Jenkins v. State

• Decision Date: 06 March 2008
• Docket Number: No. SC06-839.,SC06-839.
• Citation: 978 So.2d 116
• Court: Florida Supreme Court
• Parties: Donald Eldrenal JENKINS, Petitioner, v. STATE of Florida, Respondent.

978 So.2d 116

Donald Eldrenal JENKINS, Petitioner, v. STATE of Florida, Respondent.

No. SC06-839.

Supreme Court of Florida.

March 6, 2008.

James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, FL, Robert J. Krauss, Bureau Chief, and Katherine Coombs Cline, Assistant Attorneys General, Tampa, FL, for Respondent.

LEWIS, C.J.

This case is before the Court to review the decision of the Second District Court of Appeal in Jenkins v. State, 924 So.2d 20 (Fla. 2d DCA 2006). The district court certified that its decision is in direct conflict with the decision of the Fourth District Court of Appeal in D.F. v. State, 682 So.2d 149 (Fla. 4th DCA 1996). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

FACTS AND PROCEDURAL HISTORY

On January 15, 2003, Kellie Daniel, a narcotics officer for the Tampa Police Department, was working with a confidential informant (CI). The CI offered to call an individual identified only as "D" to order a quantity of cocaine. The CI informed Officer Daniel that he had previously ordered drugs from D and possessed a phone number for D; however, the CI provided Daniel with only a very imprecise description of D as a tall, black male. The CI presented Officer Daniel a phone number for D written on a piece of paper and then proceeded to use Daniel's cell phone to call that number. Officer Daniel heard only one side of the conversation¹ in which the CI placed an order for cocaine and then asked that D make the delivery at a gas station located at an intersection in an area of Tampa that is well known for drug activity. The CI advised Officer Daniel that D would be at the gas station in fifteen minutes, and he would be driving a "brown boxy 4-door Chevy."

Officer Daniel transported the CI to the designated gas station with the understanding that the CI would remove his hat when he identified D arriving at the designated location. Officer Daniel parked her vehicle across the street from the location, keeping the CI in view at all times. When Jenkins drove into the gas station, the CI ran across the street toward the police vehicle yelling, "That's him, that's him." Officer Daniel testified that Jenkins was driving a "[b]ox Chevy-ish car. It's like a brown boxy Chevy, a car like that."² Through a radio transmission, Officer Daniel notified the other officers at the scene that she observed an individual matching D's description, and that the CI had advised her that the individual in the boxy brown car was D. At that time, all officers approached the brown vehicle.

Officer Todd Rego ordered Jenkins out of the vehicle at gunpoint and placed him in handcuffs. As these events were unfolding, the CI was taken across the street, where he confirmed to officers that Jenkins was definitely the individual known to him as D. Officer Kevin Bonollo then searched the brown vehicle and found a cell phone, but no contraband. Bonollo then conducted a pat down of Jenkins which produced currency, but, again, no drugs were disclosed. According to Bonollo, Sergeant Graham then "gave me permission to look inside his [Jenkins'] clothing, pull his pants back, do what I need to do." Jenkins was wearing baggy blue jeans with a low-hanging waist, and this allowed Bonollo to see that Jenkins was wearing boxer type shorts as an undergarment. Bonollo proceeded to pull the top of the boxer-shorts away from Jenkins' waist area and he then observed that "inside his [Jenkins'] butt crack sticking up was a sandwich bag ... and it was twisted. The dope, the crack cocaine was at the bottom."³ Officer Bonollo removed the sandwich bag, and Jenkins was arrested and charged with possession of cocaine and possession of cocaine with intent to sell.

Jenkins filed a motion to suppress all evidence discovered as a result of this stop and search, asserting that (1) the police lacked reasonable suspicion to detain him; (2) there was no basis to conduct a pat down for weapons, and the search which revealed the bag between his buttocks was unreasonable; (3) the police lacked probable cause to search the vehicle; and (4) the search violated section 901.211 of the Florida Statutes (2002), which governs strip searches.

During the hearing on the motion to suppress, Jenkins provided a description of the search that revealed the crack cocaine which differed from that presented by Officer Bonollo. According to Jenkins, Officer Bonollo "ordered me to pull down my pants and bend over, and that's when they went into my buttocks." Jenkins testified that the officers "grabbed me from each side, pulled me over and bent me down," and that his buttocks were completely naked during the search.

