Third District Court of Appeal
                                    State of Florida

                              Opinion filed July 23, 2014.
     This opinion is not final until disposition of any further motion for rehearing
    and/or rehearing en banc. Any previously-filed motion for rehearing en banc is
                                      deemed moot.

                                    ________________

                                  No. 3D08-1079
                             Consolidated: 3D08-1077
                      Lower Tribunal Nos. 05-37152; 07-10526A
                                ________________


                               The State of Florida,
                                       Appellant,

                                           vs.

                                    Manuel Ojeda,
                                        Appellee.



      Appeals from the Circuit Court for Miami-Dade County, Rosa I. Rodriguez,
Judge.

      Pamela Jo Bondi, Attorney General, and Lane Hodes and Nikole Hiciano,
Assistant Attorneys General, for appellant.

        Jay Levine, for appellee.

Before SHEPHERD C.J., and SUAREZ and ROTHENBERG, JJ.*

*   Judge Rothenberg did not participate in oral argument.
                         ON MOTION FOR REHEARING

      SHEPHERD, C.J.

      These consolidated cases are back before the Court on the State’s motion for

rehearing in Case No. 3D08-1079 (lower tribunal number 07-10526A). By opinion

filed May 1, 2013, we granted the State of Florida’s motion for rehearing in Case

No. 3D08-1077 (lower tribunal number 05-37152) and denied the State’s motion

for rehearing in Case No. 3D08-1079 (lower tribunal number 07-10526A). We

now grant the State of Florida’s motion for rehearing in Case No. 3D08-1079

(lower tribunal number 07-10526A) and reverse the trial court order granting the

motion to suppress in that case as well. We substitute the following opinion for

that issued on May 1, 2013.1

      This is the State’s consolidated appeal of adverse rulings in two suppression

hearings involving the same defendant, Manuel Ojeda.            Ojeda’s business is

hydroponic marijuana farming. He had an extensive criminal history, including at

least six felony and misdemeanor convictions, before his arrest in Case No. 05-

37152. He is well known to the local authorities, down to the type of vehicle he

drives. Miami-Dade County Police Department Detective Edward Orenstein was



1 The defendant did not file a motion for rehearing in Case No. 3D08-1077. Thus,
the decision and opinion of the Court in that case are final in this court. We restate
the opinion in that case here for convenience of the reader.

                                          2
the sole State witness at each suppression hearing. We treat the State’s appeal

from each order in turn.

                                Case No. 05-37152

      On November 30, 2005, Detective Orenstein received an anonymous tip that

marijuana was being grown at a private residence located at 

Avenue, Miami-Dade County, Florida.           A background check on Ojeda—who

Orenstein had been investigating as a suspect in the grow house business and who

Orenstein apparently knew or learned either owned, resided at, or otherwise was

associated with the residence—revealed Ojeda’s prior felony and misdemeanor

offenses.   Armed with this information, Orenstein, along with three other

detectives, one sergeant, and two uniformed officers, went to Ojeda’s residence at

7:45 a.m. that morning.

      Orenstein and one other detective went to the front door. Two uniformed

officers were standing on the sidewalk at the front of the residence, about twenty to

thirty feet from the front door, their marked police cars parked behind them at the

side of the road. The officers and their vehicles were visible to anyone who chose

to look out of the residence. The other three detectives were deployed around the

sides of the house, prepared to stop any fleeing suspects.

      Ojeda, who had just gotten out of bed, responded to Detective Orenstein’s

knock on the front door. According to Orenstein, when Ojeda opened the door,



                                          3
Orenstein explained the purpose of his visit, in response to which Ojeda replied,

“Come on inside.” As Detective Orenstein and his colleague at the door entered

the house, the three detectives emerged from the sides of the house and also

entered. All five detectives were dressed in plain clothes, covered by a vest with

the word “Police” across the front, and a badge and identification hanging around

their necks. No guns were drawn, and no insistent statements or threats were

uttered by any detective.

        Once inside the house, Orenstein read Ojeda the warnings required by

Miranda2 to be given to a person in custody and asked Ojeda whether he

understood them. Ojeda responded in the affirmative and, according to Orenstein,

was “willing to cooperate with me with whatever I asked.” Thereupon, Orenstein

asked whether Ojeda would consent to a search. Ojeda agreed and signed a

consent form to search the house, adding, “Come, I’m going to show you around

the house.” As the detectives were going through the house, Orenstein additionally

asked for consent to search the vehicles in the driveway. According to Orenstein,

Ojeda responded, “Yes, sure,” which response was confirmed by the execution of

yet another consent form.3 Ojeda ultimately led the detectives into the garage,

where they encountered a marijuana hydroponics grow operation. Ojeda claimed

he recently had moved back into the house, after having leased it to someone, and

2   Miranda v. Arizona, 

(1966).
3   The search of the vehicles was non-productive.

                                          4
found the garage in this condition. He could neither produce the name of the

lessee or a lease, nor had he called the police regarding his find. Ojeda did not

appear scared, under the influence of any narcotics, to have any mental issues, or to

have issues of understanding during the encounter. Orenstein described Ojeda’s

demeanor as “confident that whatever he was going to tell me about a tenant being

in the house,” would be credible. There was no evidence of odor detection before

the door to the garage was opened.

      The trial court granted the motion to suppress on the ground consent to

search the premises was unlawfully procured through an overwhelming show of

police authority, exacerbated by an unnecessary administration of Miranda on the

defendant. The trial court also held Orenstein’s testimony was not credible. On de

novo review, according a presumption of correctness to the trial court’s finding of

historical facts, as we are required to do, we conclude the defendant’s consents to

search were objectively voluntary.     We also conclude the trial court erred in

finding Detective Orenstein’s testimony not credible.

      Whether consent is freely and voluntarily given is determined by the totality

of the circumstances. Taylor v. State, 

, 183 (Fla. 3d DCA 1978)

(citing Schneckloth v. Bustamonte, 

, 227-29 (1973)); see also State v.

Othen, 

, 733 (Fla. 2d DCA 1974). The factors to be considered

include the age and maturity of the accused; whether he had a prior criminal



                                         5
history; the time and place of the encounter; the number of officers; whether the

defendant executed a written consent form; the length of time police interrogated

him before he consented; whether he was in custody; and the words and actions of

the officers. Miller v. State, 

, 587 (Fla. 5th DCA 2004) (citing

United States v. Broomfield, 

, 1274 (10th Cir. 2000); United States

v. Glass, 

, 1406 (10th Cir. 1997)). In conducting our review, we

accord a presumption of correctness to the trial court’s findings of historical facts

where there is substantial competent evidence to support them.              State v.

Glatzmayer, 

, 301 (Fla. 2001). However, our application of the law

to the facts, including our determination of whether the defendant’s consent was

objectively voluntary, is de novo. 

a home is an area in which

a person enjoys the highest reasonable expectation of privacy, we scrutinize the

factors with special care.      Payton v. New York, 

, 585 (1980);

Gonzalez v. State, 

, 732 (Fla. 3d DCA 1991).

       In this case, the trial court relied on only three factors to conclude the

consent to search was involuntary: (1) the time and place of the encounter; (2) the

number of officers; and (3) the words and actions of those officers. A full analysis

of all the factors, as required by law, mandates a reversal of the order entered by

the trial court in this case.




                                         6
      First, Ojeda’s age, thirty-four at the time of the search, suggests he was of

sufficient maturity and experience to make an intelligent decision. Second, there is

no evidence he was intoxicated or otherwise impaired. Third, Ojeda executed a

written consent form that was in English, after being asked whether he wanted it in

English or Spanish. See Luna-Martinez v. State, 

, 600 (Fla. 2d

DCA 2008) (“[T]he presence of a written consent tends to support the conclusion

that the consent was given voluntarily.”). Fourth, Ojeda had a prior criminal

history, creating a presumption he knew his rights. See Wilson v. State, 

, 570 (Fla. 5th DCA 2007) (“[W]hether he had a prior criminal history—the

presumption being that one who has prior criminal arrests knows his legal rights . .

