        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                     JESSE CLEVELAND HARRELL,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                     Nos. 4D12-1675 and 4D12-1676

                              [April 22, 2015]

   Consolidated appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Jeffrey Colbath, Judge; L.T. Case No.
502011CF012332AXXXMB.

  Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for
appellee.

CIKLIN, J.

    Jesse Cleveland Harrell timely appeals his judgment and sentence for
felon in possession of a firearm and the order revoking his probation for
committing a new offense of the same nature. Harrell argues that the
trial court erred in failing to suppress evidence obtained as a result of a
warrantless, suspicionless search of his residence by his probation
officer. Finding no error, we affirm.

    At the time of the subject search, Harrell was on probation and
community control for manslaughter and battery. His order of probation
largely tracked the language of section 948.03(1), Florida Statutes (2000).
Specifically, one of the conditions of Harrell’s probation was, “You will
. . . allow the [Probation] Officer to visit in your home . . . .” The search
took place because Harrell was selected for a “planned compliance
initiative,” for which probationers for violent felony offenses were being
randomly selected for a search to ensure compliance with their orders of
supervision. Prior to the unannounced search, there was no suspicion
that Harrell possessed firearms or contraband or was otherwise in
violation of the conditions governing his probation and community
control.

    At approximately 5:45 a.m. on the day of the search, two probation
officers accompanied by six or seven police officers arrived at Harrell’s
residence, an apartment he shared with his parents and a sibling. After
the police officers swept the home for security purposes, the probation
officers entered the home to commence the search while Harrell and the
other residents remained outside with the police officers.

    Inside Harrell’s bedroom, one of the probation officers, searching his
dresser drawers and behind furniture, found clips of ammunition and
felt the butts of guns. The officer stopped searching and the home was
sealed until police officers obtained a search warrant. Upon execution of
the warrant, police officers found ammunition and seven rifles.

    The final hearing on the alleged violation of probation and trial for the
new offense were combined, and a bench trial was conducted. Evidence
of the items obtained in the search was admitted during the proceedings,
after which Harrell was found to have violated his probation and found
guilty of felon in possession of a firearm.

   On appeal, Harrell contends the warrantless search violated the
Fourth Amendment and the evidence should have been suppressed
because (1) there was no reasonable suspicion and there was no
condition for warrantless searches in the order placing him on probation,
and (2) the search was conducted at an unreasonable hour and in an
unreasonable manner.

   With respect to Harrell’s first argument, the state asserts that the
search was lawful pursuant to precedent from the Florida Supreme
Court in Grubbs v. State, 373 So. 2d 905 (Fla. 1979). Harrell argues that
a United States Supreme Court case, United States v. Knights, 534 U.S.
112 (2001), is controlling.

   Both the federal and state constitutions prohibit the government from
conducting unreasonable searches. Amend. IV, U.S. Const.; Art. I, § 12,
Fla. Const. Under the conformity clause of article I, section 12 of the
Florida Constitution,1 Florida courts “are bound to follow the

1 The right to be secure against unreasonable searches and seizures “shall be
construed in conformity with the 4th Amendment to the United States
Constitution, as interpreted by the United States Supreme Court. Articles or

                                     2
interpretations of the United States Supreme Court with respect to the
Fourth Amendment . . . .” Soca v. State, 673 So. 2d 24, 27 (Fla. 1996)
(citation omitted). “However, when the United States Supreme Court has
not previously addressed a particular search and seizure issue which
comes before us for review, we will look to our own precedent for
guidance.” Id. (citations omitted).

   Because the United States Supreme Court has not yet addressed the
reasonableness of a suspicionless probationary search absent an express
warrantless search probation condition, Florida law controls.

   Conditions of probation and community control are governed by
chapter 948, Florida Statutes, under which a defendant placed on
probation is subject to “supervision” and a defendant placed on
community control is subject to “intensive, supervised custody” by a
Department of Corrections probation officer. See § 948.001(2), (5), Fla.
Stat. (2000).     One codified condition of probation requires the
probationer to “[p]ermit such supervisors to visit him or her at his or her
home or elsewhere.” § 948.03(1)(b), Fla. Stat. (2000). There is no
subsection, however, which expressly authorizes probation officers to
conduct warrantless, suspicionless searches.

