NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



MICHAEL RODGERS,                   )
                                   )
           Appellant,              )
                                   )
v.                                 )                  Case No. 2D16-4366
                                   )
STATE OF FLORIDA,                  )
                                   )
           Appellee.               )
___________________________________)

Opinion filed February 20, 2019.

Appeal from the Circuit Court for
Hillsborough County; Christopher C.
Sabella, Judge.

Howard L. Dimmig, II, Public Defender,
and Timothy J. Ferreri, Assistant Public
Defender, Bartow, for Appellant.

Ashley Moody, Attorney General,
Tallahassee, and John M. Klawikofsky,
Assistant Attorney General, Tampa,
for Appellee.


SILBERMAN, Judge.

              Michael Rodgers seeks review of his judgment and sentences for twenty

counts of possession of child pornography. Rodgers entered a plea to the charges

while reserving the right to appeal the denial of his dispositive motion to suppress.

Rodgers argues that the police exceeded the scope of the search warrant by entering a
recreational vehicle (RV) that was located on property at the given address but not

separately identified in the warrant. We agree and reverse.

              The special agent who applied for the search warrant testified that he had

information that someone with a specific internet protocol (IP) address was sharing child

pornography. His surveillance and investigation led him to believe the property

associated with the IP address consisted of a house located on three or four acres of

land. Because the house is situated far from the road he could not see what was on the

land behind it. He thought multiple occupants were living on the property, but he was

not sure how many.

              The search warrant listed the address of the premises and described the

premises as "a single story, block residence." The warrant authorized the police "to

enter and search 'the Premises' aforesaid and curtilage thereof, and any vehicles

thereon, or any persons located on 'the Premises' or within the curtilage reasonably

believed to be connected with said illegal activity."

              The special agent testified that when the police entered the property, they

discovered a detached mother-in-law suite behind the main house and several RVs

behind that. One of the RVs had an Indiana license plate registered to Rodgers. The

interior was blocked from view by shades on the windows. The RV had an attached

awning affixed to the ground and a septic connection to the ground. A router cable ran

"from the main portions of the residence to the RV." The special agent admitted he did

not have specific information regarding which structure on the property was accessing

the IP address that was the basis for the warrant. He later found out, after the warrant

was executed, that Rodgers' RV was accessing utilities, including the internet.




                                            -2-
              As to Rodgers' RV, when the warrant was executed one of the entry

teams knocked on the door of his RV and announced that they had a warrant. Rodgers

answered through a window and contested the officers' authority to enter. The police

told Rodgers to come outside for officer safety, but he did not comply and disappeared

from view. The police then heard a "commotion" in the RV, described as "unidentifiable

noises." Although the police did not hear any voices other than Rodgers', they forced

entry into the RV out of a concern that either someone else was inside or Rodgers

might "retrieve some sort of weapon." They immediately located Rodgers in the main

living area and escorted him outside. A sweep of the bedroom and bathroom revealed

that Rodgers had been alone. It also revealed a computer broken into pieces

underneath the bed. The team did not seize the computer but called for the special

agent.

              At that time, the special agent was speaking with the property owner. The

property owner told the special agent that Rodgers had been living on his property in

the RV for the past five years. Rodgers paid monthly rent and had access to utilities

including electric, water, and internet. However, the testimony did not establish that the

police had this information before they entered Rodgers' RV. But after talking with the

property owner, the police obtained a separate search warrant for Rodgers' RV. They

seized the computer during the subsequent search.

              The dispositive issue on appeal is whether the original entry into Rodgers'

RV was within the scope of the first warrant. "The authority to search pursuant to a

warrant is limited to the place described in the warrant, and the description must be

sufficiently particularized to lead the searching officers to the place intended." Carr v.




                                            -3-
State, 

, 806 (Fla. 1st DCA 1988). A warrant that authorizes the search

of a residence and its curtilage includes structures found within the curtilage, such as a

shed used in connection with the residence. See Antone v. State, 

,

1212 (Fla. 1980).

