       Third District Court of Appeal
                               State of Florida

                        Opinion filed December 28, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-928
                  Lower Tribunal Nos. 13-27417 & 09-28917
                            ________________


          Hansis Antonio Collado A/K/A Luis Jorge Molina,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Stephen T.
Millan, Judge.

      Bradford Cohen Law, and Bradford M. Cohen (Fort Lauderdale), for
appellant.

     Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney
General, for appellee.


Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.

      ROTHENBERG, J.
        The defendant, Hansis Antonio Collado a/k/a/ Luis Jorge Molina (“the

defendant”), appeals the trial court’s order denying his motion to suppress both the

physical evidence obtained on the scene and the defendant’s post-Miranda1

statements made to law enforcement. Because the warrantless entry into the

defendant’s house was supported by exigent circumstances, the defendant

thereafter consented to a search of his house, and his statements were given after

he freely and voluntarily waived his Miranda rights, we affirm.

                                      FACTS

        Law enforcement was dispatched to the defendant’s residence to investigate

an alleged kidnapping based on a 911 call wherein the caller told the 911 operator

that a woman was “being held hostage” in the defendant’s house. When Officer

Jean-Francois responded to the defendant’s house, he heard the 911 caller telling

another officer that the defendant grabbed her friend by the neck as she was exiting

the defendant’s house, and thereafter, the defendant dragged her back into the

house against her will. During the incident, the 911 caller could hear her friend

screaming for her, and she had called 911 because she was afraid for her friend’s

safety.

        Because the defendant had two large pit bull dogs preventing access to the

front door, the police called the defendant from a neighbor’s house. After placing


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

                                         2
approximately twenty unanswered phone calls, ten minutes had elapsed, and the

officers continued to fear for the victim’s safety, they entered the property from the

rear and knocked on the back door of the defendant’s house. Officer Jean-Francois

testified that approximately two minutes after they knocked on the backdoor, the

defendant, clad only in boxer shorts, opened the door and stepped outside with his

hands up. At that point, Officer Jean-Francois heard a female screaming for help

from inside the house.

      The defendant was detained. Officer Jean-Francois and Detective Vielman

then entered the house and headed in the direction where the screams were coming

from. As they made their way to the victim, Officer Jean-Francois observed

narcotics and ammunition in plain view.

      The officers found the victim lying naked in a fetal position on the bathroom

floor crying and saying, “Please help me, please help me.” A female officer was

called into the house to assist the victim, and a protective sweep of the house was

conducted.     While the sexual battery detectives were conducting their

investigation, and after the victim was transported to the hospital, the defendant

was presented with and signed a consent to search form. The consent to search

form specifically advised the defendant that he had the right to refuse to consent to

a search and the right to demand that a search warrant be obtained prior to any

search. Specifically, the consent to search form advised the defendant as follows:



                                          3
      Before any search is made, you must understand your rights
           (1) You may refuse to consent to a search and may demand that
               a search warrant be obtained prior to any search of the
               premises or vehicle described below.

             (2) If you consent to a search, anything of evidentiary value
                 seized in the course of the search can be introduced into
                 evidence in court.

      I HAVE READ THE ABOVE STATEMENT OF MY RIGHTS AND
      I AM FULLY AWARE OF THE SAID RIGHTS

      I HEREBY CONSENT TO A SEARCH WITHOUT WARRANT BY
      OFFICERS OF THE MIAMI-DADE POLICE DEPARTMENT OF
      THE FOLLOWING:
               301 Bahman Ave.
               Opa Locka, Fl. 33054

      I HEREBY AUTHORIZE THE SAID OFFICERS TO SEIZE ANY
      ARTICLE WHICH THEY MAY DEEM TO BE OF EVIDENTIARY
      VALUE

      THIS STATEMENT IS SIGNED OF MY OWN FREE WILL
      WITHOUT ANY THREATS OR PROMISES HAVING BEEN
      MADE TO ME.

(emphasis in the original).

      Thereafter, a search was conducted and certain physical evidence, including

a condom wrapper, the victim’s clothing, and the narcotics and ammunition

observed by Officer Jean-Francois when he entered the house, was collected, and

the defendant was transported to the police station. Prior to any questioning of the

defendant at the police station, the defendant was advised of and waived his

Miranda rights, after which he provided a statement to the police.



                                         4
      The trial court found that, based on the totality of the circumstances, the

officers’ entry onto the defendant’s property and into the defendant’s residence

was due to the emergency situation that existed. In Seibert v. State, the Florida

Supreme Court held that the “[p]olice may enter a residence without a warrant if an

objectively reasonable basis exists for the officer to believe that there is an

immediate need for police assistance for the protection of life or substantial

property interests.” Siebert, 923 So. 2d 460, 468 (Fla. 2006) (citing Rolling v.

