IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

STATE OF FLORIDA, CASE NO. F09-24182A, B, & C

Plaintiff,

v.

DAMIAN GLOVER,
MARVIN P. GIVENS,
DEANDRE HOWARD,

Defendants.
________________________/

ORDER ON DEFENDANTS’ MOTION TO SUPPRESS

Defendants Damian Glover, Marvin P. Givens, and Deandre Howard move to suppress

various evidentiary artifacts seized by police in a search conducted on July 22, 2009. The

motion is granted in part and denied in part. For my better correction by the court of appeal, I

reduce my ruling to writing.

I. The “S” Word

On Dec. 19, 2008, Katrina D. Jenkins, Alicia L. Walker, and Trvin (sic) Jenkins entered

into a one-year lease for apartment 246 in the Silver Blue Lakes Apartment Complex, 1401

Northwest 103rd St., Miami. (Composite Ex. A to the Hr’g on the Mot. to Suppress.)1 In March
of the following year, however, Ms. Jenkins lost her job, which was her sole source of income.

(Tr. 14.) Ms. Jenkins claims that she managed to pay her rent till June, and was “working with

the landlord to try to stay in the apartment.” (Tr. 14.)

On July 2, however, Ms. Jenkins relocated to Tampa. Her relocation notwithstanding,

she did not consider herself “formally moved out” of apartment 246 at that time because her

“things were still there, and [she] left her cousins, Damian [Glover] and Marvin [Givens] to

1
Although all three persons are identified as residents in the lease, only Ms. Jenkins signed the
lease. There was some suggestion in the testimony that Trvin Jenkins was a minor child. (Tr.
66.)

1
watch over [her] things.” (Tr. 13.) Ms. Jenkins alleged that she still “had a lot of things” in the

apartment when she left, such as “furniture, clothes, books, movies.” (Tr. 15.) She contemplated

that the three defendants would keep an eye on her apartment and its contents in her absence, and

would begin the process of moving her personal property out.

The relationship of each defendant to the apartment differs slightly from that of his

codefendants. Ms. Jenkins was emphatic in her testimony that Damian Glover “was basically

living” in the apartment well before her decision to move out. (Tr. 16, 23.) Mr. Glover had keys

to the apartment. (Tr. 19, 26.) He kept clothing there, ate there, and slept there. (Tr. 23, 38-9.)

In her absence, Ms. Jenkins considered Mr. Glover to be “the head of the household.” (Tr. 27.)

Mr. Glover testified at the hearing on the motion to suppress, and his testimony mirrored

that of Ms. Jenkins: He claimed that he had been living in apartment 246 for “a month, a month

and a half” before Ms. Jenkins left for Tampa (Tr. 45) and that he kept his clothes, food, and

toiletries there. (Tr. 45.) He added that he contributed $100 or $150 toward the monthly rent.

(Tr. 45.)

Deandre Howard is the youngest of the three defendants; he was 18 at the time of these

events. It was unclear from the testimony whether Ms. Jenkins was technically Mr. Howard’s

kinswoman, but she clearly thought of him and treated him as a nephew or even a son. He

resided with her off and on during the course of his life; she estimated that he lived with her six

of his 18 years. (Tr. 17.) Even when he did not reside with her, he “had a standing invitation” to

her home, spent the night there on a regular basis (Tr. 18) and kept clothing there. (Tr. 19.)

Although, unlike Mr. Glover, Mr. Howard did not have his own bed in the apartment, he often

slept on the couch. (Tr. 33.)

Most attenuated in his relationship to apartment 246 is Mr. Givens. Prior to Ms. Jenkins

moving to Tampa, Mr. Givens was a frequent visitor to the apartment, but not a resident:

“Marvin [Givens] would stop by, but he didn’t start spending the night until after I moved out.

There’s not enough room for everybody to live with me. Deandre would stay on the couch some

time. Damian has a bed.” (Tr. 33.) Of course whether Mr. Givens “start[ed] spending the night”

2
after Ms. Jenkins left town must be hearsay at best, speculation at worst, in the mouth of Ms.

Jenkins. I take it as apodictic that from and after her July 2 move to Tampa Ms. Jenkins was not

a percipient witness to the times at which, or the circumstances in which, Mr. Givens was in

apartment 246.

