Ortiz v. State

• Decision Date: 13 November 2009
• Docket Number: No. 5D08-1653.,5D08-1653.
• Citation: 24 So.3d 596
• Parties: Emmanuel ORTIZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

24 So.3d 596

Emmanuel ORTIZ, Appellant, v. STATE of Florida, Appellee.

No. 5D08-1653.

District Court of Appeal of Florida, Fifth District.

November 13, 2009.

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.

ON MOTION FOR REHEARING EN BANC

MONACO, C.J.

We grant the motion for rehearing en banc requested by the State, withdraw our previously issued opinion, and substitute for it the following.

This case causes us to consider the parameters of the exigent circumstances doctrine as applied to a police officer's discovery of proscribed substances incident to an attempt to fulfill his non-investigative obligations. Because we conclude, as did the trial judge, that the officer acted reasonably under the circumstances in entering the home of the appellant, Emmanuel Ortiz, without a warrant, we affirm.

I. Rehearing En Banc.

A rehearing en banc may be granted pursuant to Florida Rule of Appellate Procedure 9.331(a) when the case is of exceptional importance or in order to maintain uniformity in the court's decisions. First, we note that the present case fleshes out the borders of both the "feared medical emergency" exception to the warrant requirement articulated by the Florida Supreme Court in Riggs v. State, 918 So.2d 274 (Fla.2005), and the now well-recognized community caretaking function of police officers. Unlike the dissent, we view both issues to be of exceptional importance, particularly in a day and age where society expects police officers to be deeply involved in humanitarian and life and property protection actions that go beyond traditional law enforcement duties. Underscoring this concept, the Riggs court quoted the United States Court of Appeals for the First Circuit to the effect that police officers fearing emergencies:

need [to make] an on-the-spot judgment based on incomplete information and sometimes ambiguous facts bearing upon the potential for serious consequences.

Riggs, 918 So.2d at 282 (quoting United States v. Martins, 413 F.3d 139, 147 (1st Cir.), cert. denied, 546 U.S. 1011, 126 S.Ct. 644, 163 L.Ed.2d 520 (2005)). Because the view of the original panel decision had potentially far-reaching negative effects on the actions of law-enforcement officers in fulfilling this function, the case is exceptionally important.

Finally, while the dissent asserts that the original panel decision did not conflict with Riggs, the majority has concluded otherwise. Indeed, Riggs compels a conclusion far different than that dictated by the original decision. Accordingly, we review this case en banc.

II. Adjudicative Facts.

Mr. 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. He argues that a law enforcement officer's warrantless entry into his home and the subsequent seizure of cocaine and drug paraphernalia were unconstitutional. We disagree.

At about 6:30 p.m. one evening, Sheriff's Deputy Herbert Mercado received a call from a local elementary school reporting that a six-year-old child's parents failed to pick him up from an after-school program. The deputy indicated that he routinely received such calls, and in such instances "we usually exhaust our means to make contact" with the parents of the child before referring the child to the Department of Children and Families.

The school's representative advised the deputy that the child was supposed to be picked up by 6:00, and that the school had been unable to contact the child's parents by telephone. Because of 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 proceeded to the school, and then drove 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, the house appeared to be dark and it did not appear that anyone was home. From his vantage point in the street the officer was able to see no lights in the house, and no one answered when the child knocked on the front door. There was no car outside and nothing was obviously amiss. When the child received no response from his knocking on the front door, the child proceeded to the garage. The front garage door was not locked, and the child opened it, possibly with the deputy's help.¹ From inside the garage, the deputy could now see a light on in the house. The child invited the deputy inside the home, saying "Come in. I'll show you where my parents are." The deputy and the child then entered the house in search of the parents. According to the deputy, "He (the child) basically just kind of walked randomly into the house, just looking for the parents. So I just, you know, followed him." Immediately before entering the house, the deputy announced his presence, but got no response. After they looked around without finding anyone, the child took the deputy to the locked door of his parents' bedroom. Oddly enough, the bedroom door was locked from the inside. The deputy knocked on the bedroom door and announced his presence. There was no answer. The time was now about 7:30, and no contact had yet been made with the child's parents.

Concerned for the well-being of the parents, the deputy was able to unlock the door and enter the bedroom, possibly because "it had like a pinhole kind of way you can stick a pin in it and open it." In any event, the deputy did not force the door open. Once in the bedroom, the deputy, still fearing for the health of the parents, looked "for a body" on and under the bed, as well as in the closets. When the deputy walked into the adjoining bathroom, however, he saw in plain view what turned out to be 34 grams of cocaine wrapped in baggies on the countertop. Moments later, Mr. Ortiz entered the room.

The deputy asked him if he lived in the house and if the young boy was his son. After Mr. Ortiz answered both questions affirmatively, the deputy advised him of his Miranda² rights. Mr. Ortiz then admitted that the cocaine was his, and was subsequently arrested on several drug-related charges.

Mr. 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.

Mr. Ortiz subsequently 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.

III. Analysis.

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 initially presumed...