Rozzo v. State , s. 4D09–3913

• Decision Date: 07 December 2011
• Docket Number: 4D09–3914,Nos. 4D09–3913,4D09–3915.,s. 4D09–3913
• Citation: 75 So.3d 409
• Parties: Marc ROZZO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

75 So.3d 409

Marc ROZZO, Appellant,

v.STATE of Florida, Appellee.

Nos. 4D09–3913

4D09–3914

4D09–3915.

District Court of Appeal of Florida, Fourth District.

Dec. 7, 2011.

Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

This appeal arises out of the trial court's refusal to suppress evidence that was discovered during a warrantless search of appellant's home. At issue in this appeal is the validity of his father's consent to the search, which was obtained after appellant was taken into custody outside the home and the officers performed a protective sweep of the home. We hold that the protective sweep violated the Fourth Amendment and tainted the father's subsequent consent to search.

Appellant was on probation in two underlying cases.¹ While on probation, the police conducted a controlled drug buy from appellant. Detective Brown of the Broward Sheriff's Office testified that he and Detective Hodgson made a controlled call to appellant to purchase “Roxies.” The officers sent a “source” to meet with appellant near appellant's house. The operation occurred at about 4:00 p.m.

Detective Rush observed the transaction, while Detectives Brown and Hodgson were hiding. When Detective Rush gave the signal that the transaction was “going down,” Brown and Hodgson approached appellant. Appellant tried to walk away and threw some tablets on the ground as Detective Brown was approaching him. Detective Rush found five oxycodone pills in the grass near appellant. The officers then placed appellant in custody and had him sit on the street curb.

Because their surveillance was compromised, the officers performed a “security sweep” of the house where appellant lived with his father and his stepmother. Detective Brown admitted that during the security sweep, he ordered appellant's father and stepmother out of the house and to remain out of the house. The protective sweep took less than five minutes. The officers looked through any areas where a person could be hiding. When asked why the officers decided to clear the house, Detective Brown responded that it was because they were concerned about officer safety and contraband in the house. No further details were offered.

After clearing the house, the officers went outside and met with the father and stepmother. According to Detective Brown, the officers explained to the parents what happened with appellant. The officers further explained that they had some concerns that there was more contraband inside of the house. The parents said there was nothing inside the house and that the officers were welcome to check. The officers waited about twenty minutes for another officer to arrive with a Consent to Search form. During this time, the parents did not express to the officers that they did not want the officers to search the house. The officers did not threaten the parents. Detective Brown denied telling the parents that they would be arrested if the police were not allowed inside the house.

Appellant's father signed the Consent to Search form, which was admitted into evidence without objection. The form advised the father of the right to refuse permission to search. According to Detective Brown, appellant's father was friendly, cordial, and “more than willing” to let the officers go through the house. Brown testified that obtaining a search warrant was “never an issue” because the officers had probable cause. Brown stated that even though the officers were invited in the house, they had a probable cause affidavit if the father did not allow them inside, “but it did not come to that.”

Once the form was signed, the officers entered and appellant's father accompanied them through the house. The father took them to appellant's bedroom, where the officers found a pipe containing “Roxie” residue, multiple tablets of narcotics, and $900 in cash. After the search was over, the parents thanked the officers. The testimony of the other officers was consistent with Detective Brown's recitation of the events.

Not surprisingly, the parents' testimony presented a drastically different version of events with respect to the detectives' conduct in obtaining the father's signature on the Consent to Search form. The father and stepmother both testified that the officers ordered them out of the house and then threatened them with arrest if the officers had to wait for a search warrant and then found drugs in the home. Being a commercial airline pilot whose career would have been threatened by an arrest, the father felt coerced into signing the consent. The father stated that he did not thank the officers and expressed no knowledge of his son's drug activity.

After considering the parties' arguments, the trial court first found that there was probable cause to take appellant into custody. With respect to the search of the parents' home, the trial court found that the officers received voluntary consent for the search. The trial court specifically found as follows: “I find that the officers were credible. There was no coercion. They received consent voluntarily.” Accordingly, the trial court denied the motion to suppress.

Following the denial of the motion to suppress, the parties reached a negotiated plea agreement in all cases. Under the plea agreement, appellant's probation was revoked and he was sentenced to concurrent three-year terms of imprisonment for all offenses, but he reserved the right to appeal the denial of the motion to suppress. This appeal follows.

In this appeal, appellant does not raise any argument challenging the seizure of the pills found near his person, but rather challenges the trial court's refusal to suppress the evidence found inside his parents' home. Relying primarily on Vasquez v. State, 870 So.2d 26 (Fla. 2d DCA 2003) and Diaz v. State, 34 So.3d 797 (Fla. 4th DCA 2010), appellant argues that the officers illegally entered his house to make the initial sweep, his parents were illegally ordered out of the house and detained, and his father's subsequent consent to the search was the fruit of an illegal entry. The state responds that the initial sweep of the house was not illegal and did not invalidate appellant's father's signed consent to search the house. More specifically, the state argues that the limited and brief sweep of the home was based on the exigent circumstances of preventing the destruction of evidence—drugs which could have been disposed of easily and quickly.

“A trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling.” Terry v. State, 668 So.2d 954, 958 (Fla.1996). An appellate court is bound by the trial court's findings of historical fact if those findings are supported by competent, substantial evidence. Pagan v. State, 830 So.2d 792, 806 (Fla.2002); Hunter v. State, 32 So.3d 170, 173 (Fla. 4th DCA 2010). However, an appellate court applies a de novo standard of review to the mixed questions of law and fact that ultimately determine constitutional issues. See Schoenwetter v. State, 931 So.2d 857, 866 (Fla.2006); Falls v. State, 953 So.2d 627, 629 (Fla. 4th DCA 2007).

At the core of the Fourth Amendment stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). Accordingly, a private home is an area where a person enjoys the highest reasonable expectation of privacy under the Fourth Amendment. Ruiz v. State, 50 So.3d 1229, 1231 (Fla. 4th DCA 2011). Indeed, physical entry of the home is 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). Absent consent or exigent circumstances, police officers may not enter a dwelling without a warrant. Rebello v. State, 773 So.2d 579, 580 (Fla. 4th DCA 2000).

A protective sweep is a “quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others.” Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Where a defendant is arrested outside his or her home, a warrantless protective sweep of the defendant's home is permissible only if the officers have a reasonable, articulable suspicion that the protective sweep is necessary due to a safety threat or the destruction of evidence. See Diaz v. State, 34 So.3d 797, 802 (Fla. 4th DCA 2010); see also Klosieski v. State, 482 So.2d 448, 450 (Fla. 5th DCA 1986) (holding that warrantless entry of house to conduct a protective sweep was not justified where suspects were arrested outside the house and “the police had no reason to believe that other individuals, dangerous to their safety, were inside the house”).

A protective sweep of a home, incident to an arrest outside the home, cannot be justified routinely. See Mestral v. State, 16 So.3d 1015, 1018 (Fla. 3d DCA 2009) (holding that a protective sweep was impermissible because “the officers entered the residence as part of a routine practice and not on the basis of any articulable facts which would warrant a reasonable belief that there was any dangerous individual inside who posed a threat to those on the arrest scene”). The arresting officer must have both “ ‘(1) a reasonable belief that third persons are inside, and (2) a reasonable belief that the third persons were aware of the arrest outside the premises so that they might destroy evidence, escape or jeopardize the safety of the officers or the public.’ ” Diaz, 34 So.3d at 802 (quoting United States v. Flores, ...