Ms. Jenkins did testify to her understanding that Mr. Givens had a key to the apartment,

but this too was no more than hearsay, and perhaps less. Ms. Jenkins gave her own set of keys to

Mr. Glover. (Tr. 19.) Although Ms. Jenkins claimed that cotenant Alicia Walker gave her key to

Mr. Givens, Ms. Jenkins did not go so far as to say that she saw Ms. Walker give her key to Mr.

Givens, nor that she saw the key in Mr. Givens’s possession. Neither Ms. Walker nor Mr.

Givens testified at the hearing on the motion to suppress. Trudy Frohman, the property manager,

did testify, claiming that on or about July 22 a key to apartment 246 was left in the office drop-

box. (Tr. 55.) Whether Ms. Frohman is accurate in her recollection; and whether, assuming that

she is accurate, the key left in the drop-box was Alicia Walker’s; is and must remain

undetermined. On the record before me, however, I cannot conclude that Marvin Givens ever

had a key to apartment 246.

Two officers testified at the hearing on the motion. Although I credit their testimony

entirely, nothing that they said was necessarily inconsistent with the testimony of the other

witnesses regarding the relationship of the defendants to the apartment. During the search, Det.

Pomar observed that the apartment “was pretty sparsely furnished,” and that the refrigerator had

no food in it. (Tr. 106.) “If there was any [clothing], I don’t recall” seeing it. (Tr. 106.) The

testimony of Det. Greenbaum was to the same effect. (Tr. 124.) But this is not at odds with

Katrina Jenkins’s testimony. Ms. Jenkins conceded that she was obliged by her financial

circumstances to vacate the apartment and had asked the defendants to assist her with the moving

process. At the hearing on the motion to suppress, one of the defendants’ attorneys posed the

trenchant question, “Is it a possibility [that the apartment] was sparsely furnished because [the

tenant] was in the process of moving out?” (Tr. 127.)

3
 Det. Greenbaum believes that the apartment had no electricity, and therefore no air

conditioning, “because [she] was sweating” while the search was being executed. (Tr. 122.) No

business records from FP&L were offered in evidence by the prosecution. Det. Greenbaum was

one of a number of officers making an armed entry into a small apartment on a July day in

Miami. I accept unreservedly her testimony that she became overheated; in the circumstances, it

would have been remarkable if she had not – air conditioning or no air conditioning.

Additionally, it was Det. Greenbaum’s recollection that the lights were not on and the

refrigerator was not working. (Tr. 122.) But this, too, is consistent with the testimony of the

other witnesses. Ms. Jenkins testified that it was her loss of employment, and therefore of

income, that obliged her to begin to move out of apartment 246. Perhaps, as Det. Greenbaum’s

testimony suggests, Ms. Jenkins was behind on her electric bills as she was on her rent bills.

This tells us more about the present state of the economy than it does about whether the

defendants were actually residing, and had a protected expectation of privacy, in the apartment.2

The defense’s version of affairs was that Messrs Glover, Givens, and Howard were living in the

apartment for the purpose of assisting Ms. Jenkins in moving her property elsewhere. That they

felt no obligation to furnish or decorate an apartment in which neither they nor Ms. Jenkins

would long remain tells me something, but not very much, about their expectation of privacy in

that apartment while they remained there.

And now we must confront the dreaded “S” word: Prior to the opinion of the United

States Supreme Court in Minnesota v. Carter, 525 U.S. 83 (1998), and certainly prior to the

Court’s opinion in Rakas v. Illinois, 439 U.S. 128 (1978), lower courts routinely began the

analysis of a search-and-seizure case by determining whether the movants had “standing” to

contest the search and seek suppression of its fruits. In those two cases, however, the High Court
2
At the hearing on the motion to suppress, the prosecution sought to make much of the officers’
testimony that a used condom was found in or on the refrigerator. (Tr. 123.) The prosecution
argued that this evidentiary artifact established “that this is an abandoned apartment where
people are coming and going and using it, a free-for-all.” (Tr. 123.) To the extent this evidence
is probative of anything, it suggests that one or more of the three young men was using the
apartment as his residence, and manifesting an expectation of personal privacy there.

