State v. Ojeda

• Decision Date: 23 July 2014
• Docket Number: Nos. 3D08–1079,3D08–1077.,s. 3D08–1079
• Citation: 147 So.3d 53
• Parties: The STATE of Florida, Appellant, v. Manuel OJEDA, Appellee.
• Court: Florida District Court of Appeals

147 So.3d 53

The STATE of Florida, Appellant
v.
Manuel OJEDA, Appellee.

Nos. 3D08–1079
3D08–1077.

District Court of Appeal of Florida, Third District.

July 23, 2014.

147 So.3d 55

Pamela Jo Bondi, Attorney General, and Lane Hodes and Nikole Hiciano, Assistant Attorneys General, for appellant.

Jay Levine, Miami, for appellee.

Before SHEPHERD C.J., and SUAREZ and ROTHENBERG, JJ.^*

ON MOTION FOR REHEARING

SHEPHERD, C.J.

These consolidated cases are back before the Court on the State's motion for rehearing in Case No. 3D08–1079 (lower tribunal number 07–10526A). By opinion filed May 1, 2013, we granted the State of Florida's motion for rehearing in Case No. 3D08–1077 (lower tribunal number 05–37152) and denied the State's motion for rehearing in Case No. 3D08–1079 (lower tribunal number 07–10526A). We now grant the State of Florida's motion for rehearing in Case No. 3D08–1079 (lower tribunal number 07–10526A) and reverse the trial court order granting the motion to suppress in that case as well. We substitute the following opinion for that issued on May 1, 2013.¹

147 So.3d 56

This is the State's consolidated appeal of adverse rulings in two suppression hearings involving the same defendant, Manuel Ojeda. Ojeda's business is hydroponic marijuana farming. He had an extensive criminal history, including at least six felony and misdemeanor convictions, before his arrest in Case No. 05–37152. He is well known to the local authorities, down to the type of vehicle he drives. Miami–Dade County Police Department Detective Edward Orenstein was the sole State witness at each suppression hearing. We treat the State's appeal from each order in turn.

Case No. 05–37152

On November 30, 2005, Detective Orenstein received an anonymous tip that marijuana was being grown at a private residence located at 7621 S.W. 136th Avenue, Miami–Dade County, Florida. A background check on Ojeda—who Orenstein had been investigating as a suspect in the grow house business and who Orenstein apparently knew or learned either owned, resided at, or otherwise was associated with the residence—revealed Ojeda's prior felony and misdemeanor offenses. Armed with this information, Orenstein, along with three other detectives, one sergeant, and two uniformed officers, went to Ojeda's residence at 7:45 a.m. that morning.

Orenstein and one other detective went to the front door. Two uniformed officers were standing on the sidewalk at the front of the residence, about twenty to thirty feet from the front door, their marked police cars parked behind them at the side of the road. The officers and their vehicles were visible to anyone who chose to look out of the residence. The other three detectives were deployed around the sides of the house, prepared to stop any fleeing suspects.

Ojeda, who had just gotten out of bed, responded to Detective Orenstein's knock on the front door. According to Orenstein, when Ojeda opened the door, Orenstein explained the purpose of his visit, in response to which Ojeda replied, “Come on inside.” As Detective Orenstein and his colleague at the door entered the house, the three detectives emerged from the sides of the house and also entered. All five detectives were dressed in plain clothes, covered by a vest with the word “Police” across the front, and a badge and identification hanging around their necks. No guns were drawn, and no insistent statements or threats were uttered by any detective.

Once inside the house, Orenstein read Ojeda the warnings required by Miranda² to be given to a person in custody and asked Ojeda whether he understood them. Ojeda responded in the affirmative and, according to Orenstein, was “willing to cooperate with me with whatever I asked.” Thereupon, Orenstein asked whether Ojeda would consent to a search. Ojeda agreed and signed a consent form to search the house, adding, “Come, I'm going to show you around the house.” As the detectives were going through the house, Orenstein additionally asked for consent to search the vehicles in the driveway. According to Orenstein, Ojeda responded, “Yes, sure,” which response was confirmed by the execution of yet another consent form.³ Ojeda ultimately led the detectives into the garage, where they encountered a marijuana hydroponics grow operation. Ojeda claimed he recently had moved back into the house, after having leased it to someone, and found the garage

147 So.3d 57

in this condition. He could neither produce the name of the lessee or a lease, nor had he called the police regarding his find. Ojeda did not appear scared, under the influence of any narcotics, to have any mental issues, or to have issues of understanding during the encounter. Orenstein described Ojeda's demeanor as “confident that whatever he was going to tell me about a tenant being in the house,” would be credible. There was no evidence of odor detection before the door to the garage was opened.

