FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellant,
v.
John M. and Patricia A. HAIRE, Carolyn Seligman, Laz and Ellen Schneider, Susan B. Peterson, Stephen M. Wolfman, Robert Scherer, Susan and Hiram Frank, Judith and Bernard Macnow, Mike Costa Foliage, Inc., Broward County, Miami-Dade County, City of Plantation, City of Fort Lauderdale, City of Pompano Beach, City of Coral Springs, Town of Davie, City of Hollywood, City of Boca Raton, Brooks Tropicals, Inc. and Village of Pinecrest, Appellees.
District Court of Appeal of Florida, Fourth District.
*1042 Arthur J. England, Jr., Elliot H. Scherker and Elliot B. Kula of Greenberg Traurig, *1043 P.A., Miami, Jerold I. Budney, Greenberg Traurig, P.A., Fort Lauderdale, David C. Ashburn, Greenberg Traurig, P.A., Tallahassee, for appellant.
Robert A. Ginsburg, Miami-Dade County Attorney and Robert A Duvall, III, Assistant County Attorney, Miami, for appellee Miami-Dade County.
Edward A. Dion, Broward County Attorney, Tamara M. Scrudders, Assistant County Attorney, and Andrew J. Meyers, Chief Appellate Counsel, Fort Lauderdale, for appellee Broward County.
Craig P. Kalil of Aballi, Milne, Kalil & Escagedo, P.A., Miami, and Malcolm A. Misuraca of Resolution Law Group, Lafayette, California, for appellee Brooks Tropicals, Inc.
WARNER, J.
Appellant, the Florida Department of Agriculture ("the Department"), challenges the trial court's temporary injunction declaring the 2002 Citrus Canker Law amendments unconstitutional and enjoining the Department from entering upon private property without individually issued search warrants. The issues presented are: (1) whether section 581.184, Florida Statutes (2002), requiring the removal of citrus trees within 1900 feet of a tree infected with canker, violates substantive and procedural due process; (2) whether the Department has the authority to conduct warrantless searches of residential private property; (3) if search warrants are required, whether area-wide search warrants authorized under section 933.07(2), Florida Statutes (2002), are unconstitutional; and (4) if area-wide search warrants are unconstitutional, whether individual search warrants each supported by a separate affidavit of probable cause and signed by a neutral magistrate, without the use of an electronic signature, are mandated. We hold that section 581.184 does not violate due process and is therefore constitutional, but that section 933.07(2) does violate the Fourth Amendment. We further hold that magistrates have discretion to include multiple properties in affidavits and search warrants and to use electronic signatures.
In Florida Department of Agriculture & Consumer Services v. City of Pompano Beach,
Citrus canker was discovered in Florida in 1914 and eradication programs continued through the mid 1930s. In the mid 1980s, an Asian strain of citrus canker, xanthomonas axonopodis pv.citri., the strain of citrus canker at issue in this case, was discovered in Manatee County. It was considered eradicated in 1992 and the eradication program halted in 1994. However, in 1995 an outbreak was discovered around the Miami International Airport.
Citrus canker is a disease that is caused by a bacterial organism that attacks the fruits, leaves and stems of a citrus plant. It causes defoliation, fruit drop and loss of yield. It also causes blemishes on the fruit and a loss of quality. In severe cases, it can cause girdling of the stems and death of the tree.
Stem lesions can survive for many years and are capable of producing bacterial inoculum eight to ten years later. Although symptoms of citrus canker may be seen seven to fourteen days after infection, the maximum visualization does not occur until approximately 107 to 108 days after infection. This makes it difficult to control a disease which easily spreads through wind-driven rain or contamination of equipment or plant material.
According to the Florida Department of Agriculture and Consumer Services (Department), *1044 citrus canker would have an immediate impact on the fresh citrus industry which comprises twenty-five percent of the commercial citrus industry, amounting to two billion dollars in losses if not eradicated. If it continues to spread, a federal quarantine could be placed on the state. The quarantine would effectively shut down the distribution of fresh citrus products to other states or internationally.
At the time that citrus canker, Asian strain, was discovered in Miami, the citrus canker eradication program in place called for the destruction of trees that were infected or were within a 125 foot radius of an infected tree. The 125 foot radius was adopted in the 1980s as a result of a study conducted in Argentina. However, that study did not take into account what would happen in an urban setting.