State, 695 So. 2d 278, 293-94 (Fla. 1997)).       Whether an emergency actually

existed is immaterial “so long as the officer reasonably believes it to exist because

of objectively reasonable facts. The officer’s conclusion then may be based on a

combination of the ‘objective’ nature of the circumstances and the officer’s

‘subjective’ perception of those circumstances.” State v. Boyd, 615 So. 2d 786,

789 (Fla. 2d DCA 1993); see also Missouri v. McNeely, 133 S. Ct. 1552, 1559

(2013) (holding that the court must consider the totality of the circumstance when

determining “whether a law enforcement officer faced an emergency that justified

acting without a warrant”).

      The record supports that law enforcement reasonably believed that exigent

circumstances existed. A 911 call was received describing an emergency situation

at the defendant’s house—a woman “being held hostage.” When the police arrived

at the defendant’s house and spoke to the 911 caller, she told the police that she



                                         5
saw the defendant drag her friend into the house by her neck and heard her friend

calling for help. When the defendant did not answer his phone after approximately

twenty calls, the officers continued to fear for the victim’s life. The officers then

decided to by-pass the pit bulls at the front of the property, and knocked on the

back door of the residence. The officers entered the house only after the defendant

opened the door and they heard the victim screaming for help. These facts were

more than sufficient to establish exigent circumstances warranting entry into the

defendant’s house. The officers had been dispatched in reference to a kidnapping,

and the 911 call that precipitated the dispatch was corroborated by the officers

when they arrived at the defendant’s house. The 911 caller was at the scene, and

she told the police that she had observed the defendant drag the victim into the

house by the neck and heard the victim calling for help. Officer Jean-Francois was

able to confirm that there was a woman in the house when he personally heard her

screams. Under these circumstances, the officers’ belief that immediate action was

necessary to protect life and to prevent serious bodily injury was reasonable. See

Arango v. State, 411 So. 2d 172, 174 (Fla. 1982) (holding that where safety is

threatened and time is of the essence, the courts have recognized that “the need to

protect life and to prevent serious bodily injury provides justification for an

otherwise invalid entry”).




                                         6
      The subsequent search of the defendant’s house, the defendant’s arrest, and

the statement provided by the defendant were equally lawful. The search was

conducted after the defendant freely and voluntarily executed a consent to search

form. “[T]he presence of a written consent tends to support the conclusion that the

consent was given voluntarily . . . .” Luna-Martinez v. State, 984 So. 2d 592, 600

(Fla. 2d DCA 2008). That is especially so where, as here, the consent to search

form clearly and unequivocally advised the defendant that he had the right to

refuse to consent to a search without a warrant and that anything seized during the

search could be introduced in court as evidence.

      Besides the consent to search form, the trial court considered several other

factors in determining whether the defendant’s consent was freely and voluntarily

given. Specifically, the trial court’s order reflects that it considered that (1) the

defendant was thirty-five years old on the date of his arrest, (2) the defendant had a

prior criminal history, (3) the defendant was on probation at the time the consent

was given, and (4) the detective who obtained the consent testified that no threats

or promises were made to the defendant and that the defendant had voluntarily

signed the form consenting to the search of his house. Because the voluntariness

of the consent is a question of fact to be determined by the trial court from the

totality of the circumstances, see McDonnell v. State, 981 So. 2d 585, 588 (Fla. 1st

DCA 2008), declined to follow on other grounds by Rodriguez v. State, 187 So. 3d



                                          7
841 (Fla. 2015), and the record supports the trial court’s findings, we find no error

with the trial court’s order concluding that the consent was freely given and

voluntarily made. See United States v. Perry, 703 F.3d 906, 909 (6th Cir. 2013)

(finding that the defendant’s consent was voluntary despite the fact that she was

handcuffed and drunk, and the police were armed and never told her that she could

decline to consent); United States v. Arciniega, 569 F.3d 394, 399 (8th Cir. 2009)

(finding that consent to search a business and residence was voluntarily given

where the defendant was handcuffed after cocaine was found in his vehicle).

      The detention and subsequent arrest based on probable cause were also

lawful. The initial detention of the defendant was based on at least a reasonable

suspicion that a crime had been or was being committed based on the 911 caller’s

statements and the officers’ own observations. The defendant’s subsequent arrest

was supported by probable cause. The victim was found lying naked in a fetal

position on the defendant’s bathroom floor crying for help. She told the officers

that she had gotten high with the defendant and, although she had originally agreed

to have sex with him, the defendant inserted something in her rectum against her

will. Officer Jean-Francois had also seen drugs and ammunition in plain view

when he entered the residence, which he later seized after the defendant consented

to the search of his house. Probable cause therefore existed to arrest the defendant




                                         8
for sexual battery, possession of marijuana, and possession of ammunition by a

convicted felon.2

      Lastly, the trial court’s finding that the statements, which were given by the

defendant after he was advised of his Miranda rights and executed a Miranda rights

waiver form, were freely and voluntarily given is supported by the record. The test

of voluntariness of a confession is whether, after a review and consideration of the

totality of the circumstances, the confession was freely given or whether it was the

product of coercive police conduct. Colorado v. Connelly, 479 U.S. 515, 522

(1986).