              However, officers are not authorized to search a separate dwelling unit

that exists on the premises but is not separately identified in the warrant. See Maryland

v. Garrison, 

, 86 (1987); State v. McKewen, 

, 639 (Fla. 5th

DCA 1998); Merrick v. State, 

, 78 (Fla. 4th DCA 1976). As for RVs, the

key issue is whether it is apparent that an RV located on the curtilage is being used as a

residence. See United States v. Briscoe, No. 16-10155-EFM, 

, at *6

(D. Kan. May 10, 2017), clarified on denial of reconsideration by No. 16-10155-EFM,

(D. Kan. June 15, 2017); United States v. Kinney, No.

4:05CR00280ERW, 

, at *2 (E.D. Mo. Nov. 30, 2005); State v. Martini,

, 186 (Or. Ct. App. 1990). Courts consider a myriad of factors in analyzing

the issue including the exact location of the RV, whether it is owned by the homeowner

or a third party, whether it is affixed to the ground or appears to be readily mobile,

whether it has utility hook-ups connected to the main residence, whether it is occupied

at the time the warrant is executed, and whether the police had previously been

informed that the RV is being used as a separate residence. See Briscoe, 

, at *6; Kinney, 

, at *2; 

.

              On one end of the spectrum is Kinney in which it was not apparent that the

RV was being used as a residence. 

, at *2. The RV was located

inside a unit of "a commercial building not regularly used for residential purposes which




                                            -4-
had one glass door entrance and one rolling, garage-type door entrance." 

no mention of it being occupied at the time the warrant was executed. The court

held that the RV was a "vehicle" within the scope of the warrant because it was readily

capable of being driven on the highway and found stationary in a place not generally

used as either a temporary or permanent residence. 

v. Carney, 

(1985)); see also United States v. Noriega, 

, 

, at

*1-3 (9th Cir. 1993) (unpublished opinion) (upholding the search of a motor home in the

bay of a garage under a warrant for a business address when the police were told it was

used for storage and had not been moved for some time).

              On the other end of the spectrum is Briscoe, in which it was known to

police that the RV was being used as a residence. 

, at *1. The RV

was parked ten to fifteen feet behind the main residence, and the police were aware it

was being occupied by the residence owner's associates. 

defendants

were not at the wheel of the RV when the officers executed the warrant; instead, they

were asleep in a bed inside the RV. 

The court concluded that under these

circumstances the "[d]efendants had a reasonable expectation of privacy in the RV." 

the two extremes are Heffernan v. State, 

(Fla. 4th DCA 1980), and Martini. In Heffernan, the RV was a collapsible pop-up trailer

parked next to the residence and registered in the homeowner's 

. While it was hooked up to the home's electricity and water, it was apparently

unoccupied when the warrant was executed. The Fourth District held that the search of

the trailer was within the scope of the warrant as it was a vehicle located on the

curtilage and owned by the occupant of the residence. 

Martini, the travel trailer was located about twenty-five feet south of the

main 

. It was also connected to the clubhouse by an

electrical extension cord. There was a dog tied to the door, and the defendant identified

the trailer as his. Additionally, the police had learned there were several travel trailers

on the premises prior to executing the search but had not included those trailers in the

warrant. The court of appeals concluded that "it seemed reasonably clear that the

clubhouse and travel trailer were separate residences." 

              The facts in this case are closer to Martini than Heffernan. Unlike in

Heffernan, the police did not find an unoccupied pop-up trailer registered in the name of

the homeowner. Instead, they found a full-size RV registered to and occupied by a third

party who contested the officers' right to enter. Additionally, the RV had an awning and

a septic line affixed to the ground, and it was connected to the main house by a router

cable. The interior was also blocked from view by shades on all the windows. From

this evidence, the police should have known that the RV was being used as a separate

residence. Accordingly, the search of the RV exceeded the scope of the warrant.

              We reject the State's argument that the officers' search was nonetheless

authorized as a protective sweep. See Vasquez v. State, 

, 31 (Fla. 2d

DCA 2003) (holding that a protective sweep of a residence is not authorized without a

separate, lawful basis for entry). We also reject the State's argument that suppression

was not required under the good faith exception to the warrant requirement. See

Briscoe, 

, at *6 (rejecting the application of the good faith exception

when officers should have known that a separate structure not listed on the warrant was

inhabited); see also State v. Johnson, 

, 549 (Fla. 2d DCA 1992)




                                            -6-
(declining to apply the good faith exception when the police exceeded the scope of the

warrant during its execution because the exception "only applies where the officers act

in an objectively reasonable fashion in executing a search warrant that is subsequently

found invalid"). But see United States v. Houck, 

, 960 (8th Cir. 2018)

(applying the good faith exception to "conclude that the officers made, at most, an

'honest mistake' in interpreting the warrant to include the RV").

