          Supreme Court of Florida
                                    ____________

                                    No. SC14-160
                                    ____________

                             MIGUEL RODRIGUEZ,
                                  Petitioner,

                                          vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                [December 10, 2015]

PERRY, J.

      Miguel Rodriguez seeks review of the decision of the Third District Court of

Appeal in Rodriguez v. State, 129 So. 3d 1135 (Fla. 3d DCA 2013), on the ground

that it expressly and directly conflicts with decisions of this Court and the district

courts of appeal on the application of the inevitable discovery doctrine. See

Fitzpatrick v. State, 900 So. 2d 495 (Fla. 2005); Moody v. State, 842 So. 2d 754

(Fla. 2003); Jeffries v. State, 797 So. 2d 573 (Fla. 2001); Maulden v. State, 617 So.

2d 298 (Fla. 1993). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

Because we find that the Third District improperly applied the inevitable discovery

doctrine to the facts of this case, we quash the decision below.
           STATEMENT OF THE CASE AND FACTS

The facts of this case were presented below:

       Several bail bondsmen were attempting to locate one of their
clients. The client, who had been charged with marijuana cultivation
in a different house, had listed the address of Mr. Rodriguez’s home
on his application for the bond. When the bondsmen knocked on the
front door of that home, Mr. Rodriguez answered. He told the
bondsmen that he did not know their client and that he was alone in
the home. The bondsmen requested permission to search the home to
be certain their client was not hiding there, and Mr. Rodriguez
consented. The bondsmen noticed a smell of marijuana in the home.
       Encountering a locked bedroom door, the bondsmen asked Mr.
Rodriguez to open it so they could confirm that their client was not
hiding there. Mr. Rodriguez unlocked the door and told the bondsmen
that he was growing marijuana in the room. At that point, one of the
bondsmen in the group moved outside and called the police to report
what the bondsmen had observed.
       About thirty minutes later, a uniformed officer arrived at the
home. The officer testified that Mr. Rodriguez invited him to enter.
The officer saw the grow room, called the narcotics squad, and placed
Mr. Rodriguez in handcuffs in the back of the officer’s squad car
while they waited for the narcotics detectives to arrive. The
bondsmen remained at that location throughout, and spoke to the lead
detective when the narcotics unit arrived.
       The lead detective testified that Mr. Rodriguez signed a form
consenting to a search of the home. Mr. Rodriguez testified that he
only signed the consent forms because the narcotics detectives had
guns and most were also wearing masks. After their search confirmed
the presence of a “grow room” containing six-foot marijuana plants,
lights, and 36 pounds of marijuana, the detectives arrested Mr.
Rodriguez.
        The defense filed a motion to suppress. At the hearing on that
motion, the circuit court heard testimony from the lead bondsman, the
police officer who first responded to the call from the bondsmen, the
lead narcotics unit detective, and Mr. Rodriguez. The state did not
establish that the police officer or any detective had made any efforts
to obtain a search warrant before law enforcement entered the home
or Mr. Rodriguez was arrested. The lead detective did, however,

                                 -2-
      testify that he would have sought a warrant if Mr. Rodriguez had not
      consented to the search.
             The court denied the motion to suppress, although the court
      found that Mr. Rodriguez’s consent to entry by the police and
      detectives, and his signature on the consent form, were coerced. The
      court concluded that the inevitable discovery doctrine applied because
      probable cause had been established before law enforcement
      requested consent, and:

             Soon as the bail bondsman calls and says, Listen I’m
             looking at a hydroponics lab to me that’s a trigger. If
             they had not gotten consent they would have gone and
             gotten a warrant.

