State v. Grue

130 So. 3d 256, 2013 WL 6331582, 2013 Fla. App. LEXIS 19438
CourtDistrict Court of Appeal of Florida
DecidedDecember 6, 2013
DocketNo. 5D12-4812
StatusPublished
Cited by1 cases

This text of 130 So. 3d 256 (State v. Grue) 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
State v. Grue, 130 So. 3d 256, 2013 WL 6331582, 2013 Fla. App. LEXIS 19438 (Fla. Ct. App. 2013).

Opinion

ON MOTION FOR REHEARING

COHEN, J.

We grant Grue’s motion for rehearing in part, withdraw our previous opinion, and replace it with the following.

[258]*258The State appeals an order granting Joseph Grue’s motion to suppress. The issue on appeal is whether there was sufficient evidence to establish probable cause — based upon a police K-9’s alert— set forth in the affidavit to support the issuance of a search warrant, or to paraphrase Justice Kagan, whether the sniff was up to snuff. We conclude the affidavit provided probable cause and reverse.

On January 4, 2012, Officer David Alvarado of the Orange County Sheriffs Office was working at the FedEx sort line with his assigned K-9, Dixie. For reasons that are unclear from the record, Officer Alvarado pulled a package addressed to Grue at the Buena Vista Palace Hotel from the line and placed it with other similar packages. Officer Alvarado had Dixie do a narcotics scent search of the packages, and Dixie alerted Officer Alvarado of the presence of narcotics in the package addressed to Grue.

Based upon Dixie’s alert, Officer Alvarado applied for a search warrant. The affidavit in support of the application for the warrant was a pre-printed form with a minimal amount of case-specific information.1 The affidavit noted Officer Alvarado’s credentials, training, and experience handling narcotics detection dogs, including Dixie. The affidavit also set forth information regarding Dixie’s training, including that she participated in a narcotics scent discrimination course. It averred that Dixie was “certified” and had located “thousands of pounds of narcotics” in the past. The affidavit related what occurred on January 4, 2012, leading up to and including Dixie’s alert on the package addressed to Grue.

Based on the information contained in the affidavit, a search warrant was issued. Officer Alvarado opened the package and found it contained 6.2 grams of oxycodone pills and approximately 19.1 grams of cocaine. When Grue came to the business center at the Buena Vista Palace Hotel to pick up his package, Officer Alvarado, acting undercover, handed the package to Grue. Grue was almost immediately detained and subsequently charged with one count of trafficking in four grams or more of oxycodone and one count of possession of cocaine with intent to sell or deliver.

Grue moved to suppress the contents of the package, arguing that Officer Alvarado searched the package pursuant to a defective warrant that was, on its face, wholly lacking in probable cause. Grue relied on Harris v. State, 71 So.3d 756 (Fla.2011) (hereinafter Harris I), in which the Florida Supreme Court set forth evidentiary requirements that the State must satisfy in order to establish probable cause based on a dog sniff.2 He argued that the affidavit supporting the warrant contained merely conclusory, generic statements regarding Dixie’s training and certification, and lacked any explanation thereof. Furthermore, it did not include field records or false alert percentages, as required by Harris I.

At the hearing on the motion to suppress, the trial court considered only the information contained within the four corners of the affidavit. The court was per[259]*259suaded by Grue’s argument that Harris I applied and granted the motion to suppress, noting: “If the officer had written out things such as what Harris requires, then the Court would probably be — would be denying the motion to suppress.”3 The State filed a timely appeal.

This case comes to us in a vastly different legal landscape than existed at the time of the hearing on Grue’s motion to suppress. While this appeal was pending, the United States Supreme Court overruled Harris I. See Florida v. Harris, — U.S. -, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (hereinafter Harris II ).4 Grue argues that, even under Harris II, the affidavit was inadequate and affir-mance is appropriate. We disagree.

We review the trial court’s decision de novo. See State v. Felix, 942 So.2d 5, 8 (Fla. 5th DCA 2006) (citing Pagan v. State, 830 So.2d 792 (Fla.2002)) (stating that standard of review is de novo where trial court bases its probable cause determination solely on examination of the affidavit). The determination of whether probable cause exists to issue a search warrant is made by looking within the “four corners” of the affidavit. Felix, 942 So.2d at 9. Based on the facts set forth in the affidavit, the magistrate must make a “practical common sense decision” about whether there is a “fair probability” that evidence of a crime will be discovered in the place to be searched. State v. Irizarry, 948 So.2d 39, 43 (Fla. 5th DCA 2006) (citing Illinois v. Gates, 462 U.S. 213, 238-39; 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

Generally, an alert by a properly trained narcotics detection dog provides probable cause. State v. Siluk, 567 So.2d 26, 28 (Fla. 5th DCA 1990). The alert, however, must be sufficiently reliable. See Harris II, 133 S.Ct. at 1056-58. Whether the alert is reliable enough to establish probable cause is determined based on the totality of the circumstances. See id. at 1058 (“The question — similar to every inquiry into probable cause — is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.”).

In Harris II, the Supreme Court overruled the Florida Supreme Court’s requirement that the State present particular evidence in order to establish a dog’s reliability. The Court noted that this “evi-dentiary checklist” was the antithesis of the well-established totality-of-the-cireum-stances approach. Id. at 1056. It specifically took issue with the Florida Supreme Court’s requirement that the State present field performance records, noting why field performance records are actually less reliable than records of a dog’s performance in standard training and certification settings. Id. at 1056-57. For this reason, the Court held that “evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.” Id. at 1057. Even without formal certification, the Court noted, a dog’s alert can provide probable cause if the dog “recently and [260]*260successfully completed a training program that evaluated his proficiency in locating drugs.” Id. The Court then concluded that the State had established probable cause for a warrantless search.5

Our decision in this case is also guided by pre-Harris case law. See, e.g., State v. Coleman, 911 So.2d 259, 261 (Fla. 5th DCA 2005) (holding that the State can make a prima facie showing of probable cause based on a narcotic detection dog’s alert if it demonstrates that the dog has been “properly trained and certified”);6 Vetter v. State, 395 So.2d 1199 (Fla. 3d DCA 1981) (holding that characterizing a dog as “trained” in the affidavit established probable cause to issue warrant); accord United States v. Sentovich, 677 F.2d 834

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Bluebook (online)
130 So. 3d 256, 2013 WL 6331582, 2013 Fla. App. LEXIS 19438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-grue-fladistctapp-2013.