      The record reflects that the defendant made an exculpatory statement on the

scene prior to having been advised of his rights. The State properly stipulated to

suppression of that unwarned statement. The trial court however found, and the

record supports the trial court’s finding, that this unwarned statement was

voluntary, and that due to the significant lapse in time between the unwarned but

voluntary statement given by the defendant on the scene and his later Mirandized

statement at the police station, suppression of the later Mirandized statement was

not required.

      The United States Supreme Court in Wong Sun v. United States, 371 U.S.

471, 487-88 (1963), held that evidence must not be suppressed simply because it

2The defendant was a convicted felon and on probation at the time these offenses
were committed.

                                         9
would not have come to light but for the illegal activity of the police. The inquiry,

instead, should be focused on whether the evidence the defendant seeks to suppress

was obtained by the exploitation of the earlier illegality, and whether the

circumstances reflect a sufficient purging of the primary taint. As stated in Wong

Sun:

       We need not hold that all evidence is “fruit of the poisonous tree”
       simply because it would not have come to light but for the illegal
       actions of the police. Rather, the more apt question in such a case is
       “whether, granting establishment of the primary illegality, the
       evidence to which instant objection is made has been come at by
       exploitation of that illegality or instead by means sufficiently
       distinguishable to be purged of the primary taint.”

(citing Maguire, Evidence of Guilt, 221 (1959)).

       In State v. Frierson, 926 So. 2d 1139, 1143 (Fla. 2006), the Florida Supreme

Court concluded that under such circumstances, the court must consider: (1) the

time that has elapsed between the illegality and the acquisition of the evidence; (2)

the presence of intervening circumstances; and (3) the purpose and flagrancy of the

official misconduct. The record in the instant case reflects that the defendant’s

unwarned statement was made prior to 10:48 a.m. and that his post-Miranda

statement to Detective Utset at the police station was made later that evening after

8:57 p.m., thereby evidencing a ten-hour time lapse. There were also several

intervening circumstances. The defendant had voluntarily consented to the search

of his residence, which resulted in the seizure of incriminating evidence—evidence



                                         10
that not only incriminated the defendant with respect to the sexual battery of the

victim, but also with respect to additional crimes. The defendant had also been

transported to the police station and placed in an interview room where he was

given time to think and consider his situation. Lastly, before anyone questioned

the defendant at the police station, he was properly advised of his Miranda rights.

      More importantly, there is no evidence of flagrant police misconduct

associated with the earlier questioning or that the earlier statement in any way

influenced the defendant to waive his rights and agree to speak to the detective at

the police station. The record reflects that when the police spoke to the defendant

at the scene, the defendant made no incriminating statements. He merely stated

that he had picked up the victim and her friend the prior evening, brought them

back to his place, but did not remember anything else. No follow-up questions

were asked, and the defendant was not asked about and did not offer any

statements about the narcotics and ammunition seized from his residence.

      Based on the totality of the circumstances, we agree with the trial court that

suppression of the voluntary post-Miranda statement was not mandated as “fruit of

the poisonous tree.” See Lundberg v. State, 918 So. 2d 444, 445 (Fla. 4th DCA

2006) (finding that although suppression of Lundberg’s statements made during his

interrogation by the police were properly suppressed due to coercion by the police,

his subsequent statements made to his girlfriend, which were surreptitiously



                                         11
recorded, were properly not suppressed because the statements to his girlfriend

were sufficiently attenuated from the initial illegality).

                                   CONCLUSION

      We affirm the trial court’s order denying the defendant’s motion to suppress

the physical evidence and the defendant’s post-Miranda statements. The entry into

the defendant’s residence was based on law enforcement’s reasonable belief of the

existence of exigent circumstances necessitating their warrantless entry.       The

evidence seized was based on the defendant’s voluntary execution of a consent to

search form, which properly advised the defendant of his right to refuse such

consent. The detention of the defendant was based on reasonable suspicion, which

ripened into probable cause after the police entered the defendant’s house and after

the defendant consented to the search of his residence. Lastly, suppressing the

defendant’s post-Miranda statement was not required where the trial court found,

and the record supports the finding, that the post-Miranda statement was

sufficiently attenuated from the exculpatory prior statement given by the defendant

ten hours earlier at the scene.

      Affirmed.




                                           12