             Following the denial of the motion to suppress, Mr. Rodriguez
      entered a guilty plea and reserved the right to appeal the suppression
      issue. He was adjudicated guilty and sentenced, and [then appealed to
      the Third District Court of Appeal].
Rodriguez, 129 So. 3d at 1136-37 (footnotes omitted). Based on these facts, the

Third District found that the trial court properly applied the inevitable discovery

doctrine. Id. at 1138. On appeal, Rodriguez argues that because law enforcement

was not conducting a separate ongoing investigation, and the officers were not in

the process of obtaining a warrant when the illegal conduct occurred, the lower

courts improperly relied on the inevitable discovery doctrine. We agree. From the

totality of the evidence, we find that the application of the inevitable discovery

doctrine was improper and hold that the trial court should have suppressed the

evidence obtained from the illegal search.

                                   DISCUSSION

                                Standard of Review


                                         -3-
      “A trial court’s ruling on a motion to suppress comes to the appellate court

clothed with a presumption of correctness and the court must interpret the evidence

and reasonable inferences and deductions derived therefrom in a manner most

favorable to sustaining the trial court’s ruling.” Terry v. State, 668 So. 2d 954, 958

(Fla. 1996). Accordingly, “the appellate courts defer to the trial court’s factual

findings so long as the findings are supported by competent, substantial evidence,

and review de novo the legal question of whether there was probable cause given

the totality of the factual circumstances.” State v. Hankerson, 65 So. 3d 502, 506

(Fla. 2011).

                                       Merits

      The Fourth Amendment prohibits unreasonable searches and seizures.

Searches or seizures executed without prior approval by a judge or magistrate are

“per se unreasonable.” Katz v. United States, 389 U.S. 347, 357 (1967). “[T]he

warrant requirement is an important working part of our machinery of government,

not merely an inconvenience to be somehow weighed against the claims of police

efficiency.” Riley v. California, 134 S. Ct. 2473, 2493 (2014) (internal quotation

marks omitted). Further, the exclusionary rule makes evidence obtained either

during or as a direct result of an unlawful invasion inadmissible. See United States

v. Wade, 388 U.S. 218 (1967); Murphy v. Waterfront Comm’n of N.Y. Harbor,

378 U.S. 52 (1964); Wong Sun v. United States, 371 U.S. 471 (1963); Silverthorne


                                         -4-
Lumber Co., Inc. v. United States, 251 U.S. 385 (1920). The purpose of the

exclusionary rule is to sufficiently deter deliberate police misconduct. See Herring

v. United States, 555 U.S. 135, 144 (2009). We recognize three exceptions to the

exclusionary rule: “(1) an independent source existed for the discovery of the

evidence; or, (2) the evidence would have inevitably been discovered in the course

of a legitimate investigation; or (3) sufficient attenuation existed between the

challenged evidence and the illegal conduct.” Moody, 842 So. 2d at 759 (citations

omitted).

      Of particular concern here is the inevitable discovery doctrine, which applies

to balance the need to deter police misconduct with the societal cost of allowing

obviously guilty persons to go free. Nix v. Williams, 467 U.S. 431, 443 (1984).

The inevitable discovery doctrine was first adopted by the United States Supreme

Court in Nix and has long been recognized by this Court. See, e.g., Mansfield v.

State, 911 So. 2d 1160 (Fla. 2005); Fitzpatrick, 900 So. 2d 495; Moody, 842 So. 2d

754; Craig v. State, 510 So. 2d 857 (Fla. 1987).

      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[, 617 So. 2d at 301]. In adopting the inevitable discovery
      doctrine, the Supreme Court explained, “Exclusion of physical
      evidence that would inevitably have been discovered adds nothing to
      either the integrity or fairness of a criminal trial.” Nix, 467 U.S. at
      446. In making a case for inevitable discovery, the State must
      demonstrate “that at the time of the constitutional violation an
      investigation was already under way.” Moody[, 842 So. 2d at 759

                                         -5-
      (quoting Nix, 467 U.S. 431 (Stevens, J., concurring in the
      judgment))]; see also Jeffries v. State, 797 So. 2d 573, 578 (Fla.
      2001); Maulden, 617 So. 2d at 301. 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. See Moody, 842 So. 2d at 759.

