IN THE CIRCUIT COURT FOR ST. LUCIE COUNTY, FLORIDA

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STATE OF FLORIDA

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vs. CASE NO: 56 2004 001510 A

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DEVON SOLOMON                /

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          ORDER GRANTING MOTION TO SUPPRESS

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This cause came before the court for a hearing on Defendant’s motion to suppress physical evidence.  The evidence was seized from Defendant’s residence pursuant to a search warrant.  Defendant does not contend that the affidavit in support of the warrant fails to allege probable cause for the search.  However, Defendant does contend some of the information incorporated into the warrant was information obtained during an illegal entry into his residence and an illegal detention of his person.  Thus, Defendant contends the fruits of the search warrant are tainted by the tainted information obtained in violation of the Fourth Amendment.  The State contends that law enforcement entered the residence after being invited in by a co-defendant, and law enforcement had probable cause to detain defendant and take him to the sheriff<‘s> department.

Upon consideration of the evidence and arguments presented the court finds:

Findings of Fact

On April 5, 2004, after midnight, a juvenile female made a complaint to St. Lucie County Deputy Sheriff Delgado that she had been at a party at an apartment early in the night and that three black males had squirted whip cream on her breasts and licked it off, and in the process also touched her butt.  She told law enforcement the location of the party and that one of the black males who sexually assaulted her was called “Devon”.  She further told law enforcement “Devon” told her he was a member of the “Bloods” gang.  She advised that during the party a male was “jumped” into a gang, meaning that he had been beaten up as part of a gang initiation.^><1>>  Deputy Delgado relayed the information to his superior, Sgt. King, who in turn organized a group of officers, including Deputy Jadi, to go to the scene of the alleged sexual assault.

The apartment was on the second story of the building, and the front door to the apartment was very near the stairs.  Sgt. King knocked on the door and announced that he was a deputy sheriff looking for “Devon”.  Deputy Jadin and other officers were standing on the stairs at a location where they could not be seen by someone in the apartment when the front door was opened.  All of the officers were armed, but according to the testimony of Deputy Jadin and Sgt. King, no officer had his firearm out or pointed prior to entering th residence.  However, Deputy Jadin (and maybe other officers) had a shotgun on a strap over his shoulder.  All of the officers ere in regular uniforms.

A co-resident of the apartment, Trevor Poston, answered the knock on the door, and according to the testimony of Sgt. King and Deputy Jadin, Poston invited Sgt. King into the front room of the apartment, indicating “Devon” was inside the apartment.  All of the officers immediately  followed Sgt. King into the apartment.  Poston was the only individual in the front room when the offers entered There were several other males, including Defendant, in the back room of the apartment sleeping.  The backroom of the apartment was Defendant’s bedroom.              After the deputies entered the front room, the testimony of Sgt. King and Depty Jadin is significantly inconsistent as to how Defendant was located inside the apartment.  Deputy Jadin testified upon entering the at the invitation of Poston, he and other deputies made a protective sweep of the apartment, finding the other males, including Defendant , asleep in the back bedroom. Deputy Jadin’s testimony at the hearing is consistent with the statement he gave Det. Pettit, which was used in the application in support of the search warrant.  However, Sgt. King testified at the hearing that Poston went back to Defendant’s bedroom and brought him out to the front room.  All of the male occupants of the apartment were put on the ground, immediately cuffed, and then transported to the sheriff department (sic) for questioning concerning the alleged sexual assault.  Sgt. King affirmatively testified he did not gt an arrest warrant for the arrest of Defendant prior to going to his residence because he dd not need one: he was investigating a rape and probable cause to detain Defendant at his residence and take him to the station for questioning.

As Deputy Jadin was conducting a protective sweep of the apartment, he looked into the bathroom and saw numerous marijuana seeds on the counter.  As he was escorting Defendant to get dressed for questioning at the station, he followed him int a walk-in closet.  While getting clothing, Defendant bumped some shelving which exposed growing marijuana plants.  These observations of marijuana contraband are the ones used by Det. Pettit to support probable cause for the search warrant obtained later that morning. 