4
taught that the question of a defendant’s entitlement to assert a Fourth Amendment claim is

neither antecedent to, nor separate and apart from, the underlying Fourth Amendment inquiry

whether that defendant “personally has an expectation of privacy in the place searched, and that

his expectation is reasonable, i.e., one that has ‘a source outside of the Fourth Amendment, either

by reference to concepts of real or personal property law or to understandings that are recognized

and permitted by society’.” Carter, 525 U.S. at 88 (quoting Rakas, 439 U.S. at 143-4). The

Florida Supreme Court took the same position in Dean v. State, 478 So.2d 38 (Fla. 1985).

The stern admonitions of two courts of last resort notwithstanding, trial courts (and even

some appellate courts) continue to use the term “standing” in this context. See, e.g., United

States v. Chaves, 169 F.3d 687, 690 (11th Cir. 1999); see generally Clark v. State, 677 So.2d

903, 904 n.3 (Fla. 2d DCA 1996); Payne v. State, 654 So.2d 1252 (Fla. 2d DCA 1995). They do

so not out of intransigence or a failure of understanding, but simply as a kind of jurisprudential

shorthand. To say, or write, that “this defendant has standing as to this residence” effects an

economy of words in comparison with saying, or writing, that “this defendant has, with respect

to this residence, an expectation of privacy that is both objectively and subjectively reasonable

under the test set forth in the separate opinion of Justice Harlan in Katz v. United States, 389 U.S.

347 (1967), and is therefore of the kind contemplated and protected by the Fourth Amendment

and therefore also protected by Art. I §12 of the Florida Constitution.”3

In this spirit – in the spirit of sparing the slaughter of trees to make paper, or the

perturbation of electrons to make pixels – and not out of any misapprehension about the nature of

the inquiry on which I embark, I pose the question: Do the defendants, or any of them, have

standing to complain of the search of apartment 246 and of the admission at trial of evidence

seized during that search?

3
In 1982, Art. I §12 of the Florida Constitution was amended to provide: “This right shall be
construed in conformity with the 4th Amendment to the United States Constitution, as
interpreted by the United States Supreme Court. Articles or information obtained in violation of
this right shall not be admissible in evidence if such articles or information would be
inadmissible under decisions of the United States Supreme Court construing the 4th Amendment
to the United States Constitution.” FL. CONST. art. 1, § 12.

5
 In Minnesota v. Olson, 495 U.S. 91 (1990), the Supreme Court squarely held that, “status

as an overnight guest is alone enough to show ... an expectation of privacy in the home that

society is prepared to recognize as reasonable.” Id. at 96-7. Olson “spent the night ... on the

floor” at the home of his friends the Bergstroms. Id. at 97 n.6. He had a change of clothes with

him but, so far as appears in the opinion, kept no other property at the house, temporarily or

permanently. Id. at 97. He had no key to the residence, and was not left alone there. Id. at 98.

The Court nonetheless found him to have standing to contest a search of the residence and the

introduction against him at trial of evidence found there:

To hold that an overnight guest has a legitimate expectation of

privacy in his host’s home merely recognizes the everyday
expectations of privacy that we all share. Staying overnight in
another’s home is a longstanding social custom that serves
functions recognized as valuable by society. ... [W]e think that
society recognizes that a houseguest has a legitimate expectation of
privacy in his host’s home.
From the overnight guest’s perspective, he seeks shelter in
another’s home precisely because it provides him with privacy, a
place where he and his possessions will not be disturbed by anyone
but his host and those his host allows inside.

Id. at 98-9.

In Minnesota v. Carter, a police officer was able to look into an apartment “through a

drawn window blind.” Carter, 525 U.S. at 85. His observations led to the arrest of Carter and

another man, and the search of the apartment and seizure therein of drugs and drug

paraphernalia. Id. at 86. The apartment belonged to a Kimberly Thompson; “Carter and [the

other man] lived in Chicago and had come to the apartment for the sole purpose of packaging ...

cocaine. Carter and [the other man] had never been to the apartment before and were only in the

apartment for approximately 2 ½ hours.” Id.

