          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-4674
                  _____________________________

JAMES M. BRYANT,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Leon County.
Angela C. Dempsey, Judge.

                           March 7, 2019


PER CURIAM.

     In this appeal, James Bryant (“Appellant”) challenges the
denial of his motion to suppress on three grounds. He argues: (1)
he had a privacy interest in his backyard and the deputies illegally
entered this constitutionally-protected space; (2) his later consent
to search did not validate the illegal action by the deputies; and (3)
his consent was involuntary because he submitted to police
authority. We affirm for the reasons discussed below.

                                Facts

    In January 2017, Deputy Hatcher responded to a tip about
suspicious chemical smells coming from a residence. Upon arriving
in the area, Hatcher stood in an elevated ditch area off the
driveway to acquire a view of the house. From this vantage point,
he saw a male using a grinding tool at the back of the house behind
a shed. Hatcher and another deputy then walked up a tree line and
into the yard while two more deputies drove up the driveway.
Although there was no gate, a fence had been erected around the
yard. As the deputies approached, Appellant came out of the shed.
He explained that he had been cutting glass which resulted in the
strong odor.

     Appellant showed Sergeant Hayes the area behind the shed
where he had been working. While in that area, Hayes noticed an
individual hiding in the exhaust window of the shed; he directed
the individual to come out. While Deputy Hatcher detained the
individual, Deputy Whitley made contact with two females in the
backyard. Deputy Harrelson and Hayes spoke with Appellant by
the trunk of their patrol car which was parked in the driveway of
Appellant’s yard. Appellant was presented with a consent to
search form which Appellant signed. The consent to search form
explained that Appellant had been informed of his constitutional
rights not to have a search made of the property without a search
warrant and his right to refuse to consent to a search. However,
Appellant waived these rights and signed the form which expressly
gave deputies his permission to conduct a search.

     The deputies, thereafter, searched the shed and found
evidence of methamphetamine manufacturing. Appellant was
charged with trafficking, manufacture and possession of
methamphetamines and possession of illegal chemicals. He moved
to suppress the evidence found as a result of the warrantless
search, raising the same arguments he makes on appeal. The trial
court denied the motion. The trial court determined the search was
a consensual encounter and the deputies did not illegally enter the
property. Furthermore, Appellant gave consent to search freely
and voluntarily and such consent was not an acquiescence to police
authority.

    Appellant     subsequently     pled    nolo    contendere     to
manufacturing of methamphetamine and possession of listed
chemicals, reserving his right to appeal the denial of his motion to
suppress. This appeal follows.


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                              Analysis

     A trial court’s ruling on a motion to suppress comes to this
Court with a presumption of correctness regarding findings of
historical facts. We review pure questions of law de novo. State v.
Markus, 211 So. 3d 894, 902 (Fla. 2017).

     Initially, we agree with Appellant that the trial court erred in
concluding the deputies legally entered his backyard. The Fourth
Amendment to the United States Constitution protects the “right
of the people to be secure in their persons . . . and effects, against
unreasonable searches and seizures.” See also Art. I, § 12, Fla.
Const. Under the Fourth Amendment, a “search” occurs when an
individual’s reasonable expectation of privacy is infringed by an
agent of the government. United States v. Jacobsen, 466 U.S. 109,
113 (1984). A person has the highest expectation of privacy in his
home. See California v. Ciraolo, 476 U.S. 207, 213 (1986). This
extends to the curtilages of the home as well, such as a backyard.
See id. at 212-13; see also State v. Morsman, 394 So. 2d 408, 409
(Fla. 1981) (noting one had reasonable expectation of privacy in a
backyard of a house because passersby could not usually see this
area); Lollie v. State, 14 So. 3d 1078 (Fla. 1st DCA 2009). “When
a citizen has a reasonable expectation of privacy, ‘police officers
may not enter a [property] without a warrant, absent consent or
exigent circumstances.’” Osorio v. State, 244 So. 3d 1115, 1118
(Fla. 4th DCA 2018) (quoting Levine v. State, 684 So. 2d 903, 904
(Fla. 4th DCA 1996)). Exigent circumstances are few in number
and include such circumstances as pursuing a fleeing felon,
preventing the destruction of evidence, searching incident to a
lawful arrest, responding to medical emergencies, and fighting
fires. Riggs v. State, 918 So. 2d 274, 279 (Fla. 2005).

