ARTURO DOMINGUEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the search conducted exceeded the scope of the consent given by the defendant, as the use of a narcotics detection dog was not reasonably implied by the initial consent to search for narcotics.
[1] A search conducted pursuant to consent exceeds the scope of that consent when the police introduce a narcotics detection dog and handler without express consent or circum…
[2] The scope of consent to search is measured by the objective reasonableness of what a typical reasonable person would understand by the exchange between the officer and th…
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Join FLexlaw to unlock all legal intelligencePolice sought consent to search the defendant's apartment for narcotics. After consent was given, officers brought a narcotics detection dog, which al…
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COPE, Judge.
We grant the motion for rehearing in part, withdraw the opinion filed December 1, 1992, and substitute the following opinion:
Arturo Dominguez appeals his conviction and sentence for trafficking in cocaine. Dominguez entered a plea of no contest, reserving his right to appeal denial of his motion to suppress evidence. We reverse.
Police officers sought Dominguez’ consent to search his apartment. They told Dominguez they were conducting a narcotics investigation and believed that narcotics had been dispensed from his apartment. The officers stated that “the quickest way to resolve the whole matter was if [the officers] could search the premises and determine if there were no narcotics in the apartment_” Although Dominguez contends that his consent was involuntary, the trial court found otherwise and there is substantial competent evidence to support that finding. See State v. Gribeiro, 513 So. 2d 1323, 1324 (Fla. 3d DCA1987).
We conclude, however, that the search actually conducted exceeded the scope of the consent given. “When the police are relying upon consent to conduct a warrant-less search, they have no more authority than that reasonably conferred by the terms of the consent.” State v. Wells, 539 So. 2d 464, 467 (Fla.1989), aff'd on other grounds, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990).
In the present case several officers were in Dominguez’ apartment at the time he gave consent to search for narcotics. Under the circumstances, that consent could reasonably be construed to allow the officers to search within the apartment in places in which narcotics might be found. See 3 Wayne R. LaFave, Search & Seizure § 8.1(c), at 165 (2d ed. 1987).
After the consent was given, however, the officers requested that a narcotics detection dog be sent to the apartment. About fifteen minutes later, an officer ar rived with a narcotics detection dog. The dog was taken through the apartment and alerted to a sink. The sink was taken apart and the officers broke into the wall behind the sink.1
We conclude that the officers exceeded the scope of the consent by bringing the narcotics detection dog on the premises. “The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness— what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. -, -, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297, 302 (1991) (citation omitted).
The present search was the search of a home. “A private home, as here, is an area where a person enjoys the highest reasonable expectation of privacy under the Fourth Amendment ... and ... accordingly, the factors bearing on the voluntariness of a consent to search a home must be scrutinized with special care.” Gonzalez v. State, 578 So. 2d 729, 734 (Fla. 3d DCA1991) (citation omitted). Here, the standard of objective reasonableness was not met. The defendant consented to an entry and search by the officers. However, the officers were not accompanied by the drug detection dog when they obtained consent. The officers did not make a specific request for consent to use use of a drug detection dog. In our view, the consent given to the officers did not by implication include the subsequent entry by the dog and its handler. In the absence of an express consent or circumstances from which consent to the use of the drug detection dog could be reasonably implied, the officers exceeded the scope of the consent given.
The cases relied on by the state are inapposite. In United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), the Court held that a canine sniff of luggage is permissible during a Terry 2 stop. That is not the issue here. In United States v. Gonzalez-Basulto, 898 F. 2d 1011 (5th Cir.1990) the defendant’s consent to a search of his truck at a Border Patrol checkpoint included consent to a dog sniff because drug detection dogs were being openly used and were visible to defendant when he gave consent. In United States v. Richards, 500 F. 2d 1025 (9th Cir.1974), cert. denied, 420 U.S. 924, 95 S.Ct. 1118, 43 L.Ed.2d 393 (1975), defendant consented to a search of his belongings on an airplane he piloted. Although the opinion reports that a drug detection dog was used, defendant did not challenge use of the drug detection dog.
The motion to suppress the evidence seized as a result of the search should have been granted. The conviction and sentence must be reversed. Because this point is dispositive, we need not analyze defendant’s alternative argument for reversal.
Reversed and remanded.
. The trial court stated that the narcotics were "in an area that had to be torn apart, for want of a better word
. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
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Miami-Dade Police Dep't v. Martinez, 838 So. 2d 672 (Fla. 3d DCA 2003)…hich was within that safe, or in the cardboard box within the metal one. When a warrantless search is conducted pursuant to consent, the police “have no more authority than that reasonably conferred by the terms of the consent.” Dominguez v. State, 616 So. 2d 506 (Fla. 3d DCA 1993)(quoting State v. Wells, 539 So. 2d 464, 467 (Fla.1989), ajfd on other grounds, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990)), review denied, 624 So. 2d 268 (1993). The standard for measuring the scope of a consent is one of ob…
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State v. McLEOD, 664 So. 2d 983 (Fla. 4th DCA 1995)…t is plain to us that the trial judge’s resolution of the facts was that defendant’s actual consent did not encompass the use of the dog and that nothing in the surrounding circumstances implies that it did. We also note that in Dominguez v. State, 616 So. 2d 506 (Fla. 3d DCA), rev. denied, 624 So. 2d 268 (Fla.1993), the search concerned a person’s house, rather than an automobile, and that the law recognizes a greater expectation of privacy in a house than an automobile. The Dominguez court pointedly stated…
Authorities Cited (11 total)
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968)
- United States v. Place, 462 U.S. 696 (U.S. 1983)
- Florida v. Jimeno, 500 U.S. 248 (U.S. 1991)
- Florida v. Wells, 495 U.S. 1 (U.S. 1990)
- State v. Wells, 539 So. 2d 464 (Fla. 1989)
- United States v. Richards, 500 F.2d 1025 (9th Cir. 1974)
- Gonzalez v. State, 578 So. 2d 729 (Fla. 3d DCA 1991)
- United States v. Moore, 420 U.S. 924 (U.S. 1975)
- State v. Marcelino Gribeiro, 513 So. 2d 1323 (Fla. 3d DCA 1987)
- United States v. Edilberto Gonzalez-Basulto, 898 F.2d 1011 (5th Cir. 1990)