. .”). Fifth, Ojeda was read the warnings required by Miranda prior to executing

the written consent. Although the warnings were unnecessary, see Davis v. State,

, 1189 (Fla. 1997) (“Miranda warnings are required whenever the

State seeks to introduce against a defendant statements made by the defendant

while in custody and under interrogation.      Absent one or the other, Miranda

warnings are not required.”), recent authority from our supreme court has

recognized that, depending on the circumstance, an unneeded administration of

Miranda warnings can be more protective of an individual’s rights than

intimidating in nature. See Caldwell v. State, 

, 201 (Fla. 2010); see

also Ladson v. State, 

, 809 (Fla. 3d DCA 2011) (“[T]he



                                         7
administration of Miranda warnings, as a matter of law, does not transform a

consensual encounter into a seizure.”); accord Ruiz v. State, 

, 1232

(Fla. 4th DCA 2011). Upon consideration of the totality of the circumstances of

this case, we conclude the administration of Miranda warnings to Ojeda did not

compromise his decision-making faculties. Although the warnings given him were

not tailored to a consent to search, he was advised he had the right to counsel and

the right to terminate the encounter at any time. He never elected to terminate the

encounter. Rather, he communicated with the authorities in a cooperative spirit

from the moment he opened the front door.

     Sixth, Ojeda was not deprived of any convenience or sequestered for an

undue length of time prior to signing the consent. The Miranda administration

took just a few minutes. Ojeda then volunteered to “cooperate with whatever [he

was] asked.” Detective Orenstein then asked him to sign the consent form. Ojeda

did so upon the first request. He read the form himself before signing. The search

of the house began immediately thereafter. There is no evidence Ojeda was under

undue stress.4 In fact, the evidence in this case reveals Ojeda signed an additional


4 To some extent, any encounter with an officer of the law may lead to some
apprehension. See Oregon v. Mathiason, 

, 495 (1977) (“Any
interview of one suspected of a crime by a police officer will have coercive aspects
to it, simply by virtue of the fact that the police officer is a part of a law
enforcement system which ultimately may cause the suspect to be charged with a
crime.”). However, this fact alone cannot support a seizure under the Fourth
Amendment. See Terry v. Ohio, 

, 19 n.16 (1968).

                                         8
consent form to expand the scope of the search while it was ongoing.            This

provides at least some further support for the inference that the consent was

voluntary.

      Seventh, that the encounter between the police and Ojeda took place on

Wednesday, November 30, 2005, at 7:45 a.m., is a factor in favor of the State’s

position. The officers did not arrive in the middle of the night. Seven forty-five on

a Wednesday morning is the usual time ordinary business or working people are

getting ready for work or eating breakfast. It might be that Ojeda’s business is

more nocturnal in nature than others. However, he has no greater constitutional

right to sleep in than anyone else.

      Lastly, there was no overwhelming display of force in this case. Detective

Orenstein testified he and just one other detective were at the door, and that the

other three detectives emerged and entered the house after Orenstein and his

companion were invited to enter. Ojeda was read his Miranda rights and the

consent to search requested. Ojeda’s counsel argues the presence of five officers

in the house at the time the consent to search was requested, together with the

presence of two uniformed officers on the sidewalk, overpowered Ojeda’s

decision-making faculties. We disagree on the facts in this case.

      The inherent danger involved in a narcotics investigation compels the use of

caution.     It seems entirely reasonable to order a complement of seven law



                                         9
enforcement officers to investigate a tip of this nature. In fact, it would seem

irresponsible not to send at least two persons to the front door. Only in retrospect

do we know what awaited Orenstein and the other detective who accompanied him

to the door. Case law is replete with examples of circumstances where no show of

force has been found to exist under similar facts. See, e.g., United States v.

Thompson, 

, 1133 (10th Cir. 2008) (finding the presence of three

officers did not, by itself, render consent involuntary); United States v. Thomas,

, 276 (10th Cir. 2005) (concluding presence of four officers, without

more, did not render consent involuntary); United States v. Ramirez-Chilel, 

, 751 (11th Cir. 2002) (stating the presence of five officers did not render

consent involuntary); United States v. Pena, 

, 1367 (10th Cir. 1998)

(stating presence of four officers, including three that were armed, who came to

defendant’s motel room, found not to render consent involuntary); United States v.

Padilla-Pena, 

, 467 (8th Cir. 1997) (concluding presence of three

officers did not render consent involuntary); United States v. Garcia, 

,

423 (2d Cir. 1995) (finding the presence of three officers did not render consent

involuntary); United States v. Iribe, 

, 1557 (10th Cir. 1993) (finding

that presence of five officers did not render consent per se involuntary); United

States v. Durades, 

, 1166-67 (7th Cir. 1991) (stating presence of

three officers, who acted professionally at all times, in one apartment with three



                                        10
occupants, was not coercive); 

(stating presence

of three to four officers outside defendant’s apartment did not render consent per se

involuntary); State v. Triana, 

, 1044-45 (Fla. 3d DCA 2008)

(finding presence of four officers did not render consent involuntary); Wilson v.

State, 

, 570 (Fla. 5th DCA 2007) (finding presence of three officers

who had trespassed onto property and initially accosted defendant at gunpoint did

not vitiate consent to search given after time passed); Putnel v. State, 

, 523 (Fla. 2d DCA 1999) (finding presence of two officers did not render

consent involuntary). In fact, most authorities opine it is not so much the police

presence that upends an otherwise lawful police action, such as the one reviewed

here, but rather the verbal acts of those officers. See, e.g., Luna-Martinez, 

at 600 (“A suspect is more likely to be overawed by one officer speaking in an

insistent, demanding tone than is a suspect who is addressed in a low-key manner

in an encounter with several officers.”). There is no evidence in this case that any

of the law enforcement personnel on the premises did or said anything a reasonable

person would understand as an assertion of authority to search.

     We also conclude the trial court erred by finding Detective Orenstein’s

testimony was not credible. Although the evidentiary hearing in this case was one

of three such hearings directly or indirectly involving Detective Orenstein, held in

tandem by the trial judge on the same day, and while taken together the trial judge



                                         11
appropriately had some cause for concern about Detective Orenstein’s credibility,

counsel agreed at the beginning of the hearings that each matter would proceed and

be argued “case by case.” Although defense counsel argued Detective Orenstein

was not a credible witness, he introduced no evidence impeaching or contradicting

Orenstein’s testimony in this case. The long-settled law of this District is that in a

suppression hearing context, the trial judge must accept any evidence by a police

officer “which is neither impeached, discredited, controverted, contradictory within

itself, or physically impossible.” See State v. Fernandez, 

, 193 (Fla.

3d DCA 1988) (“Although the trial judge purported to find the testimony of the

officers at the motion to suppress ‘not credible,’ he was not free to do so.”) (citing

Flowers v. State, 

(1932); Brannen v. State, 

(1927); Harris

v. State, 

(Fla. 2d DCA 1958)). The record in this case does not

reveal any evidence that the testimony of Orenstein met any of the criteria by

which it could have been discounted by the trial judge, and the trial judge cites no

such evidence. For all of these reasons, we reverse the order granting the motion

to suppress in Case No. 05-37152.

                               Case No. 07-10526A

      Case No. 07-10526A can be treated with greater dispatch. The record in this

case reveals that on March 23, 2007, eighteen months after Detective Orenstein

and his squad conducted their warrantless search of Ojeda’s residence, located at



                                         12


Avenue, they travelled to a nearby residence where Orenstein

believed Ojeda might be found, for the purpose of arresting him on ten-day-old

charges on another grow house case, Case No. 07-10525, if Ojeda answered the

door.5 Detective Willie Knapp, the lead investigator on that case, was in the

process of obtaining a warrant for Ojeda’s arrest, but it had not yet been secured at

the time of Detective Orenstein’s arrival at the house.