With regard to the CI, Officer Daniel testified that she had used the CI in prior "search warrant buys," and on three or four prior occasions she had utilized him in similar "page-outs"; i.e., circumstances in which the CI ordered a quantity of cocaine for delivery to a specified location. Officer Daniel reported that each of these "page-outs" had resulted in an arrest. Officer Daniel testified that on one other occasion an arrest did not occur because the individual who was allegedly delivering the drugs "got spooked[,] tossed [the CI] out of the car," and drove away.

The trial court denied the motion to suppress, concluding that under the facts presented, the officers had probable cause to search both Jenkins and the vehicle. The trial court concluded that exigent circumstances existed to justify a warrantless search by virtue of the mobility of his vehicle and "the small quantity and the small amount of time that the police had in order to take custody of him." The trial court also stated that "what is typically called a strip search" did not occur in this case.⁴ Jenkins subsequently pled guilty to possession of cocaine with intent to sell or deliver and specifically reserved his right to appeal the denial of the motion to suppress.

The Second District Court of Appeal affirmed. See Jenkins v. State, 924 So.2d 20 (Fla. 2d DCA 2006). The Second District first held that under the totality of the circumstances the officers had probable cause to arrest Jenkins, concluding that "the reliance of the police on the information provided by the informant was supported both by the informant's prior performance as a reliable source and by the corroboration of the informant's predictions concerning the behavior of the defendant." Id. at 24-25. The Second District further concluded that even though the search preceded the arrest of Jenkins, the search was valid as a search incident to arrest because probable cause existed to arrest Jenkins at the time of the search. See id. at 25 (citing Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980)).

The Second District next held that the scope and manner of the search were reasonable under the Fourth Amendment. See id. at 26. According to the Second District, although the search of Jenkins may have invaded his privacy, it was "less invasive than a strip search in which some or all of the subject's clothing is removed. ... In determining the reasonableness of the search, it is of course important that no private part of Jenkins' body was exposed to public view." Id.⁵ The Second District further noted that the officers engaged in a more intrusive search only after initial efforts to locate narcotics on Jenkins or in his vehicle were unsuccessful. See id. The officers had probable cause to believe that Jenkins arrived at the gas station to sell narcotics, and the Second District concluded that the officers "were justified in conducting the further search of Jenkins' person to prevent the disposal of the cocaine." Id.

The Second District then addressed whether the search violated section 901.211 of the Florida Statutes and concluded that pulling the waist area of the boxer shorts by Officer Bonello qualified as a "strip search" under the statute. See id. at 28. The Second District concluded that the search of Jenkins violated the provision of section 901.211 requiring that "[e]ach strip search ... be performed ... on premises where the search cannot be observed by persons not physically conducting or observing the search," and also the provision that requires written authorization from the supervising officer on duty before conducting a strip search. Id. at 29 & n. 2 (quoting § 901.211(3), Fla. Stat.).

With regard to application of the exclusionary rule to the evidence discovered during the search in violation of the statute, the Second District first noted that the exclusionary rule is a remedy for constitutional violations. Therefore, whether to apply the rule when a state statute is violated "is a matter of statutory interpretation"—"[t]he question is ... whether a particular statutory scheme authorizes—either expressly or by implication—the exclusion of evidence for a statutory violation." Id. at 30. The Second District held that the exclusionary rule does not apply to violations of section 901.211 because "the legislature explicitly addressed the issue of remedies in section 901.211(6) but failed to make any mention of the exclusion of evidence as a remedy." Id. at 32.

The Second District recognized that the exclusionary rule had previously been applied upon the violation of certain statutes that were silent concerning this remedy. The Second District referred to State v. Johnson, 814 So.2d 390 (Fla.2002), in which this Court held the exclusionary rule to be generally applicable to violations of a statute governing disclosure of confidential medical records, but not when there has been a good faith effort to comply with the statute. See Jenkins, 924 So.2d at 31-32. In concluding that this Court's decision in Johnson did not control under the facts presented here, the Second District reasoned that Johnson did not establish a broadly applicable exclusionary...