Daniels v. State , 2017 Fla. App. LEXIS 418 ( 2017 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ZACHARY DANIELS, )
)
Appellant, )
)
v. ) Case No. 2D15-4371
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________ )
Opinion filed January 18, 2017.
Appeal from the Circuit Court for Polk
County; Glenn T. Shelby, Judge.
Rupak R. Shah of Escobar & Associates,
P.A., Tampa, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Ha Thu Dao, Assistant
Attorney General, Tampa, for Appellee.
KHOUZAM, Judge.
Zachary Daniels pleaded no contest to a number of drug-related offenses,
reserving the right to appeal the denial of his dispositive motion to suppress. We
reverse.
Daniels had an active misdemeanor warrant out of Alachua County for
failure to appear. On February 27, 2013, sometime before 1:00 p.m., Detective
Kenneth Noad received an anonymous tip, relayed by a fellow officer, that Daniels
resided in the New Jersey Road area of Lakeland, Florida, on an unknown street in a
house with the address 3036; drove a red truck with large wheels and tires lifted off the
frame; and possessed firearms and cannabis in his residence. Detective Noad did not
investigate the source of the tip or otherwise verify the allegations. After searching the
area described in the tip, at approximately 3:30 p.m. Detective Noad located Daniels in
the driver's seat of a red Chevrolet 2500 pickup truck with large chrome wheels, parked
in the carport of 3036 Pineway Avenue.
Detective Noad identified Daniels, placed him in handcuffs, and sat him on
the ground.1 Detective Noad, unsure if there was anyone else in the house,
approached the front door of the house, which was slightly ajar. He closed the door
after learning that Daniels had a dog that he did not wish to be let out of the house. In
order to ascertain if anyone else was on the premises, and without obtaining consent,
Detective Noad walked around to the north side of the house. From the curtilage of the
residence, he peered into the house through an unobstructed window and observed a
pistol case, rifle scope, and a small amount of marijuana on a table.
When Detective Noad reapproached Daniels, Daniels said that the house
belonged to his friends and that he was just staying there. Law enforcement officers
contacted the landlord of the home, who identified Daniels as one of the primary
1
Daniels was later placed in a chair and eventually placed into the back of
a patrol car where he remained for the entirety of the investigation which lasted over
eight hours.
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residents listed on the lease. The landlord also identified Kayla McBride as an occupant
of the home, but when officers reached out to McBride to obtain consent to search, she
informed them that she no longer resided there.
Having failed to obtain consent from an occupant, the State applied for a
search warrant based on an affidavit provided by Detective Noad. The State submitted
the application around 8:30-9:00 p.m. The warrant application included the information
from the anonymous tip as information provided by a fellow officer without
acknowledging the original source of the information. As to Detective Noad's
observation of the contraband in the residence, the application provided in pertinent
part: "Your affiant observed a small amount of suspected cannabis, a rifle scope, and
plastic handgun case in plain view on the kitchen table within the place to be searched."
The application did not state that Detective Noad made this observation from the
curtilage on the north side of the house. Based on the affidavit, the magistrate issued
the search warrant.
Detective Noad returned to the home and searched it pursuant to the
warrant. He found more than 800 grams of cannabis, two firearms, drug paraphernalia,
a ledger, and a scale. Daniels was kept on the scene until almost midnight when the
search was concluded. The State charged Daniels with: (1) actual or constructive
possession of a structure used for trafficking, sale, or manufacture of controlled
substances; (2) possession of cannabis within 1000 feet of a park, community center, or
recreational facility with intent to sell; (3) possession of a firearm or ammunition by a
convicted felon; (4) possession of cannabis over twenty grams; and (5) possession of
drug paraphernalia.
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Daniels filed a motion to suppress the evidence seized from the home. He
argued, in pertinent part, that Detective Noad's intrusion onto the curtilage of the home
was unlawful and that the affidavit in support of the search warrant failed to establish
probable cause. The court held an evidentiary hearing on the motion and denied it,
finding that Detective Noad's entry onto the curtilage was justified on the basis of officer
safety. Daniels entered a plea of no contest to the charges but reserved the right to
challenge the trial court's denial of his motion to suppress.
"[I]n reviewing a trial court's ruling on a motion to suppress, this court must
give deference to the trial court's factual findings if those findings are supported by
competent, substantial evidence, but this court must review the trial court's ruling of law
de novo." State v. Roman, 103 So. 3d 922, 924 (Fla. 2d DCA 2012). "A warrantless
search of a home is 'per se unreasonable under the Fourth Amendment . . . and Article
I, section 12, of the Florida Constitution, subject to a few specifically established and
well-delineated exceptions.' " State v. Fultz, 189 So. 3d 155, 158 (Fla. 2d DCA 2016)
(quoting State v. Boyd, 615 So. 2d 786, 788 (Fla. 2d DCA 1993)). The Fourth
Amendment's protection of the home extends to the curtilage. See Abel v. State, 668
So. 2d 1121, 1122-23 (Fla. 2d DCA 1996). Thus, without a warrant or an exception to
the warrant requirement, a law enforcement officer has no right to physically intrude into
the curtilage of a house. Powell v. State, 120 So. 3d 577, 585 (Fla. 1st DCA 2013).
