Joshua v. State

• Decision Date: 30 November 2016
• Docket Number: No. 4D15–1917.,4D15–1917.
• Citation: 205 So.3d 851
• Parties: Robert JOSHUA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

205 So.3d 851

Robert JOSHUA, Appellant,

v.STATE of Florida, Appellee.

No. 4D15–1917.

District Court of Appeal of Florida, Fourth District.

Nov. 30, 2016.

Law Offices of Entin and Della Fera and Alvin E. Entin ; John R. Howes, Fort Lauderdale, for appellant.

Pamela Jo Bondi, Attorney General, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.

EMAS, K., Associate Judge.¹

INTRODUCTION

Robert Joshua ("Joshua") appeals his convictions and sentences for trafficking in methamphetamine (Count I) and trafficking in methylenedioxymethamphetamine (Count II). The State of Florida cross-appeals the trial court's jury instruction on the defense of entrapment. For the reasons that follow, we reverse the conviction and sentence on Count I, and remand for a new trial on that count, with further directions that the trial court conduct a proper in camera hearing on Joshua's motion to compel disclosure of the identity of the confidential informant. We affirm the conviction and sentence on Count II, and affirm the State's cross-appeal.

BACKGROUND

On November 22, 2009, Detective Thomas Reed of the Fort Lauderdale Police Department received a phone call from attorney Michael Leader. In that conversation, attorney Leader told Detective Reed that he had information from a client (who was incarcerated in the Broward County Jail), that a package containing methamphetamine ("crystal meth") was going to be delivered via Federal Express ("FedEx") to a person named Robert Joshua, at a specific street address in Fort Lauderdale ("Fort Lauderdale home"). Detective Reed asked attorney Leader to obtain additional details. Leader then obtained those additional details and called Detective Reed back, this time providing the FedEx tracking number for the package. However, at no time did attorney Leader provide Detective Reed with the name of the client from whom attorney Leader received this information.

Acting on this tip, K–9 Deputy Julie Foster and her certified drug detection canine (K–9 Kim) were dispatched to the FedEx facility in Fort Lauderdale to locate the package with the identified tracking number. Once the package was located, Deputy Foster placed it next to three other randomly-selected packages, and the drug detection dog alerted to the package with the identified tracking number, signifying the presence of narcotics. The package was seized and a search warrant was obtained. Pursuant to the warrant, the police opened the package, which contained 28.4 grams² of crystal meth.

Detective Reed then prepared an affidavit and application for an anticipatory search warrant³ for the Fort Lauderdale home. The affidavit indicated Detective Reed would attempt to deliver the package at the Fort Lauderdale home and, if the package was accepted by someone within the premises, he would execute the search warrant to retrieve the crystal meth, conduct a narcotics investigation and effectuate an arrest if appropriate. In this affidavit, Detective Reed indicated that the information concerning the package had been obtained from "a documented confidential informant with the Ft. Lauderdale Police Department" who "has provided information in past investigations and has proven to be trustworthy and reliable."

The anticipatory search warrant was issued on November 24, 2009, and on that same day an undercover police officer, dressed as a FedEx delivery person, knocked on the door at the Fort Lauderdale home with the re-sealed package containing crystal meth. Joshua opened the door and took the package. Detective Reed and other officers then waited approximately fifteen to twenty minutes before knocking on the door again. Joshua opened the door and told Detective Reed "it's in the safe I knew you were coming." Joshua then opened the safe located in his master bedroom closet, where the 28.4 grams of crystal meth were found. The FedEx packaging, in which the crystal meth had been delivered, was found in a trash can in the bedroom. Police also seized $78,376 found in the safe.

During the execution of the warrant, police observed, in plain view on top of the bedroom dresser, fifty-two methylenedioxymethamphetamine ("MDMA" or "ecstasy") pills, which were seized along with the crystal meth. According to Detective Reed, Joshua admitted to selling ecstasy, but denied that he ordered the crystal meth or that he was expecting its delivery. Joshua was arrested and charged with trafficking in crystal meth (Count I) and trafficking in ecstasy (Count II). Joshua pleaded not guilty to both charges.

