State v. Rabb

• Decision Date: 23 June 2004
• Docket Number: No. 4D02-5139.,4D02-5139.
• Citation: 881 So.2d 587
• Parties: STATE of Florida, Appellant, v. James RABB, Appellee.
• Court: Florida District Court of Appeals

881 So.2d 587

STATE of Florida, Appellant, v. James RABB, Appellee.

No. 4D02-5139.

District Court of Appeal of Florida, Fourth District.

June 23, 2004.

Rehearing Denied September 22, 2004.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellant.

Charles Wender of Charles Wender Attorney-at-Law, Chartered, Boca Raton, for appellee.

GUNTHER, J.

The State appeals the trial court order granting James Rabb's¹ motion to suppress. James Rabb was charged with possession of Alprazolam (Xanex), possession of 3, 4-Methylenedioxymethamphetamine (MDMA), and possession of cannabis (marijuana). Rabb moved to suppress the drugs recovered from his house pursuant to a search warrant. The warrant had been issued based on a "dog sniff" at the exterior of Rabb's house by a canine trained to detect the odor of marijuana. The trial court granted Rabb's motion to suppress, and the State appeals. We affirm.

We take our facts directly from the Affidavit and Application for a Search Warrant:

On April 19, 2002 a source of information, who requested to remain anonymous, called the Broward Sheriff's Office and stated that a white male subject who was born in 1967, by the name of John Brown had a cannabis grow operation in his residence.

The source further explained that the residence is located on Polk Street in Hollywood, behind the Howard Johnson's Hotel.

Your Affiant and Det. Taranu investigated the allegation. A check of the Broward County Property Appraisers Office revealed that John Brown owned a residence on Polk Street in the City of Hollywood, 2839 Polk Street. During the investigation John Browns vehicle, 2011 Pontiac Firebird, Fl tag, LPS485, was observed parked in front of the residence on several occasions.

On April 23, 2002 at approximately 1530 hours, Det. Taranu and your Affiant initiated surveillance on the residence. At 1600 hours a white male, identified as John Brown, exited the residence and entered the 2001 black firebird. Mr. Brown traveled West on Polk Street, cut through the Howard Johnson's parking lot to Hollywood Blvd and entered Interstate 95 North bound. Mr. Brown traveled North on Interstate 95 with Det. Taranu and your Affiant following. During the surveillance Mr. Brown made an improper lane change and was driving approximately forty miles per hour in a fifty-five mile per hour zone.

At 1610 hours a traffic stop was initiated on Mr. Brown. While Mr. Brown was changing lanes to stop in the outside emergency lane your Affiant observed him placing his hands under the drivers seat and make several overt motions. Once Mr. Brown was stopped he was asked to exit the vehicle for officer safety. While Mr. Brown was exiting the vehicle your Affiant observed two cannabis cultivation books and one cannabis cultivation video on the front drivers seat of the vehicle in plain view. Your Affiant asked Mr. Brown for his drivers license. Mr. Brown was visually nervous, hands trembling while he was locating his license.

Mr. Brown was told that detectives were conducting an investigation and before he was asked any questions your Affiant needed to read him his rights. Mr. Brown was read his rights at which time he understood his rights and agreed to answer questions. Mr. Brown was asked if he had a cannabis grow operation inside the residence. Mr. Brown would not answer the question but stated that he was working inside the residence replacing dry-wall. Your Affiant then asked Mr. Brown about the books and video tape of cannabis cultivation inside the vehicle. Mr. Brown stated that he was just interested in cannabis cultivation.

While I was speaking to Mr. Brown Det. Taranu and his drug detector dog, "Chevy", checked the exterior of the vehicle. Det. Taranu's drug detector dog alerted to the exterior of the vehicle. The drug detector dog was then placed into the interior of the vehicle and alerted to the ashtray. One cannabis cigarette was recovered from the ashtray which field tested positive.

Your Affiant continued to speak with Mr. Brown who eventually stated that he wished to speak with an attorney. All questioning was terminated. Mr. Brown was advised that he under arrest for possession of cannabis and as detectives were about to place him into a BSO marked unit he stated that he had additional cannabis inside of his left shoe/sock. Two cannabis cigarettes were removed from Mr. Brown's left shoe/sock area. The cannabis field tested positive.