Unlike Olson, Carter and his codefendant

6
 [W]ere obviously not overnight guests, but were essentially present
for a business transaction and were only in the home a matter of
hours. There is no suggestion that they had a previous relationship
with Thompson, or that there was any other purpose to their visit.
Nor was there anything similar to the overnight guest relationship
in Olson to suggest a degree of acceptance into the household.

Id. at 90. Carter was, accordingly, found to be without standing. Similarly, in State v.

Washington, 884 So.2d 97 (Fla. 2nd DCA 2004), the police, upon entering a residence,

[F]ound in plain view in the living room area ten baggies of

marijuana on the floor next to Ms. Washington. They arrested her
for possession of contraband with intent to distribute. Ms.
Washington was not a resident of the home and provided the
officer a different home address. She told the arresting officer that
she was a guest of the owner, had been there for several hours,
planned on staying several more because a party was in progress,
but had no intention of staying overnight. There was no evidence
that any of her personal belongings were kept at this residence.

Id. at 98. Citing both Olson and Carter, the court concluded that, “Ms. Washington, enjoying

only the status of a short-term, nonovernight, casual guest, possessed no legitimate expectation

of privacy in the residence where she was arrested.” Washington, 884 So.2d at 100.

Examples from the case law could be multiplied, but the foregoing controlling cases

provide ample ammunition to resolve the question at bar. As to Damian Glover, his case for

standing is irrefragable. Apartment 246 had been Mr. Glover’s home for a month or two before

Ms. Jenkins’s July 2 departure, and apparently continued to be his home till his arrest there on

July 22. He made some contribution toward the rent. He had keys to the apartment, and his own

bed within the apartment. He testified that what personal effects he had, he kept at the

apartment. The officers testified that few if any such personal effects were observed during the

search; but in the absence of a suggestion that Mr. Glover had clothing, furniture, or the like at

some other address, these observations establish, not Mr. Glover’s lack of standing, but his lack

of financial means.4
4
In the oft-quoted language of William Pitt the Elder, First Earl of Chatham,“The poorest man
may in his cottage bid defiance to all the forces of the crown. It may be frail – its roof may

7
 Deandre Howard’s claim of standing is slightly weaker, but more than strong enough.

Katrina Jenkins stood in loco parentis to him, or nearly so. (Tr. 18.) Tragically, he has had no

fixed abode in his young lifetime, having resided with a variety of relatives and foster parents.

(Tr. 18.) He has spent, cumulatively, about a third of his life residing with Ms. Jenkins by her

own estimate; and was a regular, albeit perhaps not full-time, resident of apartment 246.

Certainly he was much more than the one-time visitor that Carter and Washington depicted;

more even than the overnight guest in Olson. As with Mr. Glover, that Mr. Howard had few if

any possessions at apartment 246 is proof of little. So far as appears, Mr. Howard has few if any

possessions in this world.

Marvin Givens, however, is in a very different situation vis-a-vis apartment 246. Ms.

Jenkins testified that she and he were on good terms, and that he visited from time to time. But

she did not state that he had ever resided at the apartment before her departure, and of course she

could not state (other than as hearsay) that he resided at the apartment after her departure. Other

than Ms. Jenkins, no witness testified as to Mr. Givens’s status with respect to the apartment.

The police, of course, testified that Mr. Givens was present at the time of the search.5 But

whether he had been there for three minutes, three days, or three weeks (i.e., since Ms. Jenkins

left for Tampa) is, on the record of these proceedings, unknown and unknowable. All that can be

said with certainty is that when the police found drugs in apartment 246, they found Marvin

Givens in apartment 246. This places Mr. Givens on the standing spectrum very close to Mr.

Carter and Ms. Washington, and very far from Mr. Glover and Mr. Howard.

I conclude that Messrs Glover and Howard have standing to contest the search of

apartment 246 and the seizure for use at trial of evidentiary items therein. I conclude that Mr.

Givens has no such standing.

shake – the wind may blow through it – the storm may enter – but the King of England cannot
enter.”
5
Det. Pomar claimed to have seen Mr. Givens engaging in what appeared to be a drug
transaction near the apartment. See discussion infra at p. 9. When called upon to identify the
person he saw, however, he failed to identify Mr. Givens. (Tr. 100, 143.)

