Moreno–gonzalez v. State

• Decision Date: 07 July 2011
• Docket Number: No. SC09–2163.,SC09–2163.
• Citation: 67 So.3d 1020
• Parties: Alfredo MORENO–GONZALEZ, Petitioner,v.STATE of Florida, Respondent.
• Court: Florida Supreme Court

67 So.3d 1020

Alfredo MORENO–GONZALEZ, Petitioner,

v.STATE of Florida, Respondent.

No. SC09–2163.

Supreme Court of Florida.

July 7, 2011.

Martin L. Roth, P.A., Fort Lauderdale, FL, for Appellant.Pamela Jo Bondi, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief, and Nikole Hiciano, Assistant Attorneys General, Miami, FL, for Appellee.LEWIS, J.

This case is before the Court for review of the decision of the Third District Court of Appeal in State v. Moreno–Gonzalez, 18 So.3d 1180 (Fla. 3d DCA 2009). The district court expressly construed a provision of the Florida Constitution and, therefore, we have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We approve the result, but not the reasoning, of the Third District Court of Appeal that under the specific circumstances of this case, the failure of a law enforcement officer to sign an affidavit in support of a search warrant did not invalidate the warrant. We disapprove the opinion below with regard to the constitutional analysis conducted by the Third District. Specifically, this case exclusively involves statutory law, and the Third District erred by addressing and applying the conformity clause of the Florida Constitution. The Fourth Amendment to the United States Constitution does not contain the same “affidavit” requirement which is utilized in the Florida Constitution.

FACTS AND PROCEDURAL HISTORY

On May 16, 2007, a circuit court judge issued a warrant authorizing the search of a property located at 22590 SW 252nd Street in Dade County. An affidavit was submitted by Miami–Dade Detective Lourdes Hernandez in support of the issuance of the warrant. The affidavit outlined the facts that led Detective Hernandez to believe that a marijuana hydroponic ¹ lab was in operation on that property. While both Detective Hernandez and the circuit court judge initialed each and every page of the affidavit and the search warrant, the judge signed the affidavit and the warrant, and Detective Hernandez swore to the truth of each page of the affidavit in the presence of the circuit judge, Detective Hernandez failed to sign and subscribe to the affidavit on the line titled “AFFIANT.” A subsequent search revealed that hydroponic marijuana labs were being operated in a detached garage and a shed on the described property. Detective Hernandez impounded 47.6 pounds of marijuana that was discovered pursuant to the warrant.

The owner of the property, Alfredo Moreno–Gonzalez, was subsequently arrested and charged with possession of cannabis in an amount greater than twenty-five pounds, but less than 2000 pounds. On September 12, 2007, Moreno–Gonzalez filed a motion to suppress all evidence seized based upon the May 16, 2007, warrant. In support of the motion, Moreno–Gonzalez contended that: (1) the property was searched without a warrant; (2) the warrant that was later issued was insufficient because it was not supported by lawfully acquired probable cause; and (3) the affidavit in support of the warrant was not subscribed by the affiant, Detective Hernandez, as mandated by section 933.06, Florida Statutes (2007). On March 3, 2008, a hearing was conducted on the motion to suppress. The trial court granted the motion and ordered the evidence suppressed on the sole and exclusive basis that Detective Hernandez had failed to fully sign the affidavit on the line provided as required by section 933.06. The trial court then issued an order stating that due to the determination with regard to the statutory violation, no arguments arising under the Florida and United States Constitutions would be addressed.

Although the decision of the Third District Court of Appeal, which addressed the validity of the suppression order, provides “it is undisputed that probable cause was shown by the officer swearing to the allegations in the affidavit under oath before the judge,” Moreno–Gonzalez, 18 So.3d at 1180, a review of the suppression hearing transcript reveals to the contrary that there are, in fact, numerous factual discrepancies between the two witnesses who testified with regard to the events that led to the drafting of the search warrant. More specifically, the first witness, Detective Hernandez, explained that on May 16, 2007, the Miami–Dade Police Department was conducting investigations with the federal Drug Enforcement Administration (DEA) concerning “grow houses.” DEA Agent Pete Yates contacted Hernandez, stating that he received a tip about a “grow house” in the vicinity of 22590 SW 252nd Street. She and Agent Yates drove separate vehicles to the location named in the tip. According to Hernandez, the tip applied to a house located at 22600 SW 252nd Street. Hernandez stated that another Miami–Dade Detective named Silva had already approached the residence at 22600 SW 252nd Street with a DEA Agent, but no one responded. Detective Hernandez and Agent Yates then approached the residence of Moreno–Gonzalez, which was located at 22590 SW 252nd Street, as part of a neighborhood canvas to see if the residents could provide information with regard to the individuals who resided at 22600 SW 252nd Street.

