O'Hare v. State
O'Hare v. State
Opinion of the Court
After the denial of his amended motion to suppress,
On September 17, 2015, Ocoee Police Detective Sean Walsh notified Detective Robert Hart, from the Lake County Sheriff's Office, about a child pornography investigation. Walsh told Hart that a person using the screen name John@Ares was downloading child pornography using the Ares network and was sharing it using the peer-to-peer network from a specified Internet Protocol ("IP") address. Walsh secured a search warrant, which allowed him to obtain the IP address information. The IP address was associated with a business. Walsh informed Hart that John@Ares shared child pornography with him on two separate dates prior to September 17.
The following day, Walsh notified Hart that John@Ares was again sharing child pornography at the business. Hart arrived at the location and used an application that allowed him to identify users connected to the wireless network. Walsh advised Hart that the user John@Ares was logging on with a PC (as opposed to an Apple Mac) computer because most Ares network users utilize a PC. Hart did not see any users with the name John connected to the network at that time.
On September 21, 2015, Hart and another detective returned to the business and noticed one person, later identified as Appellant, using a Toshiba laptop PC, a Computer Pad tablet, and a black computer bag. Hart again used the application that allowed him to see who was connected to the wireless network and identified a user by the name of JOHNSMITH-PC as being connected to the network. Appellant was the only patron observed using a PC, and Hart obtained a photograph of him. At that time, Walsh advised Hart that the Ares network was not being used to download child pornography.
On September 30, 2015, Walsh advised Hart that John@Ares was sharing child pornography. Hart returned to the business and observed Appellant using a Toshiba PC. One couple was observed using a Mac computer, but Hart determined that only one PC was connected to the wireless network with the associated username of JOHNSMITH-PC. After Walsh confirmed again that John@Ares was sharing pornography, Hart photographed Appellant, the Toshiba laptop being used, and the tablet that was also in his hand. Hart saw Appellant leave the business and drive away in a white SUV. After Appellant left One Flight Up, JOHNSMITH-PC was no longer connected to the wireless network. Later, Hart received from Walsh a DVD containing the Ares report and pornographic files that were downloaded.
On October 5, 2015, Walsh informed Hart that John@Ares was connected to the business' network and "had multiple files of interest." Hart and several other detectives arrived on scene and verified that Appellant was there with his computer bag. Appellant left shortly after the detectives arrived.
After Appellant left the business and returned home, Corporal Chad Harmon and two other detectives went to Appellant's residence for a "knock and talk" to try to obtain consent to search for evidence of the suspected crime. Upon arrival, Harmon informed Appellant that he suspected Appellant was in possession of child pornography and that Appellant *258could either consent to a search of his residence or the house would be secured while a search warrant was obtained. Appellant denied consent and repeatedly demanded to see a warrant. As Appellant tried to close the front door, Harmon stuck his foot in the doorway, blocking it from being closed. Harmon testified that this was standard practice, and that because Appellant knew why law enforcement was present, there was a risk that evidence would be destroyed if they left.
For officer safety, Harmon and the other detectives entered the residence and conducted a protective sweep because Appellant initially refused to indicate whether there was anyone else inside the residence. During the sweep, Harmon remained with Appellant. Harmon asked Appellant to step outside, but he declined. When Appellant attempted to step around Harmon in an effort to retreat further into the residence, Harmon grabbed Appellant. The detectives conducting the protective sweep heard a struggle and returned to aid Harmon in detaining Appellant. Appellant's mother entered the foyer and began video recording the transaction.
After the protective sweep, Detective Hart entered Appellant's bedroom and saw the Toshiba laptop that Appellant had been using the business. The laptop was not moved, opened, or otherwise touched at that time. Additionally, Appellant's mother made it clear that she was concerned with law enforcement either having discovered or discovering her deceased husband's gun(s). After being in the residence for about an hour, Detective Hart left to secure a search warrant.
In the warrant affidavit, Hart mentioned that Appellant had denied consent to search his home and that a struggle had ensued resulting in Appellant and the home being secured. However, the probable cause for issuance of the search warrant rested on the investigation conducted prior to entering Appellant's home.
Later in the evening, Hart returned with a search warrant and a search ensued. Police seized the Toshiba laptop and determined that: (1) the user name associated with the device was "John Smith"; (2) the laptop had the ARES program on it; and (3) there were numerous child pornography files saved to the device. Police also found a short-barreled shotgun in Appellant's closet.
The State ultimately charged Appellant by amended information with fifty-one counts of possession of child pornography, twenty-six counts of felony video voyeurism, possession of a short-barreled shotgun, and resisting a law enforcement officer without violence. Appellant filed an amended motion to suppress seeking suppression of the short-barreled shotgun and all evidence obtained from the electronic devices seized during the search of his residence. The State responded by arguing that the warrantless entry into Appellant's home was not unlawful. Alternatively, the State argued that if the entry was unlawful, evidence should not be suppressed on the basis of the independent source and/or inevitable discovery doctrines.
After conducting an evidentiary hearing on Appellant's motion, the trial court determined that the warrantless search of Appellant's residence was unlawful. The State does not challenge that determination on appeal. Nonetheless, the trial court denied the motion to suppress under the inevitable discovery doctrine because law enforcement had commenced an investigation of Appellant prior to the police misconduct. Based on the Florida Supreme Court's decision in Rodriguez v. State ,
A ruling on a motion to suppress involves a mixed question of fact and law.
*259State v. Kindle ,
The exclusionary rule will generally serve to suppress evidence discovered pursuant to an unlawful search or seizure. See State v. White ,
We conclude that permitting warrantless searches without the prosecution demonstrating that the police were in pursuit of a warrant is not a proper application of the inevitable discovery rule. The rule cannot function to apply simply when police could have obtained a search warrant if they had taken the opportunity to pursue one, but can only apply if they actually were in pursuit of one.
Here, as in Rodriguez , the State failed to show that law enforcement was in pursuit of a search warrant at the time of the improper entry into Appellant's residence. Accordingly, it was error for the trial court to rely on the inevitable discovery doctrine to deny Appellant's amended motion to suppress. See Clayton v. State ,
In denying Appellant's amended motion to suppress, the trial court did not address the State's alternative argument that Appellant's motion should be denied pursuant to application of the independent source doctrine. The independent source doctrine is closely related to the inevitable discovery doctrine. Nix ,
REVERSED and REMANDED.
WALLIS and HARRIS, JJ., concur.
The parties stipulated that Appellant's motion was dispositive.
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