Fitzpatrick, 900 So. 2d at 514.

      Inevitability under this rule “involves no speculative elements” and

essentially requires the State to show “ ‘that at the time of the constitutional

violation an investigation was already under way.’ ” Moody, 842 So. 2d at 759

(quoting Nix, 467 U.S. at 444, 457 (Stevens, J., concurring)); see also Fitzpatrick,

900 So. 2d at 514. Thus, the rule first requires a “reasonable probability” that the

evidence would have been discovered despite the improper police procedure.

United States v. Brookins, 614 F.2d 1037, 1042 (5th Cir. 1980). Second, the State

cannot argue that some later or future investigation would have inevitably led to

the discovery of the evidence; rather, the investigation must be ongoing and the

State must show that the facts known by the police at the moment of the

unconstitutional procedure would have led to the evidence notwithstanding the

police misconduct. See Fitzpatrick, 900 So. 2d at 514; Moody, 842 So. 2d at 759.

      In Fitzpatrick and Maulden, we applied the inevitable discovery doctrine to

scenarios in which an investigation was already under way. See Fitzpatrick, 900

So. 2d at 514 (applying the inevitable discovery doctrine where police had initiated

an investigation of the defendant prior to unconstitutionally requesting a blood


                                         -6-
sample); Maulden, 617 So. 2d at 301 (applying the inevitable discovery doctrine

where police had already started an investigation and located a stolen truck prior to

improperly arresting and questioning the defendant). If there was no ongoing

investigation and the prospect of eventual discovery was merely speculative, we

have refused to apply the rule. See Moody, 842 So. 2d at 759 (refusing to apply

the inevitable discovery doctrine where police, prior to unconstitutionally stopping

a defendant for driving without a license, had neither initiated an investigation of

the defendant nor obtained facts in their possession that would have led to the

discovery of the evidence); Jeffries, 797 So. 2d at 578 (refusing to apply the

inevitable discovery doctrine where the police improperly detained the defendant,

had not yet obtained a warrant for his arrest, and were merely speculating as to his

whereabouts).

      Basing its decision on a review of the totality of the evidence that indicated

that probable cause to obtain a warrant existed, the First District Court of Appeal

has ruled that, where the officers had begun to seek a warrant, showing probable

cause for a warrant existed is sufficient to demonstrate inevitable discovery.

McDonnell v. State, 981 So. 2d 585 (Fla. 1st DCA 2008). In McDonnell, officers

were investigating the theft of an ATM and went to McDonnell’s home to speak to

him. Id. at 587. McDonnell initially refused to consent to a search of his home, at

which time an officer left to obtain a warrant. While waiting for the officer to


                                         -7-
return, another officer requested and received consent to search. Id. The search

led to incriminating evidence. Id. at 588. As in this case, the lower court

determined that McDonnell’s consent to search was not valid. Id. at 589.

Nevertheless, the First District affirmed the trial court’s denial of McDonnell’s

motion to suppress, noting that

      federal law suggests that the inevitable discovery doctrine will not be
      applied in every case where the police had probable cause for a search
      warrant, but failed to get one. The cases focus on whether police
      made an effort to get a warrant prior to the illegal search and whether
      strong probable cause existed for the search warrant.

Id. at 593.

      Judge Hawkes dissented, citing United States v. Virden, 488 F.3d 1317,

1322 (11th Cir. 2007), and noted that the State should not benefit from illegal

activity and “any other rule would effectively eviscerate the exclusionary rule.”

McDonnell, 981 So. 2d at 594 (Hawkes, J., dissenting). Judge Hawkes

emphasized that the burden is on the prosecution to demonstrate that the evidence

actually would have inevitably been discovered, not that it merely could have been.

Id. Accordingly, Judge Hawkes would have ruled that probable cause is not

sufficient when there has been no attempt to obtain a warrant before contact with

the defendant. Id. at 596.

