Shomari N. MINTER-SMITH, Appellant,

v.

STATE of Florida, Appellee.

No. 1D02-4045.

Dec. 31, 2003.

Background: After his motion to suppress evidence was denied, defendant was

convicted in the Circuit Court, Okaloosa County, Thomas T. Remington, J., on

charges brought after police searched defendant's home and seized alleged dog

fighting paraphernalia, drug paraphernalia, a firearm, and cannabis residue.

Defendant appealed.

Holdings: The District Court of Appeal, Hawkes, J., held that:

(1) police did not obtain valid consent to search home;

(2) plain view exception to warrant requirement did not apply so as to

permit seizure of evidence the significant nature of which was not immediately

apparent;

(3) inevitable discovery doctrine did not apply so as to render drug

paraphernalia, firearm, and cannabis residue admissible at trial.

Reversed, sentence vacated, and remanded.

West Headnotes

[1] Searches and Seizures k183

349k183 Most Cited Cases

Young woman who police believed lived at home of suspected dog fighting

operation did not freely and voluntarily consent to warrantless search of home

after police stated to her, "we need[ ] to treat the house as a crime scene

and we need[ ] to look in the house for evidence," rendering police search of

home on such basis unlawful; statement by police did not request consent, and

young woman's response to statement was no more than acquiescence to

authority. U.S.C.A. Const.Amend. 4.

[2] Searches and Seizures k180

349k180 Most Cited Cases

An individual's consent permitting police to conduct warrantless search is

valid when the consent is freely and voluntarily given and the search is

conducted within the scope of the consent. U.S.C.A. Const.Amend. 4.

[3] Searches and Seizures k49

349k49 Most Cited Cases

Plain view exception to warrant requirement did not apply so as to permit

police to seize exacto knife and broomstick from home suspected of running

illegal dog fighting operation, the significant nature of which evidence was

not immediately apparent to police, who had to rely on information from

non-police source to determine its incriminatory nature. U.S.C.A.

Const.Amend. 4.

[4] Searches and Seizures k47.1

349k47.1 Most Cited Cases

[4] Searches and Seizures k49

349k49 Most Cited Cases

The "plain view doctrine" allows police to seize contraband in plain view

when the seizing officer is in a location he has a legal right to be, the

incriminating character of the evidence is immediately apparent, and the

seizing officer has a lawful right of access to the object. U.S.C.A.

Const.Amend. 4.

[5] Searches and Seizures k49

349k49 Most Cited Cases

When closer examination of an item observed in plain view is necessary for an

officer to confirm its incriminating nature, its nature is not considered

immediately apparent, thus rendering plain view exception to warrant

requirement inapplicable. U.S.C.A. Const.Amend. 4.

[6] Criminal Law k394.1(3)

110k394.1(3) Most Cited Cases

To apply "inevitable discovery doctrine," allowing evidence obtained as

result of unconstitutional police search to be admitted if evidence would

ultimately have been discovered by legal means, there must be only a

reasonable probability of discovery of evidence by lawful means, not an

absolute certainty. U.S.C.A. Const.Amend. 4.

[7] Criminal Law k394.1(3)

110k394.1(3) Most Cited Cases

Inevitable discovery doctrine, allowing evidence obtained as result of

unconstitutional police search to be admitted if evidence would ultimately

have been discovered by legal means, can provide relief to State only if the

plain view exception applies, meaning officer was in a location he had a legal

right to be, the incriminating character of the evidence was immediately

apparent, and the seizing officer had a lawful right of access to the object.

[8] Criminal Law k394.4(3)

110k394.4(3) Most Cited Cases

Inevitable discovery doctrine did not apply so as to render drug

paraphernalia, firearm, and cannabis residue seized during unlawful

warrantless search of home of suspected dog fighting operation admissible at

trial, since evidence would not have been inevitably discovered by lawful

means, the police without probable cause to support issuance of search

warrant. U.S.C.A. Const.Amend. 4.

*1143 Nancy A. Daniels, Public Defender and Archie F. Gardner, Jr., Assistant

Public Defender, Tallahassee, for Appellant.

Charlie Crist, Attorney General and Sherri T. Rollison, Assistant Attorney

General, Office of the Attorney General, Tallahassee, for Appellee.

HAWKES, J.

Police entered the defendant's home upon their belief that illegal dog

fighting was occurring in the back yard. After entering the home, a

protective sweep and subsequent search resulted in the seizure of dog fighting

paraphernalia, drug paraphernalia, a firearm and cannabis residue. Since no

warrant was obtained before police entered the home, an exception to the

warrant requirement must exist before the items obtained can be introduced as

evidence. The State argues two exceptions to the warrant requirement: 1) the

officers obtained valid consent to search the defendant's home; and

alternatively, 2) the dog fighting paraphernalia was in plain view during the

initial protective sweep, thus the police would have been able to obtain a

search warrant and, consequently, the other evidence would have been

inevitably discovered. We disagree with both arguments and reverse.

