Vargas v. State

• Decision Date: 01 June 1994
• Docket Number: Nos. 92-556,s. 92-556
• Citation: 640 So.2d 1139
• Parties: 19 Fla. L. Weekly D1187 Miguel Angel VARGAS, Appellant, v. STATE of Florida, Appellee. to 92-558.
• Court: Florida District Court of Appeals

Page 1139

640 So.2d 1139

19 Fla. L. Weekly D1187

Miguel Angel VARGAS, Appellant, v. STATE of Florida, Appellee.

Nos. 92-556 to 92-558.

District Court of Appeal of Florida,

First District.

June 1, 1994.

Rehearing Denied Aug. 25, 1994.

William J. Sheppard of Sheppard and White, and Michael R. Yokan, Jacksonville, for appellant.

Robert A. Butterworth, Atty. Gen., Gypsy Bailey and Giselle Lylen Rivera, Asst. Attys. Gen., Tallahassee, for appellee.

PER CURIAM.

This is an appeal of judgments and sentences for multiple counts of burglary and sexual battery in three consolidated cases. Appellant was initially arrested on January 15, 1990, as he allegedly was attempting to break into a ground floor apartment. Based on similarities between this attempted burglary and two previous burglaries in which sexual batteries had been committed, a search warrant was issued to take a sample of appellant's blood for the purpose of conducting DNA profile testing. Based on the results of this testing, appellant was charged with the other burglaries and sexual batteries, to which he eventually pled nolo contendere, reserving the right to appeal the rulings on his motions.

On appeal, appellant raises four issues, contending the trial court erred in: (1) denying his motion to suppress evidence challenging the facial validity of the warrant pursuant to which his blood was drawn for analysis; (2) finding that alleged misrepresentations and omissions in the affidavit supporting the issuance of the search warrant did not entitle him to a hearing or require suppression of evidence; (3) denying suppression of evidence allegedly seized by an officer operating outside his territorial jurisdiction; (4) denying appellant's motion in limine as to the admission of alleged novel scientific evidence. We find no error as to the first two issues and affirm as to them. As to the third issue, we affirm but certify the question involved as one of great public importance. As to the fourth issue, we vacate the order on the motion in limine and remand for further proceedings, and certify the question as one of great public importance.

Appellant pled nolo contendere to a total of six counts of burglary and sexual battery involving three victims. He was sentenced to 22 years on the burglary counts and 15 years on the sexual battery counts, to be served concurrently. The parties stipulated below that the rulings on each of appellant's motions to suppress and the motion in limine were dispositive of the case. ¹

After a hearing, the trial court denied appellant's motion to suppress in which he argued the officer who served the search warrant for the blood sample was outside his territorial jurisdiction when he did so, and thus in violation of section 933.08, Florida Statutes. ² There were two search warrants directed to the sheriff and deputy sheriffs of Duval County; one directed to appellant's body and one for his home. Officer Harris, a Clay County officer who was involved in the investigation of this case, went to Cecil Field in Duval County to pick up appellant. At the hearing, Officer Harris said when he initially picked appellant up, he gave appellant the option of going with him from Cecil Field to his home or having a Duval County officer come and get him, and that appellant went with him voluntarily. When confronted with his deposition testimony indicating he had read the warrant to appellant at Cecil Field, Harris said he could not recall having done so. He said he did not read the warrant to appellant until they were at appellant's home in Duval County, and then he read the warrant to appellant "in the authority of" Officer Baer, a Duval County sheriff's deputy. Officer Harris had arranged for Officer Baer to meet him and appellant at appellant's home, where both officers conducted a search. Harris testified further that appellant rode with him to the Sexual Assault Treatment Center for the blood to be drawn, and again Officer Baer met them there. Harris was in the room with appellant while the blood was being drawn; Baer was outside the room.

Appellant has discussed the following authorities in support of his argument that the search warrant directed to officers of Duval County was invalidly executed by an unauthorized Clay County officer: Morris v. State, 622 So.2d 67 (Fla. 4th DCA 1993); State v. Griffis, 502 So.2d 1356 (Fla. 5th DCA), review denied, 513 So.2d 1063 (Fla.1987); Hesselrode v. State, 369 So.2d 348 (Fla. 2d DCA 1979), cert. denied, 381 So.2d 766 (Fla.1980). In Morris, the district court concluded there had been an unauthorized search conducted entirely by the Auditor General's staff, who were not authorized to search pursuant to the Auditor General's investigative authority. A Fort Lauderdale police officer, who was authorized by search warrant, accompanied the staff members to the physician's office, but did not take part in, observe, or supervise the search; he waited in another room while the staff searched the physician's files. He signed an inventory sheet without verifying its accuracy or determining what had been seized.