      The Fourth District Court of Appeal agreed with the reasoning of Judge

Hawkes’ dissent and found that where there had been no effort to obtain a warrant



                                        -8-
before the misconduct occurred, inevitable discovery could not be found. Rowell

v. State, 83 So. 3d 990, 993 (Fla. 4th DCA 2012) (“Under the inevitable discovery

doctrine, if the prosecution can establish by a preponderance of the evidence that

the information ultimately or inevitably would have been discovered by lawful

means, the evidence will be admissible.” (citing Nix, 467 U.S. at 434)). There,

officers were dispatched to an apartment complex in response to shots fired. After

the officer established a perimeter, they placed the defendant in custody and

decided to search his apartment for the safety of everyone on the scene. Id. Citing

McDonnell, the Fourth District determined that “the prosecution made absolutely

no showing that efforts to obtain a warrant were being actively pursued prior to the

occurrence of the illegal conduct.” Id. at 996. Further, the Fourth District found

that the “[o]peration of the ‘inevitable discovery’ rule under the circumstances of

this case would effectively nullify the requirement of a search warrant under the

Fourth Amendment.” Id.

      Likewise, the First District has reaffirmed that “the inevitable discovery

doctrine may be employed to deem a search lawful if probable cause to obtain a

warrant existed and officers are ‘in the process of obtaining a warrant’ when the

search occurs.” King v. State, 79 So. 3d 236, 238 (Fla. 1st DCA 2012). In King,

the First District found that the trial court erred in relying on the inevitable




                                          -9-
discovery doctrine where “the officer testified that he did not attempt to get a

warrant, and the State presented no evidence suggesting he did.” Id.

      Several federal courts require active and independent pursuit to meet the

warrant requirement. See United States v. Quinney, 583 F.3d 891, 894 (6th Cir.

2009) (rejecting “the government’s attempt to circumvent the [warrant]

requirement via the [inevitable discovery] doctrine,” when probable cause to obtain

a warrant existed but officers failed to do so); Virden, 488 F.3d at 1322 (explaining

that the active pursuit requirement is especially important as to not eviscerate the

exclusionary rule); United States v. Mejia, 69 F.3d 309, 320 (9th Cir. 1995)

(stating that the court “has never applied the inevitable discovery exception so as to

excuse the failure to obtain a search warrant where the police had probable cause

but simply did not attempt to obtain a search warrant,” because to hold otherwise

“would completely obviate the warrant requirement”) (citing United States v.

Echegoyen, 799 F.2d 1271, 1280 n.7 (9th Cir. 1986)); United States v. Silvestri,

787 F.2d 736, 746 (1st Cir. 1986) (recognizing that active pursuit may be

necessary in certain situations to satisfy the test of inevitability and independence);

United States v. Cherry, 759 F.2d 1196 (5th Cir. 1985) (holding that the

prosecution must establish a reasonable probability that the evidence would have

been discovered by lawful means, that the leads making the discovery inevitable

were possessed by the police prior to the misconduct, and that the police were


                                        - 10 -
actively pursuing the alternate line of investigation prior to the misconduct).

However, even the federal courts that would not absolutely require pursuit of a

warrant nevertheless require showing more than the existence of probable cause to

obtain a warrant. See United States v. Tejada, 524 F.3d 809, 813 (7th Cir. 2008)

(requiring the government “to excuse its failure to have obtained a search warrant,

to prove that a warrant would certainly, and not merely probably, have been issued

had it been applied for”); United States v. Are, 590 F.3d 499, 507 (7th Cir. 2009)

(reaffirming the rejection of the Virden standard as explained in Tejada and

applying a “harmless error” approach); United States v. Cunningham, 413 F.3d

1199, 1204 (10th Cir. 2005) (applying the inevitable discovery doctrine after a

warrantless search of a home where “officers’ actions clearly indicate[d] they took

steps to obtain a search warrant and that they intended to obtain the warrant . . . .”);

United States v. Souza, 223 F.3d 1197, 1203 (10th Cir. 2000) (“While the

inevitable discovery exception does not apply in situations where the government’s

only argument is that it had probable cause for the search, the doctrine may apply

where, in addition to the existence of probable cause, the police had taken steps in

an attempt to obtain a search warrant.”); United States v. Allen, 159 F.3d 832, 834

(4th Cir. 1998) (rejecting the application of the inevitable discovery doctrine where

the facts did not demonstrate a likelihood of inevitability absent the government’s

misconduct).


