Fidalgo v. State, 94-615
| Decision Date | 02 November 1994 |
| Docket Number | No. 94-615,94-615 |
| Citation | 659 So.2d 290 |
| Parties | 19 Fla. L. Weekly D2310 Almando FIDALGO, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, Robert Kalter, Asst. Public Defender, and Donald Tunnage, Sp. Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Paul M. Gayle-Smith, Asst. Atty. Gen., for appellee.
Before BARKDULL, HUBBART and BASKIN, JJ.
The central question presented for review is: when (1) an undercover police officer is properly admitted to the defendant's house under a ruse without a warrant and without announcing his authority and purpose; (2) the defendant thereafter commits a felony in the officer's presence by offering, in effect, to sell a kilogram of cocaine to the officer in the house; (3) the officer informs the defendant that he is going to a car outside the house to obtain the money to buy the cocaine with the implied understanding that he will return to consummate the sale; (4) the undercover officer walks out of the house, gives a signal to backup police officers to arrest the defendant, and leaves the area in a car; and (5) backup police officers immediately reenter the defendant's house, arrest the defendant and seize a quantity of cocaine in the house--is the subject reentry, the defendant's arrest, and subsequent seizure of drugs unlawful under the Fourth Amendment and Florida's knock-and-announce statute because it was effected without a warrant and without announcing the backup officer's authority and purpose prior to reentering the defendant's house? We hold that the backup officers were not required, as urged, to obtain a warrant and to announce their authority and purpose prior to reentering the defendant's house to effect the subject arrest because this reentry was impliedly consensual; accordingly we conclude that the trial court did not err in denying the defendant's motion to suppress the subject cocaine.
On October 21, 1992, Detective Rivera of the narcotics bureau of the Dade County Public Safety Department went with a confidential informant to the house of the defendant Almando Fidalgo, pursuant to prearranged negotiations, to purchase a quantity of cocaine. The confidential informant had previously negotiated a price of $16,000 from the defendant for the purchase of the cocaine and had stated that the undercover police officer would be the purchaser. Pursuant to this ruse, the defendant let the undercover officer and the confidential informant into the defendant's house, took them to a back office, and showed them a kilogram of cocaine which was for sale. Rather than effect an arrest of the defendant at that time, the undercover officer and the confidential informant excused themselves, stating they were going to their car outside to retrieve some money and then would return to buy the cocaine; the defendant said "okay." This was also a ruse, however, as the prearranged plan was for certain nearby, backup police officers--who were monitoring the conversations in the defendant's home through a hidden electronic "body bug" worn by the undercover officer--to reenter the defendant's house and arrest the defendant.
The undercover police officer and the confidential informant left the defendant's house and went to the confidential informant's car which was parked in the driveway of the defendant's house. The officer then raised the trunk of the car, which was a prearranged signal to the backup officers in the area; the undercover officer also talked to the backup officers, either through the officer's "body bug" or a cellular telephone, informing the officers what had happened inside the house and where the kilogram of cocaine was located in the house.
The backup officers then immediately pulled up in a car in front of the defendant's house; as they did so, the undercover officer and the confidential informant left the area in their car. The backup officers immediately entered the defendant's house; the defendant had left the door slightly open, anticipating the return of the undercover officer and the confidential informant or their associates to consummate the sale. The backup officers did not have an arrest warrant for the defendant and did not announce their authority and purpose prior to entering the defendant's house. The defendant was arrested in the house and the cocaine previously shown to the undercover officer, plus some additional cocaine, was seized therein.
The defendant was subsequently charged by information with trafficking in cocaine [Sec. 893.135(1)(b), Fla.Stat. (1991) ], and a related misdemeanor charge. The defendant filed a motion to suppress the cocaine seized from his house on the ground that the reentry into the house by the backup police officers was unlawful because it was accomplished without a warrant and without a prior announcement of their authority and purpose. The trial court took testimony on the motion, the above-stated facts were established, and the motion to suppress was denied. The defendant then entered a plea of nolo contendere to the offenses charged in the information and, upon the state's stipulation that the motion was dispositive of its case, reserved for appeal the denial of his motion to suppress. The trial court accepted the plea and sentenced the defendant to fifteen years imprisonment on the trafficking in cocaine count and to time served on the misdemeanor count. The defendant appeals.
The law is well settled that a nonconsensual police entry into the home of a suspect, in order to arrest the suspect therein for a felony, is unreasonable under the Fourth Amendment if it is accomplished without an arrest warrant and in the absence of exigent circumstances. See, e.g., Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The law is equally well settled that a nonconsensual police entry into private premises to effect an arrest therein is unlawful if, subject to certain exceptions, the police fail to announce their authority and purpose prior to entering the premises. See, e.g., Sec. 901.19(1), Fla.Stat. (1991); State v Kelly, 287 So.2d 13 (Fla.1973); Benefield v. State, 160 So.2d 706 (Fla.1964).
On the other hand, if the police entry into a defendant's home is consensual in nature, the above rules do not apply as such rules are only applicable to a nonconsensual police entry. This result is not changed by the fact that the defendant's consent to the police entry is secured through fraud, deception or misplaced confidence; such an entry is still not considered a "search" in the Fourth Amendment sense, and, consequently, does not require the presence of a warrant or exigent circumstances and need not be preceded by an announcement of official authority and purpose. See, e.g., Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966); Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).
In this connection, Florida courts have consistently upheld the lawfulness of a police entry into a defendant's dwelling or private premises to effect an arrest of the defendant therein, although accomplished without a warrant or exigent circumstances and without a preceding announcement of official authority and purpose, if the entry is effected immediately after (1) a police undercover officer or agent has made an initial consensual entry into the defendant's home under a ruse of purchasing illegal drugs from the defendant, (2) the defendant has shown illegal drugs to the undercover officer or agent on the premises for the purpose of sale, and (3) the undercover officer or...
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