       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            DAVID BARTON,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D16-0280

                            [January 24, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Andrew L. Siegel, Judge; L.T. Case No. 13016364CF10A.

  Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

    Appellant David Barton was found guilty of attempted murder in the
second degree, and attempted manslaughter by act with a firearm. On
appeal, Appellant argues that the trial court improperly admitted a
photograph, and that his defense counsel was ineffective. We affirm the
trial court on all issues. We find no error with the admission of the
photograph, as it was relevant and sufficiently connected to the crimes.
See Holloway v. State, 114 So. 3d 296, 297 (Fla. 4th DCA 2013).
Additionally, as discussed below, there is insufficient evidence on the face
of the record to show that Appellant’s trial counsel was ineffective for
failing to file a motion to suppress evidence retrieved from a warrantless
search of Appellant’s cell phone.

                                 Background

    The State presented witness testimony that two weeks prior to the
shooting at issue, Appellant and another student got into a fight, resulting
in a one week suspension. Later that week in the early morning, a gunman
fired four or five times towards a school bus stop near an elementary
school, where there were fifteen to twenty-five students at the time. The
student that fought with Appellant earlier that week was one of those
students. Another student was seriously injured by a projectile lodged in
her neck as a result of the shooting.

   While investigating, police found projectiles consistent with a .22
caliber gun; however, police were unable to recover the weapon. Police
also found a cell phone and its back cover near the scene of the crime.
Specifically, the cell phone was found lying on the grass inside an
apartment complex, just a few feet away from a fence separating the
apartments from the street. In turn, that fence was located about fifteen
feet away from the bus stop. A student testified that at the time of the
event, he saw muzzle flash along the fence line. Moreover, police
discovered three bullet holes in the fence rails, indicating that the shots
came from the apartment complex.

    After discovering the cell phone, police immediately took it to their
Covert Electronic Surveillance Unit to extract data. While doing so, police
were questioning witnesses to find the identity of the shooter. Within a
few hours of finding the phone, police obtained the phone’s number, as
well as some contacts and text messages stored on the phone. Police
initially matched the phone to Appellant since some of the text
conversations mentioned his name. Police could also match the phone to
Appellant because a student had provided them with Appellant’s phone
number during an interview. Several weeks later, police obtained a search
warrant to get more detailed information from the phone, such as call logs,
GPS locations, and subscriber information, definitively showing that the
phone belonged to Appellant.

   At trial, the State admitted the phone data without objection. The jury
rendered a verdict finding Appellant guilty of attempted murder in the
second degree, and attempted manslaughter by act with a firearm. This
appeal followed.
                                    Analysis

   Generally, a claim of ineffective assistance of counsel is not cognizable
on direct appeal since the issue is so fact-specific. Michel v. State, 989 So.
2d 679, 681 (Fla. 4th DCA 2008) (citing Gore v. State, 784 So. 2d 418, 437-
38 (Fla. 2001)). However, as this Court noted, “such a claim can be raised
where the face of the record demonstrates ineffective assistance of
counsel.” Id. (citing Bruno v. State, 807 So. 2d 55, 63 n.14 (Fla. 2001)).

   To prove ineffective assistance of counsel, the defendant must show
that counsel’s actions fell below an objective standard of reasonableness,

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and that the defendant would have received a different result in the
proceeding, but for such representation. See Strickland v. Washington,
466 U.S. 668, 687 (1984); Phillips v. State, 225 So. 3d 269, 271 (Fla. 4th
DCA 2017). Appellant has failed to demonstrate deficient performance or
prejudice on the face of the record.

   As a preliminary matter, it is unclear whether Appellant’s phone was
password-protected when police found it near the scene of the crime, and
thus unclear whether a warrant was required under State v. K.C., 207 So.
3d 951, 958 (Fla. 4th DCA 2016), which held that if a defendant abandons
a password-protected cell phone, police must generally first obtain a
search warrant to access its contents.

   Regardless of K.C., the exigent circumstances exception to the warrant
requirement applies to the facts of this case. See Riggs v. State, 918 So.
2d 274, 278 (Fla. 2005) (“[A] well-established exception exists for ‘the sort
of emergency or dangerous situation, described in our cases as ‘exigent
circumstances,’ that would justify a warrantless entry into a home [or
other object] for the purpose of either arrest or search.’” (quoting Payton v.
New York, 445 U.S. 573, 583 (1980))); see also Hanifan v. State, 177 So.
3d 277, 279-80 (Fla. 2d DCA 2015) (applying the exigent circumstances
exception to allow police to search a cell phone without a warrant). In
Riley v. California, the U.S. Supreme Court acknowledged “[o]ne well-
recognized exception” to the search warrant requirement—an “exigencies
of the situation” exception that could include “pursu[ing] a fleeing
suspect.” 134 S. Ct. 2473, 2494 (2014) (quoting Kentucky v. King, 563
U.S. 452, 460 (2011)).

   To determine whether an exigent circumstance exists, we look to the
totality of the circumstances and consider various factors, including:

      (1) the gravity or violent nature of the offense with which the
      suspect is to be charged; (2) a reasonable belief that the
      suspect is armed; (3) probable cause to believe that the
      suspect committed the crime; (4) strong reason to believe that
      the suspect is in the premises being entered; and (5) a
      likelihood that delay could cause the escape of the suspect or
      the destruction of essential evidence, or jeopardize the safety
      of officers or the public.

United States v. Standridge, 810 F.2d 1034, 1037 (11th Cir. 1987); accord
Herring v. State, 168 So. 3d 240, 243 (Fla. 1st DCA 2015).



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    In this case, any delay in finding the gunman may have had
catastrophic consequences. At the time of the search, police knew the
gunman fired several bullets towards fifteen to twenty-five students at a
bus stop near an elementary school; a student was seriously injured; the
gunman had not been detained; and the gun had not been located. These
circumstances dictated a prompt response on the part of the authorities
to discover the gunman’s identity. See United States v. Caraballo, 831 F.3d
95, 104 (2d Cir. 2016) (holding that officers’ warrantless pinging of the
defendant’s cell phone was justified under the exigent circumstances
exception in part because the defendant, who had just brutally killed a
victim execution style, was still likely armed and on the loose).

                                 Conclusion

   There is no evidence on the face of the record that Appellant’s counsel
was ineffective for failing to file a motion to suppress evidence discovered
per the warrantless search of the abandoned cell phone, as such a motion
would likely have been fruitless due to the exigencies of the situation
justifying this warrantless search. Appellant’s conviction and sentence are
therefore affirmed.

   Affirmed.

TAYLOR and KLINGENSMITH, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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