     Here, Appellant had a reasonable expectation of privacy in his
backyard. The evidence confirmed that it was difficult to see into
the backyard from the public road. Deputy Hatcher confirmed that
he could not see the residence or into the backyard without
climbing an elevated ditch next to the driveway. Additionally,
Appellant maintained a fence around his property. Osorio, 244 So.
3d at 1119 (noting a homeowner may further exhibit an
expectation of privacy by putting up fences or taking other steps to
exclude the public from seeing into or accessing curtilage).

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    The record contains no evidence of any exigent circumstances
to justify a warrantless search or entry into the backyard.
Although the deputies were responding to a call about a suspicious
chemical smell, this did not provide them with sufficient cause to
enter the backyard without a warrant. Cf. Glass v. State, 736 So.
2d 788 (Fla. 2d DCA 1999) (holding that officers had no right to
enter backyard simply for the purpose of investigating an
anonymous tip). Thus, despite the lack of a gate to prevent
entrance into the property or the backyard, Appellant still
maintained a reasonable expectation of privacy in his backyard,
and the deputies’ entry into the backyard based on a tip and
without a warrant violated Appellant’s Fourth Amendment rights.

     However, prior to the deputies searching the shed and
discovering the evidence leading to his conviction, Appellant
signed a consent to search form. Where there is illegal conduct on
the part of the police, such as here, a consent to search can be found
voluntary and valid if there is clear and convincing evidence the
consent was not a product of the illegal police action. See Montes-
Valeton v. State, 216 So. 3d 475, 480 (Fla. 2017) (citing Reynolds v.
State, 592 So. 2d 1082, 1086 (Fla. 1992)); Gonzalez v. State, 59 So.
3d 182, 185 (Fla. 4th DCA 2011).

     In determining whether consent was freely and voluntarily
given and not the product of unlawful police activity, the totality
of the circumstances must be evaluated. See Davis v. State, 594
So. 2d 264, 266 (Fla. 1992); Blake v. State, 939 So. 2d 192, 196 (Fla.
5th DCA 2006). This is a factual question for the trial court, and
its ruling should not be disturbed on appeal unless it is clearly
erroneous. Davis, 594 So. 2d at 266. Some factors to consider are:

         (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 or she could refuse to
    give consent; and (8) the length of time the defendant was
    interrogated before consent was given.



                                  4
Montes-Valeton, 216 So. 3d at 480; see also State v. Evans, 9 So. 3d
767, 769 (Fla. 2d DCA 2009) (noting factors to consider include
“whether the person is under arrest or otherwise detained, the age,
education, intelligence, or mental condition of the person giving
consent which would evidence a vulnerable state, coercive
circumstances, and conduct by law enforcement such as a show of
force, other threatening conduct, a prolonged detention, or verbal
threats”).

     Clear and convincing evidence supports the trial court’s
finding that Appellant voluntarily consented to the search and did
not merely acquiesce to police authority. Appellant, who was
almost thirty-years-old, was free to advise the officers to leave at
any point up until the search; he had not been arrested and was
not in handcuffs. There was no show of force by the deputies. The
deputies had not drawn their weapons and had not made any
verbal threats to Appellant. Only two of the deputies were near
Appellant when he was signing the consent form. The other two
deputies were busy talking with the other individuals in the
backyard. In addition, no evidence was introduced that the
deputies commanded Appellant to consent or made repeated
requests for his consent. Furthermore, the deputies were on site a
relatively short time, about 10 minutes, before Appellant signed
the consent form. Accordingly, Appellant’s consent to search was
free of the taint of the prior illegal police action.

                            Conclusion

    As clear and convincing evidence exists to support the trial
court’s determination that Appellant freely and voluntarily
consented to a search of his shed, we affirm the denial of
Appellant’s motion to suppress.

    AFFIRMED.

LEWIS, RAY, and M.K. THOMAS, JJ., concur.




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                _____________________________

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


Andy Thomas, Public Defender, and Kasey Lacey, Assistant Public
Defender, Tallahassee, for Appellant.

Ashley B. Moody, Attorney General, and Benjamin L. Hoffman,
Assistant Attorney General, Tallahassee, for Appellee.




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