reasoned that because the officers could see from the front door that there were other individuals inside the home, they were authorized to conduct a protective sweep for their safety and to protect them “from the possibility of any type of harm coming to them.” The court further found that the consent given by the defendant's girlfriend was valid and that the defendant did not have standing to attack her consent.

The defendant ultimately pled no contest to the charges and reserved the right to appeal the trial court's ruling on the motion to suppress. He was sentenced concurrently to three years for trafficking in heroin, and 364 days for possession of drug paraphernalia.

The state first argues that the defendant's motion to suppress was not properly preserved for appeal because, although the defendant indicated at his plea hearing that he intended to appeal the denial of the motion to suppress, the court did not rule, nor did the parties stipulate, that the ruling was dispositive.

Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i) permits a defendant to appeal from a guilty or nolo contendere plea when the defendant “expressly reserve[s] the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved.” “An issue is dispositive only when it is clear that regardless of the outcome of the appeal, there will be no trial.” Fuller v. State, 748 So.2d 292, 294 (Fla. 4th DCA 1999) (citing Vaughn v. State, 711 So.2d 64, 65 (Fla. 1st DCA) rev. denied, 722 So.2d 195 (Fla.1998)). It is the trial court's duty “to determine the dispositive nature of the reserved question.” Everett v. State, 535 So.2d 667, 669 (Fla. 2d DCA 1988). The court errs if it “merely acknowledges that the defendant has reserved an issue for appellate review.” Id.

However, “where a motion tests the suppression of contraband which the defendant is charged with possessing, the motion is usually considered dispositive in the case.” J.J.V. v. State, 17 So.3d 881, 883 (Fla. 4th DCA 2009) (citing Brown v. State, 376 So.2d 382, 385 (Fla.1979); Howard v. State, 515 So.2d 346 (Fla. 1st DCA 1987)). “Thus, the lack of an express finding that the issue is dispositive is not fatal.” Id. (citing Hawk v. State, 848 So.2d 475, 478 (Fla. 5th DCA 2003)).

Here, the defendant was charged with trafficking in heroin. The information alleged that the defendant “did then and there unlawfully and knowingly have in his actual or constructive possession a controlled substance” contrary to sections 893.135(1)(c)1a and 893.03(1)(b)(11), Florida Statutes. Because the defendant was charged with trafficking through possession, the possession cases that hold that the lack of a dispositiveness finding is not fatal apply in this case. We thus find that the issue was properly preserved.

On the merits, the state argues that the trial court correctly denied the motion to suppress because the officers clearly articulated facts,...

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