Gonzalez v. State

• Citation: 578 So.2d 729
• Decision Date: 02 April 1991
• Docket Number: No. 90-582,90-582
• Parties: Lazaro Ruben GONZALEZ, Appellant, v. The STATE of Florida, Appellee. 578 So.2d 729, 16 Fla. L. Week. D1313, 16 Fla. L. Week. 892
• Court: Court of Appeal of Florida (US)

Page 729

578 So.2d 729

Lazaro Ruben GONZALEZ, Appellant, v. The STATE of Florida, Appellee.

No. 90-582.

578 So.2d 729, 16 Fla. L. Week. D1313, 16 Fla. L. Week. 892

District Court of Appeal of Florida,

Third District.

April 2, 1991.

On Rehearing May 14, 1991.

William P. Cagney, III, and Scott A. Srebnick, Miami, for appellant.

Robert A. Butterworth, Atty. Gen., and Mark S. Dunn, Asst. Atty. Gen., for appellee.

Before HUBBART and BASKIN and GODERICH, JJ.

HUBBART, Judge.

This is an appeal by the defendant from a final judgment of conviction and sentence for trafficking in cocaine which was entered below based on a nolo contendere plea. The defendant, in entering this plea, reserved for appeal the dispositive question of whether the trial court erred in denying his pretrial motion to suppress (a) the subject cocaine, and (b) certain currency, based on Fourth Amendment grounds; this question,

in turn, depends on whether the defendant's wife voluntarily consented to a police search of the defendant's home where the cocaine and currency were seized. For reasons which follow, we conclude that the subject consent was involuntarily obtained and reverse.

I

Two narcotics detectives from the Metro-Dade Police Department were conducting an evening surveillance at an abandoned shopping center in southwest Dade County. They observed a man make several telephone calls from both a pay telephone booth and a car phone located in the car the man was driving. Their suspicions aroused, the police followed the suspect to the nearby residence of the defendant Lazaro Gonzalez. There they observed the defendant drive up in an automobile and converse briefly with the man under surveillance; both men then entered the defendant's house. Shortly thereafter, the detectives saw the suspect leave the defendant's residence carrying a small green suitcase and drive off in his car.

The detectives followed the suspect to a nearby bakery-restaurant where they summoned additional police assistance; they then questioned the suspect and searched his car and suitcase with his consent. No contraband drugs were found in this search, although a firearm was secured and seized. Still suspicious, the officers returned to the defendant's residence where they observed the defendant drive off in an automobile. At that point, the officers decided to obtain consent to search the house from whomever was there.

At approximately 9:00 P.M., three of the officers, clad in narcotics raid jackets, approached the front door of the house, while two other officers similarly dressed entered the yard and stationed themselves on both sides of the house for alleged security purposes. ¹ The officers were armed, but no one drew a weapon and none of the weapons were visible. ² The defendant's wife, Ivette Gonzalez, answered the door and had a brief conversation in Spanish with one of the Spanish-speaking officers at the door. This officer identified himself as a Metro-Dade police narcotics detective, stated that the police were conducting a narcotics investigation, and indicated that he "would like to speak with her"; Mrs. Gonzalez then opened the door and invited the police in the house. ³

Upon entering the house, several of the officers spread around the house and conducted a brief room-to-room search for alleged security purposes to make certain that no one else was on the premises; ⁴ only the defendant's two small children were discovered in this search. It was then determined that Mrs. Gonzalez could also speak English; an English-speaking officer then explained to Mrs. Gonzalez that the police had just approached a suspicious man who had come from her house, that the man was lying as to certain events that had occurred, ⁵ and that "it's possible if Pursuant to the aforesaid consent to search, the police conducted a thorough search of the defendant's house. In the course thereof, they removed the carpet from the master bedroom walk-in closet and discovered a safe located under the floor. They also removed the drop ceiling which covered the walk-in closet, obtained a ladder, and, with a flashlight, went up into the attic crawl space and removed a box containing twenty-two packages of cocaine. Mrs. Gonzalez subsequently signed a second consent form which purported to consent to the search of the floor safe. ⁸ Mrs. Gonzalez, however, did not know the combination to the safe. The combination was later obtained from the defendant who was arrested based on the seizure of the cocaine from the attic and brought back to the house; the defendant also signed a written consent form which purported to consent to the search of the floor safe. ⁹ The police opened the safe and seized $104,591 in currency.