The Motion to Compel Disclosure of the Identity of the Confidential Informant

Prior to trial, Joshua filed a motion to compel disclosure of the identity of the confidential informant, asserting he intended to present as a defense that he lacked knowledge the package was being sent to his home. Joshua contended that the package was deliberately sent to him by an unknown person who wished to cause his arrest. Accordingly, Joshua asserted, the State was required to disclose the identity of the confidential informant because it was necessary and relevant to Joshua's defense, and that, at a minimum, the court was required to take the testimony of the confidential informant at an in camera hearing to determine whether it was relevant to Joshua's defense. Attached to the motion was Joshua's affidavit, wherein he averred that he lacked any knowledge that the package containing crystal meth was being sent or delivered to his home; that he lacked any knowledge regarding the person who sent it; and that the package was deliberately sent to him by a person who wished to cause his arrest.

The court conducted an in camera hearing on October 25, 2010. In attendance were the prosecutor, Ted Daus, Detective Reed and attorney Leader. Neither Joshua nor his counsel were permitted to attend the in camera proceeding.⁴ Attorney Leader testified that he had a client with no prior criminal history who was arrested for trafficking in crystal meth and was facing a lengthy minimum mandatory, so he entered into a substantial assistance agreement with the State. That agreement was later revoked when Leader's client failed to appear for a mandatory court hearing. Thereafter, Leader's client was apprehended, and contacted Leader "in the hopes of the state being willing to work with him on some level, because he was facing a total of 30 years, he had advised [Leader] that he believed, through friends, and through friends in the jail, he could get information." Leader testified he had never met Joshua, and Leader did not know who sent the package to Joshua's home. Any information Leader had about the package delivery came from his client or from a friend of his client. When asked to identify the name of the client, Leader declined to answer, asserting attorney-client privilege. When asked how Leader obtained the FedEx tracking number for the package, Leader also declined to answer, again asserting attorney-client privilege.⁵

Thereafter, Joshua deposed Detective Reed. At his deposition, Detective Reed acknowledged that the person who gave him the information about the package was not a documented confidential informant; that the person who testified at the in camera hearing (attorney Leader)⁶ was not the source of the information, but instead was just the messenger; and that the identity of the confidential informant was still unknown to Detective Reed (and still unknown to the trial court). In fact, Detective Reed acknowledged that he had "no clue" who the information came from and that he had never had contact with this actual source. Detective Reed further acknowledged he did not know, at the time of the investigation, whether the actual source of the information was credible or reliable, nor did he know who sent the package or whether Joshua was a willing participant in the package being sent to his house.

The Motion to Suppress

Joshua filed a motion to suppress the drugs and money seized at his home, and also moved to suppress any statements made by him to police. Joshua also requested a Franks hearing,⁷ contending that the affidavit for the search warrant contained intentionally false statements or statements made with reckless disregard for the truth. Specifically, Joshua argued that Detective Reed's affidavit incorrectly averred that he received information from a documented confidential informant with the Fort Lauderdale Police Department who had previously provided information which had proven to be trustworthy and reliable. Instead, the person who provided the critical information to Detective Reed was not a documented confidential informant, but instead was attorney Leader, who was simply relaying information from an undisclosed source, and that Detective Reed had no knowledge of the credibility of this undisclosed source or the reliability of the information provided. The State responded that Joshua's motion failed to make a substantial preliminary showing that the affidavit contained a false statement or that any false statements were made knowingly and intentionally or with reckless disregard for the truth. Further, the State asserted, even if the affidavit contained omissions or false statements, suppression was not warranted because Joshua failed to make a preliminary showing under Franks that, but for the false statements, the judge would not have found probable cause for the issuance of the warrant. Specifically, the State pointed out that a certified narcotics canine alerted to the presence of a controlled substance in the package, which in and of itself provided probable cause to conduct a search of the package.

Following an evidentiary hearing, the court denied the motion to suppress and the motion to compel disclosure of the identity of the confidential informant.

As to the motion to suppress, the trial court determined it "does not believe that there was any type of false statement that was made, that any false statement was knowingly and intentionally made, that there was...