State v. Ortamadruga ( 2015 )

Third District Court of Appeal
State of Florida
Opinion filed December 9, 2015.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D14-2887
Lower Tribunal No. 14-15745
________________
The State of Florida,
Appellant,
vs.
Roberto Alberto Ortamadruga,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Ariana Fajardo
Orshan, Judge.
Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney
General, for appellant.
Richard J. Diaz, for appellee.
Before SUAREZ, C.J., and WELLS and LOGUE, JJ.
WELLS, Judge.
The State appeals from an order suppressing evidence seized following the
search of a residence owned by Roberto Ortamadruga but leased in part to another
individual. The State claimed and we agree that Ortamadruga had no privacy
expectation in the leased portion of the home so as to accord him standing to object
to contraband found therein. While Ortamadruga testified that he had a key to the
leased premises and that some old papers belonging to him were located there, he
also testified that during the seven month’s duration of his oral lease with this
trucker known only to him as Tomas, he never set foot in that portion of his home
(comprised of two bedrooms and a bath located behind locked doors) leased to
Tomas and in which a substantial amount of contraband was found. Defendant’s
own testimony was that he respected Tomas’ privacy, each portion of the house
was private:
Q. And, you said that you respected his privacy
which is why you didn't go in [Tomas’s portion of the
home], correct?
A. Of course.
Q. So, you considered your portion of the home
private to you?
A. Of course.
Q. And, his portion of the home private to him,
correct?
A. Of course.
2
Thus, on the record before us we cannot agree with the trial court’s reliance
on State v. Suco, 502 So. 2d 446 (Fla. 3d DCA 1896), to conclude that
Ortamadruga had standing to complain as to the evidence seized in that portion of
the house leased to Tomas. In Suco, a landlord retained a key to collect rents and
to perform maintenance and repairs. He also used his key to enter the leased home
without the lessee’s knowledge while one of the lessees was present and made
himself at home in the kitchen and even sat down to watch television with the
lessees’ children. No such possessory interest was demonstrated in this case.
Landlord Ortamadruga himself testified he never entered the leased premises to
make repairs or for any other purpose after his lease of the segmented part of the
home to Tomas. There also is no evidence that Ortamadruga entered the leased
premises to collect rent which, according to him, the tenant paid in cash by leaving
it under a door mat in Ortamadruga’s part of the home.
Indeed, the trial judge credited Ortamadruga’s testimony that he, the
landlord, extended to his tenant an extraordinary measure of privacy in that he did
not ask Tomas for (1) a signed lease; (2) a deposit check; (3) a last name; (4) a
phone number; (5) contact information; (6) any other identifying information; or
(7) any background information. In addition, this landlord virtually never saw his
tenant.
3
Ortamadruga suggests that he had a privacy interest in the areas behind the
locked doors in that portion of the house he leased to Tomas, and into which he
testified that he never ventured, because he had left in that area some furniture
containing some old papers of an undisclosed nature. But Ortamadruga, who has
the burden of proof on this point, did not establish that the papers were such that
society would recognize that he had a reasonable expectation of privacy in them.
Indeed, the only evidence in the record suggests that Ortamadruga did not have a
privacy interest in those papers having left them in a place where a virtual stranger
had unfettered access.
In sum, while the evidence from Ortamadruga was that he, like most other
landlords, could enter the leased premises to make repairs, he assiduously
recognized his tenant’s privacy rights and never accessed the leased premises.
Because Ortamadruga failed to carry his burden to demonstrate a privacy
expectation in that part of his home leased to Tomas, we reverse the trial court’s
determination that he had standing to suppress the evidence of criminality seized
therein. See United States v. Silva, 247 F.3d 1051, 1055 (9th Cir. 2001) (“Fourth
Amendment rights cannot be asserted vicariously. In order to claim the protections
of the Fourth Amendment . . . Defendants must establish that they had an
expectation of privacy . . . and that their expectation was reasonable.”) (citations
omitted); State v. Mobley, 98 So. 3d 124, 125 (Fla. 5th DCA 2012) (“The
4
proponent of a motion to suppress carries the initial burden of establishing a
violation of the Fourth Amendment.”) (citing Rakas v. Illinois, 439 U.S. 128
(1978))); Davis v. State, 582 So. 2d 61, 62 (Fla. 1st DCA1991) (“Since a
reasonable view of the evidence supports a determination that appellant did not
have a reasonable expectation of privacy sufficient to assert Fourth Amendment
protection, we affirm the trial court’s denial of the motion to suppress.”); State v.
Mallory, 409 So. 2d 1222, 1223 (Fla. 2d DCA 1982) (“The starting point for any
consideration of standing to challenge the search of a dwelling is U. S. v. Salvucci.
In that case the Supreme Court overruled the ‘automatic standing’ rule of Jones v.
U. S., 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697, 78 A.L.R. 2d 233 (1960), and
held that a defendant charged with a crime of possession can claim the benefits of
the exclusionary rule only if his own Fourth Amendment rights have in fact been
violated. This occurs when the person can demonstrate a reasonable expectation of
privacy in the area which was searched.”).1
Accordingly, we hold that Ortamadruga lacked standing to contest the search
of that portion of his home located behind locked doors which were leased to
Tomas. The order suppressing all evidence relating to contraband seized in that
portion of his home is, therefore, reversed.
1 Because the State does not argue that the trial court erred in determining that
Ortamadruga’s written consent was not voluntary, we decline to address this issue.
5
Reversed and this matter remanded for further proceedings consistent with
this opinion.
6