8
 II. The July 22 Raid on Apartment 246

Three witnesses testified to the events leading up to and including the raid on apartment

246: Detectives Pomar and Greenbaum, and Trudy Frohman. Ms. Frohman’s evidence was not

in complete accord with that of the officers. As noted supra, I credit the testimony of the two

detectives, which testimony was forthrightly given and internally cohesive.

According to Det. Greenbaum, the police commenced an investigation when “Ms.

Frohman called [Det. Pomar] and said that people broke into [one of the apartments] and were

serving dope out of there, narcotics.” (Tr. 134.) Det. Pomar did not recall whether it was he who

called Ms. Frohman or she who called him (Tr. 97) but agreed with his colleague that, as a result

of a telephone conversation with Ms. Frohman, he began a surveillance from 103rd Street. (Tr.

99.) Although his observation post was some distance from the Silver Blue Lake Apartments

(“there was a street, then a sidewalk, and then a parking lot, and then there was the actual

structure,” (Tr. 100.)), he saw “a couple of transactions which led [him] to believe that there was

narcotics activity.” (Tr. 99.)

Det. Pomar then met with Det. Greenbaum; told her of his investigation, including the

intelligence “that Ms. Frohman said to him, people have broken in there and are using the

apartment as a location to deal narcotics,” (Tr. 135) and summoned the aid of two other officers.

Thus fortified, Det. Pomar asked Ms. Frohman to let him and his colleagues into apartment 246.

(Tr. 73, 74, 102.) Whether Ms. Frohman turned the key in the lock herself, or handed the key to

one of the officers to use, is something no one seems to remember. (Tr. 86, 102.) In the

excitement of the moment, this failure of memory is perfectly understandable and is, in any

event, of no real importance. The detectives testified clearly that all four police officers entered

the apartment with guns drawn, which procedure they characterized as “a tactical entry.” (Tr.

9
102, 135-6.)6 In the course of the ensuing search they found the drugs, guns, and other

evidentiary items that are the objects of the present motion to suppress.

It is conceded that the police acted in the absence of a warrant of any kind. That being

the case, the prosecution is obliged to show that the search and seizure was conducted pursuant

to one of the exceptions to the warrant requirement. The exception upon which the prosecution

seeks to rely is that of “third-party consent.”

There are at least two distinct lines of “third-party consent” cases. One such line –

sometimes referred to as “common authority” cases – typically involves a roommate or family

member who gives consent to the police to search a residence or other property putatively shared

by the consenting roommate or family member with another roommate or family member.

That such searches do not give rise to claims of constitutional

violations rests not on the premise that they are “reasonable” under
the Fourth Amendment... but on the premise that a person may
voluntarily limit his expectation of privacy by allowing others to
exercise authority over his possessions.... Thus, an individual’s
decision to permit another “joint access [to] or control [over the
property] for most purposes,” United States v. Matlock, 415 U.S.
164, 171, n.7 (1974), limits that individual’s reasonable
expectation of privacy and to that extent limits his Fourth
Amendment protections.

Illinois v. Rodriguez, 497 U.S. 177, 189-190 (1990) (Marshall, J., dissenting) (some internal

citations and quotations omitted). The case at bar does not involve a claim of “common

authority.”

6
Untutored as I am in police argot, I asked Det. Greenbaum to define the locution, “tactical
entry.” She very helpfully explained that it means “like on NCIS ... [or] whatever the new raid
show is.” Use of this trope, she added, just “[m]akes it sound cool.” (Tr. 135-6.) At that point in
the proceedings, the transcript reads as follows:

THE COURT: You are a model of candor, Detective Greenbaum.

The compliment was well deserved.

