DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ROBERT JOSHUA,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-3724
[October 30, 2019]
Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Andrew L. Siegel,
Judge; L.T. Case No. 09-21533CF10A.
Kibbey | Wagner, and Jordan R. Wagner, Stuart, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Luke R. Napodano,
Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
INTRODUCTION
Robert Joshua appeals the summary denial of his motion for
postconviction relief, which was premised on claims of newly-discovered
evidence and ineffective assistance of trial counsel. For the reasons that
follow, we find no error in the trial court’s summary denial and affirm.
FACTS AND PROCEDURAL BACKGROUND
The salient facts of this case are set forth in detail in our prior opinion
affirming in part and reversing in part following Joshua’s trial, conviction
and sentence on the charges of trafficking in methamphetamine (crystal
meth) and trafficking in methylenedioxymethamphetamine (ecstasy). See
Joshua v. State,
205 So. 3d 851 (Fla. 4th DCA 2016). 1 Nevertheless, we
1 Joshua was convicted in the 17th Judicial Circuit in and for Broward County,
Florida. He filed a timely notice of appeal with the Fourth District Court of Appeal
(4D15-1917). Thereafter, the Florida Supreme Court directed that appeal be
reproduce some of the background facts to place into proper context
Joshua’s postconviction claims and our analysis of those claims:
On November 22, 2009, Detective Thomas Reed of the
Fort Lauderdale Police Department received a phone call from
attorney Michael Leader. In that conversation, attorney
Leader told Detective Reed that he had information from a
client (who was incarcerated in the Broward County Jail), that
a package containing methamphetamine (“crystal meth”) was
going to be delivered via Federal Express (“FedEx”) to a person
named Robert Joshua, at a specific street address in Fort
Lauderdale (“Fort Lauderdale home”). Detective Reed asked
attorney Leader to obtain additional details. Leader then
obtained those additional details and called Detective Reed
back, this time providing the FedEx tracking number for the
package. However, at no time did attorney Leader provide
Detective Reed with the name of the client from whom attorney
Leader received this information.
Acting on this tip, K–9 Deputy Julie Foster and her
certified drug detection canine (K–9 Kim) were dispatched to
the FedEx facility in Fort Lauderdale to locate the package
with the identified tracking number. Once the package was
located, Deputy Foster placed it next to three other randomly-
selected packages, and the drug detection dog alerted to the
package with the identified tracking number, signifying the
presence of narcotics. The package was seized and a search
warrant was obtained. Pursuant to the warrant, the police
opened the package, which contained 28.4 grams of crystal
meth.
Detective Reed then prepared an affidavit and application
for an anticipatory search warrant for the Fort Lauderdale
home. The affidavit indicated Detective Reed would attempt to
deliver the package at the Fort Lauderdale home and, if the
package was accepted by someone within the premises, he
would execute the search warrant to retrieve the crystal meth,
conduct a narcotics investigation and effectuate an arrest if
reviewed and determined by a panel of judges from the Third District Court of
Appeal, sitting by designation as temporary judges of the Fourth District Court
of Appeal. In like fashion, a panel of judges from the Third District Court of
Appeal, sitting by designation as temporary judges of the Fourth District Court
of Appeal, is reviewing and determining the instant appeal.
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appropriate. In this affidavit, Detective Reed indicated that the
information concerning the package had been obtained from
“a documented confidential informant with the Ft. Lauderdale
Police Department” who “has provided information in past
investigations and has proven to be trustworthy and reliable.”
The anticipatory search warrant was issued on November
24, 2009, and on that same day an undercover police officer,
dressed as a FedEx delivery person, knocked on the door at
the Fort Lauderdale home with the re-sealed package
containing crystal meth. Joshua opened the door and took the
package. Detective Reed and other officers then waited
approximately fifteen to twenty minutes before knocking on
the door again. Joshua opened the door and told Detective
Reed “it’s in the safe I knew you were coming.” Joshua then
opened the safe located in his master bedroom closet, where
the 28.4 grams of crystal meth were found. The FedEx
packaging, in which the crystal meth had been delivered, was
found in a trash can in the bedroom. Police also seized
$78,376 found in the safe.
During the execution of the warrant, police observed, in
plain view on top of the bedroom dresser, fifty-two
methylenedioxymethamphetamine (“MDMA” or “ecstasy”)
pills, which were seized along with the crystal meth. According
to Detective Reed, Joshua admitted to selling ecstasy, but
denied that he ordered the crystal meth or that he was
expecting its delivery. Joshua was arrested and charged with
trafficking in crystal meth (Count I) and trafficking in ecstasy
(Count II). Joshua pleaded not guilty to both charges.
Id. at 852-53 (footnotes omitted).
Joshua was convicted of and sentenced for trafficking in crystal meth
(Count I) and trafficking in ecstasy (Count II). On appeal, Joshua
challenged both convictions on several grounds.
This court affirmed the conviction and sentence for trafficking in
ecstasy—i.e., the drugs observed in plain view when police entered
Joshua’s home to execute the anticipatory search warrant which had been
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issued for the crystal meth delivered by FedEx. 2 However, we reversed and
remanded the conviction and sentence for trafficking in crystal meth. As
to that charge, we found 1) Joshua’s motion to compel the disclosure of
the confidential informant’s identity was legally sufficient; and 2) Joshua’s
accompanying affidavit satisfied the “initial burden of asserting a legally
cognizable defense to the charge of trafficking in crystal meth, which he
supported with sworn proof, and established that the confidential
informant may be a material witness to his defense, such that the trial
court was required to conduct an in camera hearing of the confidential
informant and thereafter apply Roviaro [v. United States,
353 U.S. 53
(1957)] and its Florida progeny to determine whether disclosure is
appropriate under the circumstances presented.” Id. at 858. As we noted:
“Joshua’s defense to Count I [trafficking in crystal meth] was that he was
set up, that he did not know drugs were being delivered to him, and that
he had no intent to receive or keep the drugs.” Id. at 858.
