       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                       UNGRAY LAMAR MURRAY,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D13-2527

                            [January 14, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Richard Oftedal, Judge; L.T. Case No. 502012F002108A.

  Carey Haughwout, Public Defender, and Anthony Calvello, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble,
Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

    Ungray Murray appeals his conviction for sexual battery, contending
the trial court erred in denying his motion to suppress DNA evidence
obtained pursuant to a search warrant because the affidavit in support of
the warrant contained intentional misstatements and omissions. While
the affidavit contained several misleading statements, we nevertheless
affirm for two reasons. First, under the inevitable discovery doctrine, since
the DNA evidence recovered from the crime scene matched Murray’s DNA
as uploaded to the nationwide CODIS registry, Murray’s DNA connection
to the victim would eventually have been discovered, even if he had not
otherwise been a suspect. Second, given the totality of information
contained in the affidavit, the established inconsistencies, even if
exercised, were not sufficient to negate the magistrate’s probable cause
finding.

                          Factual Background

   The victim returned home after watching football with friends and fell
asleep on her couch. At about 2:45 a.m., she was suddenly awakened by
the sound of a loud bang on her front door and an individual exclaiming,
“It’s the cops. Let me in.” Concerned, the victim peered through her front
door window, only to be partially blinded by a flashlight. She was able to
see that the person appeared to be wearing “police pants,” given their dark
blue coloring and the “stick” attached to his belt. As the victim slowly
opened her door, she asked about the reason for the visit; the man
responded, “I’ll let you know ma’am when I get in.” Believing the answer
to be unusual for a police officer, the victim attempted to shut the door,
but the man overpowered her, forcing his way inside while warning, “Oh,
you’re not dreaming. This is for real.” Upon this entry, the victim saw her
assailant’s full features, observing that he was a thin, dark-skinned
African American male wearing a dark blue hoodie covering all but his eyes
and mouth.

   Terrified, the victim screamed and reached for her cellphone, but the
assailant grabbed her by the neck and tossed the phone away. With the
victim subdued, the assailant ordered her to remove her clothes, grab his
penis, and “put it” inside her vagina. In response, the victim took off her
pants and did as told. The assailant then asked whether he was “in.”
When the victim responded, “Well, I don’t know, I’m in menopause,” the
assailant became bewildered, muttering to himself about “menopause”
and “seed”—a euphemism, the victim believed, for the assailant “planting
a pregnancy.”

   The assailant asked the victim where she kept her money. Unhappy
with the victim’s response, the assailant choked her to the point that she
collapsed on her couch. He threatened, “Do you want to die, because you
are[.] And I’m the one that’s going to kill you.” The assailant then struck
the victim’s face, breaking her tooth, and repeatedly hit her in the temple.
The victim began chanting “the Lord’s Prayer,” which only angered the
assailant. Eventually, the assailant told the victim to “shut up” before
strangling the victim until she lost consciousness.

   Two hours later, when the victim came to, she found herself lying on
her couch under a cardboard box that had been set on fire. The victim’s
hands and feet were tied together by electrical cords. She was able to free
herself, douse the fire with water, and call her neighbor to report the
incident. Thereafter, authorities transported her to a local hospital, where
doctors examined her and recovered DNA swabs from her vagina for later
testing.
   At the hospital, the victim met with a detective to chronicle her ordeal.
In a recorded interview, she told the detective that she suspected her
assailant to be “Andre”—an employee of J.A.Y. Ministries who had cut her
grass the previous year. “Andre” established a relationship with her,

                                    -2-
coming to her house in non-work hours to smoke cigarettes and discuss
life. As one thing led to another, Andre several times expressed his
romantic interest in the victim, which she rebuffed. One way Andre
expressed his interest was by telling the victim, “One day I’ll put a seed in
you, you’ll see. There will be a little Andre in you one day”—using the term
“seed” just as the assailant did in his moment of bewilderment.

   Aside from this odd locution, Andre’s build and mannerisms fit the
characteristics of the victim’s assailant. Andre was the only person the
victim knew to be as thin and dark as her assailant. Further, the
assailant’s distinctive white teeth matched those of Andre, and the
assailant never cussed or acted rough “like a thug”—much like Andre. In
fact, the victim believed her assailant even smelled like Andre, since she
remembered the type of soap Andre used.

   With this information, the detective contacted J.A.Y. Ministries and
learned of an employee named “Ungray Murray” who fit the description.
During a voluntary interview, Murray told the detective he knew the victim
from his days cutting her grass for J.A.Y. Ministries, but he had not seen
her in a year. Murray further explained that he never had a personal
relationship with the victim and never stepped foot in her house.
Nevertheless, to clear his name, Murray allowed the detective to obtain a
sampling of his DNA.