   Harrell points to the lack of an express warrantless search condition
in section 948.03. He also cites section 948.30(1)(k), Florida Statutes
(2005), which authorizes warrantless searches for certain sex offenders,
to make a statutory construction argument under the rule of expressio
unius est exclusio alterius, the express mention of one thing excludes all
others. Harrell argues that if the Legislature had intended to make
warrantless searches a condition for all probationers, it would have done
so. See Cason v. Fla. Dep’t of Mgmt. Servs., 944 So. 2d 306, 315 (Fla.
2006) (“In the past, we have pointed to language in other statutes to
show that the Legislature ‘knows how to’ accomplish what it has omitted
in the statute in question.”); see also State v. Chubbuck, 141 So. 3d
1163, 1171 (Fla. 2014) (“Had the Legislature intended to require
unavailability of specialized treatment in the DOC as an element of
subsection 921.0026(2)(d), it could have said so.”).

  Under Florida law, however, a warrantless search of a probationer’s
home by his probation officer is reasonable and is not dependent on the

information obtained in violation of this right shall not be admissible in
evidence if such articles or information would be inadmissible under decisions
of the United States Supreme Court construing the 4th Amendment to the
United States Constitution.” Art. I, § 12, Fla. Const.

                                      3
existence of an express search condition in a probation order. Grubbs,
373 So. 2d at 909-10. As the Florida Supreme Court has explained:

      It would be impossible to properly supervise an individual on
      probation if the probation supervisor had no authority to
      enter upon the living quarters of his probationer to observe
      his lifestyle; to require the probationer . . . to permit a
      reasonable search of his person and quarters by the
      supervisor. In our view it would be unreasonable to require
      a probation supervisor to supervise an individual on
      probation in the absence of such authority.

Id. at 908. A probation officer’s authority to search arises from the
Department of Corrections’ statutory duty to supervise defendants placed
on probation and community control pursuant to chapter 948. As
recognized in Grubbs, “The search of a probationer’s person or residence
by a probation supervisor without a warrant is, in our view, a reasonable
search and absolutely necessary for the proper supervision of
probationers.” Id. at 909.

    Several courts have addressed the lack of an express search condition
in the subject statute and concluded that, although the chapter does not
expressly permit a warrantless search by a probation officer, this
condition stems from Grubbs. See Brown v. State, 697 So. 2d 928, 929
(Fla. 2d DCA 1997) (“Based upon the supreme court’s construction of
chapter 948 in Grubbs and its finding that probationer officers must be
able to conduct warrantless searches in order to properly supervise their
probationers, we conclude that the statute provides the necessary notice
. . . .” (footnote omitted)); Soca, 673 So. 2d at 28 (“Florida’s statutes
contain no scheme expressly authorizing or regulating the authority of
probation officers or supervisors to conduct a probationary search . . . .
Rather, a probation officer’s right to search is based on our holding in
Grubbs . . . .”); see also State v. Yule, 905 So. 2d 251, 255 (Fla. 2d DCA
2005) (“[T]he authority of the probation officers to monitor and control
the probationer . . . provided a sufficient basis for them to enter her
residence and conduct a warrantless search.”); Ayoub v. State, 901 So.
2d 311, 313 (Fla. 2d DCA 2005) (recognizing that condition requiring
submission to search by probation officer “need not be orally
pronounced” because warrantless searches are necessary for proper
supervision of probationers (citing Brown, 697 So. 2d at 929)).

   Extending the same general authority to conduct a warrantless search
to a law enforcement officer, however, is not permissible under the
Fourth Amendment, according to Grubbs.          373 So. 2d at 909.

                                    4
Accordingly, this is a critical factor of distinction for the United States
Supreme Court case cited by defendant as controlling, Knights, 534 U.S.
112.

   In Knights, the Supreme Court applied a totality of the circumstances
analysis. Id. at 118. In so doing, it held that a warrantless search
conducted by a law enforcement officer supported by reasonable
suspicion—and authorized by a probation condition requiring the
probationer to consent to searches by any probation officer or any law
enforcement officer at any time—was reasonable within the meaning of
the Fourth Amendment. Id. at 122. See also Griffin v. Wisconsin, 483
U.S. 868, 875-76 (1987) (applying “special needs” analysis and holding
that warrantless search of petitioner’s residence was “reasonable”
because it was conducted pursuant to state regulation requiring
“reasonable grounds,” which regulation is a reasonable response to
“special needs” of state’s probation system).

