Kelly v. State

• Decision Date: 14 February 2012
• Docket Number: No. 4D09–2436.,4D09–2436.
• Parties: Raymond KELLY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

77 So.3d 818

Raymond KELLY, Appellant,

v.STATE of Florida, Appellee.

No. 4D09–2436.

District Court of Appeal of Florida, Fourth District.

Jan. 11, 2012.Rehearing Denied Feb. 14, 2012.

Carey Haughwout, Public Defender, and James W. McIntire, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

Raymond Kelly appeals his conviction on multiple counts of armed sexual battery, kidnapping, robbery, and impersonating an officer. He claims that the trial court erred in denying his motions to suppress evidence found in his office desk drawer, as well as a backpack in his home, both places having been searched by the authorities without a warrant. We hold that the court did not err in denying the suppression of evidence from his office desk, as Kelly had no expectation of privacy and his employer gave permission for the search. As to the search of the backpack, the detectives did not have consent to search the backpack, but the admission of its contents constitutes harmless error. In addition, Kelly contends that ineffective assistance of counsel appears on the face of the record, where his counsel failed to object to the admission of Kelly's statement where he invoked his right of silence. This issue cannot be addressed, however, on direct appeal. We affirm.

The incident giving rise to the charges, the facts of which we briefly recite, began with the victim seeking a ride on a street corner after having left a party. A man approached her, claiming to be a detective, and offered assistance. Instead, he placed her in his car, blindfolded, bound and gagged her, and drove her to another area where he committed various sexual batteries upon her, taking pictures as he did so. He then let her go. Eventually, the police found her and took her to a sexual assault center. Later, after they had developed a suspect, they showed her a photo lineup where she positively identified Kelly as her attacker. DNA swabs taken from her body proved a positive match for Kelly's DNA.

Police connected Kelly to the crimes through papers left in a dumpster two blocks from the crime scene of a different sexual battery victim. The papers identified Cynthia Morales (Kelly's girlfriend). Officers located Morales who identified Kelly in a surveillance photograph taken at a nearby gas station. Morales consented to a search of her home, and evidence was taken, including several cameras.

As a result, police arrested Kelly, and he was taken to the police station where he was given Miranda warnings and talked to police. In that statement Kelly told the officer that he had met a woman at the beach who had posed nude for him. The victim looked like the woman he had met, but he denied having sex with her. He consented to a DNA sample, a computer search, and a camera search. In his briefcase, which was in his possession at the time of the interview, the officers found the victim's camera and discovered pictures from that camera on his laptop computer.

Kelly testified at trial, denying all of the charges, and claiming that the pictures on the laptop were put there by a friend. The jury found him guilty, and the court convicted him and sentenced him to life in prison as a habitual felony offender and dangerous sexual offender, resulting in this appeal.

Kelly claims that the trial court erred in denying his motions to suppress evidence taken from his office desk and the house where he lived. The trial court's ruling on a motion to suppress comes to the appellate court with a presumption of correctness, and the court must interpret the evidence, inferences and deductions therefrom in favor of sustaining the trial court's ruling. Pagan v. State, 830 So.2d 792, 806 (Fla.2002). While the appellate court is bound by factual determinations which are supported by competent substantial evidence, it reviews mixed questions of fact and law de novo. Cote v. State, 14 So.3d 1137, 1139 (Fla. 4th DCA 2009).

Property Seized From Workplace

Kelly worked as a front desk manager at a local hotel. He shared an office with another employee where he had an assigned desk and desktop computer. Other employees would come into the office to use office equipment or obtain paperwork. Although other employees generally did not go into Kelly's desk, his desk had been searched by others on a few occasions, when he was not present, to locate missing paperwork or keys.

