Third District Court of Appeal
State of Florida
Opinion filed December 28, 2016.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D15-928
Lower Tribunal Nos. 13-27417 & 09-28917
________________
Hansis Antonio Collado A/K/A Luis Jorge Molina,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Stephen T.
Millan, Judge.
Bradford Cohen Law, and Bradford M. Cohen (Fort Lauderdale), for
appellant.
Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney
General, for appellee.
Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.
ROTHENBERG, J.
The defendant, Hansis Antonio Collado a/k/a/ Luis Jorge Molina (“the
defendant”), appeals the trial court’s order denying his motion to suppress both the
physical evidence obtained on the scene and the defendant’s post-Miranda1
statements made to law enforcement. Because the warrantless entry into the
defendant’s house was supported by exigent circumstances, the defendant
thereafter consented to a search of his house, and his statements were given after
he freely and voluntarily waived his Miranda rights, we affirm.
FACTS
Law enforcement was dispatched to the defendant’s residence to investigate
an alleged kidnapping based on a 911 call wherein the caller told the 911 operator
that a woman was “being held hostage” in the defendant’s house. When Officer
Jean-Francois responded to the defendant’s house, he heard the 911 caller telling
another officer that the defendant grabbed her friend by the neck as she was exiting
the defendant’s house, and thereafter, the defendant dragged her back into the
house against her will. During the incident, the 911 caller could hear her friend
screaming for her, and she had called 911 because she was afraid for her friend’s
safety.
Because the defendant had two large pit bull dogs preventing access to the
front door, the police called the defendant from a neighbor’s house. After placing
1 Miranda v. Arizona, 384 U.S. 436 (1966).
2
approximately twenty unanswered phone calls, ten minutes had elapsed, and the
officers continued to fear for the victim’s safety, they entered the property from the
rear and knocked on the back door of the defendant’s house. Officer Jean-Francois
testified that approximately two minutes after they knocked on the backdoor, the
defendant, clad only in boxer shorts, opened the door and stepped outside with his
hands up. At that point, Officer Jean-Francois heard a female screaming for help
from inside the house.
The defendant was detained. Officer Jean-Francois and Detective Vielman
then entered the house and headed in the direction where the screams were coming
from. As they made their way to the victim, Officer Jean-Francois observed
narcotics and ammunition in plain view.
The officers found the victim lying naked in a fetal position on the bathroom
floor crying and saying, “Please help me, please help me.” A female officer was
called into the house to assist the victim, and a protective sweep of the house was
conducted. While the sexual battery detectives were conducting their
investigation, and after the victim was transported to the hospital, the defendant
was presented with and signed a consent to search form. The consent to search
form specifically advised the defendant that he had the right to refuse to consent to
a search and the right to demand that a search warrant be obtained prior to any
search. Specifically, the consent to search form advised the defendant as follows:
3
Before any search is made, you must understand your rights
(1) You may refuse to consent to a search and may demand that
a search warrant be obtained prior to any search of the
premises or vehicle described below.
(2) If you consent to a search, anything of evidentiary value
seized in the course of the search can be introduced into
evidence in court.
I HAVE READ THE ABOVE STATEMENT OF MY RIGHTS AND
I AM FULLY AWARE OF THE SAID RIGHTS
I HEREBY CONSENT TO A SEARCH WITHOUT WARRANT BY
OFFICERS OF THE MIAMI-DADE POLICE DEPARTMENT OF
THE FOLLOWING:
301 Bahman Ave.
Opa Locka, Fl. 33054
I HEREBY AUTHORIZE THE SAID OFFICERS TO SEIZE ANY
ARTICLE WHICH THEY MAY DEEM TO BE OF EVIDENTIARY
VALUE
THIS STATEMENT IS SIGNED OF MY OWN FREE WILL
WITHOUT ANY THREATS OR PROMISES HAVING BEEN
MADE TO ME.
(emphasis in the original).
Thereafter, a search was conducted and certain physical evidence, including
a condom wrapper, the victim’s clothing, and the narcotics and ammunition
observed by Officer Jean-Francois when he entered the house, was collected, and
the defendant was transported to the police station. Prior to any questioning of the
defendant at the police station, the defendant was advised of and waived his
Miranda rights, after which he provided a statement to the police.
4
The trial court found that, based on the totality of the circumstances, the
officers’ entry onto the defendant’s property and into the defendant’s residence
was due to the emergency situation that existed. In Seibert v. State, the Florida
Supreme Court held that the “[p]olice may enter a residence without a warrant if an
objectively reasonable basis exists for the officer to believe that there is an
immediate need for police assistance for the protection of life or substantial
property interests.” Siebert, 923 So. 2d 460, 468 (Fla. 2006) (citing Rolling v.