              Finally, we do not agree with the dissent's conclusion that Rodgers'

convictions may be affirmed under the inevitable discovery doctrine. The inevitable

discovery rule requires that there is "a 'reasonable probability' that the evidence would

have been discovered despite the improper police procedure." Rodriguez v. State, 

, 846 (Fla. 2015) (quoting United States v. Brookins, 

, 1042

(5th Cir. 1980)). Moreover, "the investigation must be ongoing and the State must show

that the facts known by the police at the moment of the unconstitutional procedure

would have led to the evidence notwithstanding the police misconduct." 

              In Rodriguez, the supreme court addressed the question of whether this

standard is met upon a showing "that the police were in the process of obtaining a

warrant prior to the misconduct or whether the prosecution need only establish that a

warrant could have been obtained with the information available prior to the

misconduct." 

The court expressly concluded that the police had to be in the

process of obtaining a warrant prior to the misconduct. The court explained that the

alternative option "would effectively nullify the requirement of a search warrant under

the Fourth Amendment." 

                                           -7-
              The Rodriguez court emphasized that "a person should enjoy the highest

reasonable expectation of privacy" when the sanctity of a home is involved. 

Indeed, the court recognized that even if the police had information leading to the

evidence before their improper entry into the home, the failure to pursue a warrant leads

to the conclusion that "the discovery was not inevitable notwithstanding the police

misconduct, and the rule cannot be applied." 

of probable cause does

not "obviate the requirement to pursue a search warrant." 

result would

"eliminate the role of the magistrate and replace judicial reasoning with the current

sense impression of police officers." 

the inevitable discovery doctrine does not apply because there

was no evidence that the police were actively pursuing a search warrant for the RV at

the time of the illegal entry into Rodgers' RV. 

see also Perez v. State, 

. Weekly D2404, D2406 (Fla. 2d DCA Oct. 26, 2018) (holding that the inevitable

discovery doctrine did not apply to support the admission of videos obtained from a

laptop computer even though the police had probable cause to obtain a search warrant

when the police were not actively pursuing a search warrant); Clayton v. State, 

827, 829-31 (Fla. 1st DCA 2018) (holding that the inevitable discovery doctrine did

not apply to evidence of indoor marijuana cultivation found in a home despite the fact

that the officers had probable cause to obtain a search warrant because the officers had

not been in the process of doing so).

              We do not agree with the dissent that this case is distinguishable from

Rodriguez and its progeny because the officers herein had already obtained a search

warrant to enter the premises on which Rodgers' RV was located. It is not the entry




                                            -8-
onto the premises described in the warrant that was illegal; it is the entry into the RV

that Rodgers was using as a home that was illegal. While the officers had obtained a

search warrant for the premises, the RV was not within the scope of this warrant.

Indeed, the police appeared to recognize as much because they did in fact obtain a

search warrant for the RV after the illegal entry and their resulting discovery of the

computer inside the RV.

              We also do not agree that "it was reasonably unclear to the officers that

the first warrant did not authorize entry into the RV." Rodgers disputed the officers'

authority to enter as soon as the first warrant was produced, and the officer who entered

testified that he did so for the purpose of securing the premises rather than any belief

that the first warrant authorized the entry. And as addressed earlier, under the

circumstances entry to secure the premises was not permissible.

              For the foregoing reasons, the search of the RV was not within the scope

of the warrant. Accordingly, the trial court erred in denying Rodgers' motion to

suppress. We therefore reverse Rodgers' judgment and sentences.

              Reversed.



ROTHSTEIN-YOUAKIM, J., Concurs.

SLEET, J., Concurs in part and dissents in part with opinion.




                                            -9-
SLEET, Judge, Concurring in part and dissenting in part.