   The Knights Court included in its analysis the fact that Knights’
reasonable expectation of privacy was significantly diminished by the
condition of his probation, but the condition was not a dispositive factor
since the Court applied a totality of the circumstances approach, id. at
118, and it did not address the reasonableness of a search predicated
only upon the probation condition, Samson v. California, 547 U.S. 843,
850 (2006). The analysis involved weighing the state’s interest in
supervising probationers and protecting the public at large against a
probationer’s privacy interests.         Knights, 534 U.S. 119-21.
Consequently, Knights’ holding cannot be construed as requiring either a
probation condition or reasonable suspicion as a predicate for a
warrantless search by a probation officer.

   Because of the significant factual differences between Knights and the
instant case, Knights is not controlling. The Second District Court of
Appeal has recognized that Grubbs is partially abrogated by Knights, but
the court specified, “If law enforcement officers lack a reasonable
suspicion to search, then Knights is inapplicable. In that instance,
Knights would not conflict with Grubbs.” Bamberg v. State, 953 So. 2d
649, 654 n.4 (Fla. 2d DCA 2007). In the instant matter, the parties do
not dispute that there was no reasonable suspicion to search; therefore,
Grubbs is controlling and Knights is inapplicable.

   A totality of the circumstances analysis is not necessary here, as the
Florida Supreme Court has already determined that a search of a
probationer by a probation officer is reasonable. As we have stated, such
a search was expressly authorized by the court in Grubbs as “reasonable

                                    5
. . . and absolutely necessary for the proper supervision of probationers.”
373 So. 2d at 909. Accordingly, the subject search was reasonable and
the trial court did not err in admitting the evidence.2

   The second issue presented by Harrell on appeal—that the search was
conducted at an unreasonable time and in an unreasonable manner—
was not raised in the proceedings below and, therefore, we review the
issue for fundamental error. See Hall v. State, 92 So. 3d 223, 225 (Fla.
4th DCA 2012) (“Absent fundamental error, an appeal may not be taken
from a trial court’s judgment or order unless properly preserved.”
(quoting Rhodes v. State, 986 So. 2d 501, 513 (Fla. 2008))).

   The reasonableness of the manner of a search is dependent on the
facts and circumstances of the case. Webster v. State, 201 So. 2d 789,
791 (Fla. 4th DCA 1967). A search may become unreasonable if made at
an unreasonable hour or where there has been arbitrary or oppressive
conduct on the part of the parole officer. See United States ex rel.
Randazzo v. Follette, 282 F. Supp. 10, 13 (S.D.N.Y. 1968), aff’d, 418 F.2d
1319 (2d Cir. 1969).

    While there does not appear to be any Florida case directly opining on
times at which a search would be considered unreasonable, Florida
courts have allowed the admission of evidence obtained in non-exigent
searches conducted at more egregious hours than the 5:45 a.m. search
at issue here. State v. Chen, 1 So. 3d 1257, 1259-60 (Fla. 2d DCA 2009)
(reversing order suppressing evidence obtained in 12:30 a.m. search of
apartment); State v. Swank, 399 So. 2d 510, 512 (Fla. 4th DCA 1981)
(reversing order suppressing evidence obtained in 4:00 a.m. search of
hotel room).     Furthermore, section 948.03(1)(b), which permits a
supervisor to visit a probationer at his home, places no time restrictions
on the visits. Such a restriction would be counterproductive for obvious
reasons. Consequently, the trial court did not fundamentally err in
admitting the evidence despite the allegedly unreasonable hour of the
search.

   Furthermore, the probation officers’ accompaniment by law
enforcement officers as well as the officers’ detention of the residents
during the search were precautionary safety measures and did not

2 Ordinarily, the use of evidence obtained in a search by a probation officer
would be limited to the violation of probation proceedings, but Harrell did not
raise this argument before the trial court or now in his appeal before us. See
Grubbs, 373 So. 2d at 907 (noting that such a search “is valid to the extent that
the evidence discovered is used only in probation violation proceedings”).

                                       6
violate constitutional prohibitions on unreasonable searches. See Yule,
905 So. 2d at 255 (explaining that the interest in probation officer safety
outweighed any additional intrusion into probationer’s privacy and was
adequate justification for the detention of probationer’s roommate).

   Affirmed.

STEVENSON and TAYLOR, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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