State, 695 So. 2d 278, 293-94 (Fla. 1997)). Whether an emergency actually
existed is immaterial “so long as the officer reasonably believes it to exist because
of objectively reasonable facts. The officer’s conclusion then may be based on a
combination of the ‘objective’ nature of the circumstances and the officer’s
‘subjective’ perception of those circumstances.” State v. Boyd, 615 So. 2d 786,
789 (Fla. 2d DCA 1993); see also Missouri v. McNeely, 133 S. Ct. 1552, 1559
(2013) (holding that the court must consider the totality of the circumstance when
determining “whether a law enforcement officer faced an emergency that justified
acting without a warrant”).
The record supports that law enforcement reasonably believed that exigent
circumstances existed. A 911 call was received describing an emergency situation
at the defendant’s house—a woman “being held hostage.” When the police arrived
at the defendant’s house and spoke to the 911 caller, she told the police that she
5
saw the defendant drag her friend into the house by her neck and heard her friend
calling for help. When the defendant did not answer his phone after approximately
twenty calls, the officers continued to fear for the victim’s life. The officers then
decided to by-pass the pit bulls at the front of the property, and knocked on the
back door of the residence. The officers entered the house only after the defendant
opened the door and they heard the victim screaming for help. These facts were
more than sufficient to establish exigent circumstances warranting entry into the
defendant’s house. The officers had been dispatched in reference to a kidnapping,
and the 911 call that precipitated the dispatch was corroborated by the officers
when they arrived at the defendant’s house. The 911 caller was at the scene, and
she told the police that she had observed the defendant drag the victim into the
house by the neck and heard the victim calling for help. Officer Jean-Francois was
able to confirm that there was a woman in the house when he personally heard her
screams. Under these circumstances, the officers’ belief that immediate action was
necessary to protect life and to prevent serious bodily injury was reasonable. See
Arango v. State, 411 So. 2d 172, 174 (Fla. 1982) (holding that where safety is
threatened and time is of the essence, the courts have recognized that “the need to
protect life and to prevent serious bodily injury provides justification for an
otherwise invalid entry”).
6
The subsequent search of the defendant’s house, the defendant’s arrest, and
the statement provided by the defendant were equally lawful. The search was
conducted after the defendant freely and voluntarily executed a consent to search
form. “[T]he presence of a written consent tends to support the conclusion that the
consent was given voluntarily . . . .” Luna-Martinez v. State, 984 So. 2d 592, 600
(Fla. 2d DCA 2008). That is especially so where, as here, the consent to search
form clearly and unequivocally advised the defendant that he had the right to
refuse to consent to a search without a warrant and that anything seized during the
search could be introduced in court as evidence.
Besides the consent to search form, the trial court considered several other
factors in determining whether the defendant’s consent was freely and voluntarily
given. Specifically, the trial court’s order reflects that it considered that (1) the
defendant was thirty-five years old on the date of his arrest, (2) the defendant had a
prior criminal history, (3) the defendant was on probation at the time the consent
was given, and (4) the detective who obtained the consent testified that no threats
or promises were made to the defendant and that the defendant had voluntarily
signed the form consenting to the search of his house. Because the voluntariness
of the consent is a question of fact to be determined by the trial court from the
totality of the circumstances, see McDonnell v. State, 981 So. 2d 585, 588 (Fla. 1st
DCA 2008), declined to follow on other grounds by Rodriguez v. State, 187 So. 3d
7
841 (Fla. 2015), and the record supports the trial court’s findings, we find no error
with the trial court’s order concluding that the consent was freely given and
voluntarily made. See United States v. Perry, 703 F.3d 906, 909 (6th Cir. 2013)
(finding that the defendant’s consent was voluntary despite the fact that she was
handcuffed and drunk, and the police were armed and never told her that she could
decline to consent); United States v. Arciniega, 569 F.3d 394, 399 (8th Cir. 2009)
(finding that consent to search a business and residence was voluntarily given
where the defendant was handcuffed after cocaine was found in his vehicle).
The detention and subsequent arrest based on probable cause were also
lawful. The initial detention of the defendant was based on at least a reasonable
suspicion that a crime had been or was being committed based on the 911 caller’s
statements and the officers’ own observations. The defendant’s subsequent arrest
was supported by probable cause. The victim was found lying naked in a fetal
position on the defendant’s bathroom floor crying for help. She told the officers
that she had gotten high with the defendant and, although she had originally agreed
to have sex with him, the defendant inserted something in her rectum against her
will. Officer Jean-Francois had also seen drugs and ammunition in plain view
when he entered the residence, which he later seized after the defendant consented
to the search of his house. Probable cause therefore existed to arrest the defendant
8
for sexual battery, possession of marijuana, and possession of ammunition by a
convicted felon.2
Lastly, the trial court’s finding that the statements, which were given by the
defendant after he was advised of his Miranda rights and executed a Miranda rights
waiver form, were freely and voluntarily given is supported by the record. The test
of voluntariness of a confession is whether, after a review and consideration of the
totality of the circumstances, the confession was freely given or whether it was the
product of coercive police conduct. Colorado v. Connelly, 479 U.S. 515, 522
(1986).
