Stabler v. State

• Decision Date: 26 September 2008
• Docket Number: No. 1D06-4555.,1D06-4555.
• Citation: 990 So.2d 1258
• Parties: Tywan D. STABLER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

990 So.2d 1258

Tywan D. STABLER, Appellant, v. STATE of Florida, Appellee.

No. 1D06-4555.

District Court of Appeal of Florida, First District.

September 26, 2008.

Nancy A. Daniels, Public Defender; David P. Gauldin and David A. Davis, Assistant Public Defenders, Tallahassee, for Appellant.

Bill McCollum, Attorney General; Trisha Meggs Pate, Christine Ann Guard, and Charmaine M. Millsaps, Assistant Attorneys General, Tallahassee, for Appellee.

ROBERTS, J.

The appellant, Tywan Stabler, appeals the trial court's denial of his motion to suppress cocaine found by police pursuant to a search warrant. The appellant argues that the Fourth Amendment to the United States Constitution does not permit a warrantless dog sniff of the exterior door of an apartment. We disagree and affirm.

FACTS

Officers received information that several people, including the appellant and his girlfriend, were trafficking cocaine and liquid codeine. Based upon this information, officers initiated surveillance of the appellant's residence and his girlfriend's apartment. During the surveillance of the appellant's residence, officers observed the appellant leave in a vehicle driven by another subject. The officers followed the vehicle and conducted a stop.¹ During the stop, a police drug dog alerted to the odor of drugs in the vehicle. A search of the vehicle revealed a baby bottle of what appeared to be liquid codeine. With his consent, officers subsequently searched the appellant's residence but found no evidence of drug trafficking.

During this time, officers continued surveillance of the appellant's girlfriend's apartment. During the surveillance, officers interviewed the manager and other residents of the apartment complex. The manager and the other residents reported that the appellant's girlfriend lived in the complex and that the appellant was often present. They also reported that the appellant and other suspicious subjects often came and went late at night, staying only a short time and sometimes switching vehicles.

The front door of the apartment was open to public access and to a common area. Officers brought a police drug dog to the front door of the apartment and it alerted to drugs. Officers also took the dog to the front door of another apartment in the complex where it did not alert to drugs.

Based upon the information they had gathered during their surveillance of the apartment, officers prepared a probable cause affidavit and subsequently received a search warrant for the apartment. During the search, cocaine was found. The appellant was arrested and charged with trafficking in 400 grams or more, but less than 150 kilograms, of cocaine in violation of section 893.03(2)(a)4, Florida Statutes (2005). Prior to trial, the appellant filed a motion to suppress the cocaine, arguing that the search warrant was issued without probable cause. At the hearing on the motion, the trial court ruled that the dog sniff did not violate the Fourth Amendment and that, without considering the dog sniff, the other information presented in the probable cause affidavit would not support the issuance of a search warrant. The appellant subsequently pled no contest, reserving the right to appeal the trial court's denial of his motion.

ANALYSIS

This Court has explained the standard of review applicable to a trial court's ruling on a motion to suppress:

A trial court's ruling on a motion to suppress is a mixed question of fact and law. The standard of review of the findings of fact is whether competent, substantial evidence supports the findings. Findings of historical fact should be reviewed only for "clear error," with "due weight to be accorded to inferences drawn from those facts" by the lower tribunal. We must construe all the evidence, and reasonable inferences therefrom, in a manner most favorable to sustaining the trial court's ruling.

Hines v. State, 737 So.2d 1182, 1184 (Fla. 1st DCA 1999) (citations omitted). Furthermore, when the trial court

[b]ase[s] its decision to grant the motion to suppress solely on an examination of the affidavit, and without an evidentiary hearing, the issue of whether the State established probable cause sufficient to obtain a search warrant presents a question of law that is reviewable using a de novo standard.... [W]e must [give] "great deference" to the issuing judge's determination that probable cause existed (provided there is a substantial basis for the determination)....

