State v. Suco
| Decision Date | 16 December 1986 |
| Docket Number | No. 85-2605,85-2605 |
| Citation | 502 So.2d 446,11 Fla. L. Weekly 2665 |
| Parties | 11 Fla. L. Weekly 2665, 12 Fla. L. Weekly 672 STATE of Florida, Appellant, v. Carlos Franco SUCO, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen. and Jack B. Ludin and Richard Kaplan, Asst. Attys. Gen., for appellant.
Bierman, Sonnett, Shohat & Sale and Ira N. Loewy, for appellee.
Before SCHWARTZ, C.J., and HUBBART and DANIEL S. PEARSON, JJ.
This is an appeal by the state from an order suppressing, in part, certain evidence obtained from the search of a private house. The central issue presented is whether a lessor's Fourth Amendment rights are invaded by an otherwise unreasonable search of his leased premises conducted by police where, as here, the lessor (1) retains and exercises a possessory interest in the said premises, and (2) is present on the premises with the permission of the lessee at the time of the search and does not consent to same. For the reasons which follow, we conclude that the lessor's Fourth Amendment rights are invaded upon either one of the above showings. We, accordingly, affirm.
The evidence which the trial court suppressed in this case was seized by officers of the Metro-Dade Police Department pursuant to a warrantless search of a single family home located at 6977 S.W. 148 Terrace, in unincorporated Dade County, Florida. The home was owned by the defendant Carlos Franco Suco who had purchased it on August 31, 1984. In January 1985, the defendant Suco orally leased the home on a six-month basis (January-July 1985) to the codefendants Jorge and Isabel Betancur, who commenced living on the premises with their three children. Although the defendant Suco did not reside at the house, he frequently was there to collect the rent and to ensure that proper maintenance was conducted and necessary repairs made to the house. Moreover, he possessed a key to the front door and had the right to enter the house whenever he chose, as there were no stated restrictions to his right of entry.
On June 7, 1985, at approximately 9:00 P.M., the defendant Suco, accompanied by the codefendant Jorge Navarrette, walked up to the front door of the aforesaid house and knocked on it. The codefendant Isabel Betancur was in the laundry room of the house and did not hear the knock. When no one answered the door, the defendant Suco used his key to open the door himself and entered the house. He proceeded to walk to the family room where he sat down on a couch and began to watch television with the Betancur children.
At approximately the same time, Officers Noberto Gonzalez and Mark Silvia of the Metro-Dade Police Department were on patrol in the area in an unmarked police car surveilling the area for possible home invasion robberies. The officers saw the defendant Suco and the codefendant Navarrette standing at the front door of the above house as they passed in their car. Their suspicions aroused, the officers circled back to the house and observed that the two men they had seen earlier were no longer there. They then surveilled the premises for about fifteen minutes during which time nothing happened. Determined to investigate the matter further, they called for backup police assistance. Two backup police units arrived: Officer Roberto Morales, a uniformed officer, and Officers Leslie Cravens and Tom Gross who were also patrolling the area for possible home invasion robberies.
After the arrival of the backup units, Officers Gonzalez and Silvia went around to the back of the house. Gonzalez was unable to observe from his vantage point the two Betancur children watching television in the living room area. He then returned to the front door and, accompanied by Officer Morales, knocked on the During this conversation, Officer Silvia, in back of the house, was able to observe the defendant Suco walk out of the kitchen area, sit down and begin watching a Flintstone cartoon on television; Officer Silvia also saw the codefendant Navarrette walk from the kitchen area to the area where the television was, turn around, and walk back to the kitchen. Plainly, neither Officer Gonzalez nor Officer Silvia observed anything suspicious in the house and nothing whatever to indicate that a home invasion robbery was taking place.
door. The codefendant Isabel Betancur, with a small baby in her arms, answered the door and had a conversation with the two officers.
Meanwhile in the front of the house, Officers Morales and Gonzalez conversed with the codefendant Isabel Betancur. Mrs. Betancur was totally unaware that the defendant Suco and the codefendant Navarrette were in the house. Without going into all the details of this conversation, suffice it to say that the trial court found that Mrs. Betancur voluntarily consented to allow the police to enter the house for the purpose of locating two men whom the police suspected might be home invaders.
Officers Gonzalez, Morales and Cravens then entered the house with their guns drawn and, after a short period of time, discovered that no home invasion had taken place. They observed the defendant Suco sitting in the living room watching television; Mrs. Betancur immediately had a brief conversation with Suco as to when he had entered the house, and it was obvious to the police that the two were acquainted. The police also observed the codefendant Navarrette standing by the door of the northwest bedroom, and he too presented no evidence of being a home invader. There followed two distinct searches conducted by the police.
First, Officer Cravens continued his search for possible home invaders by walking down the hall into the northeast bedroom of the house. He observed a table in the middle of the room with paper, rubber bands, and writing implements on it. He also saw a box on the floor with a large amount of United States currency in it and two vinyl suitcases with the sides slashed. He looked in the closet of the bedroom and discovered a bag with money in it. He asked the codefendants Navarrette and Isabel Betancur whose money was in the box, and both responded with a shrug. Cravens suspected at that time that he had stumbled on a large amount of illegal drug money, returned to the living room, and so informed the other officers.
The police then ordered everyone outside the house onto the front porch where the officers obtained identification from the defendant Suco and the codefendants Isabel Betancur and Navarrette. While the suspects remained on the porch in police custody, Officers Cravens and Gonzalez reentered the house and went back to the northeast bedroom to inspect the cash there. While in the room, they observed a ledger book on a table and a garbage-type plastic bag which contained money. Gonzalez peeled back a flap on one of the slashed vinyl suitcases and saw coffee grounds on the inside lining.
Eventually, the police seized the above-stated physical evidence from the northeast bedroom. The trial court ruled below that the above evidence was reasonably seized by the police pursuant to the plain view doctrine. Although the defendant Suco has attempted to cross-appeal this ruling, he has since abandoned same as, plainly, this court has no jurisdiction to entertain such a cross-appeal. State v. Ferguson, 405 So.2d 294 (Fla. 4th DCA 1981); State v. DeConingh, 396 So.2d 858 (Fla. 3d DCA 1981); State v. Clark, 384 So.2d 687 (Fla. 4th DCA), pet. for review denied, 392 So.2d 1372 (Fla.1980). This aspect of the trial court's ruling is, therefore, not before us today, and, accordingly, we express no views as to the propriety of same.
Second, the police escorted the defendant Suco and the codefendants Isabel Betancur and Navarrette into the house, and separated Mrs. Betancur from the rest of the group. They learned from her that she had a revolver in the master bedroom and they seized same. The police then gathered everyone in the living room and learned that the defendant Suco was the owner of the house. The police then separated Suco from the rest of the group and attempted to obtain his consent to search the house. Suco refused to give such consent.
At approximately 10:00 P.M., Officer Fernandez took the codefendant Isabel Betancur aside again and had a conversation with her. Without going into all the details of this conversation, suffice it to say that Mrs. Betancur eventually signed a written form consenting to a police search of the house. The police then conducted a general search of the house, during which time they discovered and seized 208 kilos of cocaine, cash and three semiautomatic weapons.
The trial court specifically found the following with reference to Mrs. Betancur's consent for this general search:
The state does not contest this finding on appeal.
The defendant Suco and the codefendants Jorge Navarrette, Jorge Betancur, and Isabel Betancur were...
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