                                         - 11 -
      Our jurisprudence has been clear thus far that the inevitable discovery

doctrine does not apply when the prosecution cannot demonstrate an active and

independent investigation. Compare Moody, 842 So. 2d 754 with Fitzpatrick, 900

So. 2d 495. Furthermore, neither Moody nor Fitzpatrick involves warrantless

searches of the home, as seen here. As recently affirmed by the United States

Supreme Court, “when it comes to the Fourth Amendment, the home is first among

equals. At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into

his own home and there be free from unreasonable governmental intrusion.’ ”

Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013) (quoting Silverman v. United

States, 365 U.S. 505 (1961)). As such, we must hold firm the protections of the

Fourth Amendment and find the actions here unreasonable.

      Here, bondsmen contacted the Hialeah Police Department to report having

seen the grow room in Rodriguez’s house during their unrelated search for a

fugitive. Officer Garfinkel was dispatched and arrived on scene. Officer Garfinkel

testified that upon arrival, he observed the bondsmen on Rodriguez’s porch and

followed Rodriguez into his home. After following Rodriguez into his home,

Officer Garfinkel personally observed the grow room operation, placed Rodriguez

in handcuffs, and placed Rodriguez in the back of his squad car while contacting

the narcotics unit. The narcotics officers arrived while Rodriguez remained

handcuffed in the back of Garfinkel’s car. At no point prior to this did any law


                                       - 12 -
enforcement officer attempt to obtain a warrant. Upon the narcotics unit’s arrival,

the officers approached the handcuffed Rodriguez to request consent to search his

home. He was released from the handcuffs to sign the consent form. The trial

court properly found this consent to be coerced. Rodriguez, 129 So. 3d at 1137.

      At no point after the bondsmen arrived on the scene was Rodriguez left

alone. There were no exigent circumstances; nor was there any risk that evidence

would be removed or destroyed. Prior to the warrantless search, the narcotics

officers had eyewitness accounts from the bondsmen and a sworn law enforcement

officer that they had observed grow lights and marijuana plants. The bondsmen

and Officer Garfinkel also testified that they had been able to smell the marijuana

from outside the home. Therefore, it is highly likely that had any of the narcotics

officers sought a warrant, it would have been granted. However, it was not a

certainty and it cannot be said that the prosecution would have been able to

demonstrate that a separate investigation had been initiated prior to the

misconduct, nor that any steps were taken in pursuit of a warrant.

      The question before this Court is whether the inevitable discovery rule

requires the prosecution to demonstrate that the police were in the process of

obtaining a warrant prior to the misconduct or whether the prosecution need only

establish that a warrant could have been obtained with the information available

prior to the misconduct. We conclude that permitting warrantless searches without


                                        - 13 -
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. Within the inevitable discovery exception to the exclusionary rule there is no

room for probable cause to obviate the requirement to pursue a search warrant, for

this would eliminate the role of the magistrate and replace judicial reasoning with

the current sense impression of police officers.

       Further, this case involves the sanctity of the home—a bedrock of the

Fourth Amendment and an area where a person should enjoy the highest

reasonable expectation of privacy. The constitutional guarantee to freedom from

warrantless searches is not an inconvenience to be dismissed in favor of claims for

police and prosecutorial efficiency. While it is true that here the police were

already in possession of the information leading to the evidence before the

misconduct, they failed to pursue a legal means to attain this evidence. The police

attempted to gain consent from Rodriguez to enter his home, but his consent was

found to be coerced and invalid. With no valid consent, and no pursuit of a search

warrant, there are no legal means present that would have led to the evidence. In

this way, the discovery was not inevitable notwithstanding the police misconduct,

and the rule cannot be applied.


