       Third District Court of Appeal
                               State of Florida

                        Opinion filed September 10, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D13-1796
                          Lower Tribunal No. 12-3833
                             ________________


                            The State of Florida,
                                    Appellant,

                                        vs.

                            Alberto Hernandez,
                                    Appellee.



     An Appeal from the Circuit Court for Miami-Dade County, Ellen Sue
Venzer, Judge.

      Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant
Attorney General, for appellant.

       Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Special
Assistant Public Defender, and Hermis D. Sanchez and Magali J. Sanders,
Certified Legal Interns, for appellee.


Before ROTHENBERG, SALTER, and LOGUE, JJ.

     ROTHENBERG, J.
      The defendant, Alberto Hernandez, was charged with trafficking in cannabis

and possession of a place for the purpose of trafficking based on the seizure of a

large quantity of marijuana the defendant was cultivating inside his home. After

conducting an evidentiary hearing, and unfortunately in reliance on an incorrect

representation of the law by defense counsel, the trial court suppressed the

defendant’s statements and the physical evidence. We reverse.

      The evidence is as follows. Five officers from the Miami-Dade Police

Narcotics Bureau responded to the defendant’s residence in two unmarked police

vehicles at 4:25 p.m. to investigate an anonymous tip that marijuana was being

cultivated inside the residence. The officers were dressed in plain clothes and

black tactical police vests. When they arrived, the defendant and Orlando Garcia

(“Garcia”) were smoking cigarettes in the front yard of the residence while leaning

against a chain-link fence that separated the defendant’s yard from public property.

      Only Detectives David Quintas and Luis Correa (collectively “the

detectives”) approached the defendant, and no weapons were drawn at any point

during the encounter. As soon as the detectives approached the defendant, they

identified themselves and produced their police identifications.          After the

detectives identified themselves, the defendant told the detectives that he was the

owner of the property, opened the gate to invite the detectives onto his property,

and asked the detectives, “What’s going on?” However, because the detectives



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saw two or three dogs roaming unsecured in the yard (and one of the dogs was a

large dog), they did not want to enter the yard. Detective Correa explained to the

defendant that they did not want to enter the property because of the dogs, and

Detective Correa asked the defendant if the defendant would step out onto the

sidewalk instead to speak with the detectives.

      When the defendant exited his property, the detectives asked him for

identification to verify who they were speaking to and to place the defendant’s

name in their report. After the defendant produced his identification, the detectives

told the defendant that they had received a tip that marijuana was being grown at

that location and handed the defendant a consent to search form. The defendant

read the form out loud. The consent to search form specifically informed the

defendant that he had the right to refuse to give the detectives consent to search

and that he could demand that a search warrant be obtained before a search was

conducted. Despite being informed of these rights, the defendant signed the form

consenting to the search, walked Detectives Correa and Quintas to the back of the

house, allowed them to enter the house, and escorted them to a marijuana lab

within the house. The detectives advised the defendant of his rights per a written

rights waiver form, and after the defendant read and signed the form, the defendant

provided a written confession.




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      The State and the defense agree that the officers had no probable cause or

reasonable suspicion when they responded to the defendant’s home and that their

investigation began as a police encounter similar to a “knock and talk.” The issues

in this appeal are whether the encounter evolved into a seizure implicating the

Fourth Amendment and whether the defendant’s consent was voluntary, or rather,

as a result of coercion.

      A search based on consent is lawful if the consent was given freely and

voluntarily.    Jorgenson v. State, 714 So. 2d 423, 426 (Fla. 1998).             The

determination of whether a seizure has occurred and whether the consent was

given freely and voluntarily must be based on the totality of the circumstances.

State v. Baez, 894 So. 2d 115, 117 (Fla. 2004) (“[T]he totality of the circumstances

controls in cases involving the Fourth Amendment.”); Reynolds v. State, 592 So.

2d 1082, 1086        (Fla. 1992); Luna-Martinez v. State, 984 So. 2d 592, 597 (Fla.

2d DCA 2008).       The factors to consider when analyzing the totality of the

circumstances include: (1) the time and place of the encounter; (2) the number of

officers present; (3) the officers’ words and actions; (4) the age and maturity of the

defendant; (5) the defendant’s prior contacts with the police; (6) whether the

defendant executed a written consent form; (7) whether the defendant was

informed that he could refuse to give consent; and (8) the length of time the




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defendant was interrogated before consent was given.            See generally Luna-

Martinez, 984 So. 2d at 597-602 (discussing each of these factors).

       Rather than addressing these factors and challenging the consensual nature

of the encounter based on the totality of the circumstances, defense counsel argued

that the defendant’s consent was involuntary as a matter of law because Detective

Correa obtained the defendant’s identification and still had the defendant’s

identification in his possession when he sought the defendant’s consent. In support

of this argument, defense counsel told the trial court that the law was clear on this

issue and that suppression was required based on Perko v. State, 874 So. 2d 666

(Fla. 4th DCA 2006), Brye v. State, 927 So. 2d 78 (Fla. 1st DCA 2006), and State

v. Campbell, 911 So. 2d 192 (Fla. 4th DCA 2005), which defense counsel provided

to the trial court. The trial court ultimately relied on these cases in suppressing the

evidence.

