              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                            IN THE DISTRICT COURT OF APPEAL
                                            OF FLORIDA
                                            SECOND DISTRICT



ZACHARY DANIELS,                    )
                                    )
           Appellant,               )
                                    )
v.                                  )                  Case No. 2D15-4371
                                    )
STATE OF FLORIDA,                   )
                                    )
           Appellee.                )
___________________________________ )

Opinion filed January 18, 2017.

Appeal from the Circuit Court for Polk
County; Glenn T. Shelby, Judge.

Rupak R. Shah of Escobar & Associates,
P.A., Tampa, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Ha Thu Dao, Assistant
Attorney General, Tampa, for Appellee.



KHOUZAM, Judge.


             Zachary Daniels pleaded no contest to a number of drug-related offenses,

reserving the right to appeal the denial of his dispositive motion to suppress. We

reverse.
              Daniels had an active misdemeanor warrant out of Alachua County for

failure to appear. On February 27, 2013, sometime before 1:00 p.m., Detective

Kenneth Noad received an anonymous tip, relayed by a fellow officer, that Daniels

resided in the New Jersey Road area of Lakeland, Florida, on an unknown street in a

house with the address 3036; drove a red truck with large wheels and tires lifted off the

frame; and possessed firearms and cannabis in his residence. Detective Noad did not

investigate the source of the tip or otherwise verify the allegations. After searching the

area described in the tip, at approximately 3:30 p.m. Detective Noad located Daniels in

the driver's seat of a red Chevrolet 2500 pickup truck with large chrome wheels, parked

in the carport of 3036 Pineway Avenue.

              Detective Noad identified Daniels, placed him in handcuffs, and sat him on

the ground.1 Detective Noad, unsure if there was anyone else in the house,

approached the front door of the house, which was slightly ajar. He closed the door

after learning that Daniels had a dog that he did not wish to be let out of the house. In

order to ascertain if anyone else was on the premises, and without obtaining consent,

Detective Noad walked around to the north side of the house. From the curtilage of the

residence, he peered into the house through an unobstructed window and observed a

pistol case, rifle scope, and a small amount of marijuana on a table.

              When Detective Noad reapproached Daniels, Daniels said that the house

belonged to his friends and that he was just staying there. Law enforcement officers

contacted the landlord of the home, who identified Daniels as one of the primary



              1
               Daniels was later placed in a chair and eventually placed into the back of
a patrol car where he remained for the entirety of the investigation which lasted over
eight hours.


                                           -2-
residents listed on the lease. The landlord also identified Kayla McBride as an occupant

of the home, but when officers reached out to McBride to obtain consent to search, she

informed them that she no longer resided there.

              Having failed to obtain consent from an occupant, the State applied for a

search warrant based on an affidavit provided by Detective Noad. The State submitted

the application around 8:30-9:00 p.m. The warrant application included the information

from the anonymous tip as information provided by a fellow officer without

acknowledging the original source of the information. As to Detective Noad's

observation of the contraband in the residence, the application provided in pertinent

part: "Your affiant observed a small amount of suspected cannabis, a rifle scope, and

plastic handgun case in plain view on the kitchen table within the place to be searched."

The application did not state that Detective Noad made this observation from the

curtilage on the north side of the house. Based on the affidavit, the magistrate issued

the search warrant.

              Detective Noad returned to the home and searched it pursuant to the

warrant. He found more than 800 grams of cannabis, two firearms, drug paraphernalia,

a ledger, and a scale. Daniels was kept on the scene until almost midnight when the

search was concluded. The State charged Daniels with: (1) actual or constructive

possession of a structure used for trafficking, sale, or manufacture of controlled

substances; (2) possession of cannabis within 1000 feet of a park, community center, or

recreational facility with intent to sell; (3) possession of a firearm or ammunition by a

convicted felon; (4) possession of cannabis over twenty grams; and (5) possession of

drug paraphernalia.




                                            -3-
              Daniels filed a motion to suppress the evidence seized from the home. He

argued, in pertinent part, that Detective Noad's intrusion onto the curtilage of the home

was unlawful and that the affidavit in support of the search warrant failed to establish

probable cause. The court held an evidentiary hearing on the motion and denied it,

finding that Detective Noad's entry onto the curtilage was justified on the basis of officer

safety. Daniels entered a plea of no contest to the charges but reserved the right to

challenge the trial court's denial of his motion to suppress.

              "[I]n reviewing a trial court's ruling on a motion to suppress, this court must

give deference to the trial court's factual findings if those findings are supported by

competent, substantial evidence, but this court must review the trial court's ruling of law

de novo." State v. Roman, 103 So. 3d 922, 924 (Fla. 2d DCA 2012). "A warrantless

search of a home is 'per se unreasonable under the Fourth Amendment . . . and Article

I, section 12, of the Florida Constitution, subject to a few specifically established and

well-delineated exceptions.' " State v. Fultz, 189 So. 3d 155, 158 (Fla. 2d DCA 2016)

(quoting State v. Boyd, 615 So. 2d 786, 788 (Fla. 2d DCA 1993)). The Fourth

Amendment's protection of the home extends to the curtilage. See Abel v. State, 668

So. 2d 1121, 1122-23 (Fla. 2d DCA 1996). Thus, without a warrant or an exception to

the warrant requirement, a law enforcement officer has no right to physically intrude into

the curtilage of a house. Powell v. State, 120 So. 3d 577, 585 (Fla. 1st DCA 2013).