The general manager of the hotel testified that around the time that the police called regarding Kelly, Kelly was fired because he had failed to show up for work for three days without contacting the hotel. Company policy required termination in that instance. Police called the hotel and asked to search Kelly's desk area, telling the manager that Kelly was in jail. The manager gave his permission. When the officers arrived the next day, they searched the desk. In the top drawer, they found a Blackberry phone, which belonged to the victim, and a camera. A box underneath the desk contained material associated with the crime scene of two different incidents for which Kelly was being investigated. From the outside of the box, markings identified it as being from the business where two of the crimes occurred. A bag with a laptop in it was also found.¹ The detectives who searched the desk testified that the general manager had given them permission to search the area, and they proceeded on that authority.

Kelly moved to suppress the evidence seized in the search of the desk. He claimed at the hearing that the general manager did not have the authority to consent to the search of his desk, even though Kelly was no longer an employee of the hotel. In denying the motion, the trial court made findings of fact and concluded that Kelly had no expectation of privacy. The court specifically found:

Based on the evidence presented, which includes the testimony of the witnesses, this Court finds that the Defendant had no expectation of privacy in the office which he shared with another employee. He had been previously terminated from employment before the detectives arrived to search the office. Other employees and his supervisor had unlimited access to his office and inside the desk.... [T]he Hotel's general manager, testified ... that the desk, including the drawers, was accessible to other employees. The desk was not locked.

The court also found that the general manager, as the direct supervisor of Kelly, had the authority to consent to the search of the workplace, and that the police acted on his apparent authority to grant permission.

State v. Young, 974 So.2d 601 (Fla. 1st DCA 2008), aptly summarizes the legal principles involved in analyzing whether a legitimate expectation of privacy exists in an office setting:

To invoke the protection of the Fourth Amendment, a criminal defendant must establish standing by demonstrating a legitimate expectation of privacy in the area searched or the item seized. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). A legitimate expectation of privacy consists of both a subjective expectation and an objectively reasonable expectation, as determined by societal standards. Smith, 442 U.S. at 740, 99 S.Ct. 2577. The reasonableness of an expectation of privacy in a particular place or item depends on context. O'Connor v. Ortega, 480 U.S. 709, 715, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987). Specifically, the reasonableness of an employee's expectation of privacy in his or her office or the items contained therein depends on the “operational realities” of the workplace, id. at 717, 107 S.Ct. 1492, and not on legal possession or ownership. Mancusi v. DeForte, 392 U.S. 364, 369, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). The likelihood that a person has an objectively reasonable expectation of privacy in an office setting is increased where the area or item searched is “reserved for [the defendant's] exclusive personal use.” See id. at 368, 88 S.Ct. 2120. Other factors that have been considered in determining the legitimacy of an expectation of privacy in an item seized from an office include the employee's relationship to the item, whether the item was in the employee's immediate control when it was seized, and whether the employee took actions to maintain a sense of privacy in the item. United States v. Anderson, 154 F.3d 1225, 1232 (10th Cir.1998). Many times, an employee may have a legitimate expectation of privacy in his or her personal office and in personal items stored in a desk or file cabinet. See O'Connor, 480 U.S. at 716–18, 107 S.Ct. 1492.

Id. at 608. In Young, the court determined that a pastor had a legitimate expectation of privacy in his private office at the church where the office was locked with a key different from the church master key and only he and the church secretary had keys to the office. No one was permitted to enter the office without the pastor's permission. Likewise, in Bateman v. State, 513 So.2d 1101 (Fla. 2d DCA 1987), the court found that an employee had a legitimate expectation of privacy in his desk drawer of a locked office, where he had not shared his desk with anyone for the entire nineteen years he had worked for the employer.

Closer to the facts of this case, however, is People v. Crawford, 632 P.2d 626, 628 (Colo.App.1981), where the court determined that an employee who shared an office with other employees had no expectation of privacy, and it approved a warrantless search of the desk and file cabinets that he used. Likewise, in People v. Duvall, 170 Mich.App. 701, 706–07, 428 N.W.2d 746, 748–49 (1988), a deputy sheriff was held not to have a legitimate expectation of privacy in his desk in an office he shared with other officers.

In this case, the trial court's findings that Kelly had no expectation of privacy is supported by the facts as found by the trial court, to which we defer....