The court in Morris noted that "[u]nder section 933.08, the persons authorized in a warrant to conduct a search and seize the items described must actually execute the warrant and conduct the search," 622 So.2d at 68, citing Hesselrode v. State, 369 So.2d 348 (Fla. 2d DCA 1979), cert. denied, 381 So.2d 766 (Fla.1980). The court was concerned with the complete lack of participation in the search by the authorized police officer, stating:

Under the statute, the officer authorized by the warrant to conduct the search and seize the evidence designated must participate in or supervise the search even where he requires the assistance of others to do so. While the level of supervision and participation may vary depending upon the circumstances, it is absolutely essential that the officer authorized be present when and where the search is conducted and carry out his responsibility to see that the warrant is properly executed and that its authorization is not exceeded. It is not enough that the authorized officer wait in another room while the search is conducted by others.

622 So.2d at 69.

In Griffis, a search warrant directed to Titusville police officers and Brevard County sheriff's deputies was executed by a Titusville police officer in the city of Cocoa, in Brevard County, outside his authorized territory. The court noted that, had a Brevard County deputy accompanied him it would have saved the search; although a Cocoa police officer was present, the search warrant was not directed to him. And in Hesselrode, a search warrant directed to Manatee County sheriff's officers was invalidly executed by Longboat Key police officers, who had applied for the warrant. According to the court, any Manatee officers present were mere passive observers "at best"; all of the investigative work had been done by the Longboat Key police, and they alone conducted the search and seizure. The court noted that the warrant could have named the Longboat Key officers, but did not.

Appellant contends the cases discussed above, particularly Morris, require a determination that the search warrant in the instant case was invalidly executed in that, although an authorized officer, Officer Baer, was present when Officer Harris read the warrant to appellant, Officer Harris drove him to the hospital where the blood was to be drawn, took custody of the blood sample, and signed the inventory. Officer Baer was also present at the hospital, although he was not present in the room when the blood was drawn. In this case, however, neither Harris nor Baer conducted the search at issue in the traditional sense; they both accompanied appellant to the hospital and were present while medical personnel collected the blood sample. On this record, we are not willing to say Officer Baer was simply "out and about the scene" as the Manatee County officers apparently were in Hesselrode, or that he did not in any way act in execution of the search warrant. Recognizing that the warrant named only Duval County officers, Officer Harris had made specific arrangements for Officer Baer to be present both at appellant's home where the search warrant was read and at the Sexual Assault Treatment Center where the blood was to be drawn. Finally, unlike the situation in Morris, where the actual search was conducted by Auditor General employees, only law enforcement officers were involved in the execution of the search warrant here, and unlike the situation in Griffis, an officer named in the search warrant was present. Therefore, we affirm the trial court's ruling on this motion to suppress. However, we certify the following question:

WHETHER A SEARCH WARRANT FOR A BLOOD SAMPLE IS PROPERLY SERVED AND EXECUTED IN THE PRESENCE OF AN OFFICER WHO IS WITHIN THE TERRITORY NAMED IN THE SEARCH WARRANT, WHEN THE OFFICER WHO READS THE WARRANT TO THE ACCUSED, TRANSPORTS THE ACCUSED TO THE HOSPITAL FOR THE BLOOD TEST, AND TAKES CUSTODY OF THE BLOOD SAMPLE, IS NOT WITHIN THE SCOPE OF THE WARRANT?

Appellant's final issue on appeal challenges the admissibility of DNA profile evidence. The specific basis for the challenge in this case involves the final stage of DNA profiling, when, after it is determined the defendant's DNA "matches" the DNA found in the sample taken from the crime scene, population statistics are applied to determine the likelihood that someone else in the population might also "match" the DNA found at the crime scene. Appellant, who is undisputedly of Puerto Rican descent, argues he is a member of a subgroup as to whom the data bases compiled by the FBI, and used by FDLE, to determine the probability that someone else in the population would also match, are not generally accepted in the scientific community as reliable for use at criminal trials. The specific reason for this alleged unreliability is the possibility of a substructure within ethnic groups...