06-4555 TYWAN D. STABLER v. STATE OF FLORIDA

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State: Florida

Court: Florida First District Court

Docket No: 06-4555

Case Date: 09/26/2008

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA TYWAN D. STABLER, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________/ NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D06-4555

Opinion filed September 26, 2008. An appeal from the Circuit Court for Escambia County. Nickolas P. Geeker, Judge. Nancy A. Daniels, Public Defender; David P. Gauldin and David A. Davis, Assistant Public Defenders, Tallahassee, for Appellant. Bill McCollum, Attorney General; Trisha Meggs Pate, Christine Ann Guard, and Charmaine M. Millsaps, Assistant Attorneys General, Tallahassee, for Appellee.

ROBERTS, J. The appellant, Tywan Stabler, appeals the trial court's denial of his motion to suppress cocaine found by police pursuant to a search warrant. The appellant argues that the Fourth Amendment to the United States Constitution does not permit a

warrantless dog sniff of the exterior door of an apartment. We disagree and affirm. FACTS Officers received information that several people, including the appellant and his girlfriend, were trafficking cocaine and liquid codeine. Based upon this

information, officers initiated surveillance of the appellant's residence and his girlfriend's apartment. During the surveillance of the appellant's residence, officers observed the appellant leave in a vehicle driven by another subject. The officers followed the vehicle and conducted a stop.1 During the stop, a police drug dog alerted to the odor of drugs in the vehicle. A search of the vehicle revealed a baby bottle of what appeared to be liquid codeine. With his consent, officers subsequently searched the appellant's residence but found no evidence of drug trafficking. During this time, officers continued surveillance of the appellant's girlfriend's apartment. During the surveillance, officers interviewed the manager and other residents of the apartment complex. The manager and the other residents reported that the appellant's girlfriend lived in the complex and that the appellant was often present. They also reported that the appellant and other suspicious subjects often came and went late at night, staying only a short time and sometimes switching vehicles.

The reason for the stop is not in the record, nor was the legality of the stop challenged in this case. 2

1

The front door of the apartment was open to public access and to a common area. Officers brought a police drug dog to the front door of the apartment and it alerted to drugs. Officers also took the dog to the front door of another apartment in the complex where it did not alert to drugs. Based upon the information they had gathered during their surveillance of the apartment, officers prepared a probable cause affidavit and subsequently received a search warrant for the apartment. During the search, cocaine was found. The appellant was arrested and charged with trafficking in 400 grams or more, but less than 150 kilograms, of cocaine in violation of section 893.03(2)(a)4, Florida Statutes (2005). Prior to trial, the appellant filed a motion to suppress the cocaine, arguing that the search warrant was issued without probable cause. At the hearing on the motion, the trial court ruled that the dog sniff did not violate the Fourth Amendment and that, without considering the dog sniff, the other information presented in the probable cause affidavit would not support the issuance of a search warrant. The appellant subsequently pled no contest, reserving the right to appeal the trial court's denial of his motion. ANALYSIS This Court has explained the standard of review applicable to a trial court's ruling on a motion to suppress: 3

A trial court's ruling on a motion to suppress is a mixed question of fact and law. The standard of review of the findings of fact is whether competent, substantial evidence supports the findings. Findings of historical fact should be reviewed only for "clear error," with "due weight to be accorded to inferences drawn from those facts" by the lower tribunal. We must construe all the evidence, and reasonable inferences therefrom, in a manner most favorable to sustaining the trial court's ruling. Hines v. State, 737 So. 2d 1182, 1184 (Fla. 1st DCA 1999) (citations omitted). Furthermore, when the trial court [b]ase[s] its decision to grant the motion to suppress solely on an examination of the affidavit, and without an evidentiary hearing, the issue of whether the State established probable cause sufficient to obtain a search warrant presents a question of law that is reviewable using a de novo standard . . . . [W]e must [give] "great deference" to the issuing judge's determination that probable cause existed (provided there is a substantial basis for the determination) . . . . State v. Felix, 942 So. 2d 5, 8 (Fla. 5th DCA 2006) (citing Pagan v. State, 830 So. 2d 792 (Fla. 2002); United States v. Leon, 468 U.S. 897, 914 (1984)). Significantly, this Court is constitutionally required to interpret search and seizure issues in conformity with the Fourth Amendment of the United States Constitution, as construed by the United States Supreme Court. See Art. I,

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