      Nevertheless, accompanied by Officer Benjamin, Detective Orenstein

knocked on the front door of the house. Ojeda answered. An unmistakable odor of

marijuana wafted across the threshold. Without asking permission, Orenstein and

Benjamin entered the house and handcuffed Ojeda. Confronted by conflicting

statements by Ojeda and suspicious sounds, Detective Orenstein next performed a

protective sweep of the house for officer safety, producing an additional arrest.

The grow house, which resulted in the charges that spawned the subject of the

motion to suppress, was discovered in a second sweep of the house, conducted five

or ten minutes later, once additional backup officers arrived. After a few hours,

Detective Orenstein obtained a warrant and seized the contraband. The trial court

granted Ojeda’s motion to suppress the physical evidence seized from the house.

      As in Case No. 05-37152, the trial court had serious doubts about the

credibility of Detective Orenstein in many respects, including whether he spoke to

5At the time, Ojeda was on probation in Case No. 05-37152 pursuant to a plea.
The plea was subsequently vacated.

                                         13
Detective Knapp before or after he arrested Ojeda, and whether Officer Orenstein’s

protective search of the house was truly based upon suspicious sounds emanating

from another location in the house. However, Case No. 07-10526A is a single

witness case. Detective Orenstein’s testimony that he smelled the odor of the

marijuana at the threshold before he entered the house is neither contradicted nor

impeached in the record. As in Case No. 05-37152 discussed above, the record

does not reveal any evidence that Detective Orenstein’s testimony that he smelled

marijuana immediately upon Ojeda’s opening of the front door met any of the

criteria by which it could have been discounted by the trial judge, and the trial

judge cites no such evidence. See State v. 

; see also State v.

Dickson, 

, 1027 (Fla. 3d DCA 2010); State v. Wong, 

, 1156 (Fla. 3d DCA 2008); State v. Casey, 

, 1188 (Fla. 3d

DCA 2002); Cordero v. State, 

, 1076 (Fla. 3d DCA 1988); State v.

G.H., 

, 1149 (Fla. 3d DCA 1989).

      Moreover, Detective Orenstein and Officer Benjamin had every right to

proceed to the front door of the house where Detective Orenstein thought Ojeda

might be found. It was Detective Orenstein’s intent as he approached the house to

arrest Ojeda on the charges in the Knapp case if Ojeda was there. The record is

devoid of any evidence that Detective Orenstein or Officer Benjamin approached

the house with the intent of committing an unlawful act. “Under Florida law, one



                                       14
does not harbor an expectation of privacy where salesmen or visitors may appear.”

See State v. Morsman, 

, 409 (Fla. 1981). In addition, as we recently

stated, “The fact that a consensual encounter occurs at the entrance of an

individual’s home does not call into question or in any way lessen the propriety of

a consensual encounter.” State v. Triana, 

, 1043 (Fla. 3d DCA

2008). Thus, in such a circumstance, a police officer not armed with a warrant may

approach a home and knock, precisely because, as the United States Supreme

Court pronounced in Florida v. Jardines, 

, 1416 (2013) (quoting

Kentucky v. King, 

, 1862 (2011)), “that is ‘no more than a private

citizen might do.’” Detective Orenstein’s excursion to the front door of Ojeda’s

house in the company of Officer Benjamin was a lawful consensual encounter.

      Finally, the defense argues that the physical evidence discovered in the

second sweep of the house was illegally retrieved because it occurred after an

illegal entry into the home by Detective Orenstein upon the opening by Ojeda of

his front door. The State concedes that Detective Orenstein’s entry into Ojeda’s

home was illegal. However, that is not the end of the inquiry.

      The United States Supreme Court consistently has held that the

“exclusionary rule” has no application where the government can show it has

learned of the challenged evidence from an “independent source.” The rule applies

where the illegal search or seizure was not an actual cause of the discovery of the



                                        15
subject evidence. Silverthorne Lumber Co. v. United States, 

, 392

(1920). The Court stated:

        The essence of [the Fourth Amendment] provision forbidding the
        acquisition of evidence in a certain way is that not merely evidence so
        acquired shall not be used before the Court but that it shall not be used
        at all. Of course this does not mean that the facts thus obtained
        become sacred and inaccessible. If knowledge of them is gained
        from an independent source they may be proved like any others . .
        .

see also Murray v. United States, 

(1988);

Segura v. United States, 

(1984); see generally Phillip A. Hubbart,

Making Sense of Search and Seizure Law 344-345 (2005); Wayne LaFave, Search

and Seizure 260-65 (4th ed. 2004).

        This court has had no hesitation in applying the independent source rule

where appropriate. For example, in State v. Mosier, 

(Fla. 3d DCA

1981), we concluded that a search by plain clothes detectives of a suitcase checked

by Mosier at a Continental Airlines ticket counter was lawful, despite the fact

Mosier had earlier refused them permission to search the suitcase during the course

of an illegal Terry stop.6 

. Although the detectives

examined Mosier’s flight ticket and utilized the claim check number obtained

during the illegal encounter to verify the bag in the airport loading area, we held

that so long as the bag would not have become inaccessible in the loading area in


6   Terry v. Ohio, 

(1968).

                                           16
the ordinary course while the warrant was being obtained (e.g., taken to and loaded

on the airplane),7 the ultimate search of the bag revealing two kilos of cocaine was

valid because the suitcase was opened pursuant to a search warrant secured, using

evidence legally discovered through the operation of an independent source: visual

characteristics of the bag observed by the detectives in the possession of Mosier

before he checked it at the ticket counter. 

Thus, we held, “whether

Mosier was previously ‘stopped’ or not, legally or illegally, [was] of no

consequence.” 

      State v. Griffith, 

(Fla. 3d DCA 1987), issued by this Court a

few years after Mosier, provides an even more cogent example of the operation of

the independent source rule. In Griffith, we concluded that the State had not one,

but at least three alternative methods of discovering the identity of an underage

victim of sexual battery and lewd assaults than the method Griffith contended was

“a product of police illegalities.” 

There, a former employee of Griffith

advised Miami police that Griffith was actively involved in photographing young

girls in the nude in his office for pay. 

The employee referred police to

a coworker for additional details. 

this investigation, the police

obtained a warrant to search Griffith’s office and seized numerous photographs of

nude young girls from a file cabinet. 

featured in some of these

7 Because the evidence was insufficient in this point, we remanded the case for
further proceedings, solely on the seizure issue.

                                        17
photographs. 

seized an address book which contained a listing for

Y.B.’s mother. 

arrested and advised of his rights pursuant to

Miranda v. Arizona, 

(1966). 

expressed reluctance to consent to a search of his home, the

police responded by threatening to get a search warrant and suggesting that

Griffith’s dog would have to be destroyed if it interfered with their entry and

search. 

a consent to search form. 

search

yielded three photographs, two of which were of Y.B. and one of an adult female.

time the photographs were seized, police were not aware of the

identities of any of the subjects of the photographs. 

subsequently transported to the police station where he was

again Mirandized and asked to sign a waiver form for purposes of questioning. 

his initials by each paragraph of the form except the paragraph

stating, “I am willing to answer questions asked of me.” 

failure to approve the paragraph regarding questioning, Detectives Judith Turner

and Oscar Sanchez proceeded to interrogate him.             

the

woman’s photograph as his ex-wife, but denied knowing the girl’s identity.

However, when confronted with a picture of the girl sitting in his lap, Griffith said

he knew the girl’s mother, but refused to answer further questions. 

                                         18
      Detective Callejas began an investigation to ascertain the identity of the

young girl. 