   Somehow, law enforcement misplaced this DNA sample. A detective
obtained a search warrant to recover a second DNA sample from Murray.
Pertinent to this appeal, the detective’s affidavit supporting the search
warrant set forth the following facts related to his investigation:

      [During the hospital interview, the victim] stated that she
      knows a subject who she called “Andre”, later identified as
      Ungray Murray . . . . According to [the victim], Murray “[t]ook
      too much liking to her” as she continued to reject him. [The
      victim] stated that she met Murray approximately 1 year ago
      as Murray worked on lawns in the neighborhood with “Jay
      Ministries”.     According to [the victim,] Murray was
      incarcerated back then and got out of jail on July of 2011.
      [The victim] stated that she has rejected Murray’s advances
      and has asked him to leave her property. [The victim] stated
      that Murray matches the weight, height, and voice of the
      suspect who raped her. [The victim] states that Murray, just
      like the suspect who raped her, does not curse and that the
      suspect and Murray have very “White teeth”.


                                    -3-
      Approximately one week from the time of the incident,
      [the victim] stated that the subject who tried to kill her
      and sexually battered her was Ungray Murray. [The
      victim] stated that she was 99% sure. [The victim] met
      Murray at her residence because he did “yard work” for her.
      Murray later confirmed working for [the victim] in a sworn
      recorded statement, after being advised of his Miranda rights.

(Emphasis added).

   After the search warrant’s issuance, the detective obtained a second
DNA sample from Murray and submitted it for testing. Not only did a
comparison of sperm fractions found on and inside the victim match
Murray’s second DNA sample, but they also matched Murray’s DNA as
inputted in 2006 into the Combined DNA Index System (“CODIS”).

                           Motion to Suppress

    Prior to trial, Murray moved to suppress the DNA sample obtained via
the search warrant, contending, among other things, that the detective’s
affidavit contained false statements and omissions sufficient to invalidate
the finding of probable cause. Specifically, Murray contended that,
contrary to the affidavit, the victim did not identify “Ungray Murray” as the
person who attacked her, nor did she tell the detective a week after the
incident that “she was 99% sure” of Murray’s involvement. As to
omissions, Murray asserted the victim told the detective in her taped
interview at the hospital “that she ‘can’t see it being Andre’ but that he’s
about the closest she can come to in terms of build.” The victim further
explained in the same interview “that even though ‘Andre’ had a similar
size and voice to the” assailant, a lot of men near Riviera Beach had similar
voices and sizes.

    During the suppression hearing, the parties stipulated that the victim’s
pre-trial deposition would serve as her testimony. The victim stated that
she “wasn’t positive” who perpetrated the sexual assault at the time she
first met with the detective, but she “suspected” Andre’s potential
involvement given his physical characteristics and his use of the term
“seed.” Such uncertainty was evident in the following dialogue recorded
during her hospital interview the morning of the incident:
       [Detective]:      [Y]ou mention this gentleman Andre, okay
                         tell me about him.

      [The victim]:      Well, he just looks like the size you know
                         the build just Andre.

                                    -4-
      [Detective]:       How about his voice, you said his voice
                         sounds familiar?

      [The victim]:      Yeah, well . . .

      [Detective]:       Familiar?

      [The victim]:      Yeah, as around there in Riviera Beach, all
                         the guys’ voices and they’re all about the
                         same size all along Riviera Beach. Now
                         Andre was somebody that took too much of
                         a liking to me.

      [Detective]:       Okay.

      [The victim]:      And I said “no,” you know “just go.” But I
                         can’t see it being Andre but to notice the
                         build or anything, he’s the closest I could
                         you know come to.

(Emphasis added).

    The day after the hospital visit, the victim met with the detective for a
second time, during which the victim identified a picture of Murray as
“Andre”—her suspected assailant. Regarding her relative certainty of
Murray’s involvement at the time, the victim stated in her deposition as
follows:

      Q:                 Did you tell [the detective] that you had any
                         doubts, that you were sure, that you
                         weren’t sure, that you were 50% sure?
                         What did you say?

      [The victim]:      That I was pretty sure.

      Q:                 Did you give a number?

      [The victim]:      Not really.
      Q:                 Okay. Did you say that you were like 75%
                         sure, fifty?

      [The victim]:      Ninety percent if you want a number. I said
                         90%.

                                     -5-
      Q:                No, I don’t want a number. I’m wondering
                        what you said to him.