              I concur fully in the majority's well-reasoned analysis and conclusion that

the first search warrant did not authorize the search of Rodgers' RV. However, I

respectfully dissent from its decision to reverse Rodgers' twenty convictions for

possession of child pornography. The officers' discovery of Rodgers' laptop and the

pornographic images thereon was inevitable based on his shared internet connection

and IP address with the main residence and the second warrant obtained by police to

lawfully search Rodgers' RV. Accordingly, I would affirm Rodgers' convictions and

sentences and the order denying his motion to suppress.

              Initially, I recognize that the State has not raised application of the

inevitable discovery doctrine. And "[g]enerally, if a claim is not raised in the trial court, it

will not be considered on appeal." Robertson v. State, 

, 906 (Fla. 2002)

(alteration in original) (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 

, 644 (Fla. 1999)). Nevertheless, under the "tipsy coachman" doctrine, "a trial

court's ruling must be affirmed where the record supports any legal basis for the

judgment." State v. Hankerson, 

, 505 (Fla. 2011); see also Applegate v.

Barnett Bank, 

, 1152 (Fla. 1979) ("The written final judgment by the trial

court could well be wrong in its reasoning, but the decision of the trial court is primarily

what matters, not the reasoning used. Even when based on erroneous reasoning, a

conclusion or decision of a trial court will generally be affirmed if the evidence or an

alternative theory supports it."). Because the record evidence supports a conclusion

that the laptop "would have inevitably been discovered in the course of a legitimate

investigation," Rodriguez v. State, 

, 845 (Fla. 2015) (quoting Moody v.




                                             - 10 -
State, 

, 759 (Fla. 2003)), I would affirm Rodgers' convictions and

sentences on appeal. See 

("[T]he 'tipsy coachman'

doctrine[] allows an appellate court to affirm a trial court that 'reaches the right result,

but for the wrong reasons' so long as 'there is any basis which would support the

judgment in the record.' " (quoting Radio Station 

–45)); State

Farm Fire & Cas. Co. v. Levine, 

, 365 (Fla. 2002) ("[T]he key to applying

the tipsy coachman doctrine is that the record before the trial court must support the

alternative theory or principle of law.").

              The inevitable discovery doctrine is an exception to the exclusionary rule,

which states that "evidence obtained as the result of unconstitutional police procedure

may still be admissible provided the evidence would ultimately have been discovered by

legal means." Clayton v. State, 

827, 830 (Fla. 1st DCA 2018) (quoting

Maulden v. State, 

, 301 (Fla. 1993)). "The purpose of the exclusionary

rule is to sufficiently deter deliberate police misconduct;" however this exception

recognizes that "[e]xclusion of physical evidence that would inevitably have been

discovered adds nothing to either the integrity or fairness of a criminal trial." 

(quoting Fitzpatrick v. State, 

, 514 (Fla. 2005)).

Application of the inevitable discovery exception "first requires a 'reasonable probability'

that the evidence would have been discovered despite the improper police procedure."

Second, the rule requires the State to "demonstrate that at the time of the

constitutional violation an investigation was already under way. In other words, the

case must be in such a posture that the facts already in the possession of the police




                                             - 11 -
would have led to this evidence notwithstanding the police misconduct." 

(citations omitted) (quoting 

).

              Here, the police obtained an initial search warrant from a neutral

magistrate and were lawfully on the described premises conducting a search when they

discovered that a previously unknown residence, Rodgers' RV, shared an internet

connection with the main residence described in the warrant. Rodgers had already

been identified as a resident of the property in the affidavit that formed the basis for the

first search warrant; however, police did not realize that he lived in a separate RV unit

until they were on the property conducting the search. The special agent in charge of

the investigation testified at the suppression hearing that despite conducting

surveillance and a police flyover of the property, police were unable to clearly see the

back portion of the property where Rodgers' RV was located because of tree cover and

the location of the primary residence, which blocked a view of the RV from the public

road. Once police were on the property and observed the cable connecting Rodgers'

RV to the internet router in the main residence, they were able to conclude that Rodgers

was using the same IP address from his RV that police had discovered was offering to

share child pornography. This additional information standing alone was sufficient to

support the second search warrant that authorized the search of Rodgers' RV. See

State v. Hood, 

, 395 (Fla. 2d DCA 2011) ("[T]he inclusion of illegally

obtained evidence in a supporting affidavit does not automatically invalidate the

resulting search warrant. Instead, the court must excise the invalid allegations from the

affidavit and determine whether sufficient valid allegations remain to support a finding of

probable cause. If so, the search warrant is still valid." (citations omitted)); State v.




