State v. Ojeda

• Decision Date: 27 October 2010
• Docket Number: No. 3D08-1079,Lower Tribunal No. 07-10526A,Lower Tribunal No. 05-37152,No. 3D08-1077,3D08-1079,3D08-1077
• Parties: The State of Florida, Appellant, v. Manuel Ojeda, Appellee.
• Court: Florida District Court of Appeals

The State of Florida, Appellant,

v.Manuel Ojeda, Appellee.

No. 3D08-1079

No. 3D08-1077

Lower Tribunal No. 05-37152

Lower Tribunal No. 07-10526A

Third District Court of appeal State of Florida

July Term, A.D. 2010

Opinion filed: October 27, 2010

Not final until disposition of timely filed motion for rehearing.

Appeals from the Circuit Court for Miami-Dade County, Rosa I. Rodriguez, Judge.

Bill McCollum, Attorney General, and Lane Hodes, Assistant Attorney General, for appellant.

Jay Levine, for appellee.

Before COPE, SHEPHERD, and SUAREZ, JJ.

SUAREZ, J.

The State of Florida appeals from the trial court's grant of two separate motions to suppress filed by the defendant, Manuel Ojeda.We affirm.

In Case No. F05-37152, Ojeda pled guilty to charges of possession of cannabis, possession with intent to distribute, and possession of drug paraphernalia.The trial court initially sentenced him to nineteen months' probation, but later vacated his plea.Thereafter, Ojeda filed a motion to suppress the marijuana evidence on the ground that Ojeda's consent to search the residence was coerced by an unreasonable display of police force.

At the suppression hearing, the State called Detective Orenstein, who testified that after conducting a background check and discovering six prior contacts Ojeda had with police, he went to Ojeda's residence around 7:45 a.m. with three other detectives, one sergeant, and two uniformed officers.He did not have a warrant to search the premises.At the scene, the officers parked their marked vehicles at the front of the residence.As Orenstein approached, the uniformed officers stood about thirty feet from the entrance to the house, and the other detectives spread out around the residence.When Ojeda answered the door he appeared to have just been awakened.Orenstein explained he'd been given a tip that marijuana was being cultivated inside the residence.Ojeda calmly invited the police into the house and stated—post-Miranda—he was willing to cooperate with the investigation.Five of the officers entered the house, Ojeda signed a consent-to-search form and led police officers to a functioning marijuana lab in hisgarage, claiming it was left there by renters who had moved out approximately six weeks earlier.

The court granted Ojeda's motion to suppress by written order, holding that the unreasonable display of police presence outside of the residence would have made a reasonable person believe that he had no choice but to acquiesce.

In Case No. F07-10526A, Ojeda was charged with trafficking cannabis, conspiracy to traffic cannabis, and possession of cannabis.Ojeda filed a motion to suppress, claiming that the marijuana evidence recovered by police was the fruit of an unlawful warrantless entry into a home in order to arrest Ojeda.

At the suppression hearing, Detective Orenstein (again) testified that while performing a narcotics investigation he noticed Ojeda's truck parked outside of a residence.Orenstein claimed he then contacted Detective Knapp, who was apparently seeking Ojeda in connection with a separate investigation.According to Orenstein, Knapp said he was on his way to the State Attorney's office to seek an arrest warrant for Ojeda.¹Orenstein testified that he decided to approach the house, and was joined at the scene by Officer Benjamin.The two knocked at Ojeda's front door, Ojeda answered, and Orenstein asserted that he could immediately smell marijuana coming from the house.Orenstein testified that Ojeda told him there was no one else at the house, but Orenstein heard a door closein another room inside the residence.Orenstein then entered the house with the uniformed officer, arrested and handcuffed Ojeda, sat him at a table, and did a protective sweep that uncovered marijuana plants, hydroponics equipment, and other paraphernalia.Orenstein also found another occupant of the house, Perez, in a bathroom.Ojeda refused to sign a consent-to-search form.Orenstein obtained a warrant to search the residence after these events occurred, admitting in his testimony that he had no information prior to Ojeda's arrest that there was anything suspicious in the residence, and that the only basis for his arrest was having smelled marijuana emanating from inside the house once Ojeda opened the front door.

After hearing testimony and arguments, the trial court granted Ojeda's motion to suppress by written order, finding Detective Orenstein's testimony to be unreliable, and holding that the evidence obtained was the fruit of an unlawful warrantless entry into a home in order to make an arrest.