       Unfortunately, neither the defense nor the State informed or provided the

trial court with Golphin v. State, 945 So. 2d 1174 (Fla. 2006), wherein the Florida

Supreme Court disagreed with the Fourth District Court of Appeal’s analysis in

Perko and Baez v. State, 814 So. 2d 1149 (Fla. 4th DCA 2002), which was

substantially the same analysis as the Fourth District Court of Appeal’s analysis in

Campbell and the First District Court of Appeal’s analysis in Brye. Defense

counsel, therefore, led the trial court to error.



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      Had the trial court been provided with Golphin, it would have learned that

the Fifth District Court of Appeal in Golphin v. State, 838 So. 2d 705 (Fla. 5th

DCA 2003), had certified conflict with Baez v. State, 814 So. 2d 1149 (Fla. 4th

DCA 2002) (“Baez I”), regarding this very issue. In Baez I, the Fourth District

Court of Appeal created a bright line rule that police officers necessarily effect a

seizure when they hold a suspect’s identification during questioning after an initial

check of the identification. Id. at 1151-52. Conversely, in Golphin, the Fifth

District Court of Appeal found a similar scenario subject to the usual totality of the

circumstances analysis. Golphin, 838 So. 2d at 707-08. In resolving the conflict,

the Florida Supreme Court in Golphin noted that another panel at the Fourth

District Court of Appeal had performed the same analysis and reached the same

conclusion as the Baez I court in Perko, finding that Perko was effectively seized

when the police retained his identification and obtained Perko’s consent to search,

which yielded drug evidence; whereas the Second District Court of Appeal had

reached the opposite conclusion in Mays v. State, 887 So. 2d 402 (Fla. 2d DCA

2004), Watts v. State, 788 So. 2d 1040 (Fla. 2d DCA 2001) (en banc), State v.

Mitchell, 638 So. 2d 1015 (Fla. 2d DCA 1994), and McLane v. Rose, 537 So. 2d

652 (Fla. 2d DCA 1989). Golphin, 945 So. 2d at 1178.

      The Fourth District’s decision in Campbell simply followed Perko, and the

First District aligned itself with the Fourth District in Brye. Thus, the conflict the



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Florida Supreme Court was in effect resolving was the Fourth and First District’s

positions in Baez, Perko, Campbell, and Brye (concluding that the defendant in

each case was seized when the police retained his identification and thus the

consent given was not voluntary), and the Second and Fifth District’s contrary

conclusions in Golphin, Mays, Watts, Mitchell, and McLane (applying a totality of

the circumstances analysis).

      Ultimately, the Florida Supreme Court approved the Fifth District’s

reasoning in Golphin and concluded that whether a person has been seized for

purposes of the Fourth Amendment is based on the totality of the circumstances—

not a bright line rule. Golphin, 945 So. 2d at 1174. Importantly, the Florida

Supreme Court also found that a noncompulsory request for identification will

generally not in itself implicate the Fourth Amendment. Id. at 1185. However,

further investigation or a search after an officer has taken a suspect’s license is a

factor to be considered when determining whether a seizure has occurred. Id. at

1185. By way of example, the Florida Supreme Court compared the circumstances

in Florida v. Royer, 460 U.S. 491 (1983), to those in United State v. Mendenhall,

446 U.S. 544 (1980).

      In both Royer and Mendenhall, narcotics agents approached people who

were traveling through major airports and who fit the drug courier profile. In both

cases, the agents requested that the traveler produce his travel documents and



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identification. After producing the travel documents and identification, the traveler

consented to a search, and the search revealed that the traveler was carrying illicit

drugs. Golphin, 945 So. 2d at 1185. The United States Supreme Court concluded

that although Royer was seized for Fourth Amendment purposes, Mendenhall was

not.   Id.   Importantly, the United States Supreme Court found that what

distinguished Mendenhall from Royer was that Royer’s ticket and identification

remained in the possession of the officers throughout the encounter, the officers

had possession of Royer’s luggage, and as a practical matter, Royer could not

leave the airport without them.     In contrast, in Mendenhall, no luggage was

involved; Mendenhall’s ticket and identification were immediately returned; and

the officers were careful to advise Mendenhall that he could decline to be searched.

Golphin, 945 So. 2d at 1185.