10
 A second and distinct line of “third-party consent” cases, of which the present case is

typical, deals with the power of one party, as a matter of his legal relationship with another, to

consent to the search of that party’s property. Many of these cases involve landlords or

hotel operators who purport to consent to the search of rooms or other property belonging to

tenants or hotel guests. In Chapman v. United States, 365 U.S. 610 (1961), for example, the

owner of a cabin in rural Georgia paid a visit to his tenant on a Sunday morning to invite the

latter to church. Id. at 611. No one responded to the landlord’s knock; but he perceived,

emanating from the cabin, an odor that he associated with the distilling of whiskey. Id. He

summoned the police, and together they knocked again and “walked around the house and tried

to look into it but were unable to do so.” Id. at 612. The police, however, confirmed that the

scent coming from the cabin was distinctively that of the distillation of whiskey. Id. At that

point the landlord purported to give the police permission to enter the cabin, which they did by

climbing through a bathroom window. Id. There they found and seized “a complete and sizable

distillery and 1,300 gallons of mash.” Id. The Supreme Court found the search to be in violation

of the Fourth Amendment, rejecting any claim that, in the absence of state statute or case law, or

a covenant in the rental agreement, a landlord has a general power to consent to the search by

police of a residence rented to his tenant. Id. at 616.

Nearer to home, to the same effect is Blanco v. State, 438 So.2d 404 (Fla. 4th DCA 1983).

There as here, the police searched an occupied apartment with the consent of the landlord. But,

[T]he two defendant tenants had executed a series of written

agreements which, when taken together, were tantamount to a
year’s lease still in force and effect.

The State argues that under the terms of the agreement the
landlord had the right to enter. We agree, but that right was for
reasonable access for inspection purposes and in order to spray for
infestations. Inviting the police to enter and search the apartment
is another matter altogether.

Nor are we impressed with the State’s insistence that the

defendants had been orally told to deliver up the premises. First of

11
 all, we question the landlord’s right to evict them and second, no
written notice was given as required under the Landlord Tenant
Law. The State’s final argument that the defendants were three
days late on their monthly rent also falls short of the kind of
occurrence that would permit the landlord to invite the police to
search.

Id. at 405 (footnote omitted; emphasis in original). See also Talavera v. State, 186 So.2d 811

(Fla. 2nd DCA 1966).

Thus, a Florida landlord’s power to authorize the police to search a tenant’s apartment

must be found, if it to be found at all, in the general law regulating the relations between

landlords and tenants, or in the lease creating the tenancy. Trudy Frohman conceded as much.

(Tr. 74.)

The general law applicable here is FLA. STAT. § 83.53 (1995), captioned, “Landlord’s

access to dwelling unit.” It provides that the landlord “may enter the dwelling unit at any time

for the protection or preservation of the premises.” § 83.53(2). There was no suggestion on the

part of Ms. Frohman, or anyone else who testified at the hearing on the motion to suppress, that

there was the slightest need to protect or preserve apartment 246, or that any such perceived need

prompted the purported consent to entry by the police. On the contrary; according to Ms.

Frohman’s narrative, her interest was piqued when “one of my maintenance men came and told

me that they (sic) saw some people in the apartment.” (Tr. 57-8.) Why it should be noteworthy

that “some people” appeared to be in apartment 246 was never explained. The apartment was

rented till December of 2009 (Composite Ex. A) and although Ms. Frohman knew that Ms.

Jenkins was moving out, the lease expressly identifies two other tenants: Alicia L. Walker, and

Trvin Jenkins.7 If Ms. Frohman was sincerely concerned that unauthorized persons were in the

apartment, and that their presence might necessitate prompt action “for the protection or

7
Ms. Frohman claimed to have been unaware of, or to have forgotten, the existence of the other
tenants (Tr. 66.) – testimony that I find impossible to credit. As an experienced property
manager, surely Ms. Frohman would be expected to consult her own records, including her
copies of the lease agreement, prior to calling the police with a story about unauthorized
occupants being in one of her apartment units.

12
preservation of the premises,” her first step would have been to walk over to apartment 246 (or

send her maintenance man there) and observe the unit. Had she done so, she would have found

that there was no damage to the door or the lock (strong circumstantial evidence that if anyone

was inside, he or she had a key, and thus presumptively a right to be there) (Tr. 86.) and that

neither the windows nor the door appeared to have been tampered with in any way. (Tr. 86.) But

Ms. Frohman chose not to go knock on the door of apartment 246 (Tr. 71.) nor to have her

maintenance man do so. (Tr. 71.) Thus, at the time she purported to authorize the police to enter,

she had no basis in fact whatever to believe that it was necessary for her, or for the police, to

enter “for the protection or preservation of the premises.”