                she would let us do a search of the residence to make sure that nothing was going on at the residence";  Mrs. Gonzalez responded that, "there would be no problem to let us search the house." 6  Subsequently, Mrs. Gonzalez signed a consent form which purported to formalize her prior verbal consent to search the house; 7 during this time, one of the officers explained to her that the police wanted to "look through the house."  (R.284)
                

The defendant was subsequently charged by information with trafficking in cocaine, to which he entered a plea of not guilty. The defendant filed a motion to suppress the evidence seized by the police from his house without a search warrant based on Fourth Amendment grounds. The trial court conducted an extensive evidentiary hearing in which the above-stated evidence was adduced. At the end of the hearing, the trial court concluded that Mrs. Gonzalez had voluntarily consented to the search in this case, and, accordingly, denied the motion to suppress. The defendant then changed his plea to nolo contendere and reserved for appeal the question of the denial of his motion to suppress. The trial court accepted the plea, adjudicated the defendant guilty, and sentenced him to fifteen years in the state penitentiary, a fine of $250,000, and a surcharge on the fine of $12,500. This appeal follows.

II

It is, of course, well settled that a search of private property conducted by the police without a duly issued search warrant, as here, is per se "unreasonable" under the Fourth Amendment, subject only to a few specifically established and narrowly drawn exceptions. ¹⁰ One of these exceptions

                is a search conducted pursuant to consent 11--which includes consent given by a third party who possesses common authority over the premises to be searched. 12  However, when the state seeks to rely upon consent to justify the lawfulness of a search, as here, it has the burden of establishing by "clear and convincing evidence" that the consent to search was freely and voluntarily given. 13  We conclude that the state failed to sustain that burden in the instant case
                

A

At the outset, we entertain serious doubt as to whether Mrs. Gonzalez voluntarily allowed the police to enter her house. She was confronted at 9 o'clock at night with five police officers clad in police raid jackets, three of whom were on her front doorstep and two who were trespassing on both sides of her house in the yard for supposed security purposes--a truly frightening display of authority. One of the officers identified himself, said the police were conducting a narcotics investigation, and indicated he "would like to speak with her." (R.348). Under these circumstances, we think a reasonable person might well have interpreted this statement as an order, not a request, to let the police enter her house so they could speak to her; if this be the case, her subsequent "invitation" to enter the house was an acquiescence to authority, not a voluntary consent. See, e.g., Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 368, 92 L.Ed. 436, 440 (1948); Talavera v. State, 186 So.2d 811 (Fla. 2d DCA 1966).

We need not resolve this question, however, because immediately upon entering the threshold, the police officers spread around the house as if they were on a drug raid and conducted a brief, but totally nonconsensual, room-to-room search of the premises to see if anyone else was there. At best, Mrs. Gonzalez had voluntarily "invited" the police in her home solely for the purpose of speaking to the police about a narcotics investigation; she had not consented to a search of her home. This so-called "protective sweep" of the premises was therefore an unreasonable warrantless search of her house under the Fourth Amendment. Beyond that, this search cannot be upheld as a reasonable "protective sweep" of the premises incident to effecting an arrest with a warrant under Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), because the police had no warrant for the arrest of anyone, were not on the premises to make an arrest, and had no probable cause to effect an arrest of any kind.

This being so, the aforesaid illegal search of the house tainted and rendered involuntary the subsequent verbal and written consent given by Mrs. Gonzalez to search the premises, including the floor safe. The police had already demonstrated to Mrs. Gonzalez, when they initially "swept" through her house, that they had an absolute right to search the premises and that her "consent" to any further search was a mere formality which she could not refuse. Taylor v. State, 355 So.2d 180, 184 (Fla. 3d DCA), cert. denied, 361 So.2d 835 (Fla.1978). Moreover, the defendant was subsequently arrested based on the illegal nonconsensual seizure

                of the cocaine from the attic--and, consequently, his subsequent consent to the search of the safe was tainted and rendered involuntary.  Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).  Indeed, the law is well settled that where, as here, a "consent [to search] is obtained after illegal police activity such as an illegal search or arrest, the unlawful police action presumptively taints and renders involuntary any consent to search."  Norman v.

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