                                        - 14 -
      Because the exclusionary rule works to deter police misconduct by ensuring

that the prosecution is not in a better position as a result of the misconduct, the rule

cannot be expanded to allow application where there is only probable cause and no

pursuit of a warrant. If the prosecution were allowed to benefit in this way, police

misconduct would be encouraged instead of deterred, and the rationale behind the

exclusionary rule would be eviscerated. Where the prosecution has made no

showing that a search warrant was being actively pursued prior to the occurrence

of the illegal conduct, application of the inevitable discovery rule would effectively

nullify the requirement of a search warrant under the Fourth Amendment. In sum,

prosecutors may not be permitted to benefit from the violation of constitutional

rights. We cannot apply the inevitable discovery rule in every case where the

police had probable cause to obtain a warrant but simply failed to get one.

Accordingly, the officers’ failure to seek a search warrant precludes the application

of the inevitable discovery doctrine in this case.

                                   CONCLUSION

      For the foregoing reasons, we quash the decision of the Third District Court

of Appeal in Rodriguez v. State, 129 So. 3d 1135 (Fla. 3d DCA 2013), and remand

for proceedings consistent with this opinion.

      It is so ordered.

LABARGA, C.J., and PARIENTE and LEWIS, JJ., concur.


                                         - 15 -
CANADY, J., dissents with an opinion, in which QUINCE and POLSTON, JJ.,
concur.

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

CANADY, J., dissenting.

      Because I conclude that the failure of the police to initiate the process for

securing a search warrant did not preclude application of the inevitable discovery

doctrine, I would approve the decision on review. I would disapprove the decision

in Rowell v. State, 83 So. 3d 990 (Fla. 4th DCA 2012), to the extent that it adopted

a categorical rule, also adopted by the majority here, that pursuit of a search

warrant is prerequisite to application of the inevitable discovery doctrine when the

existence of probable cause justifying issuance of a search warrant is the basis

asserted for the application of the doctrine. This categorical limitation on the

inevitable discovery doctrine is inconsistent with the deterrent purpose of the

exclusionary rule.

      In Nix v. Williams, 467 U.S. 431, 447 (1984), in adopting the inevitable

discovery exception to the exclusionary rule, the Supreme Court concluded that

suppression of evidence is unwarranted “if the government can prove that the

evidence would have been obtained inevitably and, therefore, would have been

admitted regardless of any overreaching by the police.” Justifying that conclusion,

the Court observed that “there is no rational basis to keep [such] evidence from the


                                        - 16 -
jury in order to ensure the fairness of the trial proceedings.” Id. The Court further

observed that suppression of such evidence “would do nothing whatever to

promote the integrity of the trial process, but would inflict a wholly unacceptable

burden on the administration of criminal justice.” Id. But the major focus of the

Court’s justification of the inevitable discovery rule was based on its analysis of

the deterrent purpose of the exclusionary rule.

      The underlying principle is this: “the interest of society in deterring unlawful

police conduct and the public interest in having juries receive all probative

evidence of a crime are properly balanced by putting the police in the same, not a

worse, position that they would have been in if no police error or misconduct had

occurred.” Id. at 443. The deterrent purpose of the exclusionary rule generally is

served if the police will gain no advantage by virtue of unconstitutional conduct

and thus have no incentive to engage in that conduct. The Court reasoned that the

inevitable discovery rule is consistent with the deterrent purpose of the

exclusionary rule because “when an officer is aware that the evidence will

inevitably be discovered, he will try to avoid engaging in any questionable

practice” since “there will be little to gain from taking any dubious ‘shortcuts’ to

obtain the evidence.” Id. at 445-46. The Court also noted that “[s]ignificant

disincentives to obtaining evidence illegally—including the possibility of

departmental discipline and civil liability—also lessen the likelihood that the


                                        - 17 -
ultimate or inevitable discovery exception will promote police misconduct.” Id. at

446. Given all these circumstances, the Court rejected the argument that the

inevitable discovery rule should include a requirement that the government prove

an absence of bad faith.

