State v. Delgado
State v. Delgado
Concurring Opinion
concurring specially.
I agree with the decision of the Court in this case, but write to record my separate reason for reaching that result.
This case arises from an anonymous tip regarding ongoing unlawful drug activity occurring at a location on Southwest 154th Place in Miami, Florida. On May 21, 2009, four officers — Detectives Marcus Carey, Anna Bernal, Russell Giordano, and Sergeant Michael Taberno — responded to the house. Detective Giordano and Sergeant Taberno went to the sides of the house to prevent any individuals from exiting the sides of the house. Detectives Bernal and Carey approached the front door of the premises. Detective Bernal detected the unmistakable smell of marijuana as the two officers approached the front door. Detective Bernal wore a tactical vest containing the word “Police,” and Detective Carey also wore a police jacket.
Detective Carey knocked on the door and Javier Delgado opened the door. Detective Carey invited Delgado to walk around to the west side of the house with him. At the same time, Detective Carey
Delgado filed a motion to suppress, contending he did not willingly consent to the search, the search was not incident to a lawful arrest, and the evidence obtained was the “fruit of the poisonous tree.” I disagree. My belief is the officers in this case executed a valid “knock and talk.” A “knock and talk” encounter is a procedure used by police officers to investigate a complaint where there is no probable cause for a search warrant.” See Murphy v. State, 898 So.2d 1031, 1032 n. 4 (Fla. 5th DCA 2005). Because Detective Bernal detected a strong odor of marijuana, the officers had probable cause to enter the premises, arrest Delgado, and execute a search incident to arrest, during which the contraband was found.
There was no Fourth Amendment violation in this case.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Opinion of the Court
The State appeals the trial court’s grant of a motion to suppress where the defendant was charged with unlawful possession of cannabis in violation of section 893.13(6)(a), Florida Statutes (2007), and unlawfully and feloniously manufacturing cannabis with the intent to sell in violation of section 893.13(l)(a)(2), Florida Statutes (2007). We reverse.
The defendant was charged with unlawful possession of cannabis in violation of section 893.13(6)(a), Florida Statutes (2007), and unlawfully and feloniously manufacturing cannabis with the intent to sell in violation of section 893.13(l)(a)(2), Florida Statutes (2007). The defendant filed a motion to suppress on grounds that he did not consent willingly to the search, the search was not incident to a lawful arrest, and the evidence obtained was the fruit of the poisonous tree. The trial court granted the motion to suppress, and this appeal follows.
At the’ suppression hearing on October 26, 2009, Detective Bernal of the Miami-Dade Police Department testified that, on May 21, 2009, based on an anonymous tip, the officer proceeded to the location of S.W. 154th Place to check out a possible grow house. The detective explained that she was part of a special detail and that her unit specifically responded to tips,
The defendant was charged with unlawful possession of cannabis in violation of section 893.13(6)(a), and unlawfully and feloniously manufacturing cannabis with the intent to sell, in violation of section 893.13(l)(a)(2), Florida Statutes (2007). The defendant filed a motion to suppress on grounds that he did not willingly consent to the search, the search was not incident to a lawful arrest, and the evidence obtained was the fruit of the poisonous tree. The trial court granted the motion to suppress, and the State appeals.
We review the trial court’s grant of a motion to suppress using a mixed standard of review; the appellate court defers to the trial court’s findings regarding the facts and applies the de novo standard of review to legal conclusions. See Riggs v. State, 918 So.2d 274, 278 (Fla. 2005) (holding that, when reviewing rulings on motions to suppress, “we ‘accord a presumption of correctness ... to the trial court’s determination of historical facts, but [we] independently review mixed questions of law and fact that ultimately determine constitutional issues’ ”); Hidelgo v. State, 25 So.3d 95 (Fla. 3d DCA 2009).
A warrantless search of a dwelling may be authorized by consent. See Georgia v. Randolph, 547 U.S. 103, 106, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). The State bears the burden to show the voluntariness of the consent by the preponderance of the evidence. Reynolds v. State, 592 So.2d 1082 (Fla. 1992). The preponderance of the evidence is the appropriate standard of proof of whether the consent to a search was voluntary in a knock and talk encounter situation. State v. Navarro, 19 So.3d 370 (Fla. 2d DCA 2009); see also Murphy v. State, 898 So.2d 1031, 1032 n. 4 (Fla. 5th DCA 2005) (stating that “ ‘knock and talk’ encounter is a procedure used by police officers to investigate a complaint where there is no probable cause for a search warrant”). The preponderance of the evidence in this case established that the defendant’s consent was voluntary.
Moreover, even had the initial encounter been illegal, as the defendant contends, any taint from such an encounter does not extend to the subsequent consent obtained. See Connor v. State, 808 So.2d 598 (Fla. 2001) (holding that, even if the initial encounter were illegal, where written consent and waiver of Miranda warnings were obtained prior to search, any taint from the encounter does not extend to a subsequent consent to search). The voluntariness of the defendant’s consent to search depends on the totality of the circumstances. U.S. v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). The voluntariness of the defendant’s consent will be upheld where the items seized were the result of a consensual search. Connor, at 598. The fact that the defendant signed a Miranda waiver after giving consent is of no consequence, and, based on the totality of the circumstances, the consent was voluntary. See generally U.S. v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (holding that the absence of proof that a person giving consent to search knew he could withhold his consent does not compel the conclusion that his consent was invalid); Wayne R. LaFave, 4 Search and Seizure § 8.2(j), at 119 (4th ed. 2004) (“[I]t is at best open to question ... whether the inclusion or exclusion of Miranda warnings in a given set of circumstances should weigh much in either direction in considering voluntariness.”).
Based on the totality of the circumstances and the aforementioned authorities, we reverse the trial court’s grant of the motion to suppress.
Reversed and remanded.
LAGAO, J., concurs.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.