State v. Fernandez

• Decision Date: 25 March 2022
• Docket Number: 2D19-1184
• Citation: 335 So.3d 784
• Parties: STATE of Florida, Appellant, v. Ricardo L. FERNANDEZ, Appellee.
• Court: Florida District Court of Appeals

335 So.3d 784

STATE of Florida, Appellant,

v.Ricardo L. FERNANDEZ, Appellee.

No. 2D19-1184

District Court of Appeal of Florida, Second District.

March 25, 2022

Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellant.

Howard L. Dimmig, II, Public Defender, and Daniel Muller, Assistant Public Defender, Bartow, for Appellee.

EN BANC

SMITH, Judge.

Upon consideration of appellee's motion for rehearing en banc and motion for certification of a question of great public importance to the Florida Supreme Court,

IT IS ORDERED that the motion for rehearing en banc is granted pursuant to Florida Rule of Appellate Procedure 9.331(d)(3).The opinion dated January 6, 2021, is withdrawn, in part, and the attached opinion replaces that portion of the opinion reversing and remanding for a new suppression hearing and further certifies conflict with Taylor v. State , 326 So. 3d 115(Fla. 1st DCA2021);State v. Martin , 287 So. 3d 645(Fla. 4th DCA2019);State v. Abeles , 483 So. 2d 460(Fla. 4th DCA1986);Morales v. State , 407 So. 2d 321(Fla. 3d DCA1981);St. John v. State , 400 So. 2d 779(Fla. 1st DCA1981);andCoster v. State , 392 So. 2d 16(Fla. 3d DCA1981).We leave undisturbed the original panel's decision affirming without comment the trial court's granting of the motion to suppress.The motion for certification is denied.No further motions will be entertained.

The State appeals the trial court's nonfinal order granting Ricardo Fernandez's motion to suppress, which found that the affidavit used to obtain an anticipatory search warrant was deficient and the good faith exception to the warrant requirement did not apply.SeeFla. R. App. P. 9.030(b)(1)(B);9.140(c)(1)(B);see also§§ 924.07(1)(l ), .071(1), Fla. Stat.(2017).The original panel affirmed without comment the merits of the trial court's granting of the motion to suppress, which found the affidavit used to obtain the anticipatory search warrant was deficient and the good faith exception to the warrant requirement did not apply.That portion of the opinion is left undisturbed as it is not the subject of our en banc review.In addition to challenging the basis for the order granting the motion to suppress as found by the trial court, the State also argues for the first time on appeal that Mr. Fernandez lacked "standing" under the Fourth Amendment to complain about the invalid warrant.¹Because the State did not preserve the "standing" argument below, that argument does not alter the original panel's affirmance of the order on appeal.See§ 924.051(3);State v. Jefferson , 758 So. 2d 661, 666(Fla.2000)(explaining that failure to properly preserve error is not a limitation on the appellate court's subject matter jurisdiction and should result in affirmance).We grant Mr. Fernandez's motion for rehearing en banc pursuant Florida Rule of Appellate Procedure 9.331(d)(3) to address solely the issue of the State's ability to challenge "standing" for the first time on appeal.

I

Only a brief recitation of the facts is required because the State concedes that its Fourth Amendment standing argument was first made in this appeal and not in the trial court proceedings below.

Mr. Fernandez was arrested and charged with trafficking in amphetamine, possession of drug paraphernalia, and resisting an officer without violence after law enforcement executed an anticipatory search warrant.Mr. Fernandez filed a motion to suppress all evidence, observations, and statements arising from the search, arguing the search warrant was insufficient on its face because there was no probable cause to support the issuance of the anticipatory search warrant.After a hearing, the trial court granted the motion to suppress finding that the affidavit used to obtain the anticipatory search warrant was deficient and the good faith exception to the warrant requirement did not apply.The State did not raise any arguments related to Mr. Fernandez's standing to challenge the warrant, and the trial court did not make any findings regarding the same.On appeal, the State has raised, for the first time at any level of this case, its argument that Mr. Fernandez lacks "standing" to contest the validity of the search warrant—in other words, the State has asked this court to reverse the order granting suppression because Mr. Fernandez did not have a reasonable expectation of privacy in the object of the challenged search and, therefore, he could not challenge the validity of the warrant.

