Friedson v. State

• Decision Date: 16 December 2016
• Docket Number: Case No. 5D15–3063
• Citation: 207 So.3d 961
• Parties: Matthew FRIEDSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

207 So.3d 961

Matthew FRIEDSON, Appellant,

v.STATE of Florida, Appellee.

Case No. 5D15–3063

District Court of Appeal of Florida, Fifth District.

Opinion filed December 16, 2016

James S. Purdy, Public Defender, and Jacqueline Rae Luker, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Cheesman, Assistant Attorney General, Daytona Beach, for Appellee.

WALLIS, J.

Matthew Friedson ("Appellant") appeals the trial court's denial of his motion to suppress evidence obtained from his apartment pursuant to a search warrant. After the trial court denied Appellant's motion to suppress, he entered a nolo contendere plea to possession of marijuana with intent to sell¹ and possession of drug paraphernalia.² Appellant expressly reserved the right to appeal the denial of his motion to suppress, and the State stipulated that the order was dispositive. See Fla. R. App. P. 9.140(b)(2)(A)(i). Finding that the trial court erred by denying Appellant's dispositive motion to suppress, we reverse and remand with instructions to vacate Appellant's judgment and sentences.

The evidence at the hearing on Appellant's motion to suppress established that on the evening of September 1, 2014, Detectives Glenn English and Sean Tice with the St. Johns County Sherriff's Office went to Appellant's apartment to investigate an alleged battery. Before arriving at Appellant's residence, the detectives reviewed intel reports, which provided that Appellant was suspected of selling marijuana out of his apartment. The intel reports further provided that Appellant is deaf. Appellant's apartment complex consists of several one-story apartment buildings with outside entry. Each apartment has a defined concrete path leading from the sidewalk to the front door. Located approximately two feet to the right of Appellant's front door is a large window that sits above an air-conditioning unit. Small concrete steps under the window form a short walkway into a private front yard surrounded by a fence on three sides.

Upon arriving at Appellant's apartment, the detectives found the front door closed and blinds on the adjacent window drawn, but not fully shut. The detectives knocked on Appellant's door, hoping "he would hear vibrations of the door." When Appellant did not answer, the detectives moved off his front porch to the area directly in front of the window. The detectives then shined their flashlights through and banged on the window, at which point they saw Appellant sitting inside with his back facing them. The detectives continued to shine their flashlights at different angles in an attempt to get Appellant's attention.

When Appellant still did not respond, the detectives retrieved his cell-phone number from the intel reports and sent him a text message, stating that the Sheriff's Office wished to speak with him. Appellant did not answer the text message. While the detectives stood outside Appellant's window, his air-conditioning unit came on, allegedly blowing air from inside the apartment to the outside. Detective Tice then noticed the smell of marijuana emanating from the unit. The detectives left the residence and proceeded to locate the apartment manager for assistance in contacting Appellant. At the detectives' direction, the apartment manager unlocked and opened Appellant's door, and the detectives tried to get his attention by shining their flashlights inside. When Appellant did not respond, the apartment manager picked up a slipper near the front door and threw it towards Appellant. Appellant then noticed the parties at the front door and, according to Detective English, began "motioning his hand, like, you know, waving his hand like to come in."

After interviewing Appellant regarding the alleged battery by writing questions on a notepad, the detectives informed Appellant that they could smell marijuana inside his apartment. The detectives requested Appellant's permission to search the apartment, but he refused. Detective Tice then exited the apartment and attempted to obtain a search warrant while Detective English remained inside. After obtaining a search warrant, the detectives and additional officers searched Appellant's apartment, finding approximately twenty grams of marijuana packaged for sale and drug paraphernalia.

Appellant's evidence at the motion to suppress hearing included testimony from an expert in heating and air-conditioning, who testified that the air-conditioner at Appellant's apartment would not blow air from inside the apartment to outside the apartment. The apartment manager also testified that Appellant's air-conditioner does not operate in the way described by the detectives. However, the expert did not physically inspect Appellant's air-conditioner, and instead based his testimony on his general knowledge and review of the manuals for the air-conditioner model at Appellant's apartment.