A landlord may enter a leased apartment for reasonable inspection or other, similar

business purpose only when the tenant consents; there exists an emergency; the tenant

unreasonably withholds consent; or the tenant is absent from the premises “for a period of time

equal to one-half the time for periodic rental payments.”8 FLA. STAT. § 83.53(2)(a)-(d). The

statute expressly instructs the landlord “not [to] abuse the right of access nor use it to harass the

tenant.” FLA. STAT. § 83.53(3).

The only other possible source of the landlord’s authority to enter, and to admit the police

to enter, apartment 246 is the language of the lease contract itself. That document provides that

the landlord, “shall have the right to enter [the tenant’s] apartment for inspection, maintenance

and repair during reasonable hours; or as provided otherwise by the laws of the State of

Florida.”9 No serious suggestion could be made that permitting armed police officers to effect a

“tactical entry” of an apartment constitutes the exercise of the landlord’s right to “inspection,

maintenance and repair during reasonable hours.” To its credit, the prosecution has made no

such suggestion in these proceedings.

8
Arguably, Ms. Jenkins had been absent for the statutorily-requisite time period. As noted
supra, however, there were two other tenants identified on the lease; and Ms. Frohman conceded
she had no idea if they were in residence or not. Indeed she claimed to have forgotten their very
existence.
9
Composite Ex. A to the Hr’g on the Mot. to Suppress ¶ 16.

13
 At the time of the raid, eviction proceedings had been instituted against the tenants of

apartment 246. But the raid took place on July 22. Final judgment for removal of the tenants

was not entered till July 23 (Ex. B to the Hr’g on the Mot. to Suppress) and a writ of possession

did not issue till July 28 (Ex. C to the Hr’g on the Mot. to Suppress). Absent the completion of

the pending legal proceedings, the landlord had no right to enter, or to allow others to enter,

except as provided by general law or the lease agreement. Ms. Frohman as much as conceded

this point in her testimony. (Tr. 56-7.)

Thus I conclude that the property manager, as agent for the landlord, had no claim to

enter, or to authorize others to enter, apartment 246 on July 22. But this is only half the inquiry.

I must now consider whether the police officers reasonably (albeit mistakenly) believed that Ms.

Frohman was empowered to authorize their entry. If so, the evidentiary fruits of their search are

admissible. See Rodriguez, 497 U.S. 128.

In this, as in so many areas of Fourth Amendment jurisprudence, the law does not require

that officers of the law be perfect; only that they be reasonable. In determining whether the

police in this case reasonably believed that Ms. Frohman was lawfully empowered to permit

them to enter apartment 246, we do not demand of the officers the level of scholarship and

sophistication associated with those who possess an LL.M in real property law from the

University of Miami; but neither do we permit them to display a struthious and willful blindness.

The appropriate standard was set forth by the Fifth District in Evans v. State, 989 So.2d

1219 (Fla. 5th DCA 2008). In support of the proposition that the prosecution has the burden of

proving the effectiveness of a third-party’s consent, the Evans court excerpted with approval this

language from United States v. Salinas-Cano:

The burden cannot be met if agents, faced with an ambiguous

situation, nevertheless proceed without making further inquiry. If
the agents do not learn enough, if the circumstances make it
unclear whether the property about to be searched is subject to
mutual use by the person giving consent, then warrantless entry is
unlawful without further inquiry.

14
United States v. Salinas-Cano, 959 F.2d 861, 864 (10th Cir. 1992); see also Illinois v. Rodriguez,

497 U.S. at 188 (stating “what we hold today does not suggest the law enforcement officers may

always accept a person’s invitation to enter premises. Even when the invitation is accompanied

by an explicit assertion that the person lives there, the surrounding circumstances could

conceivably be such that a reasonable person would doubt its truth and not act upon it without

further inquiry”).

