       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                       ROBERT A. MALDONADO,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D18-1909

                            [August 21, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Glenn     D.   Kelley,    Judge;   L.T.    Case    No.
502003CF014680AXXXMB.

   Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public
Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Deborah Koenig,
Assistant Attorney General, West Palm Beach, for appellee.

KUNTZ, J.

    Robert Maldonado appeals his guilty adjudications and sentences
following a revocation of probation hearing. The sole issue raised on
appeal is whether the court erred when it denied his motion to suppress
GPS monitoring evidence. We affirm the court’s order denying the motion
to suppress and the revocation of probation. But we remand for a written
probation revocation order that specifies the probation provisions
Maldonado violated.

                               Background

   In 2006, Maldonado was sentenced to two concurrent terms of thirteen
years in prison followed by four years of sex-offender probation for his
guilty pleas to sexual battery with great force and armed burglary. The
probation order did not include the factual findings necessary for the court
to impose electronic monitoring under the 2006 version of section
948.30(2)(e), Florida Statutes (effective Jan. 1, 2006). 1

   When Maldonado was released from prison, a probation data entry
employee marked him as requiring a GPS electronic monitor. Based on
the employee’s notation, a GPS monitor was placed on Maldonado even
though, at the time of sentencing, a probation officer did not recommend—
and the circuit court did not order—an electronic monitor as a probation
condition.

    After his release from prison, a violation of probation affidavit was filed
alleging that Maldonado breached his probation when he violated his
mandatory curfew and committed new law offenses of attempted felony
murder, sexual battery, kidnapping, carjacking, home invasion robbery,
possession of methamphetamine, and possession of contraband in a
detention facility.

    Because the court had not ordered Maldonado to wear an electronic
monitor, Maldonado argued any evidence obtained from the monitor was
a Fourth Amendment violation and must be suppressed. In response to
Maldonado’s motion to suppress, the State argued the good-faith exception
to the exclusionary rule applied and should preclude exclusion.

    The State called three witnesses at the hearing on the motion to
suppress. A probation specialist testified that he supervised Maldonado
for ten days after Maldonado’s release from prison and that he reviewed
the terms of the GPS monitor with Maldonado. He testified that, generally,
another probation specialist and a prison employee review the relevant
statute and sentencing order to determine whether an electronic monitor
is required for the probationer. But, here, the probation specialist did not
personally confirm that Maldonado was supposed to be on a monitor
because he only had the case for a short period. He testified that he
typically has a case for thirty days and reviews the file during that time.
But Maldonado moved to Boca Raton only ten days after his release, and
his case was assigned to a local probation officer.

   After Maldonado’s move to Boca Raton, a probation officer took over the
case from the probation specialist. The probation officer testified that, only
after Maldonado’s arrest for the new offenses, he learned Maldonado

1 The legislature renumbered the statute between the time of the underlying crime
and the time of sentencing. See ch. 2004-373, § 18, Laws of Fla. But the text of
the relevant subsection did not change. Compare § 948.03(5)(b)5., Fla. Stat.
(1999), with § 948.30(2)(e), Fla. Stat. (effective Jan. 1, 2006).

                                       2
should not have been on the electronic monitor. He testified that a
Department of Corrections classification officer made the initial mistake of
placing Maldonado on an electronic monitor. The classification officer
believed the victim of the sexual offense was a child and, if the victim had
been a child, a GPS monitor was required under section 948.30(3)(a),
Florida Statutes (effective Jan. 1, 2006).

   A detective with the Palm Beach County Sheriff’s Office testified that he
was asked to assist with an investigation of a sexual battery that occurred
the prior night. He contacted the Department of Corrections to determine
whether any recent sex-offender releasees in the Boca Raton area matched
the description of a suspect in the sexual battery. The Department of
Corrections told the detective that Maldonado was released thirty days
prior to the night in question and that he was wearing an electronic
monitor.

    After identifying Maldonado as a suspect, the detective contacted the
probation officer. The probation officer stated that Maldonado had missed
his curfew the prior night, the night of the sexual assault. The probation
officer also provided Maldonado’s GPS coordinates at the time of the
curfew violation and sexual assault.

   The court denied the motion to suppress, concluding that the GPS
monitor “was placed on the Defendant without a court order based on a
mistake by the probation intake officer.” The court also concluded that
the exclusionary rule applied because law enforcement’s actions “were not
deliberate, reckless, or grossly negligent.”

                                 Analysis

  i. The Circuit Court Correctly Denied Maldonado’s Motion to Suppress
         Evidence Obtained From the Unauthorized GPS Monitor

  The sole issue in this appeal is whether the court erred when it denied
Maldonado’s motion to suppress evidence obtained from a GPS electronic
monitor. We affirm.

    The applicable statute authorized electronic monitoring of a sex-
offender probationer whose crime was committed on or after October 1,
1997, “when deemed necessary by the community control or probation
officer and his or her supervisor, and ordered by the court at the
recommendation of the Department of Corrections.” § 948.30(2)(e), Fla.
Stat.; see also Blue v. State, 73 So. 3d 358, 360 (Fla. 4th DCA 2011).