II

"An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved would constitute fundamental error."§ 924.051(3);see alsoTillman v. State , 471 So. 2d 32, 35(Fla.1985);Steinhorst v. State , 412 So. 2d 332, 338(Fla.1982);Black v. State , 367 So. 2d 656, 657(Fla. 3d DCA1979).To be

'[p]reserved' means that an issue, legal argument, or objection to evidence was timely raised before, and ruled on by, the trial court, and that the issue, legal argument, or objection to evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.

§ 924.051(1)(b).Here, the State does not argue fundamental error and also concedes that the issue of Mr. Fernandez's lack of "standing" under the Fourth Amendment to challenge the search warrant is an unpreserved argument.But it insists that we should follow our longstanding case law supporting the State's right to raise Fourth Amendment"standing" for the first time on appeal.Mr. Fernandez, on the other hand, rightfully points out that our longstanding case law is flawed and that we should recede from those cases that allow the State to raise this "standing" for the first time on appeal and follow the opinion of this court in State v. Mae , 706 So. 2d 350(Fla. 2d DCA1998).Because the longstanding case law does not follow the statutory requirements related to preservation for appellate review, we agree with Mr. Fernandez.

We write to address the following issue: whether, in the absence of any fundamental error, the State may raise the issue of Fourth Amendment"standing" for the first time on appeal when the State concedes that it did not preserve the issue in the trial court.²The clear answer here is no—based upon both the plain language of section 924.051 and the basic tenets of appellate preservation.We further write to therefore explain the conundrum of how this rule of law—allowing the State to raise Fourth Amendment"standing" for the first time on appeal—came to be; recede from our own case law following this body of law; approve our decision in Mae , 706 So. 2d 350, which applies section 924.051 to hold that the State waived its "standing" argument; and certify conflict with our sistercourts.

III

Deeply rooted in this court and our sistercourts is a litany of cases that hold that the State may raise Fourth Amendment"standing"—i.e., that the defendant lacked any reasonable expectation of privacy in the area or items searched—for the first time on appeal.

Most of these cases merely acknowledge that the State is permitted to raise this issue for the first time on appeal and then either proceed to consider the merits of the case or otherwise send the case back for the lower court to hold a hearing on the "standing" issue.See, e.g. , Hendley v. State , 58 So. 3d 296, 299(Fla. 2d DCA2011)(acknowledging that "standing may be properly raised for the first time on appeal" but holding that remand to develop factual evidence related to the defendant's "standing" would be futile based upon the record evidence);Murphy v. State , 32 So. 3d 122, 125(Fla. 2d DCA2009)("We note that the State raised its challenge to Murphy's standing for the first time on appeal.While the issue can be addressed by this court, Murphy was never given an opportunity to meet his burden of proof on this issue.Accordingly, Murphy is entitled to an evidentiary hearing on the matter."(citation omitted));see alsoState v. Fernandez , 36 So. 3d 120, 123(Fla. 2d DCA2010)("The State argues for the first time on appeal that ... Fernandez has no privacy right in the prescriptions.The State does not use the word standing....This is a standing argument that may be raised for the first time on appeal.");McCauley v. State , 842 So. 2d 897, 900(Fla. 2d DCA2003)("[T]he concept of standing has been subsumed into Fourth Amendment issues and can be raised for the first time on appeal."(first citing State v. Abeles , 483 So. 2d 460, 461(Fla. 4th DCA1986); and then citing St. John v. State , 400 So. 2d 779, 780(Fla. 1st DCA1981) )).

These cases uniformly remand for a hearing where the issue of Fourth Amendment"standing" was not developed by the record below, thereby granting the defendant, who bears the burden of proof on the issue of "standing" at the suppression hearing, the opportunity to meet this burden.SeeState v. Pettis , 266 So. 3d 238, 240(Fla. 2d DCA2019)(remanding for trial court to conduct suppression hearing addressing defendant's Fourth Amendment"standing," which was not raised below and was not developed by the trial court);State v. Johnson , 40 So. 3d 904, 905(Fla. 2d DCA2010)(remanding for the trial court to make express findings as to defendant's Fourth Amendment"standing" where the issue was not addressed below);Fernandez , 36 So. 3d at 123;Murphy , 32 So. 3d at 125;State v. Backner , 413 So. 2d 409, 410(Fla. 2d DCA1982)(permitting the State to challenge for the first time on appeal the defendants' "standing" to challenge the search based upon the Third District's decision in Morales v. State , 407 So. 2d 321(Fla. 3d DCA1981), and relinquishing jurisdiction to the trial court for a determination whether the defendants' constitutional rights were violated).For reasons not apparent from these opinions, the issue of the lack of appellate...