        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                              CARLOS A. LUNA,
                                 Appellant,

                                       v.

                            STATE OF FLORIDA,
                                 Appellee.

                                No. 4D13-2859

                              [January 7, 2015]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert R. Makemson, Judge; L.T. Case No.
562012CF000208AXX.

    Roger Cabrera of Cabrera & Zacca, LLP, Miramar, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.

                          ON MOTION FOR REHEARING

WARNER, J.

   We deny appellant’s motion for rehearing, but grant the motion for
written opinion.     We withdraw our previously issued opinion and
substitute the following in its place.

    Appellant challenges his conviction, claiming that the trial court erred
in denying his motion to suppress the drug evidence seized pursuant to a
search warrant. He claims that the warrant was defective, because the
affidavit upon which it was issued omitted material information. We
disagree and affirm.

   A neighbor of appellant1 called the police to inform them that she
suspected that drugs were being grown in appellant’s house. A road patrol

1Contrary to appellant’s characterization, we do not view the neighbor as an
anonymous tipster. She met with the officer face-to-face, and the officer knew of
her residence even though she did not give her name. She was a citizen
officer was dispatched to the location. After speaking with the neighbor,
the officer approached the home. He went around the side of the home
and peeked in a window. He observed no furniture, and it appeared that
the house was empty. He also looked at the electric meter which was
turning “fast.” He provided this information to his superiors in an email.
As a result, a detective in the narcotics unit was assigned to investigate.

   Four days later, the detective went to the house. Upon approaching the
front door, he experienced an overwhelming smell of marijuana, along with
the sound of oscillating fans and water pumps inside the house, which he
believed from his experience to be evidence of a “grow operation.” The
detective then applied for a search warrant for the home. His affidavit
omitted the facts of the first encounter by the road patrol officer, although
the affidavit did include the information regarding the neighbor’s report.
The magistrate issued the warrant.

   Two days later, officers continued their surveillance of the home and
saw appellant leaving the house. He was stopped, and the officers smelled
marijuana, leading to his arrest. The officers then executed the search
warrant, finding marijuana plants and cultivation equipment, as well as
documents tying appellant to the operation.

    Appellant moved to suppress the seized property, contending that the
detective’s affidavit used to obtain the search warrant omitted material
information of the original illegal search of the property. The trial court
held a hearing at which the narcotics detective testified that he had based
his investigation on the neighbor’s tip and did not consider the information
from the road patrol officer. The court found that the omissions in the
affidavit were not material. Even though the road patrol officer’s activities
were an illegal search because of the entry onto the property without any
exigent circumstances, see, e.g., Lollie v. State, 14 So. 3d 1078 (Fla. 1st
DCA 2009), there was a clear and unequivocal break between the illegal
activity and the issuance of the search warrant due to the narcotics
detective’s separate and independent investigation. After the denial of the
motion, appellant pled to the charges, reserving his right to appeal this
dispositive issue.

   “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

informant. See J.P.N. v. State, 931 So. 2d 1066, 1068 (Fla. 4th DCA 2006);
McKelvin v. State, 53 So. 3d 401, 405 (Fla. 4th DCA 2011).


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therefrom in a manner most favorable to sustaining the trial court’s
ruling.” Rowell v. State, 83 So. 3d 990, 993–94 (Fla. 4th DCA 2012)
(citation and quotations omitted). “The appellate court defers to the trial
court’s findings regarding the facts and uses the de novo standard of
review for legal conclusions.” Nshaka v. State, 82 So. 3d 174, 178–79 (Fla.
4th DCA 2012) (citation omitted); see also Bethel v. State, 93 So. 3d 410,
413 (Fla. 4th DCA 2012).

    Appellant claims that the trial court erred in denying his motion to
suppress, because the search warrant would not have been issued had the
detective included in the affidavit the illegal conduct of the road patrol
officer in peering in the windows, which started the investigation. With
respect to search warrants, in Franks v. Delaware, 438 U.S. 154 (1978),
the court held that if a defendant makes a substantial showing that the
affiant knowingly or intentionally or with reckless disregard included a
false statement in a probable cause affidavit the court must hold a hearing.
Id. at 156-57. If the defendant establishes such proof by a preponderance
of the evidence, the court must suppress the fruits of a search. Id. at 157.
The Franks rule has been extended to material omissions from affidavits.
See Johnson v. State, 660 So. 2d 648, 656 (Fla. 1995). In Johnson, the
court held:

     [T]he Franks standard applies to alleged omissions from probable
     cause affidavits except that (1) the reviewing court must
     determine whether the omitted material, if added to the affidavit,
     would have defeated probable cause, and (2) the reviewing court
     must find that the omission resulted from intentional or reckless
     police conduct that amounts to deception.

Id. (emphasis in original).

    There is no question that the affidavit as written provides probable
cause for issuance of the search warrant. Thus, would the prior illegal
entry onto the property defeat probable cause? The appellant’s contention
is that the prior illegality prevents the issuance of the search warrant,
because such evidence would be barred as the “fruit of the poisonous tree.”
We disagree.      The trial court found that the narcotic detective’s
investigation was independent of the original entry on the land. The
detective considered only the neighbor’s report and his own investigation.
In Segura v. United States, 468 U.S. 796 (1984), the Supreme Court
explained that a prior illegal search does not always lead to the
suppression of evidence. It depends upon the nature and attenuation of
the illegal conduct to the search:


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      The Court has never held that evidence is “fruit of the
      poisonous tree” simply because “it would not have come to
      light but for the illegal actions of the police.” See Wong Sun
      [v. United States, 371 U.S. 471,] 487–488, 83 S.Ct., at 417–
      418; Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65
      L.Ed.2d 633 (1980); Brown v. Illinois, 422 U.S. 590, 599, 95
      S.Ct. 2254, 2259, 45 L.Ed.2d 416 (1975). That would
      squarely conflict with Silverthorne [v. United States, 251 U.S.
      385, 40 S.Ct. 182, 64 L. Ed 319 (1920)] and our other cases
      allowing admission of evidence, notwithstanding a prior
      illegality, when the link between the illegality and that
      evidence was sufficiently attenuated to dissipate the taint. By
      the same token, our cases make clear that evidence will not
      be excluded as “fruit” unless the illegality is at least the “but
      for” cause of the discovery of the evidence. Suppression is not
      justified unless “the challenged evidence is in some sense the
      product of illegal governmental activity.”

Id. at 815. Here, the illegal conduct of the road patrol officer was not the
“but for” cause of the discovery of the evidence. The tip by the neighbor is
what drew law enforcement’s attention to the house. Therefore, even had
the information from the road patrol officer been included in the affidavit,
the illegality of the officer’s entry onto the land would not have prevented
the issuance of the search warrant. The omission did not compromise the
remainder of the information which led the court to issue the warrant.

   We reject the remaining arguments made by appellant and affirm the
conviction and sentence.

MAY and CONNER, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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