                                     3
    Alternatively, for a probationer “whose crime was committed on or after
September 1, 2005,” and who is placed on probation “for a violation of
chapter 794 . . . and the unlawful sexual activity involved a victim 15 years
of age or younger and the offender is 18 years of age or older[,]” “the court
must order . . . mandatory electronic monitoring as a condition of the
probation. . . .” § 948.30(3)(a), Fla. Stat.

    Maldonado’s underlying crimes were committed in June 2000. There
is no dispute that at the time of his sentencing, the probation officer did
not recommend the imposition of a GPS monitor or deem it necessary, and
the court did not order the use of a GPS monitor. It is also undisputed
that the Department of Corrections placed a GPS monitor on Maldonado
at the start of his probation.

    Maldonado argues placing a GPS monitor on him without a warrant
constituted a search in violation of the Fourth Amendment. He cites Heien
v. North Carolina, 574 U.S. 54 (2014), and United States v. Jones, 565 U.S.
400 (2012), to support his argument. In Heien, the Supreme Court held
that the Fourth Amendment only permits objectively reasonable mistakes
of law. 574 U.S. at 54. And in Jones, the Court held that law
enforcement’s “installation of a GPS device on a target’s vehicle, and its
use of that device to monitor the vehicle’s movements, constitutes a
‘search’” under the Fourth Amendment. 565 U.S. at 404 (footnote
omitted).

   Here, the State concedes that the use of the monitor without a court
order is a violation of the Fourth Amendment. 2 But it argues law
enforcement made an objectively reasonable mistake in believing
Maldonado required a monitor and any error by law enforcement was
simple negligence. We agree.

     Excluding the evidence recovered from an unconstitutional search is
not necessarily required by the exclusionary rule. The rule’s “sole purpose
. . . is to deter future Fourth Amendment violations”; it is not “designed to


2 We accept for purposes of this opinion the State’s concession that placing the
GPS monitor on Maldonado was a search in violation of the Fourth Amendment.
But the fact that placing a GPS monitor on a probationer is a search does not
necessarily render it a violation of the Fourth Amendment. “The Fourth
Amendment prohibits only unreasonable searches.” Grady v. North Carolina, 135
S. Ct. 1368, 1371 (2015) (holding North Carolina’s use of GPS monitoring on a
recidivist sex offender was a search but remanding to allow the North Carolina
courts to determine whether the search was reasonable under the Fourth
Amendment).

                                       4
‘redress the injury’ occasioned by an unconstitutional search.” Davis v.
United States, 564 U.S. 229, 236–37 (2011) (citations omitted). Thus,
“[w]here suppression fails to yield ‘appreciable deterrence,’ exclusion is
‘clearly . . . unwarranted.’” Id. at 237 (omission in original) (quoting United
States v. Janis, 428 U.S. 433, 454 (1976)).

   The Supreme Court has also explained that

      [a]n error that arises from nonrecurring and attenuated
      negligence is thus far removed from the core concerns that led
      us to adopt the rule in the first place. . . . To trigger the
      exclusionary rule, police conduct must be sufficiently
      deliberate that exclusion can meaningfully deter it, and
      sufficiently culpable that such deterrence is worth the price
      paid by the justice system. As laid out in our cases, the
      exclusionary rule serves to deter deliberate, reckless, or
      grossly negligent conduct, or in some circumstances recurring
      or systemic negligence.

Herring v. United States, 555 U.S. 135, 144 (2009); see also Davis, 564
U.S. at 238.

   The Supreme Court’s opinion in Arizona v. Evans, 514 U.S. 1 (1995), is
instructive. In Evans, a police officer “acted in reliance on a police record
indicating the existence of an outstanding arrest warrant—a record that
[was] later determined to be erroneous . . . .” Id. at 4. An officer arrested
Evans based on the outstanding warrant and found marijuana after
searching his car. Id. Officers later discovered that the warrants database
of the sheriff’s office had never been updated to reflect that Evans’s
warrant had been quashed by the court clerk. Id. at 5.

   The trial court in Evans excluded evidence obtained because of the
search, id., and the United States Supreme Court ultimately reversed. Id.
at 6. The Supreme Court held that “[i]f court employees were responsible
for the erroneous computer record,” then the good-faith exception to the
exclusionary rule applied because “the exclusion of evidence at trial would
not sufficiently deter future errors so as to warrant such a severe
sanction.” Id. at 14. The Court specifically stated that “the exclusionary
rule was historically designed as a means of deterring police misconduct,
not mistakes by court employees.” Id. (citations omitted).