He first questioned Griffith’s secretary, who gave him the

name and occupation of Griffith’s ex-wife. 

was unable to

identify the juvenile, but referred to Mrs. B. as an individual who might be able to

identify the girl. 

then checked the listing for Mrs. B. in the

address book secured from Griffith’s office and contacted her.         

identified the girl as her daughter, Y.B., who at the time was fifteen-years old. 

Y.B. and obtaining an affidavit from her detailing the acts

committed by Griffith, Griffith was charged with eight counts of sexual battery and

nine counts of lewd assault. 

motion to suppress evidence, statements and witness testimony,

Griffith sought suppression of (1) items seized from his office; (2) items seized

from his home; (3) statements made by Griffith at the police station; and (4) the

testimony of Y.B. 

evidentiary hearing, the trial court ruled that the

search of Griffith’s office pursuant to the search warrant was valid, the search of

the house was unlawful, that Griffith’s statements were elicited in violation of his

Miranda rights; and the testimony of Y.B. was “a derivative product of police

illegalities.” 

court granted Griffith’s suppression motion as to the

evidence seized from his home, the statements made at the police station, and the

testimony of Y.B. 

narrow issue on appeal was whether the trial court properly deemed the

testimony of Y.B. a derivative fruit of police misconduct. 

that

because the pictures found during the illegal search of the home were utilized to

question him, and during the illegal questioning he provided the police with the

name of his ex-wife, the identification and testimony of Y.B. was the direct

product of the two illegalities. 

exhaustive review of the exceptions to

the exclusionary rule,8 we found the illegal search of the home and unlawful

questioning of Griffith to be of no consequence. We reasoned:

      In the instant case the police had at least three alternative methods
      which would have led to the identity of Y.B. apart from the illegal
      search of Griffith's home and his improper interrogation. As the state
      correctly posits, it could have learned Y.B.'s identity in the following
      ways. First, by questioning Iris Rodriguez, the police learned the
      name and occupation of Griffith's ex-wife, Terry Macannon, thereby
      rendering Griffith's revelation of his ex-wife's identity through the
      photograph seized from his home merely gratuitous. Since Terry
      Macannon provided the link to Mrs. B. and hence to Y.B., the police
      already had a legitimate method of reaching Terry Macannon. Next,
      the state points out that, in the course of a regular police investigation
      of Griffith, the existence of Griffith's ex-wife would have come to
      light and the trail to Y.B. would have been uncovered. The last
      alternative by which the police could have found Y.B. concerns the
      address book and photograph of Y.B. taken from Griffith's office

8 It is commonly stated that there are three exceptions to the otherwise harsh
natural workings of the exclusionary rule. Evidence otherwise excludable under
the rule may nevertheless be admitted if the State can show that (1) an independent
source existed for the discovery of the evidence, Silverthorne Lumber Co. v.
United States, 

(1920); (2) the evidence would have inevitably been
discovered in the course of a legitimate investigation, Nix v. Williams, 

(1984); or (3) sufficient attenuation existed between the challenged evidence
and the illegal conduct, Wong Sun v. United States, 

(1963).

                                         20
      under a valid search warrant. By showing the photograph to each
      person listed in the address book, the police would have ultimately
      approached Mrs. B. as one of the entries in the book. Mrs. B. would
      have identified her daughter's photo and afforded the police access to
      Y.B.

-246.

      Finally, we find Jackson v. State, 

(Fla. 1st DCA 2009), to be

instructive on the facts of our case. As in the Griffith case, the illegal police

activity in Jackson emanated from improprieties occurring where courts uniformly

give the greatest degree of Fourth Amendment scrutiny, a person’s residence. In

Jackson, two police officers, acting on information provided by a burglary victim

that Jackson was the perpetrator, pointed out his mother’s home, where it was

thought Jackson could be found. 

The officers followed a trail of

footprints from the burglary victim’s home to Jackson’s mother’s home where they

observed Jackson standing very still in an open shed. 

was

attempting to escape their notice, the officers approached Jackson, and after he lied

to them about his name, arrested him for giving a false name. 

of

Jackson’s person produced a crack pipe. 

Because the arrest for giving a

false name was unlawful, see DuBois v. State, 

, 299 (Fla. 2d DCA

2006) (stating the giving of a false name is not a crime unless it occurs during a

lawful detention or arrest); see also § 901.36(1), Fla. Stat. (2007), the discovery of

the crack pipe was the product of an illegal search. 

Jackson’s



                                         21
arrest, however, Jackson’s mother gave the officers consent to search the shed. 

produced a shotgun taken in the burglary and some shotgun shells.

Jackson was then arrested for armed burglary as well. 

to suppress all the physical evidence obtained by police

during the encounter, as well as some statements he made to police after the

unlawful arrest, on the basis that all the evidence was recovered after the illegal

first arrest. 

court denied Jackson’s motion in its entirety. 

District Court of Appeal found that the statements made to police after the

first arrest should have been suppressed because they were the fruit of the illegal

arrest to which no exception applies. 

However, the court found the

discovery of the shotgun and shotgun shells did not result either directly or

indirectly from Jackson’s initial arrest and that the crack pipe would have been

inevitably discovered by the officers through lawful means unrelated to the illegal

arrest. 

The court reasoned:

      [T]he mere fact that evidence is discovered after illegal conduct by a
      police officer is an insufficient basis for suppression. Instead, it must
      be contended that the evidence is “in some sense the product of illegal
      government activity.” Nix v. Williams, 

, 443, 

, 

(1984) (quoting United States v. Crews, 

, 471, 

, 

(1980)). Even when a
      Fourth Amendment violation has occurred, evidence should be
      suppressed only if it “has been come at by exploitation of the
      illegality” and was not obtained “by means sufficiently
      distinguishable to be purged of the primary taint.” Wong Sun v.
      United States, 

, 484, 

, 

(1963).



                                          22


Based upon these principles, the court determined that the items found

in the shed were admissible under the independent source exception to the

exclusionary rule. 

presented undisputed testimony that Jackson’s

mother, the owner of the property, gave consent to the officers to search the shed.

Thus, this court held, “even if [the officer] believed the arrest gave him

justification for searching the shed, the consent from appellee’s mother removed

the taint of the arrest, making the shotgun and shells admissible at trial.” 

       As to the crack pipe, the First District Court of Appeal found it to be

admissible under the inevitable discovery doctrine, a concept closely related to the

independent source rule. 

independent source rule, which the First

District explained “applies when evidence is discovered as a result of unlawful

police activity but is also discovered independently through a lawful investigation

that occurs either before or after the illegal activity, so long as the independent

investigation [itself] is ‘untainted by the initial activity,’” 

(quoting

Murray v. United States, 

, 537 (1988)), under the inevitable discovery

doctrine, ‘“evidence otherwise subject to suppression can be admitted if the State

shows that the officers “ultimately would have discovered the evidence

independently of the improper police conduct by ‘means of normal investigative

measures that inevitably would have been set in motion as a matter of routine



                                         23
police procedure.’” 

(citing McDonnell v. State, 

, 591

(Fla. 1st DCA 2008)). Based upon this principle, the First District Court of Appeal

reckoned that “after finding the shotgun, the officers would have arrested [Jackson]

for the burglary, and a search incident to arrest would have revealed the crack pipe,

thus properly making it admissible at the trial of the case” while simultaneously

finding that “[i]t would be too speculative to conclude [Jackson] would have

provided the same incriminating statements to the officers if he had been arrested

after the search of the shed.” 

