Rodgers v. State

• Decision Date: 20 February 2019
• Docket Number: Case No. 2D16-4366
• Citation: 264 So.3d 1119
• Parties: Michael RODGERS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

264 So.3d 1119

Michael RODGERS, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D16-4366

District Court of Appeal of Florida, Second District.

Opinion filed February 20, 2019

Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellee.

SILBERMAN, Judge.

Michael Rodgers seeks review of his judgment and sentences for twenty counts of possession of child pornography. Rodgers entered a plea to the charges while reserving the right to appeal the denial of his dispositive motion to suppress. Rodgers argues that the police exceeded the scope of the search warrant by entering a recreational vehicle (RV) that was located on property at the given address but not separately identified in the warrant. We agree and reverse.

The special agent who applied for the search warrant testified that he had information that someone with a specific internet protocol (IP) address was sharing child pornography. His surveillance and investigation led him to believe the property associated with the IP address consisted of a house located on three or four acres of land. Because the house is situated far from the road he could not see what was on the land behind it. He thought multiple occupants were living on the property, but he was not sure how many.

The search warrant listed the address of the premises and described the premises as "a single story, block residence." The warrant authorized the police "to enter and search ‘the Premises’ aforesaid and curtilage thereof, and any vehicles thereon, or any persons located on ‘the Premises’ or within the curtilage reasonably believed to be connected with said illegal activity."

The special agent testified that when the police entered the property, they discovered a detached mother-in-law suite behind the main house and several RVs behind that. One of the RVs had an Indiana license plate registered to Rodgers. The interior was blocked from view by shades on the windows. The RV had an attached awning affixed to the ground and a septic connection to the ground. A router cable ran "from the main portions of the residence to the RV." The special agent admitted he did not have specific information regarding which structure on the property was accessing the IP address that was the basis for the warrant. He later found out, after the warrant was executed, that Rodgers' RV was accessing utilities, including the internet.

As to Rodgers' RV, when the warrant was executed one of the entry teams knocked on the door of his RV and announced that they had a warrant. Rodgers answered through a window and contested the officers' authority to enter. The police told Rodgers to come outside for officer safety, but he did not comply and disappeared from view. The police then heard a "commotion" in the RV, described as "unidentifiable noises." Although the police did not hear any voices other than Rodgers', they forced entry into the RV out of a concern that either someone else was inside or Rodgers might "retrieve some sort of weapon." They immediately located Rodgers in the main living area and escorted him outside. A sweep of the bedroom and bathroom revealed that Rodgers had been alone. It also revealed a computer broken into pieces underneath the bed. The team did not seize the computer but called for the special agent.

At that time, the special agent was speaking with the property owner. The property owner told the special agent that Rodgers had been living on his property in the RV for the past five years. Rodgers paid monthly rent and had access to utilities including electric, water, and internet. However, the testimony did not establish that the police had this information before they entered Rodgers' RV. But after talking with the property owner, the police obtained a separate search warrant for Rodgers' RV. They seized the computer during the subsequent search.

The dispositive issue on appeal is whether the original entry into Rodgers' RV was within the scope of the first warrant. "The authority to search pursuant to a warrant is limited to the place described in the warrant, and the description must be sufficiently particularized to lead the searching officers to the place intended." Carr v. State, 529 So.2d 805, 806 (Fla. 1st DCA 1988). A warrant that authorizes the search of a residence and its curtilage includes structures found within the curtilage, such as a shed used in connection with the residence. See Antone v. State, 382 So.2d 1205, 1212 (Fla. 1980).

