Ortiz v. State, Case No. 5D08-1653 (Fla. App. 4/24/2009)
| Decision Date | 24 April 2009 |
| Docket Number | Case No. 5D08-1653. |
| Parties | EMMANUEL ORTIZ, Appellant, v. STATE OF FLORIDA, Appellee. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Orange County, Jose R. Rodriguez, Judge.
Frances Martinez, of Escobar, Ramirez & Associates, P.A., Tampa, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee.
Emmanuel Ortiz pled nolo contendere to trafficking in cocaine and possession of drug paraphernalia, reserving the right to appeal the denial of his dispositive motion to suppress. Ortiz argues that law enforcement's warrantless entry into his home and the subsequent seizure of cocaine and drug paraphernalia were improper. We agree and reverse.
At about 6:30 p.m. one evening, Sheriff's Deputy Herbert Mercado received a call from a local elementary school after a six-year-old child's parents failed to pick him up from the after-school program. The school's representative advised the deputy that the school had been unable to contact the child's parents by telephone. Because it was the sheriff's office's policy to take reasonable steps to contact parents before turning a child over to the Department of Children and Families, Deputy Mercado took the child to the address that the school provided as the child's home. The deputy testified that the child told him that his parents were or should be home.
When the deputy and the child arrived at the house, no one appeared to be home. No lights were on in the house, and no one answered when the child knocked on the front door. There was no car in the driveway and nothing was obviously amiss, such as a broken window or open door. The front garage door was not locked, and the child opened it with the deputy's help.1 From inside the garage, the deputy could see a light on in the house. The child invited the deputy inside the home, saying "follow me, I'll show you my parents." The deputy and the child then entered the house in search of the parents. Nothing in the house seemed unusual. After they looked around without finding anyone, the child took the deputy to the locked door of his parents' bedroom. The deputy knocked on the bedroom door and announced his presence. There was no answer.
Concerned for the well-being of the child's parents, the deputy was able to unlock the door and enter the bedroom. Once in the bedroom, the deputy looked "for a body" on and under the bed as well as in the closet. When the deputy looked in the adjoining bathroom, he saw what turned out to be 34 grams of cocaine wrapped in baggies on the countertop. Ortiz then entered the room. The deputy asked him if he lived in the house and if the young boy was his son. After Ortiz answered both questions affirmatively, the deputy advised him of his Miranda2 rights. Ortiz admitted that the cocaine was his, and was subsequently arrested on several drug-related charges.
Ortiz moved to suppress the cocaine, contending that contrary to the State's position, exigent circumstances did not justify a warrantless entry into his home, and specifically, the locked bedroom. He also argued that the six-year-old child did not have the authority to consent to the warrantless entry into the house. The trial court disagreed, explaining in part:
As far as going inside the bedroom, I think that's key here, because if — it doesn't matter what consent may have — given, what understanding there was by the defendant. If the officers did not have the right to be where they were, then the evidence has to be suppressed. That's why I was very clear in asking what was not clear from the questioning, whether or not — in order to get to the bathroom where the contraband was found, whether or not the only access was through the bedroom door.
You know, again, when you look at the situation that we have here, when the child is directing — I think what's critical here, that may be missing from other cases, is that you've got the child directing the officer to the bedroom of the parents, where the parents are, or where the child believes the parents would be or might be. And I believe that where he was, under the circumstances that he was — that he was in, the fact is also critical that there was no busting down of the door, but that a pick or a — whatever it was, to unlock the door, was used, I think it was reasonable within the context of the facts of the entire case. So I do not believe at this point, that we are within — with the facts — within the facts that Wheeler [v. State, 956 So. 2d 517 (Fla. 2d DCA 2007)] provides. And I do believe that this is, again, because we are dealing with a child; we are dealing with a child having the apparent authority.
This is not the, my child is letting a complete stranger inside the house, but my child is letting a law enforcement officer who has been verified by the school board, in whose trust, care and custody the child has been placed — to reunite him with a parent. And I think, under the circumstances here, it is totally, completely reasonable, particularly since there was no violent — or destruction of property to get access.
There is absolutely nothing but clear, unambiguous, good intentions on the part of the police officer, to make sure that a child is returned to his family. And but for the fact that these items were left in plain view, I think the officer had every reasonable expectation from our society to make sure that somebody was not, where the child indicated a parent might have been, in extremis.
So, for the reasons that have been stated, I believe that the officer acted reasonably and that this was not an unwarranted search or seizure of either the property or the — the search of the property or seizure of contraband. The motion, at this time, is denied for the reasons stated.
Ortiz then entered a plea of nolo contendere to trafficking in cocaine and possession of drug paraphernalia, expressly reserving his right to appeal the denial of his dispositive motion to suppress evidence.
Review of a motion to suppress is a mixed question of law and fact. The standard of review applicable to the factual findings is whether competent substantial evidence supports those findings. The standard of review applicable to the trial court's application of the law to the factual findings is de novo. Tyson v. State, 922 So. 2d 338, 339 (Fla. 5th DCA 2006) (citing McMaster v. State, 780 So. 2d 1026, 1028 (Fla. 5th DCA 2001)).
A warrantless search of a home is per se unreasonable, and thus, unconstitutional under the Fourth Amendment. Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971). However, one of the recognized exceptions to the warrant requirement exists when law enforcement is confronted with exigent circumstances. In Riggs v. State, 918 So. 2d 274, 278-79 (Fla. 2005), the Florida Supreme Court thoroughly explained the warrant requirement and the exigent circumstances exception, observing:
The United States Supreme Court has repeatedly identified "physical entry of the home [as] the chief evil against which the wording of the Fourth Amendment is directed." Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972)). Throughout the Supreme Court's caselaw, Id. at 590, 100 S. Ct. 1371. As the preceding sentence suggests, however, a well-established exception exists for "the sort of emergency or dangerous situation, described in our cases as `exigent circumstances,' that would justify a warrantless entry into a home for the purpose of either arrest or search." Id. at 583, 100 S.Ct. 1371.
When the government invokes this exception to support the warrantless entry of a home, it must rebut the presumption that such entries are unreasonable. See Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984). To do so, it must demonstrate a "grave emergency" that "makes a warrantless search imperative to the safety of the police and of the community." Illinois v. Rodriguez, 497 U.S. 177, 191, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990). An entry is considered "imperative" when the government can show a "compelling need for official action and no time to secure a warrant." Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978). As is often the case under the Fourth Amendment, "[t]he reasonableness of an entry by the police upon private property is measured by the totality of existing circumstances." Zeigler v. State, 402 So. 2d 365, 371 (Fla. 1981).
The circumstances in which the Supreme Court has applied the exigent circumstances exception are "few in number and carefully delineated." U.S. District Court, 407 U.S. at 318, 92 S. Ct. 2125. They include pursuing a fleeing felon, Warden v. Hayden, 387 U.S. 294, 298-99, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967), preventing the destruction of evidence, Schmerber v. California, 384 U.S. 757, 770-71, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), searching incident to a lawful arrest, Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), and fighting fires, Tyler, 436 U.S. at 509, 98 S. Ct. 1942. Outside of those established categories, the Supreme Court "has often heard, and steadfastly rejected, the invitation to carve out further exceptions to the warrant requirement for searches of the home." Rodriguez, 497 U.S. at 192, 110 S. Ct. 2793.
....
In other words, where safety is threatened and time is of the essence, we have recognized that "the need to protect life and to prevent serious bodily injury provides justification for an otherwise invalid entry," citing Arango v. State, 411 So. 2d 172, 174 (Fla. 1982).
In Riggs...
To continue reading
Request your trial