No. 07-10526A before us, there is no need for speculation. It is not

disputed Detective Orenstein detected the unmistakable smell of marijuana the

moment Ojeda opened the door to the residence where he was found. Based upon

that evidence and observations made during the second unlawful sweep of the

house, Detective Orenstein obtained a warrant to search the house. The affidavit

executed by Detective Orenstein to obtain the search warrant plainly stated that

“ʻUpon knocking at the front door of ʻThe Premises[,]ʼ Subject Ojeda answered the

door, [and] Your Affiant could smell the odor of marijuana emanating from inside

ʻThe Premises.ʼ”      This discovery occurred during the course of “a lawful

investigation” conducted by Detective Orenstein to effect the arrest of Ojeda on

another case before the occurrence of the illegal activity. The smell alone entitled

Detective Orenstein to a warrant to search the premises. See State v. Roman, 103



                                         

, 925-26 (Fla. 2d DCA 2012) (finding the smell of marijuana through an

open door was sufficient to establish probable cause for a warrant); State v.

Pereira, 

, 314 (Fla. 3d DCA 2007) (finding even without evidence

of a dog sniff, an officer smelling marijuana from a house demonstrates sufficient

probable cause to support the issuance of a warrant); United States v. Tobin, 

, 1512 (11th Cir. 1991) (“There is no doubt that the agent's suspicions

rose to the level of probable cause when, as the door stood open, he detected what

he knew from his law enforcement experience to be the odor of marijuana”). As in

Mosier, Griffith and Jackson, there existed an independent basis for the discovery

of the contraband evidence.      The independent source rule applies to purge the

discovery of the evidence in this case from any illegal taint.

      For these reasons, we reverse the order of the trial court in Case No. 07-

10526A as well.

      SUAREZ, J., concurs.




                                          25
                                              The State of Florida v. Manuel Ojeda
                                              Case Nos. 3D08-1079 & 3D08-1077


      ROTHENBERG, J. (concurring in part, and dissenting in part).

      I agree entirely with the analysis and conclusion in lower tribunal case

number 05-37152. As to case number 07-10526(A), the majority concludes that

although the warrantless entry into the defendant’s home was unlawful, the

evidence ultimately seized pursuant to a valid search warrant was admissible based

on the independent source and/or inevitable discovery doctrines. While I agree

with most of the majority’s analysis and its conclusion that, under the independent

source and/or inevitable discovery doctrines, the evidence was admissible, I

disagree with the finding that the entry of the defendant’s home was unlawful, and

therefore respectfully dissent from that portion of the Court’s opinion.

                               Case No. 07-10526(A)

      The majority concludes that the trial court erred in suppressing the evidence

because sufficient probable cause existed to support issuance of the search warrant,

and therefore, the evidence would have “inevitably been discovered.” I agree.

However, I would also find that the warrantless entry into the defendant’s

residence and the subsequent protective sweep of his house were lawful because

the record reflects that, prior to the warrantless entry, law enforcement had

probable cause to believe that contraband or evidence of a crime would be found in



                                         26
the house and that exigent circumstances existed. Based on probable cause and

exigent circumstances, a protective search was conducted, the occupants and the

house were secured, and as the majority concedes, a search warrant was eventually

obtained. Thus, the evidence that was subsequently seized was lawfully seized

pursuant to a valid search warrant.

The Evidence

      The record reflects that the defendant has an extensive criminal history. He

is a known marijuana grower who, prior to his arrest in this case, had been arrested

by Detective Orenstein for cultivating marijuana inside a house located at another

location in Miami, Florida. The facts underlying that arrest are contained in the

majority opinion under case number 05-37152. The defendant pled guilty to the

charges in that case, and he was placed on probation.9

      On March 13, 2007, while the defendant was on probation in case number

05-37152, the Miami-Dade Police Department received a call from the defendant’s

landlord, at 

Place, reporting that the defendant’s apartment

contained a marijuana hydroponics lab. Detective Knapp responded to the call,

and, after obtaining consent from the landlord, Detective Knapp searched the


9 Although the defendant pled guilty to the charges in case number 05-37152 on
January 13, 2006, the defendant filed, a motion to vacate his plea in that case after
his arrests for similar charges in case numbers 07-10525 and 07-10526(A). The
trial court granted the defendant’s motion to withdraw his plea and subsequently
suppressed the evidence in all three cases.

                                         27
apartment and confirmed that it was in fact being used as a marijuana grow house.

After ten days, when Detective Knapp was unable to locate the defendant to arrest

him on probable cause, he decided to obtain an arrest warrant. However, on March

23, 2007, the day he intended to obtain the warrant, Detective Knapp received a

call from Detective Orenstein stating that he had located the defendant. After

Detective Orenstein’s call, Detective Knapp responded to where Detective

Orenstein had the defendant secured and arrested the defendant based on probable

cause that the defendant was growing marijuana. The search and seizure relating

to Detective Knapp’s case is not an issue in this appeal.

      The arrest of the defendant in case number 07-10526(A) occurred after the

following. As discussed, Detective Orenstein knew the defendant because he had

previously arrested the defendant for operating a marijuana grow house in case

number 05-37152. Thus, when Detective Orenstein learned that Detective Knapp

was trying to locate the defendant in reference to the marijuana cultivation

operation in the apartment, Detective Orenstein drove by a house where he

believed the defendant could be located—10195 S.W. 139th Place.            When

Detective Orenstein saw the defendant’s truck parked in front of the house, he

called Detective Knapp and informed him that he believed he had located the

defendant.




                                         28
      Detective Orenstein called for back-up, and when Officer Benjamin arrived,

he and Officer Benjamin approached the house and knocked on the front door.

When the defendant opened the front door, Detective Orenstien, who was standing

on the front porch, immediately smelled the odor of marijuana emanating from

inside the house. Because Detective Orenstein had seen a second vehicle parked

directly behind the defendant’s truck, he asked the defendant if there was anyone

else in the house. The defendant responded that there was someone inside, but

when Detective Orenstein asked the defendant who it was, the defendant

responded, “oh, no, there is nobody here.”

      As he was talking to the defendant, Detective Orenstein testified he heard a

door slam in the house. Detective Orenstein stepped into the foyer, secured the

defendant, and while Officer Benjamin maintained control over the defendant,

Detective Orenstein headed in the direction of the slamming door, announced his

presence, and ordered the occupants to come out. When there was no response to

his command, Detective Orenstein proceeded to the general area where he heard

the door slam and discovered Mr. Perez in a bathroom. After taking Perez into

custody, Detective Orenstein called for additional back-up to secure the defendant

and Perez so that Detective Orenstein could sweep the remainder of the house.

When additional back-up arrived, Detective Orenstein and Officer Benjamin

continued the security sweep of the house, where they observed marijuana



                                        29
paraphernalia, a large quantity of small marijuana plants in a bedroom, and a

marijuana hydrophonics lab in the garage. After concluding the security sweep of

the house, Detective Orenstein asked the defendant for consent to search the house.

When the defendant did not consent, Detective Orenstein obtained and served a

search warrant, which resulted in the seizure of fifty-three pounds of marijuana

found in the garage and eighty-four young marijuana plants found in a bedroom.

After the defendant was arrested by Detective Orenstein, Detective Knapp

responded to the scene and arrested the defendant on his case involving the

marijuana hydroponics laboratory found in the apartment.

The trial court erred in suppressing the evidence

      The entry onto the defendant’s property, the initial entry into the defendant’s

house, and the subsequent protective search were all lawful.

      The Fourth Amendment is implicated only when the government invades an

area in which a person entertains a legitimate or justifiable expectation of privacy.

Rakas v. Illinois, 

, 143 (1978); Terry v. Ohio, 

, 9 (1968);

Katz v. United States, 

, 353 (1967). Although the Fourth Amendment

protects people, not places, it is still necessary to consider the nature of the place in

which legitimate privacy expectations are being asserted. 

(Harlan, J., concurring).