In Miami-Dade County, the destruction of citrus trees within a 125 foot radius of an infected tree was not reducing the occurrences of citrus canker. Therefore, the Department decided to initiate a study ["the Gottwald study"] that would measure the distances that citrus canker, Asian strain, would spread in South Florida.
The [Gottwald] study kept track of over 19,000 trees in four sites and determined the distance between the diseased trees and the newly infected trees. The study showed that the eradication program which used the 125 foot radius was inadequate because it only captured about thirty to forty-one percent of infection that spread from a diseased tree.
The results of the [Gottwald] study were presented at a meeting in Orlando attended by approximately twenty individuals and scientists. Those at the meeting examined the findings. After considering a range of distances between diseased trees and newly infected trees at the various sites, those present determined that in order to destroy ninety-five percent of newly infected trees, it was necessary to destroy trees within a 1900 foot radius of a diseased tree, thereby creating a buffer zone which would prevent citrus canker from spreading any further.
In March 1999, the Citrus Canker Technical Advisory Task Force, a body of regulatory individuals, scientists and citrus industry representatives who deal with the issue of citrus canker, unanimously recommended that the Department adopt a policy to destroy trees within a 1900 foot radius of a diseased tree in order to eradicate citrus canker.
Id. at 541-42.
The Department adopted the task force's recommendation in furtherance of its goal to eradicate citrus canker and implemented a policy requiring the destruction of citrus trees within 1900 feet of an infected tree. See id. at 542. Litigation ensued over the adoption of the rule on an emergency basis. See id. at 543. As a result, the Department was enjoined from cutting down healthy trees having no visible signs of infection located within 1900 feet of an infected citrus tree. See id. The trial court determined, inter alia, that the rule was not adopted in accordance with the rulemaking procedure contained in the Administrative Procedure Act. See id. at 544. We reversed the trial court's order and directed dismissal of the complaint because the plaintiffs failed to exhaust their administrative remedies. See id. at 548.
During the same time period that the plaintiffs sought an administrative review of the rule's adoption before the Division of Administrative Hearings, the Legislature reacted by enacting Florida Law Chapter 2002-11 which adopted the "1900 foot rule." Ch.2002-11, § 1, at 311, Laws of Fla. Appellees then filed an amended *1045 complaint for declaratory and injunctive relief against the Department and the State of Florida alleging that the new law violates substantive and procedural due process, constitutes the taking of property without just compensation, and permits unreasonable searches and seizures. Appellees moved for a temporary injunction, which the trial court granted after an extensive hearing. In its order, the court made the following conclusions: 1) sections 581.184 and 933.07 are unconstitutional because they violate Article I, Section 12 of the Florida Constitution and the Fourth Amendment of the United States Constitution; 2) the scientific principles upon which section 581.184 is founded are unsound and do not provide adequate justification for the legislature to abrogate the rights of property owners; 3) citrus trees that do not patently demonstrate citrus canker pathogens do have a value and cannot be destroyed without providing full and fair compensation to owners as determined in condemnation proceedings; 4) the Department "is temporarily enjoined from entering upon private property anywhere in Florida in the absence of a valid search warrant issued by an authorized judicial officer and executed by one authorized by law to do so"; 5) geographic search warrants cannot be county wide; and 6) search warrants must be executed by duly authorized law enforcement officers.
In response to the trial court's order, the Department filed an amended application for search warrants. It requested warrants to search 7,402 properties located within a single Township for plants infected with citrus canker. The Department had previously surveyed 2,350 properties in the Township and found fifty citrus trees on forty-seven properties infected with citrus canker. The Department also requested the trial judge permit it to electronically place his signature on the warrants. A trial judge, other than the judge who issued the temporary injunction, granted the Department's application for search warrants upon the following conditions: the Department would destroy only those trees actually infected with citrus canker, as opposed to merely those exposed to citrus canker; the Department would issue the landowners immediate final orders at least ten days prior to the removal and destruction of any citrus tree infected with citrus canker; and all warrants issued would be executed by law enforcement officers. That judge also granted the Department's request to electronically place his signature on the warrants.