And although the trial court did conduct an in camera hearing on
Joshua’s motion to compel disclosure of the confidential informant, the
hearing was not properly conducted, requiring us to reverse the conviction
for trafficking in crystal meth and remand with instructions for the trial
court to conduct a proper in camera hearing on the motion. Id. at 859.
In other words, we determined that the trial court’s failure to conduct
a proper in camera hearing required reversal of the conviction and
sentence for Count I only (crystal meth) because of Joshua’s asserted
defense as to that count. Had the State, following our remand, resumed
its prosecution of Joshua on the crystal meth count, the trial court would
have been required to conduct a proper in camera hearing, including
taking testimony of the confidential informant and determining whether
disclosure of the confidential informant’s identity was necessary to
Joshua’s defense to the crystal meth charge (Count I). Upon remand,
however, the State announced a nolle prosequi on the crystal meth charge,
thereby rendering further proceedings moot.
In his current motion for postconviction relief, Joshua argues that he
has newly-discovered evidence that would have led the trial court to
invalidate the anticipatory search warrant for Joshua’s home. Joshua also
asserts that defense counsel provided ineffective assistance of counsel and
that had counsel performed in a constitutionally effective manner, in
2 Importantly, in affirming Joshua’s conviction and sentence for trafficking in
ecstasy (Count II), we also affirmed the trial court’s denial of his motion to
suppress the warrant. Id. at 860 n. 16.
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combination with the newly-discovered evidence, the trial court would
have found the anticipatory search warrant invalid. If the anticipatory
search warrant was invalidated (the argument goes), the officers would not
have been legitimately in Joshua’s home, and thus the trial court would
have been required to suppress not only the crystal meth delivered to
Joshua by FedEx, but the ecstasy observed by police in plain view when
they entered Joshua’s house to execute the warrant. See, e.g., Pagan v.
State,
830 So. 2d 792 (Fla. 2002) (holding items in plain view may be seized
when, inter alia, the seizing officer is in a position where he has a legitimate
right to be).
DISCUSSION
Joshua’s argument is without merit. Even accepting as true his claims
of newly-discovered evidence and ineffective assistance of counsel, he is
not entitled to relief. That is because, regardless of the identity or
motivations of the confidential informant or misinformation alleged to have
been provided, and regardless of any asserted ineffective assistance
rendered by defense counsel, the anticipatory search warrant was
nevertheless valid because of the following three circumstances:
First, no Fourth Amendment violation occurs when law enforcement,
based only upon reasonable suspicion, temporarily detains items placed
in the U.S. mail or placed with a private delivery service such as Federal
Express. See, e.g., United States. v. Van Leeuwen,
397 U.S. 249, 252-53
(1970); United States v. Robinson,
390 F.3d 853, 870-75 (6th Cir. 2004);
United States v. Banks,
3 F.3d 399, 401-03 (11th Cir. 1993); United States
v. Bates,
100 F. Supp. 3d 77, 84-86 (D. Mass. 2015).
Second, once the FedEx package was temporarily detained, a certified
drug detection canine alerted on a package, indicating the presence of
narcotics inside the package. The canine’s alert on the FedEx package
provided probable cause for a warrant to search the package. See, e.g.,
Flowers v. State,
755 So. 2d 708, 710 (Fla. 4th DCA 1999); State v. Griffin,
949 So. 2d 309, 311-14 (Fla. 1st DCA 2007); State v. Taswell,
560 So. 2d
257, 257-58 (Fla. 3d DCA 1990). See generally, Florida v. Harris,
568 U.S.
237, 243-50 (2013). Police validly obtained a search warrant and, upon
opening the package, confirmed it contained narcotics, later determined to
be crystal meth.
Third, the execution of this valid search warrant, based upon the
canine’s alert to the package, and the discovery of crystal meth inside the
package, provided police with a legally sufficient basis to obtain an
anticipatory search warrant for Joshua’s home—the location to which the
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FedEx package was addressed and bound for delivery. It was during the
execution of this anticipatory search warrant (to search for and seize the
crystal meth) that the officers observed ecstasy pills in plain view inside
Joshua’s home, establishing the basis for the charge of trafficking in
ecstasy (Count II), the only charge for which Joshua stands convicted.
The claims raised by Joshua in his postconviction motion do not alter
the above-described acts and events. And the claims of newly-discovered
evidence and ineffective assistance of counsel (whether considered jointly
or separately) fail to create a reasonable probability of a different outcome
regarding the trial court’s determination of the validity of the search
warrants. See Strickland v. Washington,
466 U.S. 668, 694 (1984)
(announcing the two-prong test for establishing ineffective assistance of
trial counsel, requiring that a defendant prove both constitutionally
deficient performance and actual prejudice; further holding that, in
assessing the actual prejudice prong, the relevant question is whether
there is “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”)
We find the remaining issues raised by Joshua to be without merit.
Affirmed.
EMAS, LOGUE and MILLER, Associate Judges, concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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