                                           30
      As the majority recognizes, when the officers entered the defendant’s

property, which was open to the public, and knocked at his front door, the Fourth

Amendment was not implicated. When the defendant voluntarily opened the door,

and the officers, who were aware of the defendant’s history of operating marijuana

grow houses, smelled the marijuana, they clearly had probable cause to arrest the

defendant and to search the house. Although a warrantless entry to arrest the

defendant and to search the house would not be constitutionally permissible on

probable cause alone, where, as here, exigent circumstances existed, the seizure of

the defendant and the protective sweep conducted were lawful. The evidence

seized was as a result of a valid search warrant obtained after the premises and the

occupants of the house were secured. And, as the majority recognizes, even if the

seizure of the defendant and the protective sweep of the house were unlawful, the

evidence seized would have been inevitably discovered by lawful means. Thus,

suppression of the evidence is error.

The officers’ presence at the defendant’s front porch and the knock on the
defendant’s front door did not implicate the Fourth Amendment

      The law is clear in Florida that the officers’ presence on the defendant’s

front porch, knock on the defendant’s front door, and conversation with the

defendant while standing on the porch outside of the defendant’s residence did not

implicate the Fourth Amendment and did not require probable cause, reasonable

suspicion, or a warrant. The officers’ presence on the defendant’s porch was


                                        31
therefore lawful.   As the Florida Supreme Court specifically held in State v.

Morsman, 

, 409 (Fla. 1981), “[u]nder Florida law it is clear that one

does not harbor an expectation of privacy on a front porch where salesmen or

visitors may appear at any time.” Similarly, in Davis v. United States, 

, 303 (9th Cir. 1964), the Ninth Circuit Court of Appeals held:

      [T]here is no rule of private or public conduct which makes it illegal
      per se, or a condemned invasion of the person’s right of privacy, for
      anyone openly and peaceably, at high noon, to walk up the steps and
      knock on the front door of any man’s “castle” with the honest intent
      of asking questions of the occupant thereof—whether the questioner
      be a pollster, a salesman, or an officer of the law.

      In State v. Triana, 

(Fla. 3d DCA 2008), this Court held that

“a knock on the door and subsequent discussion is a purely consensual encounter,

which officers may initiate without any objective level of suspicion,” and “[t]he

fact that a consensual encounter takes place at the entrance of an individual’s home

does not call into question or in any way lessen the propriety of a consensual

encounter.” 

see also State v. Periera, 

, 314 (Fla. 3d

DCA 2007) (“We follow those cases which hold that there is no reasonable

expectation of privacy at the entrance of property which is open to the public,

including the front porch.”); United States v. Cruz-Mendez, 

, 1264

(10th Cir. 2006) (“[A] ‘knock and talk’ is a consensual encounter and therefore

does not contravene the Fourth Amendment, even absent reasonable suspicion.”);

United States v. Cormier, 

, 1109 (9th Cir. 2000) (“[N]o suspicion


                                        32
needed to be shown in order to justify the ‘knock and talk.’”).

      The Second District Court of Appeal in Nieminski v. State, 

(Fla. 2d DCA 2011), examined whether law enforcement may open a closed but

unlocked gate and walk to the front door of a house to engage in a “knock and

talk.” The court concluded that “a citizen’s encounter, including a knock and talk,

is not regarded as a search or seizure,” 

but rather, it is “a purely

consensual encounter, which officers may initiate without any objective level of

suspicion.” 

(quoting Hardin v. State, 

, 1247 (Fla. 2d

DCA 2009)). The court also found that absent a “no trespassing” sign or similar

warning that the fence and gate were intended to keep people out, the officers may

enter onto property without violating the Fourth Amendment. Id.; see also Bennett

v. City of Eastpointe, 

, 821 (6th Cir. 2005) (“A purely consensual

encounter between a police officer and a citizen does not implicate the Fourth

Amendment.”); Murphy v. State, 

, 1032 n.4 (Fla. 5th DCA 2005)

(recognizing that a “knock and talk” conducted at Murphy’s motel room is a

procedure used by law enforcement as an investigative tool where there is no need

for probable cause or a warrant).

      In order to initiate a “knock and talk,” there is no requirement that law

enforcement must be investigating a possible crime being committed on the

premises. Because a knock and talk is not based on probable cause or even



                                         33
reasonable suspicion, no citizen complaint or tip from an informant is required. In

State v. Navarro, 

, 373-74 (Fla. 2d DCA 2009), the Second District

Court of Appeal reversed the trial court’s order suppressing evidence of a grow

house where the “knock and talk” was based on nothing more than a hunch. The

Second District found that “the circuit court’s conclusion that a knock and talk

cannot be based on a hunch and must stem from a tip or complaint finds no support

in the case law.” 

Specifically, the Second District held:

      The circuit court’s ruling conflicts with the proposition that police
      officers may approach a residence and speak to the residents just as
      any private citizen may. Thus, the circuit court fell into error when it
      ruled that the knock-and-talk encounter at issue in this case amounted
      to illegal police conduct.

this Court and others have recognized, a “knock and talk”

consensual encounter may evolve into a “constructive entry” when the police,

while not entering the house, use tactics that essentially force the occupant out of

the house. 

. As to what constitutes constructive entry,

the court explained:

      Constructive entry has been found when a suspect emerged from a
      house “in response to coercive police conduct.” United States v.
      Morgan, 

, 1166 (6th Cir. 1984). Coercive police
      conduct occurs where there is “such a show of authority that [the]
      Defendant reasonably believed he had no choice but to comply.”
      United States v. Saari, 

, 809 (6th Cir. 2001).
            [However, t]he presence of police officers alone, absent any
      indication of coercive words or acts, misrepresentation, deception, or


                                         34
       trickery is insufficient to raise an inference of submission to police
       authority.

in original).

       The question of whether the show of force exhibited by the police elevates a

consensual encounter to a non-consensual encounter rests on various factors,

including the number of officers present and where they were positioned during the

encounter; whether any weapons were drawn; whether there were any coercive

actions, demands, or raised voices; and the time of the day or night. 

45. For example, although the initial knock and talk in Hardin was found lawful,

the length of the encounter and the subsequent intimidation of the occupants was

found to have vitiated the consent to search granted during the encounter. 

at 1250. Similarly, in Luna-Martinez v. State, 

, 598-99 (Fla. 2d

DCA 2008), the Second District Court of Appeal held:

       The key to the legitimacy of the knock-and-talk technique—as well
       as any other technique employed to obtain consent to search—is the
       absence of coercive police conduct, including any express or implied
       assertion of authority to enter or authority to search. In properly
       initiating a knock-and-talk encounter, the police should not “deploy
       overbearing tactics that essentially force the individual out of the
       home.” United States v. Thomas, 

, 277 (5th Cir. 2005).
       Nor should “overbearing tactics” be employed in gaining entry to a
       dwelling or in obtaining consent to search.

       Clearly, when Detective Orenstein and Officer Benjamin initially entered

the defendant’s property, which was not gated and was thus open to the public,

approached and knocked on the defendant’s front door, and the defendant opened


                                        35
the door to speak with the officers, the encounter was a consensual encounter.

Only two officers were present, they were in plain clothes, no guns were drawn, it

was daytime, the officers did not have a drug sniffing canine with them, and no

coercive tactics were used to force the defendant to open the door. Thus, the initial

encounter did not implicate the Fourth Amendment, and it was lawful.

Probable cause was established during the initial encounter

        When the defendant opened the front door to speak with the officers, the

officers immediately smelled the odor of marijuana coming from inside the house.

Detective Orenstein is an experienced law enforcement officer trained in the

detection of narcotics who has investigated over one hundred marijuana cases.

Additionally, the defendant’s residential marijuana cultivation business was well

known to Detective Orenstein because he had previously arrested the defendant for

operating a marijuana grow house in roughly the same neighborhood. Detective

Orenstein also knew that Detective Knapp was looking for the defendant to arrest

him for operating a grow house in an apartment the defendant was renting close

by. Thus, it is clear, and the defendant does not dispute, that prior to any entry into

the house, the officers developed probable cause unrelated to Detective Knapp’s

case.

