          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D16-4144
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MIGUEL BRUTUS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Leon County.
Terry Lewis, Judge.

                           June 13, 2018


PER CURIAM.

    Miguel Brutus was convicted of six counts of armed robbery
and two counts of armed burglary of a dwelling with assault. He
was sentenced to a total of forty years. The only issue in this appeal
is whether the trial court erred in denying Brutus’s motion to
suppress photos found on an iPod.

     The crimes occurred in February 2014, when Brutus and two
other men burglarized two Tallahassee apartment complexes.
After Brutus was identified as a suspect, police obtained a warrant
to search his home. The warrant found probable cause to believe
that the home contained “certain stolen items and evidence,”
including an “Apple iPod.” (capitalization altered).
     The warrant then specifically authorized law enforcement to
extract certain digital information “[i]n the event cell phone
devices [were] recovered.” The final paragraph said the scope
would also “encompass any items tending to establish the identity
of the persons who have dominion and control of the location,
premises, automobiles, or items to be seized.”

     During the search, police found an Apple iPod, reviewed its
contents, and saw a photo of a masked man holding two guns. The
State Attorney’s office later obtained a second warrant explicitly
authorizing law enforcement to extract photos and any other
electronic data from the iPod. Brutus moved to suppress the
evidence from the iPod, arguing that the original warrant was
insufficiently specific as to the iPod and that, regardless, the
search exceeded the warrant’s scope. Brutus further argued that
absent the officers’ illegal intrusion into the iPod, they never would
have secured the second warrant authorizing extraction of the
iPod’s contents. The trial court denied his motion.

     On appeal, Brutus first argues that the warrant’s reference to
an “Apple iPod” was too general because iPods are now ubiquitous
and the warrant did not describe “the device’s color, model, or other
defining characteristics.” He relies principally on our decision in
Sims v. State, 483 So. 2d 81, 82 (Fla. 1st DCA 1986), in which we
found a warrant insufficiently particular because it referenced a
“blue wheelbarrow” but contained “no description to identify it
from any other blue wheelbarrow.” Id. Second, he argues that even
if the warrant was sufficiently specific, law enforcement exceeded
its scope by searching—rather than merely seizing—the iPod. He
points to the fact that the original warrant only authorized
extraction of data from “cell phone devices”—not iPods.

     We need not decide whether the trial court should have
suppressed the evidence found on the iPod because we are
convinced beyond reasonable doubt that the error—if any—was
harmless. See, e.g., Ventura v. State, 29 So. 3d 1086, 1091 (Fla.
2010). Brutus’s accomplice testified that he and Brutus committed
the burglaries together “to get money or marijuana” and that the
burglaries were Brutus’s idea. Cell phone records confirmed that
the two were both in the vicinity of second burglary and were in
communication at the time the burglary occurred. Items stolen

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during the robbery were recovered at Brutus’s residence, and guns
recovered from his residence (and containing his DNA) matched
the description of the guns used during the crimes. We are
convinced that with or without the photos, the result would have
been the same.

    AFFIRMED.

LEWIS, KELSEY, and WINSOR, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Candice Kaye Brower, Criminal Conflict & Civil Regional Counsel,
Gainesville, and Michael Jerome Titus, Assistant Regional
Conflict Counsel, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez,
Assistant Attorney General, Tallahassee, for Appellee.




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