152 So. 3d 98
Fla. Dist. Ct. App.2014Background
- Confidential Informant #10-053 told police he saw marijuana plants in Perez-Riva’s garage and marijuana on visitors’ clothing; affidavit did not describe the CI’s reliability.
- Officers approached the house with a drug‑sniffing dog, walked around the exterior, and the dog alerted at the garage door, garbage area, and at a Camry; officers observed nails in the garage door while outside.
- Perez‑Riva and another man arrived; officers ordered them out of the Camry, removed the keys, and Perez‑Riva refused consent to search; the dog later alerted at the Camry and police found marijuana items in the car.
- A detective used Perez‑Riva’s key to unlock the front door (without entering), then relocked it; a search warrant was later issued and marijuana plants were discovered inside the house.
- Perez‑Riva was convicted of multiple drug offenses, appealed, and later filed a Rule 3.850 postconviction motion claiming ineffective assistance for (1) failing to challenge the warrant/failure to move to suppress and (2) failing to object on double jeopardy grounds to convictions for both manufacture/cultivation and trafficking of the same cannabis.
- The appellate court reversed the summary denial of the ineffective‑assistance claims relating to the warrant/suppression and the double‑jeopardy claim, and affirmed denial of the remaining claims; remand for further proceedings or evidentiary hearing was ordered.
Issues
| Issue | Perez‑Riva’s Argument | State’s Argument | Held |
|---|---|---|---|
| 1) Counsel ineffective for failing to challenge dog‑sniff/search and move to suppress | Counsel should have challenged the exterior dog sniff and the resulting warrant; evidence would have been suppressed or new trial obtained | Trial counsel’s actions were adequate; warrant and evidence were valid | Reversed: counsel’s failure appears deficient and prejudicial; remand for further proceedings/evidentiary hearing |
| 2) Legality of dog sniff/entry to curtilage and use in probable cause | The dog sniff of curtilage and resulting observations were unlawful; affidavit lacked independent probable cause because CI reliability not shown | Dog‑sniff and corroborating observations supported probable cause for the warrant | Court relied on Jardines/Rabb: dog sniff of curtilage is a search; CI was uncorroborated in affidavit; exclusion could have undermined probable cause — supports relief if counsel had raised it |
| 3) Ineffective assistance for failing to object on double jeopardy to convictions for both manufacture (cultivation) and trafficking | Convictions for manufacture and trafficking of the same cannabis violate double jeopardy because manufacture was the underlying conduct for both counts | The offenses require different elements (State initially argued distinct elements) | Reversed: trafficking (an alternative‑conduct statute) and manufacture overlapped where manufacture was the alleged conduct; dual convictions violated double jeopardy; remand for relief on this claim |
Key Cases Cited
- Jardines v. State, 73 So.3d 34 (Fla. 2011) (dog sniff at home’s curtilage is a search; sniff evidence may be excluded)
- Florida v. Jardines, 133 S. Ct. 1409 (U.S. 2013) (U.S. Supreme Court affirming that using a trained dog on the home’s curtilage is a Fourth Amendment search)
- State v. Rabb, 920 So.2d 1175 (Fla. 4th DCA 2006) (anonymous tip plus dog sniff at residence violated Fourth Amendment; sniff could not support probable cause)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong test for ineffective assistance: deficient performance and prejudice)
- Gibbs v. State, 698 So.2d 1206 (Fla. 1997) (double jeopardy analysis for trafficking requires isolating the specific conduct element at issue)
- Odom v. State, 104 So.3d 1238 (Fla. 5th DCA 2012) (dual convictions for manufacturing and trafficking violated double jeopardy)
- Fonseca v. State, 114 So.3d 1010 (Fla. 5th DCA 2012) (convictions for both manufacturing and trafficking same drug violate double jeopardy)
- Stacey v. State, 83 So.3d 749 (Fla. 5th DCA 2011) (manufacture conviction may subsume possession‑type offenses for double jeopardy purposes)
- Fellows v. State, 612 So.2d 686 (Fla. 2d DCA 1998) (affidavit must show CI reliability or independent corroboration)
- Smith v. State, 637 So.2d 351 (Fla. 1st DCA 1994) (same: affidavits relying on informants must indicate reliability or corroboration)