The warrantless entry and protective sweep were based on exigent
circumstances

        The majority holds that the warrantless entry into the defendant’s residence


                                          36
and the protective sweep conducted by Detective Orenstein were unlawful. I

disagree. Although a basic principle of the Fourth Amendment is that searches and

seizures inside a home without a warrant are presumptively unreasonable, Payton

v. New York, 

, 586 (1980), the United States Supreme Court has

recognized that this presumption may be overcome in some circumstances because

the “ultimate touchstone of the Fourth Amendment is ‘reasonableness.”’ Kentucky

v. King, 

, 1856 (2011) (quoting Brigham City, Utah v. Stuart, 

, 403 (2006)).

Seizure of the defendant and the warrantless protective sweep of the house
were lawful

       As Justice Black stated in Vale v. Louisiana, 

, 36 (1970) (Black,

J., dissenting):

       The Fourth Amendment to the United States Constitution prohibits
       only “unreasonable searches.” A warrant has never been thought to
       be an absolute requirement for a constitutionally proper search.
       Searches, whether with or without a warrant, are to be judged by
       whether they are reasonable, and, as I said, speaking for the Court in
       Preston v. United States, 

, 366-367, 

, 882-
       883, 

(1964), common sense dictates that
       reasonableness varies with the circumstances of the search. See, e.g.,
       Henry v. United States, 

, 

, 

       (1959).

(footnote omitted).

       “Accordingly, the warrant requirement is subject to certain reasonable

exceptions.” 

. One well-recognized exception is the



                                        37
existence of exigent circumstances. 

entry, therefore, may be

justified where there exists both probable cause and exigent circumstances. United

States v. Burgos, 

, 1525 (11th Cir. 1983); Mercier v. State, 

308, 309 (Fla. 3d DCA 1991) (“A warrantless entry must be justified by

probable cause and exigent circumstances.”).

      In the present case, the warrantless entry was lawful, as it was based on

probable cause and exigent circumstances. The officers had lawfully entered onto

the defendant’s unfenced property and knocked on the defendant’s front door.

When the defendant opened the door, the officers smelled marijuana, which

supplied the probable cause to arrest the defendant on drug charges separate from

the crimes that brought the officers to the defendant’s home in the first place.

Then, based on the exigent circumstances, the officers lawfully secured the

defendant and conducted a      protective security sweep of the house prior to

obtaining a warrant. The exigent circumstances were based on the second vehicle

parked behind the defendant’s vehicle; the defendant’s contradictory answers

regarding whether there was anyone else in the house (first he said yes and then he

said no); hearing a door slam within the house; the nature of narcotics which can

be easily destroyed; and the possibility that someone in the house could present a

danger to the officers.




                                        38
      The risk of removal or the destruction of narcotics has long been recognized

as an exigent circumstance obviating the need to obtain an arrest or search warrant.

See United States v. Rubin, 

, 268 (3d Cir. 1973). As the Supreme

Court noted in King, “[d]estruction of evidence issues probably occur most

frequently in drug cases because drugs may be easily destroyed by flushing them

down a toilet or rinsing them down a drain.” 

; see also

U.S. v. Tobin, 

, 1510 (11th Cir. 1991) (holding that in narcotics

cases, “the need to invoke the exigent circumstances exception to the warrant

requirement is ‘particularly compelling in narcotics cases’ because narcotics can be

so quickly destroyed” (quoting United States v. Young, 

, 446 (11th

Cir. 1990))).

      Whether exigent circumstances existed is evaluated based on the totality of

the circumstances. Seibert v. State, 

, 468 (Fla. 2006). The test is an

objective one and the “appropriate inquiry is whether the facts . . . would lead a

reasonable, experienced agent to believe the evidence might be destroyed before a

warrant could be secured.” 

(quoting U.S. v. Rivera, 

, 156 (7th Cir. 1987)).

      In the instant case, the warrantless entry, seizure of the defendant, and the

protective sweep were all lawful based on probable cause and exigent

circumstances. The officers had probable cause to believe the defendant was



                                        39
growing and/or storing marijuana in the house. The odor of marijuana emanating

from the house and onto the front porch when the defendant opened the front door

was strong enough to be easily detected by Detective Orenstein’s ordinary sense of

smell. Detective Orenstein had previously arrested the defendant for operating a

marijuana grow house, and on that very same day, Detective Knapp intended to

obtain a warrant for the defendant’s arrest for a separate marijuana cultivating

operation. Additionally, the defendant gave conflicting answers when asked if

there was anyone else in the house. First, he said there was someone in the house,

and then he maintained there was not. The defendant’s claim that there was no one

else in the house justifiably elevated Detective Orenstein’s concern that the

evidence might be destroyed because he had observed a second vehicle parked

behind the defendant’s truck and heard a door slam while he was talking to the

defendant—clearly indicating that the defendant was not alone in the house—and

the defendant, who had previously been arrested by the same detective, knew the

detective was aware of his criminal past and had smelled the marijuana in the

house. Under these circumstances, a reasonable, experienced officer would be

justified in his belief that some of the evidence might be destroyed before a

warrant could be secured.

      This conclusion is amply supported by case law. The facts in Tobin are

similar to the facts in this case.     While conducting a surveillance in the



                                       40
neighborhood of co-defendant Ackerson’s house, the agents observed Tobin

approach Ackerson’s house, engage in suspicious behavior, and then enter the

house through the garage. The agents decided to investigate. They knocked at the

front door, Ackerson opened the door, and, while the agents were speaking with

Ackerson, they smelled marijuana coming from the inside the house. When the

agents told Ackerson what they had observed—the suspicious off-loading of bags

into the garage—Ackerson denied the activity had occurred and denied that anyone

else was in the house. Ultimately, the agents arrested Ackerson and conducted a

warrantless search of the house.

      The Eleventh Circuit held that the initial discussion between Ackerson and

the agents was a consensual encounter; the odor of marijuana coming from inside

the house gave rise to probable cause; and, based on the presence of three vehicles

on the scene and Ackerson’s false responses about Tobin’s presence, exigent

circumstances existed justifying the warrantless protective sweep of the house.

“[T]he defendants and anyone else who might have been present in the house

would have been aware of the agent’s suspicions at that moment. Danger that the

defendants or someone else inside the house might destroy the evidence thus

provided the exigent circumstances required to justify a warrantless search.”

.




                                        41
      Also instructive is Gilbert v. State, 

(Fla. 4th DCA 2001). In

Gilbert, the Fourth District noted that “[e]xigent circumstances are one exception

to the warrant requirement. While there is no exhaustive list of what constitutes

exigent circumstances to permit a warrantless entry of a constitutionally protected

space, imminent destruction of evidence is one such circumstance.” 

(citing Welsh v. Wisconsin, 

, 750 (1984)). Applying this standard,

the Fourth District concluded that exigent circumstances existed, stating:

      [W]e have no difficulty in determining that the facts were such as to
      lead a reasonable police officer to believe that the evidence would
      have been destroyed before a warrant could be obtained. The officers
      were dispatched to appellant’s motel room, not on a suspicion of
      narcotics but by a call that the occupant of the room wished to
      surrender on other warrants. Appellant opened the door, allowing the
      officers to see the contraband that was only two to three feet from the
      door. Obviously, appellant also became aware that the officers
      viewed the contraband, and under any objective view of the facts
      the officers acted reasonably in immediately entering and seizing
      the contraband before appellant had the opportunity to dispose
      of it.

(emphasis added).

      As these cases demonstrate, whether exigent circumstances exist is an

objective test based on the totality of the circumstances, including that drugs are

easily destroyed when the occupants of a residence are alerted to the presence of

law enforcement who by sight or smell have probable cause to obtain a warrant.

