Perez-Riva v. State

152 So. 3d 98, 2014 Fla. App. LEXIS 19369, 2014 WL 6675919
CourtDistrict Court of Appeal of Florida
DecidedNovember 26, 2014
DocketNo. 2D14-412
StatusPublished
Cited by1 cases

This text of 152 So. 3d 98 (Perez-Riva v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perez-Riva v. State, 152 So. 3d 98, 2014 Fla. App. LEXIS 19369, 2014 WL 6675919 (Fla. Ct. App. 2014).

Opinion

LaROSE, Judge.

Eduardo Perez-Riva appeals an order summarily denying his rule 3.850 motion for postconviction relief. Mr. Perez-Riva is serving a 76.4-month prison sentence after a jury convicted him of various drug-related offenses. We affirmed his judgments and sentences on direct appeal. Perez-Riva v. State, 98 So.3d 577 (Fla. 2d DCA 2012) (table decision).

The postconviction court erred in denying Mr. Perez-Riva’s ineffective assistance of counsel claims as to counsel’s failure to challenge the validity of a search warrant and to move to suppress evidence. We also find error in the postconviction court’s denial of Mr. Perez-Riva’s claim that trial counsel was ineffective for not objecting, on double jeopardy grounds,- to the convictions for manufacturing and trafficking in cannabis. We reverse and remand to the postconviction court for further proceedings as to those three claims. We affirm as to all remaining claims.

Background

Confidential informant # 10-053, whose reliability is not disclosed in our record, informed police that he saw marijuana plants growing in Mr. Perez-Riva’s garage. The informant also told police that he approached six or seven people at Mr. Perez-Riva’s house and saw marijuana bits on their clothing. Based on this information, Detective Van Houten, Detective Ar-mate, and Deputy Monamy went to Mr. Perez-Riva’s house and approached the front door with a drug-sniffing dog. When no one answered their knocks, they walked around the outside of the house with the dog. The dog purportedly alerted to drugs at the garage door, at the garbage can area, and at the rear of a van parked in the driveway. The officers also noticed nails through the garage door from the outside in, an allegedly common method of reinforcing doors to cultivate marijuana.

Mr. Perez-Riva and another male then arrived at the house in a Camry. The detectives ordered them out of the car and removed the keys from the ignition. The deputy asked for permission to search the house; Mr. Perez-Riva refused. The deputy brought the drug-sniffing dog to the Camry, where the dog alerted. Police searched the Camry, finding a book about growing marijuana, electrical switches, and a marijuana bud. They did not search the van.

A detective tried Mr. Perez-Riva’s keys in the front door and unlocked it. Without going inside, the detective relocked the door. He later prepared a search warrant affidavit, and a magistrate issued a warrant. The officers found marijuana plants inside the house, which Mr. Perez-Riva admitted was his residence.

Invalid Warrant and Motion to Suppress

Mr. Perez-Riva argues that his trial counsel was ineffective for failing to move to suppress evidence. He also argues that his counsel was ineffective for failing to challenge the validity of the search warrant. These two issues are intertwined because an invalid warrant would support [101]*101suppression of the evidence found during the search of the house.

Mr. Perez-Riva contends that the trial court would have granted a motion to suppress because the officers lacked probable cause to search around his residence with a drug-sniffing dog. He also argues that the officers illegally detained him after the dog alerted at his Camry.

In Jardines v. State, the Supreme Court of Florida held that a “sniff test” at the front porch of a home constituted a search requiring probable cause to proceed. 73 So.3d 34, 49, 54 (Fla.2011) (quashing decision in State v. Jardines, 9 So.3d 1 (Fla. 3d DCA 2008), and approving the result in State v. Rabb, 920 So.2d 1175 (Fla. 4th DCA 2006)), affirmed, — U.S. -, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013). The court held that the trial court properly excluded the results of the “sniff test” to support a finding of probable cause for a search warrant. Id. at 55. According to the supreme court, the trial court then correctly considered, “absent the dog sniff information, whether any independent and lawfully obtained evidence establish[ed] a substantial basis for concluding that probable cause existed” to issue the warrant. Id. at 54. The supreme court held that the trial court properly granted the motion to suppress after finding that the remaining evidence — an unverified tip, closed window blinds, and a “constantly running air conditioner” — was insufficient to support probable cause. Id. at 55.

The U.S. Supreme Court affirmed, explaining that the curtilage of the home— the area “immediately surrounding and associated with the home” — is “part of the home itself for Fourth Amendment purposes.” 133 S.Ct. at 1414. A police officer without a warrant may, as a private citizen might, “approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.... But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else.” Id. at 1415-16. “That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.” Id. at 1417.

To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to— well, call the police.

Id. at 1416.

In Rabb, the Fourth District held that a dog sniff at the outside of a residence based only on an anonymous tip violated the Fourth Amendment; evidence resulting from the illegal search could not be used to establish probable cause for a warrant. 920 So.2d at 1187-88. The Fourth District then analyzed whether the probable-cause affidavit, without the dog-sniff evidence, contained sufficient “independent and lawfully obtained evidence that established probable cause.” Id. at 1188. That other evidence was an anonymous tip, cannabis, cultivation books, and a cultivation video found during a valid traffic stop. See id. Not enough.

The tip was unverified because it came from an unknown individual rather than a qualified confidential informant. Nor was it corroborated in the probable cause affidavit by any evidence resulting from surveillance of the house. There was no indicium of the cultivation of marijuana within, such as covered windows, high pedestrian traffic, or higher than normal use of electricity.

Id. at 1187.

Here, the tip was not anonymous; it came from Cl # 10-053. However, the [102]*102affidavit tells us nothing about the Cl’s reliability. See Fellows v. State, 612 So.2d 686, 687 (Fla. 2d DCA 1998) (“[A]n affidavit must set forth facts from which the magistrate could find the. affiant had personal knowledge of the confidential informant’s reliability or facts which corroborate the reliability of the confidential information from an independent source.”); Smith v. State, 637 So.2d 351, 352 (Fla. 1st DCA 1994) (same). The relevant part of the affidavit states only, “I was informed by Confidential Informant (Cl) # 10-053 of the following facts.” The Cl’s tip alone was insufficient to provide probable cause for the warrant. The reinforced garage door was not independent evidence because the deputy noticed the nails only during the illegal use of the drug-sniffing dog.

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Bluebook (online)
152 So. 3d 98, 2014 Fla. App. LEXIS 19369, 2014 WL 6675919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perez-riva-v-state-fladistctapp-2014.