State v. Lopez, 89-987
Decision Date | 17 December 1991 |
Docket Number | No. 89-987,89-987 |
Parties | The STATE of Florida, Appellant, v. Bernardo LOPEZ, Appellee. 590 So.2d 1045, 17 Fla. L. Week. D23 |
Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., for appellant.
Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal and Gerardo Castiello, Asst. Public Defenders, for appellee.
Before NESBITT, COPE and GERSTEN, JJ.
ON REHEARING GRANTED
The court grants the State's motion for rehearing, withdraws its prior opinion, and substitutes the following:
The State appeals the granting of defendant Bernardo Lopez' motion to suppress. We reverse.
An undercover officer met with defendant to discuss the purchase of cocaine. They went to defendant's apartment. Defendant produced one kilo of cocaine so that the undercover officer could test its quality. After testing, the undercover officer indicated that he wanted to purchase the kilo and that he was going to his car to retrieve the money for the cocaine purchase. Defendant said that he would wait for the undercover officer's return.
Upon leaving the apartment, the undercover officer gave a prearranged signal to some backup police officers. The backup officers entered the apartment and arrested defendant. The undercover officer then entered the apartment and seized the kilo of cocaine. Defendant moved to suppress the cocaine, arguing that there was no consent for the backup officers to enter the defendant's apartment. The trial court granted the motion and the State has appealed.
We conclude that the order must be reversed under authority of State v. Fernandez, 538 So.2d 899 (Fla. 3d DCA 1989), and State v. Steffani, 398 So.2d 475 (Fla. 3d DCA 1981), approved, 419 So.2d 323 (Fla.1982). "The law in Florida is well settled that when an undercover police officer is invited into a residence for the purpose of purchasing illegal drugs and then departs temporarily with the understanding that he will return shortly with the purchase money for the drugs, but returns instead with police officers who effect arrests therein, both the returning undercover officer and other accompanying officers have an implied consent to reenter the premises...." State v. Fernandez, 538 So.2d at 900 (citations omitted). "[T]he consensual relinquishment of the defendant's privacy involved in inviting the undercover officers into his home extends not only to their own contemplated reentry but also to the causally and temporally closely-related actions of other [backup] officers who act at their [the undercover officers'] direction and must therefore be deemed to stand in their shoes." State v. Steffani, 398 So.2d at 478 (footnote omitted). *
Here, upon the giving of the prearranged signal, the backup officers entered the apartment and arrested defendant. The undercover officer then reentered the apartment and seized the cocaine which he had previously tested. Under Steffani and Fernandez, the motion to suppress should have been denied. See also State v. Hume, 512 So.2d 185, 189 (Fla.1987); Griffin v. State, 419 So.2d 320, 322 (Fla.1982).
Defendant sought to distinguish Fernandez, arguing that Fernandez required the officer to stand at the threshold of the door while the backup officers entered the premises. Since the record is silent as to where the undercover officer stood while the backup officers entered the apartment, defendant argued that Fernandez and related cases did not apply. Defendant's position is without merit. Under the case law cited, there was implied consent for the backup officers to enter the apartment and arrest the defendant. Fernandez does not prescribe that the undercover officer stand in a particular place while the backup officers are effecting the arrest.
It is of course clear that the undercover officer remained in the vicinity and reentered the apartment after defendant was subdued, for it was the undercover officer who seized the kilo of cocaine which he had previously tested. This is not, in other words, a case in which the authorities have departed the area and come back at some later time after which any period of consent has expired. See Griffin v. State, 419 So.2d at 322.
The order under review is reversed and the cause remanded with directions to deny the motion to suppress.
Because I believe the trial court correctly suppressed the evidence, I respectfully dissent. The trial court explained the constitutional basis for its ruling You know what the basis of the constitution [is] ... why this [Fourth] Amendment was so important historically? This amendment was so important for the framers of our constitution because [of] writs of [assistance]. That's why we had a revolution because the King's people had these writs of [assistance]. They could invade anybody's property. And they said, 'No we're going to require warrants before you invade our homes.'
Who was the great jurist, the English jurist that said, 'Though my home is full of cracks and my roof leaks, wind and water may invade my premises but the king cannot without a warrant.' 1
Writs of assistance 2 were used to authorize unlimited searches of the homes of American colonists. As a reaction to these general writs, see Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1979), Standford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431, rehearing denied, 380 U.S. 926, 85 S.Ct. 879, 13 L.Ed.2d 813 (1964), the framers of the United States Constitution imbued the Fourth Amendment with language reflecting their concerns about the sanctity of a person's home:
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause ... and particularly describing the place to be searched and the persons ... to be seized.
Fourth Amendment, United States Constitution.
Article I, Section 12, of the Florida Constitution is the state law counterpart to the Fourth Amendment:
The right of the people to be secure in their persons, houses, property and effects against unreasonable searches and seizures ... shall not be violated. No warrant shall be issued except upon probable cause.... This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.
Statutes and rules authorizing searches and seizures must be strictly construed, and affidavits and warrants issued pursuant to such authority must meticulously conform to statutory and constitutional provisions. Bonilla v. State, 579 So.2d 802 (Fla. 5th DCA 1991); State v. Tolmie, 421 So.2d 1087 (Fla. 4th DCA 1982); see also Gildrie v. State, 94 Fla. 134, 113 So. 704 (1927); Leveson v. State, 138 So.2d 361 (Fla. 3d DCA 1962).
In one of the earliest cases concerning search and seizure, Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), the United States Supreme Court stated:
It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way namely by silent approaches and slight deviations from legal modes of procedure. This can only be alleviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitution as rights of the citizen, and against a stealthy encroachment thereon.
Like a boulder that has weathered many storms, the Boyd holding has been eroded. Yet, the core of Boyd conveys a warning that transcends time and applies to this majority's incremental reduction of constitutional protections.
The Fourth Amendment generally prohibits warrantless entry into a person's home, including entries to make arrests. Illinois v. Rodriguez, --- U.S. ----, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). Warrantless searches are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the United States Supreme Court considered a warrantless and non-consensual entry into a suspect's home in order to make an arrest. The Court stated:
To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is clearly present.
Payton v. New York, 445 U.S. at 573, 100 S.Ct. at 1373 (quoting United States v. Reed, 572 F.2d 412 (2d Cir.), cert. denied, 439 U.S. 913, 99 S.Ct. 283, 58 L.Ed.2d 259 (1978)). After Payton, clearly all non-consensual entries for the purposes of arrest were per se unreasonable under a Fourth Amendment analysis. Payton, 445 U.S. at 574, 100 S.Ct. at 1373.
The bright line rule in Payton has since faded to muted gray. In Griffin v. State, 419 So.2d 320 (Fla.1982), the Florida Supreme Court considered a case where police officers entered a home to make an arrest. Two undercover officers entered the...
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