   The Florida Supreme Court discussed Evans in both State v. White, 660
So. 2d 664 (Fla. 1995), and Shadler v. State, 761 So. 2d 279 (Fla. 2000).
In White, the court held that a clerical computer error showing an

                                      5
outstanding warrant—that had, in fact, already been served—resulted
from law enforcement’s failure to maintain updated and accurate records.
660 So. 2d at 666, 667. So, the court held, the evidence should be
suppressed. Id. at 667. In Shadler, the court held that clerical computer
errors by the Department of Highway Safety and Motor Vehicles should be
treated as errors by law enforcement under White—instead of errors by
court employees under Evans. 761 So. 2d at 284–85. The court reached
this conclusion because the Department is an agency “charged with law
enforcement both in fact and by law,” as shown by the police’s significant
reliance on the Department’s records in conducting traffic stops. Id. at
284. As the circuit court did, we conclude this case is controlled by Evans.

   This case involved a clerical error by a Department of Corrections
employee who performed an administrative role, an error that went
undetected until after Maldonado’s arrest. The circuit court correctly
concluded that suppression of the GPS evidence was not warranted
because the detective’s actions “were clearly not reckless or grossly
negligent,” and “[t]here is no deterrent benefit to be obtained from
suppression.” The record also supports the court’s finding that the
Department of Corrections’ employee’s actions were “not deliberate or
reckless conduct,” nor is exclusion “worth the price paid by the justice
system.” See Herring, 555 U.S. at 144. “[I]n order for a court to suppress
evidence following the finding of a Fourth Amendment violation, ‘the
benefits of deterrence must outweigh the costs.’” United States v. Master,
614 F.3d 236, 243 (6th Cir. 2010) (quoting Herring, 555 U.S. at 141).

   Although Maldonado persuasively argues the statute requiring a court
order is “very clear and not hard to understand,” the testimony in the
circuit court established the Department of Corrections employee believed
the victim of the sexual offense was a child, which would have required
the GPS monitor. No deterrence would be accomplished by exclusion. So
the benefit of deterrence does not “outweigh the costs.” See Herring, 555
U.S. at 141.

   Further, the GPS evidence was ultimately used by the Palm Beach
County Sheriff’s Office, an agency that did not know about the Department
of Corrections’ clerical error when it received the evidence. The testimony
revealed the Palm Beach Sheriff’s Office was not involved with placing the
monitor on Maldonado and did not know until after his arrest that he was
not supposed to be on a monitor. This provides additional support for the
court’s denial of the motion to suppress. See, e.g., United States v. Silva,
473 F. App’x 569, 570 (9th Cir. 2012) (holding evidence should not have
been suppressed where police officers conducted warrantless search of
defendant’s home after being told by a probation officer that defendant was

                                     6
subject to a warrantless-search condition in his probation order; police
officers’ conduct was not reckless and there was no evidence of a
systematic error to trigger exclusionary rule).

   Based on the unrefuted record evidence, at most, the mistake by the
Department of Corrections employee was negligence. There is no evidence
of anything more, and certainly not of a pattern. That makes this case
more like “the usual case, ‘when the police act with an objectively
reasonable good-faith belief that their conduct is lawful, or when their
conduct involves only simple, isolated negligence’”; in these cases, “the
deterrence rationale loses much of its force and exclusion cannot pay its
way.” United States v. Mitchell, 653 F. App’x 651, 653 (10th Cir. 2016)
(Gorsuch, J.) (quoting Davis, 564 U.S. at 238).

    “Suppression of evidence . . . has always been our last resort, not our
first impulse.” Hudson v. Michigan, 547 U.S. 586, 591 (2006). Here, the
negligent act of an employee performing an administrative task does not
compel us to reach that last resort and exclude the evidence. 3

    ii. A Written Revocation of Probation Order is Required

   The circuit court entered a written sentencing order, but the record
does not contain a written probation revocation order specifying which
conditions of probation were violated. Although neither party raises this
issue, we do so sua sponte and remand for entry of a written order
specifying which probation conditions were violated. See, e.g., Stickney v.
State, 263 So. 3d 67, 69 (Fla. 4th DCA 2019) (“[I]f the basis of the
revocation can be verified from the hearing transcript and other court
documents, the matter should be remanded for entry of an order listing
the specific conditions violated.” (citation omitted)); Griffin v. State, 268 So.
3d 728, 729 (Fla. 4th DCA 2018).

                                 Conclusion

   We affirm the revocation of probation and the court’s denial of
Maldonado’s motion to suppress but remand for the entry of a written
order specifying the conditions of probation he violated.


3 Based on our conclusion that the evidence need not be excluded, we need not
address the State’s alternative argument that, as a probationer, Maldonado had
a diminished expectation of privacy under the Fourth Amendment. See Grubbs
v. State, 373 So. 2d 905, 909-10 (Fla. 1979); Harrell v. State, 162 So. 3d 1128,
1131 (Fla. 4th DCA 2015).

                                       7
  Affirmed and remanded.

WARNER and FORST, JJ., concur.

                         *       *        *

  Not final until disposition of timely filed motion for rehearing.




                                 8