                                            - 12 -
Hunwick, 

, 1001 (Fla. 4th DCA 1983) ("The inclusion of illegally

obtained evidence in the supporting affidavit, where the affidavit contains other valid

allegations sufficient to establish probable cause, does not invalidate a search warrant."

(citing Neary v. State, 

(Fla. 1980))).

              The majority notes that the special agent in charge "admitted" that the

police did not have any evidence that Rodgers' RV shared the suspect IP address at the

time of the first search warrant and implies that therefore police did not have probable

cause to obtain a search warrant of Rodgers' RV at the time they entered the RV. I

disagree. Once police entered the property they observed a router cable strung from

the main router of the residence to Rodgers’ RV and learned from the residence owner

that Rodgers had been accessing the internet for years.1 This established probable

cause and that is all that is required under the law. See Schmitt v. State, 

, 409 (Fla. 1991) ("[W]e have defined 'probable cause' as a reasonable ground of

suspicion supported by circumstances sufficiently strong to warrant a cautious person in

the belief that the person is guilty of the offense charged.").



              1An  Internet Service Provider (ISP) assigns a single, unique IP address to
a router; therefore any computer accessing the same router would share a single IP
address. See generally Tim Lachance, "IP" So Facto? Not So Fasto: Why IP
Addresses Should Not Be Considered PII, 58 IDEA 303, 307 (2018) ("[U]tilizing
[Network Address Translation] a customer can connect multiple devices to the internet
through a central router using a single IP address. When this protocol is used, the IP
address that is transmitted through the internet does not identify the single machine
being used, but rather the router through which that machine is connected to the
internet."); Paul Ham, Warrantless Search and Seizure of E-Mail and Methods of
Panoptical Prophylaxis, B.C. Intell. Prop. & Tech. F., May 2008, at 14 ("An ISP assigns
a unique IP [address] . . . to the router. Any computer that accesses the Internet
through that router then assumes the single IP address of the router. Through this IP
[address], someone can request from an ISP the identity of the subscriber who owns
the router—but potentially not the identity of all the users who access the Internet
through the router.").


                                            - 13 -
              Based on the record in this case, I conclude that police discovery of the

partially destroyed laptop was inevitable. There was a reasonable probability that police

would have sought and obtained the second warrant authorizing a search of Rodgers'

RV based on the shared IP address and without the additional evidence found after

unlawfully entering the structure. And there is no question that police were already in

the process of conducting an investigation into the IP address associated with the

subject property. Police already had a warrant to search the primary residence and

knew that Rodgers shared an address with the primary residence. Accordingly, I

believe that the pornographic images on the laptop were admissible under the inevitable

discovery doctrine.

              Recently, in cases where police had probable cause to procure a warrant

but failed to do so, the Florida Supreme Court has additionally required the State show

that a search warrant was being actively pursued prior to the occurrence of the illegal

police conduct in order to satisfy the second prong of the inevitable discovery doctrine,

which requires that the State "demonstrate an active and independent investigation."

; see also Clayton, 

at 831 ("[I]nevitable

discovery supports admission of illegally obtained evidence only when police actively

sought to obtain a search warrant before searching a home."). The justification for this

additional requirement was aptly explained by the First District in Clayton:

              If the inevitable discovery doctrine were applied this way,
              any time police have probable cause to search a home, they
              could do so without seeking a search warrant and the State
              would be permitted to introduce evidence seized in such a
              search by asserting that the evidence would have been
              discovered inevitably. Such a rule would eviscerate the
              warrant requirement.




                                          - 14 -


at 831; see also 

; Young v. State, 

, 270 (Fla. 2d DCA 2016); Rowell v. State, 

, 995 (Fla. 4th DCA 2012)

("[T]he inevitable discovery doctrine will not be applied in every case where the police

had probable cause for a search warrant, but failed to get one." (quoting McDonnell v.