              One such exception to the warrant requirement is a protective sweep—"a

quick and limited search of the premises, incident to an arrest and conducted to protect

the safety of police officers or others." Diaz v. State, 34 So. 3d 797, 801 (Fla. 4th DCA

2010) (quoting Vasquez v. State, 870 So. 2d 26, 30 (Fla. 2d DCA 2003)). Officers may




                                            -4-
conduct a sweep regardless of whether or not the arrest occurred inside or outside the

home. Id. at 802. However, a protective sweep may only be performed when officers

"have a reasonable, articulable suspicion that the protective sweep is necessary due to

a safety threat or the destruction of evidence." Id. (emphasis added).

              The trial court's finding that Detective Noad's intrusion onto the curtilage

was justified for officer safety was not supported by competent, substantial evidence

because there are no facts giving rise to a reasonable, articulable suspicion that a

sweep was necessary to ensure officer safety or to prevent the destruction of evidence.

While Detective Noad testified that he was unsure if there were other people in the

house, a mere suspicion that there may be additional persons on the premises was

insufficient to justify an intrusion onto the curtilage. See Roman, 103 So. 3d at 925

("[B]ecause there was no evidence that the house was occupied, the trial court correctly

found that the protective sweep of the house for officer safety was improper as there

were no specific and articulable facts supporting a reasonable belief that there was an

individual in the house who could pose a danger to law enforcement."); Klosieski v.

State, 482 So. 2d 448, 450 (Fla. 5th DCA 1986) ("The fact that the police did not know,

as an absolute certainty, whether more people were in the house, as found by the trial

court, cannot justify entry into the house.").

              The State argues that Detective Noad's entry onto the curtilage was

justified because the arrest took place in front of the residence, officers were warned

that Daniels' dog should not be let out, and when law enforcement officers arrived, they

encountered another individual who was moving out of the residence and did not wish

to speak with the officers. This argument is without merit. While the State represented




                                             -5-
in its answer brief and at oral argument that officers encountered an individual moving

out of the house on the day of the search, the record refutes the State's position. At the

hearing on Daniels' motion to suppress, a law enforcement officer testified that the day

after the search of Daniels' residence he encountered an individual loading his

possessions on to a moving truck who did not wish to talk to officers and left as soon as

the officers arrived. This encounter, having taken place a day after the search warrant

was issued and executed, has no bearing on whether Detective Noad's warrantless

intrusion onto the curtilage was justified. And the remaining allegations—the location of

the arrest and the presence of a dog—do not give rise to a reasonable, articulable

suspicion that officer safety was jeopardized.

              Having determined that Detective Noad's warrantless intrusion onto the

curtilage of Daniels' house violated the Fourth Amendment, we must determine if the

warrant is otherwise supported by probable cause.

              Where a court finds that police unlawfully obtained some of
              the evidence contained in the application for the search
              warrant, the court must then determine if there is probable
              cause to support the issuance of the warrant based on any
              independent and lawfully obtained evidence. "[T]he court
              must excise the invalid allegations from the affidavit and
              determine whether sufficient valid allegations remain to
              support a finding of probable cause."

Roman, 103 So. 3d at 925 (alteration in original) (citation omitted) (quoting State v.

Hood, 68 So. 3d 392, 395 (Fla. 2d DCA 2011)). Excising Detective Noad's observations

made from the curtilage of the home, the affidavit cannot support a finding of probable

cause because the only pertinent allegations remaining in the affidavit stem from the

anonymous tip.




                                           -6-
              An anonymous tip that has not been proven reliable "add[s] nothing to the

determination of probable cause." Smith v. State, 904 So. 2d 534, 537 (Fla. 1st DCA

2005).2 This is because "[u]nlike a tip from a known informant whose reputation can be

assessed and who can be held responsible if her allegations turn out to be fabricated,

'an anonymous tip alone seldom demonstrates the informant's basis of knowledge or

veracity.' " Florida v. J.L., 529 U.S. 266, 270 (2000) (citation omitted) (quoting Alabama

v. White, 496 U.S. 325, 329 (1990)). The tip in this case was not shown to be reliable.

While the State contends that the tip was verified, the mere fact that readily

ascertainable details such as Daniels' location were verified "does not show that the

tipster has knowledge of concealed criminal activity." J.L., 529 U.S. at 272.

              Thus, the trial court erred in determining that Detective Noad's intrusion

onto the curtilage was justified on the basis of officer safety and in denying the motion to

suppress.

              Reversed and remanded.


VILLANTI, C.J., and BADALAMENTI, J., Concur.




              2
               An anonymous tip can justify a finding of reasonable suspicion if it,
suitably corroborated, exhibits "sufficient indicia of reliability." Florida v. J.L., 529 U.S.
266, 270 (2000).


                                              -7-
