Hernandez v. State

Decision Date05 October 2012
Docket NumberNo. 5D11–581.,5D11–581.
Citation98 So.3d 702
PartiesJimmy HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

OPINION TEXT STARTS HERE

James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

EVANDER, J.

After the denial of his motion to suppress, Hernandez entered a no contest plea to the charge of trafficking in twenty-eight grams or more of cocaine. He reserved the right to appeal the denial of his motion, which the trial court properly found to be dispositive. Hernandez was adjudicated guilty and sentenced to the minimum mandatory sentence of three years in prison. 1 On appeal, Hernandez correctly argues that the warrantless search of his locked bedroom during a purported “protective sweep” of his apartmentviolated the Fourth Amendment prohibition against unreasonable searches and seizures.

The evidence presented at the motion to suppress hearing reflected that on the day in question, Deputy Connelly responded to a 9–1–1 call involving Hernandez' girlfriend, Elizabeth Romero. The deputy met Ms. Romero at Hernandez' apartment complex and placed her in a patrol car. Ms. Romero appeared bruised and beaten, had a cut above her swollen right eye, and was visibly shaken. She advised Deputy Connelly that she had been beaten and held against her will for the past day by Hernandez until she had been able to escape from his apartment. She further advised Deputy Connelly that she had been living with Hernandez during the prior two weeks and that her personal belongings were in his apartment. According to Ms. Romero, Hernandez had “lots of guns” and had told her that he “was not going to jail.”

Shortly thereafter, Ms. Romero and Deputy Connelly saw Hernandez in the parking area of the apartment complex. When Hernandez spied the deputy, he quickly walked into the corridor that led to his apartment. The deputy lost sight of Hernandez and did not see him go into his apartment. After the arrival of back-up, a police sergeant called Hernandez on his cell phone. Hernandez denied that he was in his apartment and responded “with a bunch of foul language and discontent” after the sergeant encouraged him to meet with the deputies and “resolve the situation.” Hernandez further reiterated to the sergeant that he “was not going to jail.” Reasonably believing that Hernandez was in his apartment, the deputies cordoned off the area around the apartment and waited approximately one hour for the arrival of Deputy Bradshaw and his canine partner. It was the officers' intent to arrest Hernandez for battery and false imprisonment.2 No effort was made to obtain an arrest warrant for Hernandez during this time period.

After Deputy Bradshaw and his canine arrived, and with the consent of Ms. Romero, the deputies entered the apartment to search for Hernandez. The evidence reflects that the sole purpose for entry into the apartment was to effectuate Hernandez' arrest. In giving her consent to enter the apartment, Ms. Romero indicated to the deputies that there was one locked room in the apartment that she was not permitted to enter. Upon entry into the apartment, the door to that room was, indeed, locked. As part of the “protective sweep,” Deputy Bradshaw forced the locked door open, whereupon he saw a tarp in the corner of the room. He raised the tarp to ensure that no individuals were hiding underneath and observed what he believed to be marijuana plants. The deputies completed their sweep of the apartment and found several firearms, but did not locate Hernandez. Based on the cannabis discovered in the locked room, a search warrant was obtained to search the apartment. During the search initiated pursuant to the warrant, cocaine and drug paraphernalia were found in Hernandez' kitchen cabinets.

Courts have consistently held that a warrantless search of a home is presumed illegal. Davis v. State, 834 So.2d 322, 326 (Fla. 5th DCA 2003). This presumption may be overcome if the State demonstrates that exigent circumstances existed that allowed the police to invade the sanctity of the home without a warrant or that valid consent was given for the search. Id. Here, there is no contention by the State that exigent circumstances justified entry into Hernandez' residence.

Valid consent may be obtained from one other than an owner or a named lessee of the premises. When the State seeks to justify a warrantless search by proof of voluntary consent, it may show that permission to search was obtained from a third person who possessed, or reasonably appeared to possess, common authority over or other sufficient relationship to the premises. See Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Mutual use of the property by persons with joint access is commonly recognized as a sufficient relationship to the premises to validly consent to a search. See Ferryman v. State, 919 So.2d 710 (Fla. 5th DCA 2006); State v. Purifoy, 740 So.2d 29 (Fla. 1st DCA 1999).

