          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D17-263
                 _____________________________

MICHAEL CLAYTON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________

On appeal from the Circuit Court for Union County.
David P. Kreider, Judge.

                          August 1, 2018

WINOKUR, J.

     Appellant, Michael Clayton, appeals his convictions and
sentences for manufacturing cannabis, a third-degree felony, and
possession of drug paraphernalia, a first-degree misdemeanor.
§§ 893.13(1)(a)2., 893.147(1), Fla. Stat. Clayton argues that the
trial court erred in denying his suppression motion. Because we
find that the trial court erred in its application of the inevitable
discovery doctrine and because Clayton reserved this matter as
dispositive in his plea agreement, we reverse and vacate
Clayton’s judgment and sentences.

                                 I.

    During the fall of 2015, Union County Sheriff’s Office Deputy
John Whitehead received information from an anonymous source
that Clayton was growing marijuana inside his residence. Deputy
Whitehead then received information from the Clay Electric
Cooperative regarding the power usage in Clayton’s home, which
revealed that the power usage of Clayton’s home was four times
higher than the normal usage of a home of comparable size.
Additionally, Deputy Whitehead had the power usage documents
reviewed by individuals at the Drug Enforcement Agency. Deputy
Whitehead concluded that Clayton was cultivating marijuana
inside his residence.

     Deputy Whitehead then went with others to Clayton’s home
to conduct a “knock and talk” investigation. Deputy Whitehead
and his colleagues contacted Clayton outside in the yard, and
obtained consent from Clayton to search the home. Clayton also
signed a consent to search form. Afterwards, Clayton admitted to
cultivating marijuana in his home and that he was the only
individual residing in the residence. The subsequent search of
Clayton’s residence revealed two rooms set up with lighting and
marijuana plants growing in various containers. Several
electrical tools were also found, which were used to run fans and
lighting and other aspects of indoor marijuana cultivation.

    After the State charged Clayton with manufacturing and
possession, Clayton moved to suppress the evidence found in the
search on the ground that his consent to search was coerced.
During the suppression hearing, Deputy Whitehead testified that
he advised Clayton of the probable cause that he developed that
Clayton was growing marijuana in his home. Regarding Clayton’s
consent to search, Deputy Whitehead testified as follows:

         Initially, I just requested consent to search the
    residence, I told him, you know, based off the facts
    before us, I do believe that if we presented this to a
    judge that there would be enough probable cause for a
    judge to sign it; however, obviously, that would have to
    be taken to the state attorney and in the judge’s hand.
    And told him if he cooperated with us, we’d cooperate
    with him and that I could assure him that on this date,
    this event, that he would not go to jail unless, like I
    usually explain to everybody, unless I get inside and
    find dead bodies or something like that, then, you know,


                               2
    he would be - - charges would be filed and he would later
    be arrested on a warrant.

     Deputy Whitehead also testified that Clayton was not free to
leave during their encounter, and that no attempt was ever made
to secure a search warrant because Clayton consented to the
search. For his part, Clayton testified that law enforcement made
it seem like he was going to be arrested if he did not consent to
the search of his home.

    The trial court denied the motion to suppress. The trial court
concluded that Clayton’s consent was coerced, * but found that the
inevitable discovery doctrine applied because “law enforcement
had the probable cause to procure a search warrant, and were in
the process of an active investigation into the existence of a
cannabis cultivation operation at [Clayton]’s home.” Clayton then
pled to the charges, reserving his right to appeal the denial of the
motion, which the trial court found was dispositive of the
charges. See Fla. R. App. P. 9.140(b)(2)(A)(i).

                                II.

     A trial court’s ruling on a motion to suppress evidence
presents a mixed question of law and fact. Connor v. State, 803
So. 2d 598, 608 (Fla. 2001). The trial court’s factual findings will
be upheld if there is competent substantial evidence to support
them. State v. Young, 974 So. 2d 601, 608 (Fla. 1st DCA 2008).
However, the trial court’s application of the law to those facts is
reviewed de novo. Id.

    The Fourth Amendment of the United States Constitution
proscribes unreasonable searches and seizures. Florida’s State
Constitution also protects the rights of individuals against
unreasonable searches and seizures and construes the right in
conformity with the Fourth Amendment and its interpretation by
the United States Supreme Court. Art. I, § 12, Fla. Const.