As Detective Hernandez approached the front door, she observed that the home was under construction and the front door could not be opened. When she knocked on the door, a woman came to a side window and directed Hernandez and Agent Yates in Spanish to proceed to the rear of the house. As she was walking toward the back of the house, Detective Hernandez smelled a “very strong” odor of live marijuana emanating from a detached garage that was located just west of the primary residence. She noticed that PVC (a type of plastic) pipes entered the structure and that the windows of the building were covered with Mylar.² She also heard water pumps operating within the garage. Detective Hernandez testified that these conditions indicated to her that the garage served as a grow house. During cross-examination, Hernandez admitted that at that time she did not communicate her observations to Agent Yates.

Once she and Agent Yates entered the house through a screened-in porch and sliding glass door, Detective Hernandez informed the woman in Spanish that she was present to conduct a narcotics investigation. The woman stated that while she was only the housekeeper, the owner was at home and was sleeping. Detective Hernandez instructed the housekeeper to wake the owner because she and Agent Yates needed to speak with him. The housekeeper, accompanied by Agent Yates, proceeded to wake Moreno–Gonzalez and bring him to the kitchen. When Detective Hernandez asked Moreno–Gonzalez if he would consent to a search of the house, Moreno–Gonzalez refused. After the refusal, Detective Hernandez, Agent Yates, and Moreno–Gonzalez proceeded to the screened-in porch area. Hernandez contacted another Miami–Dade detective, who remained with Agent Yates and Moreno–Gonzalez while Hernandez left to draft the search warrant. When asked the time at which Moreno–Gonzalez refused consent, Detective Hernandez replied that it was approximately 9:30 or 10 a.m.

The testimony of DEA Agent Yates significantly differed from that of Detective Hernandez in a number of respects. The DEA report of the incident reflected that Agent Yates and Detective Hernandez approached the residence of Moreno–Gonzalez at 7:30 a.m. According to Yates, he intended to drive to 22600 SW 252nd Street; however, when he programmed the address into his GPS, it mistakenly directed him to Moreno–Gonzalez's property. Agent Yates testified that he did not believe or intend that he, Detective Hernandez, and a third DEA Agent named Jones were going to 22590 SW 252nd Street as part of a canvas; instead, he thought they were at the correct house (i.e., the house named in the tip). Yates stated that he had not been advised that other law enforcement had already approached the house at 22600 SW 252nd Street, and Yates believed that he was the first person to arrive to investigate the grow-house tip. ³ According to Yates, when Hernandez knocked on the front door, a female opened the door. Yates did not recall that the front door was under construction. Yates stated that he did not speak Spanish and could not understand the conversation between the two women, but followed Detective Hernandez when she proceeded toward the back door of the residence. While walking to the back of the house, Agent Yates did not smell marijuana. He also testified that he did not recall seeing any PVC pipes near the garage.

After Moreno–Gonzalez spoke with Detective Hernandez in Spanish and refused consent for a search, Detective Hernandez, Moreno–Gonzalez, and Agent Yates proceeded to the screened-in porch area. During cross-examination, Yates stated that while he and Agent Jones remained with Moreno–Gonzalez at the house, Detective Hernandez stepped outside and walked to the garage. According to Yates, upon her return, Hernandez stated that “she smelled marijuana and then she kind of looked at the [detached garage] and could see that two of the windows were not boarded up, but had something, a covering on the inside, and PVC pipes coming out of the side of the building.” At that point, she advised that she intended to obtain a warrant.

The State appealed the suppression order, and the Third District Court of Appeal reversed the trial court. See State v. Moreno–Gonzalez, 18 So.3d 1180, 1185 (Fla. 3d DCA 2009). The district court relied on a portion of article I, section 12, of the Florida Constitution, which provides:

No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.

Art. I, § 12, Fla. Const. (...