State v. Felix, 942 So.2d 5, 8 (Fla. 5th DCA 2006) (citing Pagan v. State, 830 So.2d 792 (Fla.2002); United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). Significantly, this Court is constitutionally required to interpret search and seizure issues in conformity with the Fourth Amendment of the United States Constitution, as construed by the United States Supreme Court. See Art. I, § 12, Fla. Const.; Perez v. State, 620 So.2d 1256 (Fla.1993).

THE FOURTH AMENDMENT AND POLICE DRUG DOG SEARCHES

The appellant argues that the trial court erred in denying his motion to suppress because the dog sniff at the front door of the apartment constituted an illegal search under the Fourth Amendment and, thus, could not be used as evidence of probable cause for the search warrant. This contention, however, lacks merit.

As pointed out by the State, the United States Supreme Court recently addressed the issue of whether a dog sniff constitutes a search. In Illinois v. Caballes, 543 U.S. 405, 410, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), the Court held that "[a] dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment." Explicitly reaffirming its prior reasoning that the unique nature of a dog sniff renders it distinguishable from a traditional search, the Court stated:

[T]he use of a well-trained narcotics-detection dog—one that "does not expose noncontraband items that otherwise would remain hidden from public view"—during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation. Any intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement.

Id. at 409, 125 S.Ct. 834 (quoting United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (holding that "the particular course of investigation that the agents intended to pursue here—exposure of respondent's luggage, which was located in a public place [airport], to a trained canine—did not constitute a `search' within the meaning of the Fourth Amendment")). Considering that Caballes and Place represent the only two cases in which the Court has endeavored to address the dog sniff issue, the reasoning espoused therein is controlling and must guide this Court's ruling in the instant case.

In support of his contention that a dog sniff is a search, the appellant cites State v. Rabb, 920 So.2d 1175 (Fla. 4th DCA 2006), review denied, 933 So.2d 522 (Fla. 2006), cert. denied, ___ U.S. ___, 127 S.Ct. 665, 166 L.Ed.2d 513 (2006), in which the Fourth District held that a dog sniff at the front door of a house violated the Fourth Amendment. Such reliance, however, is misplaced as the court's holding is contrary to United States Supreme Court precedent. The court's inconsistencies stem from its decision to base its Fourth Amendment analysis on the location of the search rather than the target of the search. Applying this questionable logic the Fourth District found Place and Caballes distinguishable because the dog sniffs in those cases occurred at public locations (a public airport and a public road), rather than a private residence as it did in Rabb. Rabb, 920 So.2d at 1183, 1188-89, 1192.

Relying on United States v. Thomas, 757 F.2d 1359 (2d Cir.1985), for the proposition that individuals have a legitimate expectation that even contraband items hidden in their dwelling will not be revealed, the Fourth District concluded that Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), was controlling because it held that the use of thermal imaging technology to detect heat emanating from a private house constituted a search. Rabb, 920 So.2d at 1182-83. According to the court, using a thermal imager to discern the relative warmth of a house is analogous to using a dog sniff to detect the essence of marijuana in a house since "the smell of marijuana had its source in Rabb's house, it was an `intimate detail' of that house, no less so than the ambient temperature inside Kyllo's house." Id. at 1184. Further justifying its reliance on Kyllo, the court specifically stated that "it is of no importance that a dog sniff provides limited information regarding only the presence or absence of contraband." Rabb, 920 So.2d at 1184.

We disagree with the holding in Rabb. Neither Caballes nor Place turned on the location of the dog sniff but rather on the target of the dog sniff and the unique nature of a dog's nose: "a canine sniff by a well-trained narcotics-detection dog [is] `sui generis' because it `discloses only the presence or absence of narcotics, a contraband item.'" Caballes, 543 U.S. at 409, 125 S.Ct. 834 (quoting Place, 462 U.S. at 707, 103 S.Ct. 2637). Moreover, Thomas has been rightly criticized as contrary to United States Supreme Court precedent "indicat[ing] that a possessor of contraband can maintain no legitimate expectation that its presence will not be revealed. No legitimate expectation of privacy is impinged by governmental conduct that can reveal nothing about noncontraband items." Nelson v. State, 867 So.2d 534, 536 (Fla. 5th DCA 2004) (citing United States v. Jacobsen, 466 U.S. 109, 123, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)); see also United States v. Lingenfelter,...