One such exception to the warrant requirement is a protective sweep—"a
quick and limited search of the premises, incident to an arrest and conducted to protect
the safety of police officers or others." Diaz v. State, 34 So. 3d 797, 801 (Fla. 4th DCA
2010) (quoting Vasquez v. State, 870 So. 2d 26, 30 (Fla. 2d DCA 2003)). Officers may
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conduct a sweep regardless of whether or not the arrest occurred inside or outside the
home. Id. at 802. However, a protective sweep may only be performed when officers
"have a reasonable, articulable suspicion that the protective sweep is necessary due to
a safety threat or the destruction of evidence." Id. (emphasis added).
The trial court's finding that Detective Noad's intrusion onto the curtilage
was justified for officer safety was not supported by competent, substantial evidence
because there are no facts giving rise to a reasonable, articulable suspicion that a
sweep was necessary to ensure officer safety or to prevent the destruction of evidence.
While Detective Noad testified that he was unsure if there were other people in the
house, a mere suspicion that there may be additional persons on the premises was
insufficient to justify an intrusion onto the curtilage. See Roman, 103 So. 3d at 925
("[B]ecause there was no evidence that the house was occupied, the trial court correctly
found that the protective sweep of the house for officer safety was improper as there
were no specific and articulable facts supporting a reasonable belief that there was an
individual in the house who could pose a danger to law enforcement."); Klosieski v.
State, 482 So. 2d 448, 450 (Fla. 5th DCA 1986) ("The fact that the police did not know,
as an absolute certainty, whether more people were in the house, as found by the trial
court, cannot justify entry into the house.").
The State argues that Detective Noad's entry onto the curtilage was
justified because the arrest took place in front of the residence, officers were warned
that Daniels' dog should not be let out, and when law enforcement officers arrived, they
encountered another individual who was moving out of the residence and did not wish
to speak with the officers. This argument is without merit. While the State represented
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in its answer brief and at oral argument that officers encountered an individual moving
out of the house on the day of the search, the record refutes the State's position. At the
hearing on Daniels' motion to suppress, a law enforcement officer testified that the day
after the search of Daniels' residence he encountered an individual loading his
possessions on to a moving truck who did not wish to talk to officers and left as soon as
the officers arrived. This encounter, having taken place a day after the search warrant
was issued and executed, has no bearing on whether Detective Noad's warrantless
intrusion onto the curtilage was justified. And the remaining allegations—the location of
the arrest and the presence of a dog—do not give rise to a reasonable, articulable
suspicion that officer safety was jeopardized.
Having determined that Detective Noad's warrantless intrusion onto the
curtilage of Daniels' house violated the Fourth Amendment, we must determine if the
warrant is otherwise supported by probable cause.
Where a court finds that police unlawfully obtained some of
the evidence contained in the application for the search
warrant, the court must then determine if there is probable
cause to support the issuance of the warrant based on any
independent and lawfully obtained evidence. "[T]he court
must excise the invalid allegations from the affidavit and
determine whether sufficient valid allegations remain to
support a finding of probable cause."
Roman, 103 So. 3d at 925 (alteration in original) (citation omitted) (quoting State v.
Hood, 68 So. 3d 392, 395 (Fla. 2d DCA 2011)). Excising Detective Noad's observations
made from the curtilage of the home, the affidavit cannot support a finding of probable
cause because the only pertinent allegations remaining in the affidavit stem from the
anonymous tip.
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An anonymous tip that has not been proven reliable "add[s] nothing to the
determination of probable cause." Smith v. State, 904 So. 2d 534, 537 (Fla. 1st DCA
2005).2 This is because "[u]nlike a tip from a known informant whose reputation can be
assessed and who can be held responsible if her allegations turn out to be fabricated,
'an anonymous tip alone seldom demonstrates the informant's basis of knowledge or
veracity.' " Florida v. J.L., 529 U.S. 266, 270 (2000) (citation omitted) (quoting Alabama
v. White, 496 U.S. 325, 329 (1990)). The tip in this case was not shown to be reliable.
While the State contends that the tip was verified, the mere fact that readily
ascertainable details such as Daniels' location were verified "does not show that the
tipster has knowledge of concealed criminal activity." J.L., 529 U.S. at 272.
Thus, the trial court erred in determining that Detective Noad's intrusion
onto the curtilage was justified on the basis of officer safety and in denying the motion to
suppress.
Reversed and remanded.
VILLANTI, C.J., and BADALAMENTI, J., Concur.
2
An anonymous tip can justify a finding of reasonable suspicion if it,
suitably corroborated, exhibits "sufficient indicia of reliability." Florida v. J.L., 529 U.S.
266, 270 (2000).
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