    *  Regarding Clayton’s consent, the court wrote: “In effect,
[Clayton]’s choices were either (a) consent to the search of his
home that evening, or (b) the officers would detain [Clayton]
indefinitely while a search warrant for [his] home was secured.”

                                 3
     Accordingly, warrantless searches or seizures are “per se
unreasonable.” Katz v. United States, 389 U.S. 347, 357 (1967).
The warrant requirement ensures that a “‘neutral and detached
magistrate’ [stands] between the citizen and ‘the officer engaged
in the often competitive enterprise of ferreting out crime.’” United
States v. Karo, 468 U.S. 705, 717 (1984) (quoting Johnson v.
United States, 333 U.S. 10, 14 (1948)). Evidence obtained through
an unlawful search or seizure is inadmissible. Tims v. State, 204
So. 3d 536, 538 (Fla. 1st DCA 2016) (citing Herring v. United
States, 555 U.S. 135, 139 (2009)).

      One of the recognized exceptions to the exclusionary rule is
the inevitable discovery doctrine. The doctrine was adopted by
the United States Supreme Court in Nix v. Williams, 467 U.S.
431 (1984), and has long been recognized by Florida courts.
Fitzpatrick v. State, 900 So. 2d 495 (Fla. 2005); Moody v. State,
842 So. 2d 754, 759 (Fla. 2003); Craig v. State, 510 So. 2d 857
(Fla. 1987). Under the inevitable discovery doctrine, “evidence
obtained as the result of unconstitutional police procedure may
still be admissible provided the evidence would ultimately have
been discovered by legal means.” Maulden v. State, 617 So. 2d
298, 301 (Fla. 1993).

     This Court addressed the applicability of the inevitable
discovery doctrine in McDonnell v. State, 981 So. 2d 585 (Fla. 1st
DCA 2008). In McDonnell, police went to the defendant’s home
while investigating a theft. 981 So. 2d at 587. Initially, the
defendant refused to consent to a search of his home. Id. As a
result, one officer left the scene to obtain a warrant. Id. While
waiting for the officer to return, the defendant consented to the
search after another officer asked, which led to the discovery of
incriminating evidence. Id. at 588. While finding that the
defendant’s consent was coerced, the trial court ruled the
evidence admissible because the evidence would have been
discovered inevitably. Id. at 589.

     On appeal, this Court affirmed. Id. at 593. We found that
police were actively in the process of securing a search warrant
when the warrantless search occurred. Id. While we held that
“the inevitable discovery doctrine will not be applied in every case
where the police had probable cause for a search warrant, but

                                 4
failed to get one,” the focus is on “whether the police made an
effort to get a warrant prior to the illegal search and whether
strong probable cause existed for the search warrant.” Id.
(emphasis added).

     In contrast, the police in King v. State, 79 So. 3d 236 (Fla. 1st
DCA 2012), did not attempt to secure a warrant before the
defendant’s home was searched. King involved an investigation
into a domestic disturbance where the defendant’s wife led law
enforcement into the home and directed them to defendant’s
firearm. Id. at 237. The trial court denied suppression of the
firearm because police would have inevitably discovered it. Id.
We reversed, rejecting the application of the inevitable discovery
doctrine and reaffirming that law enforcement must take
affirmative steps to secure a warrant in order for the doctrine to
apply. Id. at 238. See also Rodriguez v. State, 187 So. 3d 841, 848,
849-50 (Fla. 2015) (holding that “the inevitable discovery doctrine
does not apply when the prosecution cannot demonstrate an
active and independent investigation,” that the state must show
“that a search warrant [is] being actively pursued prior to the
occurrence of the illegal conduct” in order to use the inevitable
discovery doctrine, and that the doctrine “cannot function to
apply simply when police could have obtained a search warrant if
they had taken the opportunity to pursue one.”).

                                 III.

     In this context, inevitable discovery supports admission of
illegally obtained evidence only when police actively sought to
obtain a search warrant before searching a home. Based on that
analysis, the trial court erred in denying Clayton’s motion to
suppress. We reject the State’s attempt to distinguish this case
from Rodriguez.