The trial court granted the motion to suppress on the ground consent to search the premises was unlawfully procured through an overwhelming show of police authority, exacerbated by an unnecessary administration of Miranda on the defendant. The trial court also held Orenstein's testimony was not credible. On de novo review, according a presumption of correctness to the trial court's finding of historical facts, as we are required to do, we conclude the defendant's consents to search were objectively voluntary. We also conclude the trial court erred in finding Detective Orenstein's testimony not credible.

Whether consent is freely and voluntarily given is determined by the totality of the circumstances. Taylor v. State, 355 So.2d 180, 183 (Fla. 3d DCA 1978) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227–29, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ); see also State v. Othen, 300 So.2d 732, 733 (Fla. 2d DCA 1974). The factors to be considered include the age and maturity of the accused; whether he had a prior criminal history; the time and place of the encounter; the number of officers; whether the defendant executed a written consent form; the length of time police interrogated him before he consented; whether he was in custody; and the words and actions of the officers. Miller v. State, 865 So.2d 584, 587 (Fla. 5th DCA 2004) (citing United States v. Broomfield, 201 F.3d 1270, 1274 (10th Cir.2000) ; United States v. Glass, 128 F.3d 1398, 1406 (10th Cir.1997) ). In conducting our review, we accord a presumption of correctness to the trial court's findings of historical facts where there is substantial competent evidence to support them. State v. Glatzmayer, 789 So.2d 297, 301 (Fla.2001). However, our application of the law to the facts, including our determination of whether the defendant's consent was objectively voluntary, is de novo. Id. Finally, because a home is an area in which a person enjoys the highest reasonable expectation of privacy, we scrutinize the factors with special care. Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ; Gonzalez v. State, 578 So.2d 729, 732 (Fla. 3d DCA 1991).

In this case, the trial court relied on only three factors to conclude the consent to search was involuntary: (1) the time and place of the encounter; (2) the number of officers; and (3) the words and actions of those officers. A full analysis of all the factors, as required by law, mandates a reversal of the order entered by the trial court in this case.

First, Ojeda's age, thirty-four at the time of the search, suggests he was of sufficient maturity and experience to make an intelligent decision. Second, there is no evidence he was intoxicated or otherwise impaired. Third, Ojeda executed a written consent form that was in English, after being asked whether he wanted it in English or Spanish. See Luna–Martinez v. State, 984 So.2d 592, 600 (Fla. 2d DCA 2008) (“[T]he presence of a written consent tends to support the conclusion that the consent was given voluntarily.”). Fourth, Ojeda had a prior criminal history, creating a presumption

147 So.3d 58

he knew his rights. See Wilson v. State, 952 So.2d 564, 570 (Fla. 5th DCA 2007) (“[W]hether he had a prior criminal history—the presumption being that one who has prior criminal arrests knows his legal rights ....”). Fifth, Ojeda was read the warnings required by Miranda prior to executing the written consent. Although the warnings were unnecessary, see Davis v. State, 698 So.2d 1182, 1189 (Fla.1997) (“Miranda warnings are required whenever the State seeks to introduce against a defendant statements made by the defendant while in custody and under interrogation. Absent one or the other, Miranda warnings are not required.”), recent authority from our supreme court has recognized that, depending on the circumstance, an unneeded administration of Miranda warnings can be more protective of an individual's rights than intimidating in nature. See Caldwell v. State, 41 So.3d 188, 201 (Fla.2010) ; see also Ladson v. State, 63 So.3d 807, 809 (Fla. 3d DCA 2011) (“[T]he administration of Miranda warnings, as a matter of law, does not transform a consensual encounter into a seizure.”); accord Ruiz v. State, 50 So.3d 1229,...