      [The victim]:     Well, that’s just it. If you – about 90%. I
                        wasn’t totally sure, at first.

      Q:                Well let me go back. I didn’t ask that
                        question well at all because I led you into
                        it. Tell me what you told him about how
                        sure you were.

      [The victim]:     Ninety percent. I said I’m pretty sure. This
                        is who I think it is.

      Q:                Okay. So the words that came out of your
                        mouth was –

      [The victim]:     This is who I think it is.

      Q:                Okay.

      [The victim]:     Yes.

      Q:                And the 90% thing, you were telling me
                        that. That’s not what you told the officer
                        that day, right?

      [The victim]:     I just said, this [is] who I think it is.

      Q:                Okay.

      [The victim]:     It wasn’t no percentage at the time.

      Q:                Okay.

      [The victim]:     It was just, this is who I think it is.

   During the suppression hearing, the detective described his
investigation. He testified that upon receiving the victim’s suspicions of
“Andre,” he went to J.A.Y. ministries, where he learned of Ungray Murray.
The following day, after meeting with Murray, the detective contacted the
victim over the phone, at which point she stated she was “99% sure that
the person that cut her grass was the person that attacked her.” The

                                    -6-
detective conceded, however, that the victim never stated without
qualification that “Ungray Murray” was the person who assaulted her.

   A forensic biologist with the Palm Beach County Sheriff’s Office testified
regarding the procedures used to match Murray’s DNA with the sperm
fractions recovered from the victim. The biologist explained that in
comparing Murray’s second DNA sample to the DNA evidence recovered
from the victim, she also received a match with Murray via the CODIS
registry, since his DNA had been uploaded to the system in 2006. The
biologist testified that had there been no suspect for the victim’s sexual
assault, she ultimately would have run the victim’s DNA evidence through
the CODIS system and received a match with Murray.

    The trial court denied the suppression motion upon two grounds. First,
the trial court found that the inevitable discovery doctrine applied, since
the DNA samples obtained from the victim “produce[d] a CODIS hit which
linked [Murray] directly to the crime”; the court found it logical to infer
“that ultimately in the absence of a suspect [the DNA evidence recovered
from the victim] would have been submitted” for testing, which would have
resulted in the CODIS match. Second, the trial court denied the
suppression motion on its substantive merits, finding that while “the
affidavit itself certainly wasn’t entirely accurate,” the detective had, at the
time, “already verified through his conversation with [Murray] . . . that . .
. Murray had in fact cut the victim’s grass and knew her.” Further, the
trial court believed the victim’s statement at the hospital that “it couldn’t
have been Andre” was more likely than not a statement “reflecting disbelief
that this person that she knew and had talked to and had cut her grass
previously could have been this person who brutally attacked and raped
her.”

    Murray’s case proceeded to trial on the charges of sexual battery with
force and attempted felony murder. The jury acquitted Murray of the
attempted murder charge and found him guilty of the lesser included
offense of sexual battery.

   In his primary issue on appeal, Murray contends that the denial of his
motion to suppress the DNA match was error “because the affidavit utilized
by [the detective] was invalid, due to the detective’s false statements or
misrepresentations of significant material facts from the search warrant’s
application affidavit.”

  “‘On a motion to suppress the fruits of a search in accordance with a
warrant, a trial court examines whether the issuing magistrate had a
substantial basis for concluding that probable cause existed, and this

                                     -7-
determination is made by examining the affidavit in its entirety.’” Pilieci v.
State, 991 So. 2d 883, 892 (Fla. 2d DCA 2008) (quoting State v.
Vanderhors, 927 So. 2d 1011, 1013 (Fla. 2d DCA 2006)). Applying this
standard, we afford the magistrate’s determination “great deference” while
focusing our inquiry on whether, “based on the totality of the
circumstances, and a common sense assessment, probable cause is
shown.” Martin v. State, 906 So. 2d 358, 360 (Fla. 5th DCA 2005) (citing
Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002); McCall v. State, 684 So.
2d 260, 262 (Fla. 4th DCA 1996)); State v. Rabb, 920 So. 2d 1175, 1180
(Fla. 4th DCA 2006) (citing United States v. Soderstrand, 412 F.3d 1146,
1152 (10th Cir. 2005)). As the Supreme Court explained in Illinois v.
Gates, 462 U.S. 213, 236 (1983):

      after-the-fact scrutiny by courts of the sufficiency of an
      affidavit should not take the form of de novo review. A
      magistrate’s determination of probable cause should be paid
      great deference by reviewing courts. A grudging or negative
      attitude by reviewing courts toward warrants is inconsistent
      with the Fourth Amendment’s strong preference for searches
      conducted pursuant to a warrant [and] courts should not
      invalidate . . . warrant[s] by interpreting affidavit[s] in a
      hypertechnical, rather than a commonsense, manner.