      The State argues that the inevitable discovery doctrine
permits admission here because police were engaged in an “active
investigation” at the time of the illegal police conduct. In fact,
Rodriguez holds that the inevitable discovery doctrine does not
permit admission of illegally-seized evidence just because officers
were conducting an “active investigation” at the time of the
illegality, even when they have already developed probable cause
for a search warrant at the time of the improper conduct. Instead,
                                  5
Rodriguez holds that the inevitable discovery doctrine permits
admission of illegally-seized evidence only when the police
misconduct occurs when “the police were in the process of
obtaining a warrant prior to the misconduct.” Id. at 849. Any
other result would allow the exception to swallow the rule. If the
inevitable discovery doctrine were applied this way, any time
police have probable cause to search a home, they could do so
without seeking a search warrant and the State would be
permitted to introduce evidence seized in such a search by
asserting that the evidence would have been discovered
inevitably. Such a rule would eviscerate the warrant
requirement.

    Here, officers made no attempt to obtain a search warrant
because Clayton consented to the search of his home. The trial
court concluded that the officers “appeared to have ample
opportunity to procure a search warrant prior to executing the
search of [Clayton]’s home.” The fact that officers could have
obtained a search warrant does not permit admission of
improperly seized evidence under the inevitable discovery
doctrine.

     Police who have probable cause to search a home are placed
in a difficult position. They can take the time and attendant risk
to secure a search warrant, or they can ask the homeowner for
consent to search, “with the threat of suppression if they guess
wrong,” Davis v. United States, 512 U.S. 452, 461 (1994), by
asking for consent the wrong way. Either way, the police had
probable cause to search, but will suffer suppression if they
choose consent but secure it improperly. Nonetheless, the result
here is necessary if we are to maintain a system where we prefer
searches pursuant to warrant. See United States v. Ventresca, 380
U.S. 102, 106 (1965) (holding that the United States Supreme
Court “strongly support[s] the preference to be accorded searches
under a warrant”).

                               IV.

    The trial court ruled that Clayton’s consent to search his
home was coerced. Because the inevitable discovery doctrine is
inapplicable, the warrantless search of Clayton’s home violated
his Fourth Amendment right against unreasonable searches.
                                6
Since the State conceded that the suppression motion was
dispositive to this case, we reverse Clayton’s convictions and
vacate his sentences.

    REVERSED and VACATED.

B.L. THOMAS, C.J., concurs with opinion; MAKAR, J., concurs with
opinion.
                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


B.L.THOMAS, C.J., concurring.

     I concur with the opinion of Judge Winokur. I write to note
that intermediate courts are not “juries” which evaluate the
correctness of the decisions of the Florida Supreme Court; there
are only inferior courts, which are bound by law to follow the
majority decisions of the higher court, although such inferior
courts may urge the Florida Supreme Court to reconsider its
decisions. Hoffman v. Jones, 280 So. 2d 431, 434 (Fla. 1973).
The applicable binding precedent in this case is Rodriguez v.
State, 187 So. 3d 841, 848, 849-50 (Fla. 2015). The majority in
Rodriguez approved of Judge Hawkes’ dissenting rationale in
McDonnell v. State, 981 So. 2d 585, 593 (Fla. 1st DCA 2005)
(Hawkes, J., dissenting), regarding the inevitable-discovery
exception to the warrant requirement.            Here, the law
enforcement officers possessed probable cause that would have
supported the issuance of a search warrant of Appellant’s home,
had one been requested, based on the review of the use of the
power consumption in the home which corroborated the
anonymous complaint. But because the officers were not in the
process of obtaining a search warrant, the evidence must be
suppressed under Rodriguez.




                                7
MAKAR, J., concurring with opinion.

     Police officers—who obtained coerced consent from Michael
Clayton to enter his home where they found marijuana growing—
made no attempt to get a search warrant, negating the
application of Florida’s inevitable discovery rule. Rodriguez v.
State, 187 So. 3d 841, 849 (Fla. 2015) (“We conclude that
permitting warrantless searches without the prosecution
demonstrating that the police were in pursuit of a warrant is not
a proper application of the inevitable discovery rule.”). The
Florida rule lies in one tail of a distribution of state and federal
court decisions reflecting wide-ranging jurisprudential camps
including: (a) those that admit illegally obtained evidence where
a search warrant was theoretically obtainable but not pursued;
(b) those that bar such evidence because no search warrant was
sought; and (c) those that focus on the extent to which an ongoing
lawful search would have led to the evidence with or without a
search warrant. 1