In the instant case, Ms. Romero, the alleged victim, advised Deputy Connelly that she had been living in the residence the prior two weeks, that her personal belongings were in the apartment, and that she was in a relationship with Hernandez. Based on these statements and the circumstances under which Deputy Connelly came into contact with Ms. Romero, we conclude that she had the apparent authority to consent to the officers' entry into Hernandez' apartment. See, e.g., Ferguson v. State, 58 So.3d 360 (Fla. 4th DCA 2011) (holding that defendant's girlfriend, a co-occupant, had authority to consent to entry of officers onto premises where girlfriend's clothes were inside apartment and she was living at apartment for past two months notwithstanding that she had not changed her address on either her license or other mailings and was not in actual possession of key when police found her in traumatized state just outside apartment); see also Kohn v. State, 69 So.3d 388 (Fla. 1st DCA 2011); United States v. McGee, 564 F.3d 136 (2d Cir.2009).

Although Ms. Romero had apparent authority to consent to entry into Hernandez' apartment, the State acknowledges that she did not have the apparent authority to consent to a search of the locked room. See, e.g., King v. State, 79 So.3d 236 (Fla. 1st DCA 2012) (holding that defendant's wife did not have actual authority to consent to search of defendant's safe where she did not mutually use the safe, the safe was given to defendant by his mother, wife did not have key to safe, the safe had defendant's personal belongings, and wife did not have any of her personal belongings inside safe).

The State argues, however, that based on the totality of the circumstances, law enforcement officers were permitted to enter the locked bedroom as part of a “protective sweep” to ensure officer safety.3 In Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), the United States Supreme Court defined a “protective sweep” as “a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others.” This limited type of search must be narrowly confined to a cursory visual inspection of those places in which a person might be hiding. Furthermore, a protective sweep may be undertaken only when the searching officer possessed a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from the facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others. Id.

The Florida Supreme Court recently addressed the issue of whether the Fourth Amendment permits a protective sweep where, as in the instant case, the sweep is not incident to a lawful arrest. In Delhall v. State, 95 So.3d 134 (Fla.2012), the defendant filed a motion to suppress his statements to police on the grounds that they were obtained in violation of his Fourth Amendment rights subsequent to a warrantless search of his apartment and what he contended was an illegal arrest made during the search.

The evidence presented at the motion to suppress hearing established that police officers, who were investigating a homicide, went to the defendant's apartment. A car matching the description of a vehicle seen leaving the scene of the fatal shooting was parked outside the apartment. The defendant's cousin, an occupant of the apartment, permitted the officers to enter the residence. The cousin told the officers that the defendant lived there, but was not presently home. The cousin further advised the officers that aside from the small children playing in the living room, no one else was in the apartment. The cousin agreed to talk to the officers, but refused their request to search the premises. One of the officers then became alarmed after hearing noises emanating from an adjacent bedroom. After the cousin again denied that anyone else was present, the officer heard more sounds coming from the bedroom. The officer drew his gun, went into the bedroom, and found the defendant hiding in a closet. The defendant subsequently agreed to go to the police station where he made incriminating statements that were the subject of his motion to suppress.

The defendant argued that the warrantless search of his bedroom was not an authorized protective sweep incident to a lawful arrest. The supreme court rejected this argument and found that the officer's entry into the defendant's bedroom was permissible.

Under these circumstances, when Detective Bayas heard the noise, he had a well-founded, objectively reasonable, articulable fear that a person carrying a gun might be in the other room, thus posing an immediate risk to officers and occupants...

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2 cases
  • Walker v. State
    • United States
    • Florida District Court of Appeals
    • April 6, 2018
    ...of apparent authority if the officer reasonably believed that the third party had the authority to consent. Hernandez v. State, 98 So.3d 702, 705 (Fla. 5th DCA 2012) ("When the State seeks to justify a warrantless search by proof of voluntary consent, it may show that permission to search w......
  • Home at Last Agency, Inc. v. J.L.C.-W
    • United States
    • Florida District Court of Appeals
    • October 5, 2012

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