Detectives Pomar and Greenbaum as much as conceded that they all too credulously

accepted Trudy Frohman’s representations, and invitations, at face value. Ms. Frohman gave no

specifics regarding her assurances that the residents of apartment 246 had been evicted, or had

abandoned their residence; and the officers demanded no specifics, and conducted no “due

diligence.” (Tr. 98.) Detective Pomar offered this testimony:

Q: [Y]ou didn’t follow up with Ms. Frohman about this eviction,

did you?

A: No, I did not.

Q: You didn’t look for the file to determine whether or not the
eviction was actually taking place or it actually happened?

A: No.

Q: You didn’t look at the file to determine who else may be a

leaseholder on the apartment?

A: No, I did not.

Q: You didn’t ask that question, as to whether or not anybody else

was in that apartment?

A: No. I figured ... time was of the essence.

(Tr. 111.) Detective Greenbaum testified to the same effect. Told by Ms. Frohman that the

residents of apartment 246 had been or were being evicted, and that because of the eviction the

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police could enter upon the landlord’s say-so, she accepted that representation without inquiry or

investigation of any kind:

Q: Now, did you do any investigation as to whether or not this was

true?

A: No.

Q: You took her word for it?

A: I went on her good faith.

Q: ... Did you ask to see the file to that apartment?

A: No.

Q: ... So you wouldn’t know whether or not there was (sic) other
occupants in that apartment?

A: I went off her word, and no, based on the circumstances ... .

(Tr. 125-6.)

Of course the officers’ conduct was understandable. Given Ms. Frohman’s

blandishments, temptation “lay in [the officers’] way, and [they] found it.” WILLIAM SHAKESPEARE,

HENRY IV PART I, ACT V, SC. 1. From the standpoint of human nature, their conduct was indeed

understandable; but from the standpoint of the Fourth Amendment, their conduct was not

permissible. If, as Det. Pomar believed, “time was of the essence,” the law provided various

means of proceeding promptly; but dispensing with the warrant requirement was not one of

them. And Det. Greenbaum’s “good faith” in Ms. Frohman was misplaced. Undoubtedly faith

is a virtue; but where the Fourth Amendment is concerned, due diligence and reasonable inquiry

are greater virtues.

The officers did not ask Ms. Frohman the status or progress of the eviction proceedings,

nor did they demand documentation reflecting the state of those proceedings. They did not make

observations of apartment 246 before effecting a “tactical entry,” nor did they knock on the door

or attempt to peer through the windows. Believing that drug traffic was being conducted out of

16
apartment 246, the police all too willingly accepted a factually flawed and legally insufficient

consent to enter; and relying upon that consent, they entered. But ersatz consent is no substitute

for consent, and certainly no substitute for a warrant. Here, the police sought to enter that

sanctum sanctorum of the Fourth Amendment, the home. A warrant was required; a warrant was

not obtained; and in the absence of a warrant, the search and its fruits cannot be countenanced.10

I conclude that the search of apartment 246 on July 22, 2009, and the seizure of items of

evidentiary value therein, was in violation of the Fourth Amendment and therefore of Art. I §12

of the Florida Constitution. I therefore order the suppression at trial of all fruits of said search

and seizure as to defendants Glover and Howard.

SO ORDERED, in chambers in Miami, Miami-Dade County, Florida, this _____ day of

February, 2011.
_____________________
Hon. Milton Hirsch
Judge, 11th Judicial Circuit

10
The prosecution seeks to save the search, and its fruits, by reliance upon the doctrine of
“inevitable discovery.” Assuming arguendo – and this is a considerable assumption – that the
police had probable cause and could have obtained a warrant to search apartment 246 if they had
applied for one, this is not what is contemplated by the doctrine of “inevitable discovery.”
Inevitable discovery requires that an independent police investigation be in train, which
independent investigation inevitably would have – not could have, but would have – led to the
discovery of the same fruits obtained in the wrongful search. Nix v. Williams, 467 U.S. 431
(1984); Fitzpatrick v. State, 900 So.2d 495, 514 (Fla. 2005); Moody v. State, 842 So.2d 754, 759
(Fla. 2003); Maulden v. State, 617 So.2d 298 (Fla. 1993). No such independent investigation
was ongoing at the time that the officers invaded apartment 246. The doctrine of inevitable
discovery has no application here.

17