At 1705 hours Det. Taranu and his drug detector dog, "Chevy" walked by the front of the residence. The drug detector dog walked from the public roadway in front of the residence, up to the front door and alerted. The alert was consistent with previous alerts when narcotics were located. Furthermore, Sgt. Damiano and Det. Taranu walked to the front door of the residence and could smell the odor of cannabis emitting from the residence.

Based on the information provided by the confidential source, the cultivation of cannabis books and video's located in Mr. Brown's vehicle, the cannabis located in Mr. Brown's vehicle as well as his person and the drug detector dog alert on the residence, your Affiant believes that a cannabis growing operation is located inside the residence.

Based on this affidavit, a search warrant was issued for Rabb's house. When law enforcement entered the house, it discovered a cannabis grow operation and sixty-four cannabis plants. Additionally, a safe was discovered containing two MDMA tablets, Alprazolam tablets, and three cannabis cigarettes. The safe also contained a key to one of the grow rooms and Rabb's Social Security card and birth certificate, which presumably identified him as James Rabb and not John Brown. Based on the evidence recovered from Rabb's house, he was charged by information with possession of the controlled substance Alprazolam, possession of the controlled substance MDMA, and possession of cannabis in an amount of twenty grams or less.

Rabb filed a motion to suppress the evidence obtained from his house, asserting that the dog sniff at the exterior of his house was an illegal search, and thus, there was no probable cause for the issuance of a search warrant for Rabb's house.

The trial court granted the motion to suppress, recognizing the question of "whether it is violative of the Fourth Amendment to conduct a dog sniff of a private residence in order to obtain probable cause for the issuance of a search warrant," to be one of first impression in Florida. It should be noted that this question was addressed in the context of the trial court's factual finding that "Taranu took Chevy to the front door of the residence where the dog alerted."² Considering United States v. Thomas, 757 F.2d 1359 (2d Cir.1985), as persuasive precedent, the trial court concluded that the use of the dog sniff of Rabb's house amounted to a warrantless search and could not support the issuance of the subsequent search warrant for Rabb's house. The trial court then undertook to determine whether there was sufficient lawfully obtained evidence to establish probable cause to obtain a search warrant for Rabb's house without the dog sniff, and concluded that there was not where "[t]here was no indicia of a marijuana grow house, i.e., covered windows, high pedestrian traffic, higher than normal use of electricity, etc.," the informant's veracity was not established in the affidavit, and the marijuana in Rabb's car did not establish any illegal activities in his house.

"The standard of review applicable to a motion to suppress evidence requires that this Court defer to the trial court's factual findings but review legal conclusions de novo." Backus v. State, 864 So.2d 1158, 1159 (Fla. 4th DCA 2003)(citing Batson v. State, 847 So.2d 1149, 1150 (Fla. 4th DCA 2003)).

The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Under the lockstep approach of Article 1, Section 12 of the Florida Constitution, the right to be free from unreasonable searches and seizures "shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court."

The question raised in this case is whether a dog sniff at the exterior of a house is a search under the Fourth Amendment. In order to be classified as a search, law enforcement conduct must violate a "`constitutionally protected reasonable expectation of privacy.'" California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986)(quoting Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)(Harlan, J., concurring)). Furthermore, as Justice Harlan pointed out in his concurring opinion in Katz:"As the Court's opinion states, `the Fourth Amendment protects people, not places.' The question, however, is what protection it affords those people. Generally, as here, the answer to that question requires reference to a `place.'" Katz, 389 U.S. at 361, 88 S.Ct. 507.

When considering whether law enforcement activity at a house constitutes a search, it is necessary to consider the constitutional protections afforded a house throughout the long history of the Fourth Amendment. At the center of the Fourth Amendment stands "the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). In fact, "the `physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" Payton v. New York, 445 U.S. 573, 585-586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)(quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)). The Fourth Amendment operates to draw "a firm line at the entrance to...