A ruling on a motion to suppress comes to the appellate court as presumptively correct as to disputed facts and all reasonable inferences and deductions drawn from them.Pagan v. State, 830 So. 2d 792(Fla.2002).On the other hand, we review the trial court's application of the law to the facts under the de novo standard.State v. Lennon, 963 So. 2d 765(Fla. 3d DCA2007).The dispositive issue in either case is whether the facts present an exception to thesearch warrant requirement.²This is a mixed question of law and fact and should be reviewed under the de novo standard.Fitzpatrick v. State, 900 So. 2d 495, 510(Fla.2005)("[A]ppellate courts should... accord a presumption of correctness to... the trial court's determination of historical facts, but appellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment[s].")(quotingNelson v. State, 850 So. 2d 514, 521(Fla.2003))(quotingConnor v. State, 803 So. 2d 598, 608(Fla.2001)).

In Case No. F05-37152, the record reflects that there were no exigent circumstances present at the time Detective Orenstein confronted the Defendant at his residence.Because the police had no warrant to search the property, the State argues that the subsequent search was made pursuant to the defendant's valid consent.SeeLewis v. State, 979 So. 2d 1197(Fla. 4th DCA2008)(holding that a warrantless search constitutes a prima facie showing that shifts to the state theburden of proving the search's legality);Miles v. State, 953 So. 2d 778, 779(Fla. 4th DCA2007).Once the State has presented its evidence of consent to search, the burden of proof does not shift back to the defendant to impeach that testimony or contradict the evidence.SeeLewis, 979 So. 2d at 1200.

We conclude that the totality of the circumstances did not preclude the officers from taking the time necessary to secure a warrant.³We affirm the trial court's grant of the motion to suppress in this case.SeeCaldwell v. State, 985 So. 2d 602, 606(Fla. 2d DCA2008)(applying a totality-of-the-circumstances test to the issue of whether law enforcement's conduct amounted to "a show of authority that would have caused a reasonable person to believe that he was not free to terminate the encounter")review granted, 7 So. 3d 1097(Fla.May 21, 2009).

In Case No. F07-10526A, the record indicates that no exigent circumstances existed to justify the warrantless entry and search by the detective and uniformed officer.As discussed above, the reasonableness of an entry by police onto private property without a warrant depends on the totality of the circumstances.SeeDavis v. State, 834 So. 2d 322, 327(Fla. 5th DCA2003).Some set of facts must exist that precludes taking the time to secure a warrant.SeeLevine v. State, 684 So. 2d 903, 904(Fla. 4th DCA1996).No exigent circumstances were present in this case that would excuse the failure to secure a warrant prior to entering the defendant's home.SeeUnited States v. Standridge, 810 F.2d 1034, 1037(11th Cir.), cert. denied, 481 U.S. 1072, 107 S. Ct. 2468, 95 L.Ed.2d 877(1987).We are not persuaded by the State's argument that the trial court ignored certain aspects of Detective Orenstein's testimony that bolstered his credibility.The trial court, acting as fact-finder, was allowed to make such a determination.Lewis, 979 So. 2d 1197.The burden was on the State alone to show the legality of the search; the burden does not shift back to the defendant to impeach or otherwise controvert that showing.Id. at 1201(holding that a trial court has the same ability to determine the believability of the witness as a jury; the trial court may disbelieve the only evidence offered in a suppression hearing, even if it is uncontradicted).

We affirm the trial court's grant of the defendant's motion to suppress in case numbers F07-10526AandF05-37152.

Affirmed.

COPE, J. (specially concurring).

I entirely agree with the panel members in affirming the suppression order in Miami-Dade County Circuit Courtcase number 07-10526.

In Miami-Dade County Circuit Courtcase number 05-37152, the trial court's oral pronouncement was that the court was granting the motion to suppress on authority of Miller v. State, 865 So. 2d 584(Fla. 5th DCA2004), andGonzalez v. State, 578 So. 2d 729(Fla. 3d DCA1991).The facts were that when defendant-appelleeManuel Ojeda answered the front door, he could see the two detectives at the front door plus two uniformed officers standing twenty or thirty feet away on the front sidewalk.When he invited the officers in, four detectives and one police sergeant entered the home.He was read his Miranda⁴ rights and was asked to execute the consent form.The trial court could reasonably conclude, under the authority of the cited cases, that the consent was a submission to authority and was not voluntary.

I am in doubt about that part of the majority opinion which relies on Lewis v. State, 979 So. 2d 1197(Fla. 4th DCA2008).Our court has said, in the contextof an evidentiary hearing on a motion to suppress evidence, that "[a]court must accept evidence which, like the material testimony of the police officers, is neither impeached, discredited, controverted, contradictory within itself, or physically impossible."State v. Fernandez...