Id. (internal quotations omitted).

    Where there is no attack on the contents of an affidavit supporting a
warrant application, review of a magistrate’s probable cause determination
is typically limited to the contents of the warrant application, including the
“four corners of the supporting affidavit.” Williams v. State, 130 So. 3d
757, 759 (Fla. 2d DCA 2014) (citing Art. I, § 12, Fla. Const.); Redini v. State,
84 So. 3d 380, 382 (Fla. 4th DCA 2012).

    However, an evidentiary hearing is warranted where the defendant
makes a substantial preliminary showing that (1) the affiant knowingly or
intentionally, or with reckless disregard for truth, made untruthful
statements or omitted important facts and (2) the untrue facts were
necessary for the finding of probable cause or the omitted facts, “if added
to the affidavit, would have defeated probable cause.” Pagan, 830 So. 2d
at 807. The second district has explained the dynamics of such a hearing:

      Under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57
      L.Ed.2d 667 (1978), if a defendant makes a substantial
      preliminary showing that the affiant knowingly or
      intentionally or with reckless disregard for the truth included

                                      -8-
      a false statement in the affidavit, and that statement was
      necessary to the finding of probable cause, the circuit court
      must hold a hearing. If the defendant establishes these
      allegations by a preponderance of the evidence, the court
      must suppress the fruits of the search. The federal courts
      have extended the reasoning of Franks to apply to an
      allegation that law enforcement omitted material facts with
      the intent to make, or in reckless disregard of whether they
      thereby made, the affidavit misleading. United States v.
      Colkley, 899 F.2d 297, 300 (4th Cir. 1990) (citing United
      States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986)); see also
      Johnson v. State, 660 So. 2d 648, 656 (Fla. 1995) (adopting
      the reasoning of Colkley to extend Franks to apply to material
      omissions resulting from “intentional or reckless police
      conduct that amounts to deception”).

Pilieci, 991 So. 2d at 893. “In short, to meet the Franks test, police conduct
must rise to the level of hoodwinking or bilking, duping the issuing judge
or magistrate into signing the warrant . . . . ” State v. Petroni, 123 So. 3d
62, 65 (Fla. 1st DCA 2013).

   Applying this procedure, a reviewing court’s finding that the police
acted in a deceptive manner will not, by itself, result in automatic
suppression. Under such circumstances, the reviewing court

      must excise the erroneous material and determine whether
      the remaining allegations in the affidavit support probable
      cause. If the remaining statements are sufficient to establish
      probable cause, the false statement will not invalidate the
      resulting search warrant. See Terry v. State, 668 So. 2d 954
      (Fla. 1996). If, however, the false statement is necessary to
      establish probable cause, the search warrant must be voided,
      and the evidence seized as a result of the search must be
      excluded. See id. (citing Franks, 438 U.S. at 156); see also
      Thorp v. State, 777 So. 2d 385 (Fla. 2000).

Garcia v. State, 872 So. 2d 326, 330 (Fla. 2d DCA 2004) (quoting Pagan,
830 So. 2d at 807).

Even if the warrant was deficient, the DNA match to Murray is admissible
                 under the inevitable discovery doctrine

   Regardless of the affidavit’s omissions or falsities, the trial court
correctly concluded that Murray’s second DNA swab was admissible under

                                     -9-
the inevitable discovery doctrine. “Under this exception, evidence obtained
as the result of unconstitutional police procedure may still be admissible
provided the evidence would ultimately have been discovered by legal
means.” Maulden v. State, 617 So. 2d 298, 301 (Fla. 1993). The rationale
is that the “[e]xclusion of physical evidence that would inevitably have been
discovered adds nothing to either the integrity or fairness of a criminal
trial.” Nix v. Williams, 467 U.S. 431, 446 (1984).

   “For the inevitable discovery doctrine to apply, the State must establish
that the evidence would have been discovered ‘by means of normal
investigative measures that inevitably would have been set in motion as a
matter of routine police procedure.’” Rowell v. State, 83 So. 3d 990, 995
(Fla. 4th DCA 2012) (quoting Craig v. State, 510 So. 2d 857, 863 (Fla.
1987)). “In other words, the case must be in such a posture that the facts
already in the possession of the police would have led to this evidence
notwithstanding the police misconduct.” Moody v. State, 842 So. 2d 754,
759 (Fla. 2003). The prosecution must also “show that the lawful means
which made discovery inevitable were being actively pursued prior to the
occurrence of the illegal conduct.” Rowell, 83 So. 3d at 995.