The trial court ultimately denied Appellant's motion to suppress. As grounds for the denial, the trial court focused on the finding that Detective Tice smelled the odor of marijuana emanating from Appellant's apartment after the air-conditioning unit turned on, rejecting the expert's testimony that the air-conditioner does not operate in this fashion. The trial court further determined that Detective Tice was lawfully permitted to occupy the area in front of Appellant's window where he smelled marijuana. The trial court noted that, even if the detectives' entry into Appellant's home was unlawful, "inclusion of information gathered within the home in the affidavit for the search warrant would not invalidate the search warrant." In light of this ruling, Appellant entered a negotiated nolo contendere plea, reserving his right to appeal the dispositive motion to suppress. The trial court withheld adjudication and sentenced Appellant to thirty-six months' drug offender probation for possession of marijuana and twelve months' probation for possession of paraphernalia, to run concurrently.

In considering a motion to suppress, we review the trial court's legal conclusions de novo, but we defer to its factual findings provided that they are supported by competent, substantial evidence. Ferryman v. State, 919 So.2d 710, 712 (Fla. 5th DCA 2006). Evidence obtained from an unlawful search cannot serve as the basis for issuance of a search warrant. State v. Hood, 68 So.3d 392, 395 (Fla. 2d DCA 2011). However, "[t]he inclusion of illegally obtained evidence in the supporting affidavit, where the affidavit contains other valid allegations sufficient to establish probable cause, does not invalidate a search warrant." State v. Hunwick, 434 So.2d 1000, 1001 (Fla. 4th DCA 1983) (citing Neary v. State, 384 So.2d 881 (Fla. 1980) ).

The plain view doctrine applies when: "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 viewing police officer; and 3) the police officer has a lawful right of access to the contraband." Murphy v. State, 898 So.2d 1031, 1033 (Fla. 5th DCA 2005) (citing Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) ; Rimmer v. State, 825 So.2d 304, 313 (Fla. 2002) ). "Just as evidence in the plain view of officers may be searched without a warrant, evidence in the plain smell may be detected without a warrant." Nelson v. State, 867 So.2d 534, 537 (Fla. 5th DCA 2004) (citations omitted). "[T]he analysis to be employed in determining whether the warrantless seizure of the property is justified depends primarily on where the observation occurred." Jones v. State, 648 So.2d 669, 676 (Fla. 1994). Thus, the plain smell doctrine applies only when law enforcement officers detect the odor while occupying a place where they have a legitimate right to be. See Ferrer v. State, 113 So.3d 860, 863 (Fla. 2d DCA 2012).

The United States Supreme Court has explained that "the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers for all kinds of salable articles." Breard v. City of Alexandria, 341 U.S. 622, 626, 71 S.Ct. 920, 95 L.Ed. 1233 (1951) (footnote omitted), abrogated on other grounds by Vill. of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). This license permits law enforcement, as well as private citizens, "to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer)leave." Florida v. Jardines, ––– U.S. ––––, 133 S.Ct. 1409, 1415, 185 L.Ed.2d 495 (2013).

The key to the legitimacy of the knock-and-talk technique ... is the absence of coercive police conduct, including any express or implied assertion of authority to enter or authority to search. In properly initiating a knock-and-talk encounter, the police should not "deploy overbearing tactics that essentially force the individual out of the home." Nor should "overbearing tactics" be employed in gaining entry to a dwelling or in obtaining consent to search.

Luna–Martinez v. State, 984 So.2d 592, 599 (Fla. 2d DCA 2008) (quoting United States v. Thomas, 430 F.3d 274, 277 (6th Cir. 2005) ).

The First District Court addressed the scope of a knock-and-talk in Powell v. State, 120 So.3d 577 (Fla. 1st DCA 2013). In Powell, law enforcement received an anonymous tip that the defendant grew marijuana in his mobile home. Id. at 580. Officers arrived at the defendant's home, but he did not answer the door. Id. The officers then...