       The Florida Supreme Court additionally noted that some courts have also

considered whether the retention of the individual’s papers would likely have

impeded his freedom to go about his business as a factor in the totality of the

circumstances analysis.     Id. at 1187.       Thus, these courts have taken into

consideration the status of the individual (for example: whether he was the driver

or passenger of a vehicle or a pedestrian), the type of identification involved, and

the individual’s immediate business. Id. at 1186-87. For example, the Florida

Supreme Court noted that in United States v. Analla, 975 F. 2d 119 (4th Cir. 1992),



                                           8
the police received a call that a man using a pay phone matched the description of

a man wanted in connection to a robbery. Golphin, 945 So. 2d at 1187. Two

officers responded to the pay phone, approached the man, asked to speak with him,

requested the man’s driver’s license and registration, and requested an outstanding

warrants check via walkie-talkie while another officer asked the man for

permission to search his car. The man, Analla, consented, and the officers found

the murder weapon in his car. The Fourth Circuit Court of Appeals found that

Analla was not seized because the officer necessarily had to retain Analla’s

identification and registration for a short time to perform a warrants check; the

officer did not take the license into his squad car, but instead stood beside the car

near Analla and used his walkie-talkie to run the warrants check; and Analla was

free to request that his documents be returned to him and to leave the scene. Id.

      In examining the facts in Golphin, the Florida Supreme Court noted that the

officers approached the group of men in a casual manner without the use of sirens,

lights, or weapons and without blocking the egress of the area. Golphin interacted

primarily with a single officer; and the officer engaged Golphin in a casual

manner, requested Golphin’s identification, which Golphin voluntarily provided,

and conducted the warrants check in Golphin’s presence. Additionally, Golphin

was not summoned to be questioned in the presence of multiple officers, isolated in

any way, or treated in a way that would suggest that he was not free to go.



                                         9
Golphin, 945 So. 2d at 1188. He also “was not the driver of a vehicle such that

abandoning his driver’s license identification to the officer’s possession would

subject him to penalty for violating Florida’s traffic laws.” Id. Thus, the Florida

Supreme Court found that “theoretically, retention of Golphin’s identification

would not have constrained his ability to either request the return of the

identification or simply end the encounter by walking into the apartment in which

he was staying.” Id. Based on the totality of the circumstances, the Florida

Supreme Court found that Golphin’s encounter with the police was consensual and

that the “consensual encounter did not mature into a seizure simply because the

police retained Golphin’s identification.” Id. at 1193.

                                 The Instant Case

      An examination of all the factors relevant to a totality of the circumstances

analysis in this case shows that, much like the stop in Golphin, Hernandez’s

encounter with the police was consensual.

A. Time

      The encounter occurred at 4:25 in the afternoon.

B. Location of the encounter

      The detectives were standing on a public sidewalk when they initiated their

“knock and talk.” The detectives did not enter the defendant’s property without his

consent. In fact, after the detectives identified themselves, the defendant, absent a



                                         10
request from the detectives, opened the gate to invite the officers onto his property.

However, because of the dogs, the detectives declined the defendant’s invitation

and asked the defendant if he would come out onto the sidewalk instead. All of

these actions were voluntary.

C. The defendant’s age and maturity

      The defendant was fifty-four years old.

D. Number of officers

      Although five officers were present, only two approached the defendant, and

Detective Correa individually conducted the “knock and talk” with Detective

Quintas serving as a witness.        Thus, the defendant’s interaction with law

enforcement was essentially with one officer. All of the officers were dressed in

plain clothes but wearing tactical vests. No guns were drawn, and the officers

arrived in two unmarked vehicles.

E. The words and actions of the police

      The officers approached in a casual manner, identified themselves, produced

their identification for the defendant’s review, and explained why they were there.

They asked to see the defendant’s identification to confirm the defendant’s

identity. Although Detective Correa still had the defendant’s identification in his

possession when he presented the defendant with a consent to search form, the

entire encounter at that point was very brief—“only minutes”—no interrogation



                                         11
had been conducted, and the officers remained on public property and did not enter

onto the defendant’s property even after the defendant invited them to enter.

F. Consent form

        The defendant was presented with a written consent to search form, which

the defendant read out loud. This form specifically advised the defendant that he

had the right to refuse to give consent and to require the officers to obtain a

warrant before conducting a search. And, based on the trial courts factual findings,

the defendant signed the consent to search form without the officers making any

threats. G. The defendant’s ability to terminate the encounter

        The defendant was at his own home, not in a car, at an airport, or any other

public place. He was outside his own gated property, and the police had already

declined the defendant’s invitation to enter the property. The defendant could have

simply requested the return of his identification, refused to answer any further

questions, and gone back onto his own property inside the gate or into his home.

Instead, the defendant signed a consent to search form, locked up his dogs so the

police could enter, and escorted the officers to the room where he was cultivating

his marijuana. The defendant then executed a Miranda1 rights waiver form in

which he agreed that he was speaking freely and voluntarily with the police

without counsel.


1   Miranda v. Arizona, 384 U.S. 436 (1966).

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                                   Conclusion

      Under the totality of the circumstances, and based on the Florida Supreme

Court’s reasoning in Golphin, the defendant’s encounter with the police was

consensual, and the consensual encounter did not evolve into a seizure simply

because the officers had not yet written down the defendant’s information and still

had his identification in their possession when they presented the defendant with a

consent to search form.     The trial court, which was not properly informed

regarding the law and did not have the benefit of Golphin, which essentially

disagreed with the case law provided by defense counsel, was unfortunately led

into error. Accordingly, we reverse the order suppressing the evidence and the

defendant’s statements and remand for further proceedings.

      Reversed and remanded.




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