Marganet v. State

• Decision Date: 31 March 2006
• Docket Number: No. 5D05-1565.,5D05-1565.
• Citation: 927 So.2d 52
• Parties: Hugo MARGANET, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

927 So.2d 52

Hugo MARGANET, Appellant, v. STATE of Florida, Appellee.

No. 5D05-1565.

District Court of Appeal of Florida, Fifth District.

March 31, 2006.

James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.

GRIFFIN, J.

Hugo A. Marganet ["Marganet"] appeals the denial of his motion to suppress. We reverse.

Marganet and his girlfriend, Wilma Luz Pinero ["Pinero"], became a target in a drug investigation after a tip from a confidential informant. The tip ultimately led to the traffic stop of a vehicle driven by Marganet, in which Pinero was a passenger. Pinero was separated from Marganet and offered to cooperate. She ultimately led police to some cocaine and heroin that was found inside a shaving kit in Marganet's suitcase located in a hotel room they occupied. Marganet was charged with possession of heroin with intent to sell or deliver and possession of cocaine. He filed a motion to suppress, alleging no valid consent had been given for the search of his suitcase and shaving kit.

At the suppression hearing, Agent Chiota¹ testified that while engaged in a drug investigation, agents conducted a traffic stop of a Nissan Xterra driven by Marganet. Pinero was a passenger in the vehicle. Agent Davison took charge of Pinero, who was willing to cooperate by giving consent for police to enter the hotel room where she and Marganet were staying. She produced a key she had in her purse, opened the room and invited officers inside to look for drugs. She began showing officers areas in which she knew there was drug paraphernalia and where some drugs were the last time she saw them. There were various items around the room. She told the agents:

this is my clothing, and my suitcases, and this is his stuff, and he keeps it and had it — he, being Hugo, had the heroin. He — she related that he maintained custody of it because she was a user and he was afraid she would use it up.

(emphasis added). Pinero showed them places in which she thought there would be heroin and gave them permission to search those places. They first searched all open areas within the room and then began to search the closed containers. They eventually found heroin in Marganet's shaving kit, which was itself located inside a closed suitcase which Pinero had identified as belonging to Marganet.

Agent Randy Davison testified concerning the drugs found in the shaving kit:

Q. Okay. Where did you retrieve the heroin and cocaine from?

A. I know there was — there was four of us in the room at the time. I know that there was one black bag lying near the sliding glass door that went out — outside — pardon me — and that — that bag was lying on the floor. And she said that there was some in there, probably in a black shaving kit. So we opened it up. She said that — right there (indicating), and she pointed to the shaving kit. We opened the shaving kit — I think it was a shaving kit. It was a black leather — a black leather container —

A. Okay.

Q. — and we opened that up. And then we located the — I believe that was the heroin baggies there.

Q. And she specifically directed you to that spot?

A. Directly to it.

After listening to argument of counsel, the court denied the motion to suppress, explaining in relevant part in its written order that Pinero had "apparent" authority to consent to a search of the suitcase and shaving kit and that the search was therefore legal. The order stated:

The issue is whether the officers had a reasonable basis to believe that Ms. Pinero had actual or apparent authority to consent to the search of the defendant's bags. The test which the court employs is one of "objective reasonableness." Florida v. Jimeno, 111 S.Ct. [sic] 1801 (1991). In making this determination courts no longer draw a distinction between married and unmarried couples. Silva v. State, 344 So.2d 559 (Fla.1977). Facts known to the police that suggested Ms. Pinero did not have authority include that she identified the suitcase as belonging to the defendant, the contents were all a man's personal belongings, the suitcase was closed, and it was easily separable from the room and its other contents. Facts suggesting that Ms. Pinero did have authority to give consent include that it appeared she and the defendant were in a relationship, her information was specific in that she knew the shaving kit was inside the suitcase and that the drugs might be in the kit. She also said that the defendant was hiding the drugs from her which implies he put them in a place he thought she might not look as opposed to a place she was not allowed to go.

The court is satisfied that the officers believed Ms. Pinero had authority over the defendant's possessions or they would not have helped her leave the hotel with them. Now, after analyzing the facts the court finds that a typical, reasonable person in the same circumstances would have believed Ms. Pinero had authority to consent to a search of the defendant's bags.

Marganet filed a motion for reconsideration. He asserted that his girlfriend had no right to consent to a search of his suitcase, emphasizing:

In the instant case, there is a complete lack of information detailing that law enforcement made any inquiry of Ms. Pinero concerning her authority to enter into Mr. Marganet's luggage. A telling issue is the fact that she identifies the luggage for law enforcement as belonging specifically to Mr. Marganet. It is not identified as "our luggage" but "his luggage." Further, Ms. Pinero provides an indication to law enforcement that Mr. Marganet had hidden the drugs so she would not find them. It is not logical for law enforcement to draw a conclusion that Ms. Pinero had common authority or joint access to Mr. Marganet's luggage when she specifically advises them that Mr. Marganet must have placed the contraband in an area where he though she would not look.

The court denied the motion for reconsideration and Marganet pled nolo contendere to the charges, reserving the right to appeal the denial of his motion to suppress. Marganet argues on appeal that the trial court erred by holding that Pinero had the right to consent to a search of his suitcase and his shaving kit.

The leading United States Supreme Court case bearing on the issue of third-party consent to search is United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), in which the defendant's girlfriend consented to a search of a room she was sharing with the defendant, resulting in the discovery of money from a bank robbery in a diaper bag located in the only closet in the room. In Matlock, which involves the issue of "actual authority" to consent to a search, the court held that "permission to search [can be] obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." Id. at 170, 94 S.Ct. 988. In a footnote, the court explained that the right to consent rests not on the law of property:

but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

Id. at 170 n. 7, 94 S.Ct. 988.

The right of a third party to consent to a search on behalf of a defendant was extended to those with "apparent authority" in Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). Rodriguez established that even if a third party does not possess actual common authority over the area that was searched, the Fourth Amendment is not violated if the police relied in good faith on a third party's "apparent authority" to consent to the search. In Rodriguez, a former girlfriend of the defendant consented to a search of premises leased jointly in her name and that of the defendant, but in which she was no longer living. The girlfriend showed police a copy of the lease and retained a key to the premises, which she gave to them, along with instructions where drugs could be found in the residence. In finding that the search was constitutionally valid on the basis of "apparent authority" to authorize a search, the court explained:

What [Rodriguez] is assured by the Fourth Amendment itself ... is not that no government search of his house will occur unless he consents; but that no such search will occur that is "unreasonable." U.S. Const., Amdt. 4. There are various elements, of course, that can make a search of a person's house "reasonable" — one of which is the consent of the person or his cotenant. The essence of respondent's argument is that we should impose upon this element a requirement that we have not imposed upon other elements that regularly compel government officers to exercise judgment regarding the facts: namely, the requirement that their judgment be not only responsible but correct....

* * *

... The Constitution is no more violated when officers enter without a warrant because they reasonably (though erroneously) believe that the person who has consented to their entry is a resident of the premises, than it is violated when they enter without a warrant because they reasonably (though erroneously) believe they are in pursuit of a violent felon who is about to escape. See Archibald v. Mosel, 677 F.2d 5 (C.A.1 1982).

497 U.S. at 183-184, 110 S.Ct. 2793. In Rodriguez, the court cautioned:

[W]hat we hold today does not suggest that law enforcement officers may always accept a person's invitation to enter premises. Even when the invitation is accompanied by an explicit assertion that the person lives there, the surrounding circumstances could conceivably be such that a...