Appellees filed an emergency motion to stay execution of the search warrants. Judge Fleet determined there was "no substantive difference between a single area-wide warrant covering 7,402 individual residences, and 7,402 `individual' warrants issued based on a single warrant application." He prohibited the Department from relying on the warrants previously authorized because they violated the terms of his order temporarily enjoining the Department. Judge Fleet also prohibited the Department from applying for warrants that would contain the issuing judges' electronic signatures or would permit execution by any employee of the Department. In addition, he proscribed the Department from relying on the Gottwald study or the 1900-foot destruction radius to establish probable cause for the issuance of any warrant.
The Department made an application "for the issuance of 69 search warrants in Broward County to seize and destroy plants visibly infected with citrus canker." Attached to the application was a list of the sixty-nine properties, each identified by its township/range/section number, parcel number, and address. The Department attached laboratory reports demonstrating each of the properties had trees *1046 visibly infected with the canker. Judge Fleet denied this warrant application as well. He determined "a single application for search warrants for multiple properties is not legally acceptable" and found the content of the application to be insufficient to meet the requirements of the Fourth Amendment of the United States Constitution and Article I, Section 12 of the Florida Constitution.
We have consolidated in this appeal the Department's appeal from the order declaring the statutes unconstitutional and temporarily enjoining the Department from entering upon private property without a search warrant, as well as the Department's petition for writ of certiorari for the review of the trial court's denial of the Department's application for sixty-nine search warrants.
Constitutionality of 2002 Citrus Canker Legislation
Section 581.184(2)(a), Florida Statutes (2002), provides:
The department shall remove and destroy all infected citrus trees and all citrus trees exposed to infection. Notice of the removal of such trees, by immediate final order, may be provided to the owner of the property on which such trees are located. An immediate final order issued by the department pursuant to this section shall notify the property owner that the citrus trees that are the subject of the immediate final order will be removed and destroyed unless the property owner, no later than 10 days after delivery of the immediate final order pursuant to subsection (3), requests and obtains a stay of the immediate final order from the district court of appeal with jurisdiction to review such requests. The property owner shall not be required to seek a stay of the immediate final order by the department prior to seeking the stay from the district court of appeal.
§ 581.184(2)(a) (emphasis added). A citrus tree is infected when it "harbor[s] the citrus canker bacteria and exhibit[s] visible symptoms of the disease." § 581.184(1)(a). A citrus tree is exposed to infection when it is "located within 1,900 feet of an infected tree." § 581.184(1)(b).[1] Section 581.1845, Florida Statutes (2002), provides for compensation for the destruction of homeowners' trees in the amount of $55 per tree or $100 per tree, depending upon the time of removal. § 581.1845(3), (6).
In its order the court found that section 581.184 was unconstitutional because it constituted a taking without just compensation and without either procedural or substantive due process. As to substantive due process, the court determined the Gottwald report was not based upon reliable science or scientific methods for collecting data and, therefore, "was not constitutionally acceptable as a basis for legislative abrogation of a property owner's right to the full panoply of protections by our State and Federal constitutions." As to procedural due process, the court held that the statute did not provide for a meaningful pre-deprivation hearing, that it removed from the judiciary the determination of whether a taking has occurred and the amount of compensation to be awarded, and that it left individuals with only the inefficacious remedy of inverse condemnation to press their claims. Accordingly, the court enjoined the enforcement of the law, stating that:
All citrus trees not patently demonstrating the existence of citrus canker pathogens have a determinable value and cannot be destroyed by the state in the *1047 absence of full and fair compensation determined by appropriate condemnation proceedings. This applies to commercial groves, citrus trees owned by municipal government and citrus trees owned by private parties.
The state challenges both of these determinations.[2]
Due to the significance the citrus industry has on Florida's economic welfare, both the legislature and the courts have continuously relied upon the state's police power to protect the industry. In Johnson v. State,
The protection of a large industry constituting one of the great sources of the state's wealth and therefore directly or indirectly affecting the welfare of so great a portion of the population of the state is affected to such an extent by public interest as to be within the police power of the sovereign.