    In this case, law enforcement obtained DNA evidence from the victim
the morning of her sexual assault. In comparing this evidence to Murray’s
second DNA sample, the assigned forensic biologist testified that she also
ran the results through the nationwide CODIS system, which returned a
match for Murray. Even assuming that the search warrant was not
supported by probable cause or that Murray had not been identified, given
the nature of the crime, law enforcement would eventually have tested the
sperm fractions recovered from the victim and run them through the
CODIS system, resulting in a match with Murray. See, e.g., State v. Notti,
71 P.3d 1233, 1239 (Mont. 2003) (“Notti’s DNA profile would have been
placed on the State’s DNA Identification Index and submitted to CODIS,
which would have inevitably led to the discovery of a match by either a
CODIS computer check or when another Crime Lab employee compared
profiles in the ‘forensic unknown’ database with the State’s DNA
Identification Index.”); United States v. Gross, 554 F. Supp. 2d 773, 776-
77 (N.D. Ohio 2008) aff’d in part, rev’d in part, 624 F.3d 309 (6th Cir. 2011)
(“As the use of Defendant’s on-file DNA would not invoke[] any Fourth
Amendment issue, the Government was free to compare the DNA from the
firearm to Defendant’s DNA in possession of the State of Ohio. As DNA
does not change over time, the Government inevitably would have matched
Defendant’s DNA to the DNA on the firearm, even without a warrant for
the buccal swab.”).

The deficiencies in the affidavit do not negate the finding of probable cause

                                    - 10 -
   Alternatively, the trial court did not err in finding the affidavit’s
misstatements or omissions insufficient to negate probable cause. A
probable cause inquiry is an inexact science, not “susceptible to formulaic
determination.” Doorbal v. State, 837 So. 2d 940, 952 (Fla. 2003). When
making the determination,

      [t]he task of the issuing magistrate is simply to make a
      practical, common-sense decision whether, given all the
      circumstances set forth in the affidavit before him, . . . there
      is a fair probability that contraband or evidence of a crime will
      be found in a particular place.

Gates, 462 U.S. at 238; see also Green v. State, 946 So. 2d 558, 561 (Fla.
1st DCA 2006).

    Murray’s chief argument derives from the detective’s statements in his
affidavit that the victim identified “Ungray Murray as the person who
attacked her” and “stated that she was 99% sure” of that fact. While it is
true—as the detective conceded at the suppression hearing—that the
victim never referred to her assailant as “Ungray Murray,” the victim did
identify a picture of Murray as the “Andre” she suspected to be her
assailant. Furthermore, the victim during her hospital interview provided
substantial descriptions justifying her reasons for suspecting Andre,
particularly his likeness in physical appearance and vocal and physical
mannerisms.

    To the extent the victim was not 99% certain during her second
interview that her assailant was “Ungray Murray,” this conjecture, when
excised, does not negate a finding of probable cause. According to the
remaining portions of the affidavit, the victim told the detective that Andre
mowed her lawn while working for J.A.Y. Ministries, that he frequently
expressed romantic interest in her, and that he “match[ed] the weight,
height, and voice of her suspect[ed]” assailant as well as his mannerisms.
During a later interview, Murray confirmed his business relationship with
the victim and J.A.Y. Ministries, demonstrating that he was the “Andre”
the victim purported to know. Probable cause is a relatively flexible
threshold, dependent upon a common-sense determination. It cannot be
said that the search warrant would not have issued without consideration
of the challenged facts.

   The same reasoning applies to the omissions from the affidavit. First,
Murray contends that the detective’s affidavit should have included the
victim’s statement from her hospital interview that she “can’t see it being
Andre.” However, as the trial court found, this statement could easily be

                                    - 11 -
interpreted as a side comment expressing her disbelief that a person she
knew could have been capable of such a crime. Next, Murray contends
the detective should have included the victim’s statement from the same
interview that “Andre” had a similar voice and size to many men in Riviera
Beach. While this statement would have shed light on the strength of the
victim’s identification, it does not negate the other facts in the affidavit
that established “Andre’s” connection to the victim. Had the omitted facts
been included in the affidavit, there would still have been probable cause
to obtain a DNA sample from Murray.

   We have considered the other issue raised on appeal and find no abuse
of discretion in the trial court’s ruling on the additional jury instruction.

   Affirmed.

DAMOORGIAN, C.J., and MAY, J., concur.

                            *         *        *

   Not final until disposition of timely filed motion for rehearing.




                                    - 12 -