As to how Defendant came to be located in the residence, the court finds by greater weight of the evidence that the testimony of Deputy Jadin to be more reliable than the testimony of Sgt. King for two reasons.  First, Deputy Jadin’s testimony at the hearing was consistent with the version of events he told Det. Pettit.  Second, given the information law enforcement received from the juvenile that Devon bragged about being a gang member, and that someone was “jumped” into the gang at the party, it seems highly unlikely that law enforcement would have allowed Poston to go to the back of the apartment to ask Defendant to come out.  Much of Sgt. King’s testimony corroborated that all of the occupants of the apartment were placed on the ground almost immediately and cuffed, and they were advised they were going to the station for questioning.  Such behavior is much more consistent with Deputy Janin’s description of a protective sweep of the apartment, which revealed Defendant sleeping in the back bedroom. 

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Legal Analysis

At an earlier time, it was the law in Florida that an officer did not need to arrest warrant prior to entering a person’s residence to make a felony arrest, so long as the officer had probable cause to make the arrest.  See, State v. Perez, 277 So.2d 778 (Fla. 1973).  However, in Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L.Ed. 639 (1980), THE United States Supreme Court held that any arrest made of a person in his home without a warrant and without existence of exigent circumstances would be unreasonably and unconstitutional under the Fourth Amendment.  Florida now follows that position.  See, State v. Richard, 420 So.2d 303 (Fla. 1982): Gnann v. State, 662 So.2d 406 (Fla. 2^nd DC 1995); Espiet v. State, 797 So.2d598 (Fla. 5^th DCA 2001); Burt v. State, 821 So.2d 437 (Fl 2^nd DCA 2002).

Sgt King clearly testified that he did not seek a warrant (search or arrest) before orchestrating the operation to go into the residence because he did not feel he needed one.  One can only conclude that his intentions upon entering the residence were to find Defendant and arrest him for a felony sexual assault charge.^><2>>   The State had made no argument that exigent circumstances existed to justify a warrantless entry into the residence, except the argument that law enforcement was concerned that someone may e in the residence who may have injured as a result of being initiated into a gang.  However, Sgt. King testified on cross-examination that his sole purpose for entering the residence was to investigate a rape and arrest Defendant.  He specifically denied being told by the juvenile complainant that someone was seriously injured in the apartment.

The State may justify a warrantless entry into a home if consent to enter ifs freely and voluntarily given by someone in authority to give the consent.  Saavedra v. State, 622 So.2d 952 (Fla. 1993); State v. Sakezeles, 778 So.2d 432 (Fla. 3^rd DCA 2001); Espiet.   The State has the burden of proving a valid consent.  Bumper v. North Carolina, 391 U.S 543, 88 S.Ct. 1788, 20 L.Ed. 2d. 797 (1968).  (When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of in fact proving that the consent was freely and voluntarily given.)  In order to determine whether there was a valid consent, it must first be determined whether the person giving consent merely submitted to a show of authority.  Phuagnong v. State, 714 So. 2s. 527 (Fla. 1^st DCA 1998).

Although the court has found in this case that Poston, a co-resident in the apartment, consented to Sgt. King coming through the front door and into the front room of the apartment, there can be little doubt that when Sgt. King led a procession of several officers into the front room, at least one of whom was carrying a shotgun, any further consent given by Poston would have been a mere submission to a show of authority.

Upon entering the front door, it is clear from the totality of the circumstances that the officers were searching for “Devon”.  When relying upon consent to justify a search, law enforcement has “no more authority than that reasonably conferred by terms of the consent.”  State v. Wells, 539 So.2d 464, 467 (Fla. 1989).  Both Sgt. King and Deputy Jadin affirmatively testified that at no time did any law enforcement offic3r ask permission to search or go throught the apartment.  Thus, the consent Poston may have given to enter through the front door into the front room of the apartment cannot be expanded to include a search for “Devon” in the back bedroom.  Apritectuve sweep also could not justify a search for “Devon” in the back bedroom.   Meece v. State, 742 So.2d 319 (Fla. 2^nd DCA 1999)  Thus, the State cannot justify the search for Defendant inside his residence on a theory of consent.  ^><3>>

Having failed to obtain a warrant before entering Defendant’s residence, and having filed to justify locating Defendant within the apartment on a theory of exigent circumstances or consent, the observations made by officers in the course of taking Defendant into custody are tainted, which thin turn, taints the validity of the subsequent search warrant issued for Defendant’s apartment.

  Adjudications

Wherefore it is ORDERED and ADJUDGED that Defendant’s motion to suppress is granted.

DONE and ORDERED at Ft. Pierce, Florida on February 24, 2005.

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/S/ Burton C.Conner