    Rodriguez’s bright-line rule—requiring proof that pursuit of
a search warrant was ongoing at the time of the illegal police
conduct—was established by a 4-3 vote, the dissenters advocating
a more nuanced approach, pointing to Nix v. Williams, 467 U.S.
431 (1984). In Nix, the inevitable discovery exception to the
exclusionary rule was adopted, 2 requiring only that the

    1   See generally Martin J. McMahon, What circumstances fall
within “inevitable discovery” exception to rule precluding
admission, in criminal case, of evidence obtained in violation of
federal constitution, 81 A.L.R. Fed. 331 (1987 and Supp. 2018)
(citing cases from state and federal jurisdictions). The Eleventh
Circuit, which includes Florida, falls into this latter category.
Jefferson v. Fountain, 382 F.3d 1286, 1296 (11th Cir. 2004) (“In
order for evidence to qualify for admission under this exception to
the exclusionary rule, there must be a reasonable probability that
the evidence in question would have been discovered by lawful
means, and the prosecution must demonstrate that the lawful
means which made discovery inevitable were being actively
pursued prior to the occurrence of the illegal conduct.”).
      2 It wasn’t a big leap because “[e]very Federal Court of

Appeals having jurisdiction over criminal matters, including the
                                 8
prosecution “establish by a preponderance of the evidence that
the information ultimately or inevitably would have been
discovered by lawful means” to avoid exclusion. Id. at 444. This
more flexible standard was applied in Craig v. State, 510 So. 2d
857, 863 (Fla. 1987), which upheld the admission of wrongfully-
obtained evidence because it “would have been found
independently even without the statements, by means of normal
investigative measures that inevitably would have been set in
motion as a matter of routine police procedure.”

     Neither Nix nor Craig involved the issue of whether a search
warrant of a home was in the works at the time of the unlawful
police conduct, distinguishing them from Rodriguez, which is not
alone in adopting a bright-line rule in this context, see McMahon,
supra, note 1, one that makes sense by discouraging actions that
bypass the Constitution’s prohibition against unreasonable
searches of homes and the requirement of a warrant based on
probable cause, as Judge Winokur thoroughly explains. Why
bother with a search warrant in non-exigent circumstances if
evidence from a warrantless intrusion can be validated after-the-
fact by showing that, hypothetically, a search warrant might
have been sought and obtained eventually?

     That said, Rodriguez broke new ground, and the jury is still
out on whether the balance its bright-line rule struck is the most
sensible one in light of the purpose of the exclusionary rule (as
Justice Canady’s dissent in Rodriguez explained in detail). On
one hand, the rule in Rodriguez fosters an incentive (perhaps
even an over-incentive) to invest in standard police procedures to
procure search warrants prior to or contemporaneously with
ongoing investigations involving no exigencies thereby hewing
more closely to constitutional norms regarding searches of homes;
on the other hand, the rule in Rodriguez may prove to be costly
by suppressing evidence that would be discovered by “normal
investigative measures” and “routine police procedures” other
than a search warrant. In this case, the investigation of Clayton
consisted of only an anonymous source and high residential



Eighth Circuit in a case decided after the instant case, has
endorsed the inevitable discovery doctrine.” 467 U.S. at 441.
                                9
power bills, which courts that have addressed the issue 3 have
deemed inadequate for search warrants of homes, making at
least some modicum of additional investigative work necessary to
support a warrant under Rodriguez. Even under Nix and Craig
the record here doesn’t show that the marijuana would have
inevitably been discovered by normal or routine investigative
procedures. All in all, reversal of Clayton’s conviction on the
dispositive issue of the inapplicability of the inevitable discovery
rule is proper by any standard.

                 _____________________________

Andy Thomas, Public Defender, and Laurel Cornell Niles,
Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Daniel R. Krumbholz,
Assistant Attorney General, Tallahassee, for Appellee.




    3 United States v. Clark, 31 F.3d 831, 835 (9th Cir. 1994);
Carter v. State, 910 P.2d 619, 625-26 (Alaska Ct. App. 1996);
State v. Benters, 367 N.C. 660, 673 (2014); State v. Young, 123
Wash. 2d 173, 196 (1994); State v. McPherson, 698 P.2d 563
(Wash. Ct. App. 1985).
                                10