      In applying the inevitable discovery rule, we have held that evidence

discovered by the police based on a constitutional violation is not subject to

suppression if the evidence “would have been found independently . . . by means

of normal investigative measures that inevitably would have been set in motion as

a matter of routine police procedure.” Craig v. State, 510 So. 2d 857, 863 (Fla.

1987). The facts presented by the case on review fall squarely under that principle

of law. Based on the record before us, it is undeniable that—as the trial court

found—if the police had not acted on the constitutionally infirm consent to search,

they would have proceeded to obtain a search warrant based on the information

provided to them by the bondsmen. Only a flight of fancy could lead to a contrary

conclusion.

      In this case, we need not decide whether the inevitable discovery rule can be

applied to the warrantless search of a dwelling conducted without any colorable

legal basis. And to conclude that suppression is unjustified in this case, we need

not adopt a rule that suppression will never be available for evidence obtained in

the warrantless search of a dwelling if the police had probable cause justifying the


                                        - 18 -
issuance of a search warrant that would have led to the discovery of that evidence.

It might be argued that such a broad rule would inevitably produce a perverse

incentive to deliberately erode the requirement for obtaining a warrant. In any

event, resolution of this case requires only that we recognize that suppression of

the evidence here—where the police acted on the basis of consent to search that

was determined to be invalid—would be inconsistent with the purpose of the

exclusionary rule.

      As the Supreme Court explained in Herring v. United States, 555 U.S. 135,

144 (2009):

      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.
The “bottom-line effect” of the exclusionary rule

      in many cases, is to suppress the truth and set the criminal loose in the
      community without punishment. [The case law holds] that society
      must swallow this bitter pill when necessary, but only as a “last
      resort.” For exclusion to be appropriate, the deterrence benefits of
      suppression must outweigh its heavy costs.

Davis v. United States, 131 S. Ct. 2419, 2427 (2011) (quoting Hudson v.

Michigan, 547 U.S. 586, 591 (2006)) (internal citations omitted). This

understanding of the exclusionary rule strongly cuts against the cramped reading of

the inevitable discovery exception adopted by the majority.


                                        - 19 -
      The record here supports the conclusion that the conduct of the police was

neither deliberate, reckless, nor grossly negligent. The police acted on the basis of

a consent to search, which was determined to be invalid based on the

circumstances in which the consent was requested by the police—circumstances

involving the presence of several armed police officers, including an officer

wearing a mask. There is no suggestion in the record of any threats or physical

coercion. Nor is there any suggestion that the police understood the consent they

obtained to be invalid. The mistake made by the police in this case does not justify

the cost that is imposed by the suppression of the evidence—evidence which

would readily have been available to the police through routine measures leading

to the issuance of a search warrant.

      “The purpose of the inevitable discovery rule is to block setting aside

convictions that would have been obtained without police misconduct.” Nix, 467

U.S. at 443 n.4. That purpose is thwarted by the decision in this case. The conduct

of the police here was neither “sufficiently deliberate” nor “sufficiently culpable”

to justify the “bitter pill” of “setting the criminal loose in the community without

punishment.” I dissent.

QUINCE and POLSTON, JJ., concur.




                                        - 20 -
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions

      Third District - Case No. 3D12-2097

      (Miami-Dade County)

Carlos Jesus Martinez, Public Defender, and Shannon Hemmendinger, Assistant
Public Defender, Eleventh Judicial Circuit, Miami, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Jill Diane Kramer,
Assistant Attorney General, and Richard L. Polin, Bureau Chief, Miami, Florida,

      for Respondent




                                      - 21 -
