State v. Triana

979 So. 2d 1039, 2008 WL 724001
CourtDistrict Court of Appeal of Florida
DecidedMarch 19, 2008
Docket3D07-1388
StatusPublished
Cited by18 cases

This text of 979 So. 2d 1039 (State v. Triana) 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. Triana, 979 So. 2d 1039, 2008 WL 724001 (Fla. Ct. App. 2008).

Opinion

979 So.2d 1039 (2008)

The STATE of Florida, Appellant,
v.
Eudenis TRIANA, Appellee.

No. 3D07-1388.

District Court of Appeal of Florida, Third District.

March 19, 2008.

*1040 Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellant.

Gonzalez & Alvarez and Silvia M. Gonzalez, for appellee.

*1041 Before CORTI—AS and ROTHENBERG JJ., and SCHWARTZ, Senior Judge.

CORTI—AS, J.

The State of Florida ("State") appeals an order granting a motion to suppress filed by the defendant, Eudenis Triana ("Triana"). The trial court found that Mr. Triana was illegally seized and, as such, a subsequent consent to search by Triana was involuntary, resulting in the suppression of certain evidence.

This case implicates two different and legally distinct exceptions to the Constitutional requirement that an arrest or search must be based on probable cause and executed pursuant to a warrant. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The first exception which applies is the consensual encounter of police with Mr. Triana and the second is the consent search given by Mr. Triana. Each is viewed under the "totality of the circumstances." See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

We first examine the facts surrounding the initial questioning of Mr. Triana. Detective Nicholas Delguitiz, who worked for thirteen years at the Miami-Dade narcotics bureau, had received information from a confidential source telling him of marijuana growing at Triana's residence. The detective further testified that, although the informant did not work for the Miami-Dade police department, he personally knew the identity of the informant, and had worked with him in the past. Furthermore, the detective stated that he had previously received information from this informant and that the information had proven to be reliable.

Detective Delguitiz and three officers arrived at the outside gate of Mr. Triana's 1Ω to 2-acre residence at approximately 9 p.m. on July 26, 2006. The gate was closed and there was nobody outside the residence at that time. Another officer, Sergeant Albert Falcon, stated that Mr. Triana's residence was gated by either a hedge or a wooden fence that was six feet high. One of the officers momentarily blew the emergency horn on his police car, presumably to announce their presence at the residence. As a result, Triana's girlfriend exited the residence and met the officers at the locked gate. The officers advised her that they had received information that marijuana was being grown at this residence and requested consent to search. The girlfriend stated that she "lived there with her husband and she would ask his permission or talk with him about it." Moments later, Mr. Triana met the officers at the gate. Detective Delguitiz first ascertained whether or not Triana spoke English and learned he did not. Sergeant Falcon, who was fluent in Spanish, introduced himself to Mr. Triana, determined that Triana was the owner of the residence, and explained to him that the police had received a complaint that marijuana was being grown in the residence. Falcon asked for consent to search the residence and, in response, Triana agreed and opened the gate. During the suppression hearing, Falcon described the conversation with Triana as "casual." Prior to receiving consent and throughout the initial questioning, the officers were not on Triana's property. One of the detectives testified that they "would have just left" if the defendant had refused to consent.

We next detail the facts concerning the consent search inside the residence. Accompanied by Triana, three officers walked inside the house. Falcon testified that, as they walked through the main area of the house, he observed there was another *1042 building in the back of the property and asked Triana for consent to search the back building. Triana stated "what is back there is mine." Only a few minutes elapsed between the time the officers entered Triana's home and the time they observed the building in the back. Falcon then took out a written consent to search form, which was in Spanish, and read it to Triana. Mr. Triana signed the written consent form and took the officers to the building in the back of the property. Falcon stated that the building was divided in two parts, the front was a room with a kitchenette and the back was a hydroponics lab for growing marijuana. Police seized 103 pounds of marijuana at Triana's residence.

With respect to the initial meeting with Mr. Triana, the trial court held that the officers "effectively seized Mr. Triana" and that, at the time of encounter, the detectives did not have reasonable suspicion that Mr. Triana had committed a crime. Based on this holding, the trial court went on to find that "Triana's consent to search given after this illegal detention was involuntary."

We employ a mixed standard of review in considering the trial court's ruling on Mr. Triana's motion to suppress. The trial court's determination of historical facts enjoys a presumption of correctness and is subject to reversal only if not supported by competent, substantial evidence in the record. However, the trial court's determinations on mixed questions of law and fact and its legal conclusions are subject to de novo review. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598, 608 (Fla.2001); E.B. v. State, 866 So.2d 200, 202 (Fla. 2d DCA 2004).

The Florida Supreme Court has explained that there are essentially three levels of encounters an individual can have with the police:

The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer's requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).
The second level of police-citizen encounters involves an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. ß 901.151 Fla. Stat. (1991). In order not to violate a citizen's Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.
. . . [T]he third level of police-citizen encounters involves an arrest which must be supported by probable cause that a crime has been or is being committed. Henry v. United States, 361 U.S. 98, 80 S.Ct.

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Bluebook (online)
979 So. 2d 1039, 2008 WL 724001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-triana-fladistctapp-2008.