Fort Walton Beach Police were dispatched to the defendant's home in response

to a complaint that dogs were fighting, and male voices were heard encouraging

the dogs to continue fighting. As officers arrived at the scene, they

positioned themselves at various locations around the home. While looking

over a fence, one officer, although observing no illegal activity, heard

noises she interpreted as consistent with people conducting a dog fight in the

backyard. After several patrol cars responded to the scene, officers entered

through the unlocked front door of the home without permission, and one

officer entered the back yard by going over the fence. Once inside, the

officers handcuffed the defendant and four other individuals, and performed a

protective sweep where they observed a broomstick with bite marks and an

exacto knife with a heavily taped handle. The officers testified they were

not able to identify these items as dog fighting paraphernalia until

assistance was received from a non-police officer advisor. It is interesting

to note that not only were the broomstick and exacto knife not immediately

recognizable as evidence, but no other evidence of dog fighting was

discovered, even after a full search of the home. The officer who testified

she looked over the fence did not even report seeing any illegal activity.

While the suspects were being removed, a young woman arrived who the police

believed lived at the home. The State maintains the woman consented to a

search of the home after she was told "we need[ ] to treat the house as a

crime scene and we need[ ] to look in the house for evidence." This statement

does not request consent. Rather it is a statement that police planned to

"look in the house for evidence."

[1][2] A consent to search is valid when the consent is freely and

voluntarily given *1144 and the search is conducted within the scope of the

consent. See Phuagnong v. State, 714 So.2d 527 (Fla. 1st DCA 1998). Here,

the young woman's response to the officer's statement is no more than

acquiescence to authority, not consent. See Gonzalez v. State, 578 So.2d 729

(Fla. 3rd DCA 1991) (holding where a search was conducted after officers

surrounded a home and asked the resident if they could "look around," the

resident acquiesced to their authority, and consent therefore was

involuntary). Because no consent to search was given, this exception to the

warrant requirement fails.

[3] The State alternatively argues, using two exceptions to the warrant

requirement in tandem, that all of the evidence is admissible. The State

maintains the plain view doctrine allowed them to seize the dog fighting

paraphernalia, and that paraphernalia would have provided them with the

requisite probable cause to obtain a search warrant. Had they obtained a

warrant, the additional evidence would have been inevitably discovered and

thus admissible.

[4] The plain view doctrine allows police to seize contraband in plain view

when 1) the seizing officer is in a location he has a legal right to be, 2)

the incriminating character of the evidence is immediately apparent, and 3)

the seizing officer has a lawful right of access to the object. See Pagan v.

State, 830 So.2d 792 (Fla.2002). In examining whether the seizing officer was

where he had a right to be, we note all of the alleged illegal activity was

taking place in the back yard. One officer even entered the backyard by going

over the fence. Thus, entry into the home appears unnecessary to respond to

the alleged dog fighting.

[5] However, even assuming the police had a right to be in the home, the

State cannot meet the second prong of the plain view doctrine. It is well

settled that when closer examination of an item observed in plain view is

necessary to confirm its incriminating nature, its nature is not considered

"immediately apparent." See Caplan v. State, 531 So.2d 88 (Fla.1988). Here,

because they were later informed of the items' significance by "someone else's

expertise," the nature of the broomstick and the exacto knife were not

"immediately apparent" to the police. [FN1] Thus, the officers were precluded

from lawfully seizing these items.

FN1. It is questionable whether a broom stick and exacto knife, without

additional incriminating evidence, would be sufficient to establish

probable cause to constitute dog fighting paraphernalia. The bite marks

on the broomstick do not indicate the broomstick's use in dog fighting

any more than it indicates the perfectly innocent use as a toy used to

play with a dog.

[6][7][8] The next step of the State's argument is that the drug

paraphernalia, firearm, and cannabis residue would be admissible under the

doctrine of inevitable discovery. The inevitable discovery doctrine allows

evidence obtained as a result of an unconstitutional police search to be

admitted if the evidence would ultimately have been discovered by legal means.

See Jeffries v. State, 797 So.2d 573 (Fla.2001). To apply this doctrine,

there must be only a reasonable probability of discovery, not an absolute

certainty. See State v. Ruiz, 502 So.2d 87 (Fla. 4th DCA 1987). This doctrine

can provide relief to the State only if the plain view exception applies.

Since the plain view exception fails, the State had no evidence to establish

probable cause to obtain a search warrant. Since they could not have obtained

a warrant, no lawful search would have taken place. Therefore, the drug

paraphernalia, *1145 firearm, and cannabis residue would not have been

inevitably discovered. See id. Accordingly, the trial court's denial of the

defendant's motion to suppress is

REVERSED, the defendant's sentence VACATED, and the cause REMANDED.

VAN NORTWICK and PADOVANO, JJ., CONCUR.

864 So.2d 1141, 29 Fla. L. Weekly D89