However, officers are not authorized to search a separate dwelling unit that exists on the premises but is not separately identified in the warrant. See Maryland v. Garrison, 480 U.S. 79, 86, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) ; State v. McKewen, 710 So.2d 638, 639 (Fla. 5th DCA 1998) ; Merrick v. State, 338 So.2d 77, 78 (Fla. 4th DCA 1976). As for RVs, the key issue is whether it is apparent that an RV located on the curtilage is being used as a residence. See United States v. Briscoe, No. 16-10155-EFM, 2017 WL 1908594, at *6 (D. Kan. May 10, 2017), clarified on denial of reconsideration by No. 16-10155-EFM, 2017 WL 2591633 (D. Kan. June 15, 2017) ; United States v. Kinney, No. 4:05CR00280ERW, 2005 WL 3213909, at *2 (E.D. Mo. Nov. 30, 2005) ; State v. Martini, 104 Or.App. 44, 799 P.2d 184, 186 (1990). Courts consider a myriad of factors in analyzing the issue including the exact location of the RV, whether it is owned by the homeowner or a third party, whether it is affixed to the ground or appears to be readily mobile, whether it has utility hook-ups connected to the main residence, whether it is occupied at the time the warrant is executed, and whether the police had previously been informed that the RV is being used as a separate residence. See Briscoe, 2017 WL 1908594, at *6 ; Kinney, 2005 WL 3213909, at *2 ; Martini, 799 P.2d at 186.

On one end of the spectrum is Kinney in which it was not apparent that the RV was being used as a residence. 2005 WL 3213909, at *2. The RV was located inside a unit of "a commercial building not regularly used for residential purposes which had one glass door entrance and one rolling, garage-type door entrance." Id. There was no mention of it being occupied at the time the warrant was executed. The court held that the RV was a "vehicle" within the scope of the warrant because it was readily capable of being driven on the highway and found stationary in a place not generally used as either a temporary or permanent residence. Id. (citing California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985) ); see also United States v. Noriega, 990 F.2d 1264, 1993 WL 83508, at *1-3 (9th Cir. 1993) (unpublished opinion) (upholding the search of a motor home in the bay of a garage under a warrant for a business address when the police were told it was used for storage and had not been moved for some time).

On the other end of the spectrum is Briscoe, in which it was known to police that the RV was being used as a residence. 2017 WL 1908594, at *1. The RV was parked ten to fifteen feet behind the main residence, and the police were aware it was being occupied by the residence owner's associates. Id. Moreover, the defendants were not at the wheel of the RV when the officers executed the warrant; instead, they were asleep in a bed inside the RV. Id. at *6. The court concluded that under these circumstances the "[d]efendants had a reasonable expectation of privacy in the RV." Id.

In between the two extremes are Heffernan v. State, 385 So.2d 1060 (Fla. 4th DCA 1980), and Martini. In Heffernan, the RV was a collapsible pop-up trailer parked next to the residence and registered in the homeowner's name. 385 So.2d at 1061. While it was hooked up to the home's electricity and water, it was apparently unoccupied when the warrant was executed. The Fourth District held that the search of the trailer was within the scope of the warrant as it was a vehicle located on the curtilage and owned by the occupant of the residence. Id.

In Martini, the travel trailer was located about twenty-five feet south of the main clubhouse. 799 P.2d at 185. It was also connected to the clubhouse by an electrical extension cord. There was a dog tied to the door, and the defendant identified the trailer as his. Additionally, the police had learned there were several travel trailers on the premises prior to executing the search but had not included those trailers in the warrant. The court of appeals concluded that "it seemed reasonably clear that the clubhouse and travel trailer were separate residences." Id. at 186.

The facts in this case are closer to Martini than Heffernan. Unlike in Heffernan, the police did not find an unoccupied pop-up trailer registered in the name of the homeowner. Instead, they found a full-size RV registered to and occupied by a third party who contested the officers' right to enter. Additionally, the RV had an awning and a septic line affixed to the ground, and it was connected to the main house by a router cable. The interior was also blocked from view by shades on all the windows. From this evidence, the police should have known that the RV was being used as a separate residence. Accordingly, the search of the RV exceeded the scope of the warrant.

We reject the State's argument that the officers' search was nonetheless authorized as a protective sweep. See Vasquez v. State, 870 So.2d 26, 31 (Fla. 2d DCA 2003) (holding that a protective sweep of a residence is not authorized without a separate, lawful basis for entry). We also reject the State's argument that suppression was not required under the good faith exception to the warrant requirement. See Briscoe, 2017 WL 1908594, at *6 (rejecting the application of the good faith exception when officers should have known that a separate structure not listed on the warrant was inhabited); see also ...