The record reflects that the defendant made an exculpatory statement on the
scene prior to having been advised of his rights. The State properly stipulated to
suppression of that unwarned statement. The trial court however found, and the
record supports the trial court’s finding, that this unwarned statement was
voluntary, and that due to the significant lapse in time between the unwarned but
voluntary statement given by the defendant on the scene and his later Mirandized
statement at the police station, suppression of the later Mirandized statement was
not required.
The United States Supreme Court in Wong Sun v. United States, 371 U.S.
471, 487-88 (1963), held that evidence must not be suppressed simply because it
2The defendant was a convicted felon and on probation at the time these offenses
were committed.
9
would not have come to light but for the illegal activity of the police. The inquiry,
instead, should be focused on whether the evidence the defendant seeks to suppress
was obtained by the exploitation of the earlier illegality, and whether the
circumstances reflect a sufficient purging of the primary taint. As stated in Wong
Sun:
We need not hold that all evidence is “fruit of the poisonous tree”
simply because it would not have come to light but for the illegal
actions of the police. Rather, the more apt question in such a case is
“whether, granting establishment of the primary illegality, the
evidence to which instant objection is made has been come at by
exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.”
(citing Maguire, Evidence of Guilt, 221 (1959)).
In State v. Frierson, 926 So. 2d 1139, 1143 (Fla. 2006), the Florida Supreme
Court concluded that under such circumstances, the court must consider: (1) the
time that has elapsed between the illegality and the acquisition of the evidence; (2)
the presence of intervening circumstances; and (3) the purpose and flagrancy of the
official misconduct. The record in the instant case reflects that the defendant’s
unwarned statement was made prior to 10:48 a.m. and that his post-Miranda
statement to Detective Utset at the police station was made later that evening after
8:57 p.m., thereby evidencing a ten-hour time lapse. There were also several
intervening circumstances. The defendant had voluntarily consented to the search
of his residence, which resulted in the seizure of incriminating evidence—evidence
10
that not only incriminated the defendant with respect to the sexual battery of the
victim, but also with respect to additional crimes. The defendant had also been
transported to the police station and placed in an interview room where he was
given time to think and consider his situation. Lastly, before anyone questioned
the defendant at the police station, he was properly advised of his Miranda rights.
More importantly, there is no evidence of flagrant police misconduct
associated with the earlier questioning or that the earlier statement in any way
influenced the defendant to waive his rights and agree to speak to the detective at
the police station. The record reflects that when the police spoke to the defendant
at the scene, the defendant made no incriminating statements. He merely stated
that he had picked up the victim and her friend the prior evening, brought them
back to his place, but did not remember anything else. No follow-up questions
were asked, and the defendant was not asked about and did not offer any
statements about the narcotics and ammunition seized from his residence.
Based on the totality of the circumstances, we agree with the trial court that
suppression of the voluntary post-Miranda statement was not mandated as “fruit of
the poisonous tree.” See Lundberg v. State, 918 So. 2d 444, 445 (Fla. 4th DCA
2006) (finding that although suppression of Lundberg’s statements made during his
interrogation by the police were properly suppressed due to coercion by the police,
his subsequent statements made to his girlfriend, which were surreptitiously
11
recorded, were properly not suppressed because the statements to his girlfriend
were sufficiently attenuated from the initial illegality).
CONCLUSION
We affirm the trial court’s order denying the defendant’s motion to suppress
the physical evidence and the defendant’s post-Miranda statements. The entry into
the defendant’s residence was based on law enforcement’s reasonable belief of the
existence of exigent circumstances necessitating their warrantless entry. The
evidence seized was based on the defendant’s voluntary execution of a consent to
search form, which properly advised the defendant of his right to refuse such
consent. The detention of the defendant was based on reasonable suspicion, which
ripened into probable cause after the police entered the defendant’s house and after
the defendant consented to the search of his residence. Lastly, suppressing the
defendant’s post-Miranda statement was not required where the trial court found,
and the record supports the finding, that the post-Miranda statement was
sufficiently attenuated from the exculpatory prior statement given by the defendant
ten hours earlier at the scene.
Affirmed.
12