State, 

, 593 (Fla. 1st DCA 2008))).

              In Rodriguez, the supreme court considered a situation where police, who

had probable cause to believe that the defendant was growing marijuana in his home,

chose to seek voluntary consent instead of pursuing a 

. The

trial court concluded that the consent to search was involuntary, and the supreme court

held that the inevitable discovery doctrine did not apply, explaining that "[w]ith no valid

consent, and no pursuit of a search warrant, there are no legal means present that

would have led to the evidence." 

Because police in this case had a warrant

and were in the process of conducting an investigation into the suspect IP address—

which led to their discovery that Rodgers had access to the main residence's router

independent of the unlawful search—this case is distinguishable from the situation

described in Rodriguez.

              This is not a case "where the police had probable cause to obtain a

warrant but simply failed to get one." See 

. The record

demonstrates that the unlawful entry into Rodgers' RV happened simultaneously with

the investigation into the router cable and Rodgers' access to the suspect IP address.

Indeed, the special agent in charge testified that he observed the internet cable running

to the RV and learned from the owner of the residence that it was connected to the

router in the primary residence before he became aware of the RV search or the




                                           - 15 -
disabled laptop. This evidence inevitably would have led police to obtain the second

warrant regardless of the warrantless entry or discovery of the laptop. See, e.g., Craig

v. State, 

, 863 (Fla. 1987) (holding that evidence was admissible when it

"would have been found independently even without the [unlawful police conduct] by

means of normal investigative measures that inevitably would have been set in motion

as a matter of routine police procedure"). I do not read the holding of Rodriguez to

require that officers be in the process of obtaining a second warrant at the time of a

warrantless search in order for the inevitable discovery doctrine to apply. The warrant

requirement outlined in Rodriguez was satisfied by the fact that the officers in this case

had already obtained the first warrant prior to searching Rodgers' residence.

              The inevitable discovery doctrine "balance[s] the need to deter police

misconduct with the societal cost of allowing obviously guilty persons to go free."

(citing Nix v. Williams, 

, 443 (1984)). In this

case, the police misconduct was neither especially deliberate nor egregious. When the

police initially entered the property and discovered the additional structures, they made

a decision to execute a coordinated, simultaneous search of all of the structures

including the main residence described in the search warrant. Police initially made

contact with Rodgers and asked him to come outside the RV for officer safety. After

Rodgers retreated beyond the officers' line of sight, the officers heard a commotion that

they described as a "rattling, banging and stuff like that." Concerned that Rodgers was

"going back to retrieve some sort of weapon" and that someone else may be inside his

RV, the police decided to make a forced entry into his RV. Once Rodgers was removed

from the RV, an officer reentered the RV to check for other occupants. The unrefuted




                                           - 16 -
testimony of the officer who conducted the search was that he only looked in places

where another individual could be hiding; he did not search compartments, desks,

drawers, or other areas which might have contained contraband related to this offense.

When the officer searched the bedroom, he found a "bed elevated enough for a person

to fit underneath there so I briefly looked under the bed with my gun drawn and the light

on my gun to see if there was anybody underneath the bed." He did not find anyone

else in the RV, but he did see a broken computer under the bed. Without touching or

searching the computer, the officer exited the RV and informed his supervisor. Police

abated the search until they received the second warrant based on the discovery of the

computer, the internet router connection between Rodgers' RV and the main residence,

and Rodgers' status as a tenant on the property who paid rent and shared utilities with

the main residence.2 Although the entry into the RV was unlawful, it happened at a time

when it was reasonably unclear to the officers that the first warrant did not authorize

entry into the RV and their search was substantially limited in scope. When the officers

realized that the RV was a personal residence, they obtained the second warrant before

reentering and removing the laptop.

              Because I conclude that if the police had not discovered the broken

computer during the initial sweep of Rodgers' RV, they inevitably would have pursued

and obtained the second search warrant based on the discovery that Rodgers was

using the same suspect IP address as the main residence, I would affirm his convictions

and sentences.



              2Thespecial agent in charge testified that he did not believe he needed
the second warrant to search the RV until he realized that it was being used as a
separate residence.


                                           - 17 -