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Rozzo v. State

Florida Court of Appeal, Fourth District

December 7, 2011

Marc ROZZO, Appellant,
STATE of Florida, Appellee.

Page 410

Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.


This appeal arises out of the trial court's refusal to suppress evidence that was discovered during a warrantless search of

Page 411

appellant's home. At issue in this appeal is the validity of his father's consent to the search, which was obtained after appellant was taken into custody outside the home and the officers performed a protective sweep of the home. We hold that the protective sweep violated the Fourth Amendment and tainted the father's subsequent consent to search.

Appellant was on probation in two underlying cases.[1] While on probation, the police conducted a controlled drug buy from appellant. Detective Brown of the Broward Sheriff's Office testified that he and Detective Hodgson made a controlled call to appellant to purchase " Roxies." The officers sent a " source" to meet with appellant near appellant's house. The operation occurred at about 4:00 p.m.

Detective Rush observed the transaction, while Detectives Brown and Hodgson were hiding. When Detective Rush gave the signal that the transaction was " going down," Brown and Hodgson approached appellant. Appellant tried to walk away and threw some tablets on the ground as Detective Brown was approaching him. Detective Rush found five oxycodone pills in the grass near appellant. The officers then placed appellant in custody and had him sit on the street curb.

Because their surveillance was compromised, the officers performed a " security sweep" of the house where appellant lived with his father and his stepmother. Detective Brown admitted that during the security sweep, he ordered appellant's father and stepmother out of the house and to remain out of the house. The protective sweep took less than five minutes. The officers looked through any areas where a person could be hiding. When asked why the officers decided to clear the house, Detective Brown responded that it was because they were concerned about officer safety and contraband in the house. No further details were offered.

After clearing the house, the officers went outside and met with the father and stepmother. According to Detective Brown, the officers explained to the parents what happened with appellant. The officers further explained that they had some concerns that there was more contraband inside of the house. The parents said there was nothing inside the house and that the officers were welcome to check. The officers waited about twenty minutes for another officer to arrive with a Consent to Search form. During this time, the parents did not express to the officers that they did not want the officers to search the house. The officers did not threaten the parents. Detective Brown denied telling the parents that they would be arrested if the police were not allowed inside the house.

Appellant's father signed the Consent to Search form, which was admitted into evidence without objection. The form advised the father of the right to refuse permission to search. According to Detective Brown, appellant's father was friendly, cordial, and " more than willing" to let the officers go through the house. Brown testified that obtaining a search warrant was " never an issue" because the officers had probable cause. Brown stated that even though the officers were invited in the house, they had a probable cause affidavit if the father did not allow them inside, " but it did not come to that."

Page 412

Once the form was signed, the officers entered and appellant's father accompanied them through the house. The father took them to appellant's bedroom, where the officers found a pipe containing " Roxie" residue, multiple tablets of narcotics, and $900 in cash. After the search was over, the parents thanked the officers. The testimony of the other officers was consistent with Detective Brown's recitation of the events.

Not surprisingly, the parents' testimony presented a drastically different version of events with respect to the detectives' conduct in obtaining the father's signature on the Consent to Search form. The father and stepmother both testified that the officers ordered them out of the house and then threatened them with arrest if the officers had to wait for a search warrant and then found drugs in the home. Being a commercial airline pilot whose career would have been threatened by an arrest, the father felt coerced ...

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