STEPHEN LARRY HORVATH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1988-05-18
No. 4-86-2696
HERSEY, C.J., and LETTS, J., concur.
524 So. 2d 741 Florida District Court of Appeal, Fourth District (1988)

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Synopsis

Horvath appeals his conviction for drug trafficking and related charges, arguing that police conducted an illegal warrantless search of his bathroom and used that illegal search to coerce his consent to search his entire house. The court reversed, holding that the bathroom search violated the Fourth Amendment and that any subsequent consensual search was tainted by the illegal search.


Holding

The court held that the bathroom search was illegal because no Fourth Amendment exception justified Pollock searching the bathroom after the arrest warrant's subject had already been removed. Because the bathroom search was illegal, using its results to obtain Horvath's consent to the house-wide search was coercive and violated the Fourth Amendment. Any consensual search following an illegal search is per se illegal.


Headnotes

[1] A search of a bathroom is not justified after the subject of an arrest warrant has been removed from it.

[2] Using the results of an illegal search to persuade a suspect to consent to a broader search renders the subsequent consent invalid.

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Key Quotes

“There is no Fourth Amendment exception that can justify Pollock's search of the bathroom after another officer had brought the person who was the subject of the arrest warrant out of that room.”

Establishes that the warrantless bathroom search had no constitutional justification

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Facts & Procedural History

Police with an arrest warrant for Debra Downs entered Horvath's home after he admitted them. A female officer brought Downs out of the bathroom where …

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Opinion of the Court
GLICKSTEIN, Judge.

[*742] GLICKSTEIN, Judge.

Police officers who had a warrant for the arrest of Debra Downs saw her enter the home of appellant Stephen Larry Horvath. They knocked on the door, and Horvath told them to wait a while. When they were admitted and asked for Debra, Horvath told them she was in the bedroom. When they entered the bedroom they discovered she was in the adjoining bathroom.

A female officer entered the bathroom and came out with Debra Downs. Detective Pollock then went into the bathroom, where he saw traces of a powdery substance on the toilet seat and a plastic bag in the waste basket.

When Pollock came out of the bathroom he asked Debra why she took so long in the bathroom. Debra said Larry Horvath had come in and dumped cocaine down the toilet.

Half a dozen officers were in the house. There was conflicting testimony of officers as to whether Horvath was already under detention or not, on account of his involvement with a stolen vehicle found near the house, when Pollock asked Horvath for permission to search the house, explaining that if he gave no permission the police could obtain a search warrant on the strength of the powder and baggie that Pollock had seen in the bathroom, and that Horvath would be held for the three or four hours it might take to get the warrant. Horvath consented to the search. A similar colloquy occurred when a safe was discovered, and Horvath opened the safe. Physical evidence seized as the result of the search included a substantial cache of cocaine, guns,' exploding ammunition and VIN tags removed from automobiles.

Horvath pleaded nolo contendere to charges of trafficking in cocaine, possession of exploding ammunition and unauthorized use of driver’s license when his motion to suppress the physical evidence as the fruit of an illegal search was denied. He preserved the suppression issue for appeal. Judgment and sentence followed.

We reverse. The physical evidence should have been suppressed because the search was not consensual.

The police conduct principally effectuating this result is Detective Pollock’s search of the bathroom and use of his observation to obtain Horvath’s consent to the house-wide search. There is no Fourth Amendment exception that can justify Pollock’s search of the bathroom after another officer had brought the person who was the subject of the arrest warrant out of that room. Because that search was illegal, use of the result of the search of the bathroom to persuade Horvath to allow a search of the entire house was coercive. Norman v. State, 379 So. 2d 643, 648 (Fla.1980). Moreover, a consensual search after a search has begun illegally is per se illegal. Norman v. State, 379 So. 2d at 647; Taylor v. State, 355 So. 2d 180, 183 (Fla. 3d DCA) cert. denied, 361 So. 2d 835 (Fla.1978).

HERSEY, C.J., and LETTS, J., concur.


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