Under the facts of this case, it was reasonable for an experienced officer to believe

that the evidence might be destroyed before a warrant could be secured. Thus, the


                                         42
warrantless entry and protective sweep of the residence were lawful.

      Based on the exigent circumstances, the defendant was taken into custody, a

protective sweep was conducted, and a search warrant was obtained. The officers

would not have had the lawful authority to enter absent a warrant if the defendant

had not opened the door to speak with the officers (which he was legally free to

refuse to do), the officers had not smelled the marijuana, and the defendant had not

given contradictory answers about who was in the house.

Inevitable discovery

      As already demonstrated, the officers’ warrantless entry and protective

sweep of the residence, which were based on probable cause and exigent

circumstances, were lawful. However, even if they were not, I agree with the

majority that the inevitable discovery rule protects the evidence from suppression.

      In Nix v. Williams, 

, 444 (1984), the United States Supreme

Court adopted the inevitable discovery rule, which allows evidence obtained as the

result of unconstitutional police procedure to be admitted if the evidence would

ultimately have been discovered by legitimate means. See also Moody v. State,

, 759 (Fla. 2003) (discussing the inevitable discovery doctrine).

Further, in Jeffries v. State, 

, 578 (Fla. 2001), the Florida Supreme

Court noted that “[i]n order to apply this doctrine, there does not have to be an

absolute certainty of discovery, but rather, just a reasonable probability.” Jeffries,



                                         

(citing United States v. Brookins, 

(5th Cir.

1980)).

      In Segura v. United States, 

, 798 (1984), the United States

Supreme Court held that where law enforcement has probable cause to believe that

evidence of criminal activity is on the premises, they may secure the premises

while a search warrant is being obtained. The Court reasoned that because the

evidence would inevitably have been discovered, as it was, upon execution of the

valid search warrant, the trial court erred in suppressing the evidence.       The

following are decisions from the various Florida District Courts of Appeal which

have applied the inevitable discovery doctrine.

      In Mercier v. State, 

308 (Fla. 2d DCA 1991), law enforcement

officers, who had the defendant’s apartment under surveillance, sent a buyer to the

apartment to purchase cocaine. After the purchase, armed with probable cause but

without a warrant, the officers entered the apartment, seized the defendant and the

premises, and occupied the defendant’s home for fifteen hours while they obtained

a warrant. That law enforcement had probable cause was not in doubt. The issue,

however, was whether the circumstances constituted exigent circumstances. The

Second District ultimately concluded that whether the warrantless entry was

justified based on probable cause and exigent circumstances was “not relevant to

the admissibility of the challenged evidence [because h]aving been seized under a



                                        44
warrant with a basis independent of the entry, the evidence was admissible.” 

In reaching this conclusion, the Second District specifically relied on 

, which held that evidence seized pursuant to a valid search

warrant that is based on information known to police before the illegal entry and

that is wholly unrelated to entry is not tainted. Mercier, 

at 309.

      Numerous decisions have likewise found evidence obtained after

unconstitutional police actions admissible under the inevitable discovery doctrine.

See Cummings v. State, 

, 560 (Fla. 5th DCA 2007) (holding that the

evidence was admissible under the inevitable discovery doctrine, as that doctrine

“requires the state to establish by a preponderance of the evidence that the police

ultimately would have discovered the evidence independently of the improper

police conduct by ‘means of normal investigative measures that inevitably would

have been set in motion as a matter of routine police procedure’” (quoting Craig v.

State, 

, 863 (Fla. 1987))); Carter v. State, 

, 1278

(Fla. 4th DCA 2004) (declining to address whether the stop was lawful where there

existed a reasonable probability that the evidence would have inevitably been

discovered through lawful means); Conner v. State, 

, 443 (Fla. 4th

DCA 1997) (finding that the trial court properly applied the inevitable discovery

doctrine and “the state carried its burden of establishing by a preponderance of the

evidence that the contents of the safe would have inevitably been discovered in the



                                         45
course of a legitimate investigation”); State v. Ruiz, 

, 87 (Fla. 4th

DCA 1987) (reversing the trial court’s order suppressing the evidence and

concluding that the evidence should have been admitted under the inevitable

discovery doctrine).

      In the instant case, the evidence was seized pursuant to a valid search

warrant, not during or as a result of the protective sweep conducted by the officers.

Since probable cause existed prior to any allegedly unconstitutional conduct, it is

clear that the evidence seized during the execution of the search warrant inevitably

would have been discovered had the officers secured the residence and waited for

the issuance of the warrant prior to conducting the protective sweep of the

residence. While the warrantless entry was lawful in order to secure the premises,

the legality of the initial entry has no bearing on whether the evidence first

discovered during the protective sweep of the residence that was later seized

pursuant to a valid search warrant was lawful. See 

.

      In Segura, the agents knocked at the apartment door, Ms. Colon answered,

and they entered Segura’s apartment without requesting or receiving permission.

The agents then conducted a limited security check of the apartment to

ensure that no one else was there who might pose a threat to their safety or destroy

evidence. 

sweep of the premises, they observed, in a bedroom in

plain view, various accoutrements of drug trafficking. 

None of the



                                         46
items was disturbed by the agents. 

was arrested, and two agents

remained in the apartment while a search warrant was obtained.             

of the search warrant, various items found during the search, as well as

those items observed during the security check, were seized. 

court

and the court of appeals determined that the initial warrantless entry and security

sweep were not justified by exigent circumstance and were therefore unlawful. 

The government did not challenge that finding. 

sole issue

addressed by the Supreme Court was whether the evidence seized pursuant to the

search warrant should be excluded as “fruit” of the illegal police conduct. 

Court noted that where law enforcement officers have probable

cause to believe that evidence of criminal activity is on the premises, it does not

violate the Fourth Amendment to secure the premises to preserve the status quo

while a search warrant is sought. Specifically, it stated that ‘“unless there is some

kind of power to prevent removal of material from the premises, or destruction of

material during this time, the search warrant will almost inevitably be fruitless.”’

n.7 (quoting Erwin N. Griswold, Criminal Procedure, 1969—Is It a

Means or an End?, 

. Rev. 307, 317 (1969)). Additionally, the Court

found no distinction between securing the premises from within or from outside of

the residence, as in either case, it interferes with the possessory interests of the

owners to the same extent. 

Thus the Court held:



                                         47
       [W]here officers, having probable cause . . . arrest the occupants who
       have legitimate possessory interests in its contents and take them into
       custody and, for no more than the period here involved, secure the
       premises from within to preserve the status quo while others, in good
       faith, are in the process of obtaining a warrant, they do not violate the
       Fourth Amendment’s proscription against unreasonable seizures.

Court found that, assuming there was an illegal entry,

suppression of the evidence was only required if the initial entry tainted the

discovery of the evidence challenged. 

In answering this question, the

Court held that “the evidence discovered during the subsequent search of the

apartment the following day pursuant to the valid search warrant issued wholly on

information known to the officers before the entry into the apartment need not

have been suppressed as ‘fruit’ of the illegal entry. . . .” 

      The facts in the instant case lead to the same conclusion. Regardless of

whether the initial entry and protective sweep were lawful, the evidence seized

pursuant to a valid search warrant would inevitably have been found absent any

unlawful police conduct.      Because Detective Orenstein had probable cause to

believe the residence contained evidence of illegal drug activity prior to any entry,

he could have obtained, and did obtain, a valid search warrant. While waiting for

the issuance of the warrant, he had the legal right to secure the premises. Because

the evidence seized in executing the search warrant was based on probable cause

developed prior to entry of the residence and absent any illegal police conduct, it


                                           48
was lawfully seized. The suppression of the evidence was therefore error, and I

accordingly agree with the majority that the trial court’s order suppressing the

evidence must be reversed.




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