Id. at 857 (citations omitted). Later, in L. Maxcy, Inc. v. Mayo,
This court takes judicial notice of the fact that the citrus industry of Florida is one of its greatest assets. Its promotion and protection is of the greatest value to the state, and its advancement redounds greatly to the general welfare of the commonwealth. For this reason the Legislature necessarily has a wide field of police power within which to pass laws to foster, promote, and protect the citrus fruit industry of Florida from injurious practices which may tend to injure or destroy either the reputation or value of Florida citrus products in the world's markets.
Under the police power, the Legislature has the right to adopt suitable statutory regulations for the protection of health, the prevention of fraud, and the prevention of the prevailing public morals. This power which the Legislature has to promote the general welfare of a state is very great, and the discretion which the legislative department of the government has, in the employment of means to that end, is very large.
Id. at 128 (citations omitted). The state's police power can be exercised to protect and promote the general welfare of economic interests. In Coca-Cola Co., Food Division, Polk County v. State,
Courts also have upheld the use of the police power to authorize the destruction of apparently healthy citrus trees under a citrus canker eradication program pursuant to prior Department rules. See Nordmann v. Fla. Dep't of Agric.,
The courts in Nordmann and Denney relied on Corneal v. State Plant Board,
In Corneal, the court considered whether these regulations, requiring the destruction of healthy trees without compensation, was a constitutional use of the state's police power. Acknowledging that the state's police power to protect the public welfare is very broad, it cautioned that "the absolute destruction of property is an extreme exercise of the police power and is justified only within the narrowest limits of actual necessity, unless the state chooses to pay compensation." Id. at 4 (emphasis added). Quoting from Freund on Police Power the court noted, "`[w]here property is destroyed in order to save property of greater value, a provision for indemnity is a plain dictate of justice and of the principle of equality,' and he [Freund] observed, in Sec. 535, that statutory regulation of the power to destroy property in this situation `is always accompanied by statutory duty of compensation.'" Id. Because the nematode threat did not pose a "real emergency" due to the slowness of its growth, id. at 5, and therefore was not "imminently dangerous" to other plants, id. at 6, the court held that the rule adopting the eradication program was unconstitutional where healthy trees were destroyed without compensation. See id. at 6-7.
After Corneal, the legislature's authorization of compensation to citrus owners for the destruction of healthy trees occurring during the "pull and treat" program was addressed in State Plant Board v. Smith. The court first held that this destruction of trees was not an act of condemnation pursuant to constitutional provisions but a due process taking, requiring just compensation. See Smith,
It is well settled, however, that the concept of due process does not necessarily require the granting of a hearing prior to the taking of official action in the exercise of the police power. Where a compelling public interest justifies the action, the Legislature may authorize summary action subject to later judicial review of the validity thereof.
Id. at 407-08.
The only possible reason for the summary destruction of the healthy trees would be the imminent danger of the spread of the disease from an infested to a non-infested grove. Since the facts developed in the Corneal case, and a *1049 [sic] alleged in the complaint in the instant case, show that there is no such danger, we cannot find a `compelling' public interest's [sic] sufficient to justify making an exception to the basic and fundamental rule of due process, requiring notice and a hearing before depriving a person of a substantial right.
Id. at 408.
In Nordmann and Denney, the courts considered the impact of citrus canker on the citrus industry and the Department's authority to summarily destroy trees under regulations adopted to stop the spread of that disease. Relying on reasoning from Smith, both the Nordmann and Denney courts found that because citrus canker is spread by both natural meteorologic events, such as wind and rain, and artificial methods, such as man and machinery, plants which appeared healthy could actually be infected and present an imminent danger in the spread of the disease. See Nordmann,
We find the immediate final order of the department states with sufficient particularity facts which indicate an immediate threat to the public health, safety, or welfare in order to justify the summary agency action in question. At this time, we hold only that the department has shown that the threat to the public interest in the citrus industry represented by citrus canker is of sufficient gravity and urgency that the effect of the immediate final order of the department should not be further stayed by this court. To further delay the order's effect would be an unwarranted judicial intrusion into the arena of administrative responsibility of an agency which has received a broad legislative mandate and grant of authority to deal with problems such as the one at hand.
In neither case did the courts consider the questions of compensation or distinguish between healthy and diseased trees. When those issues were addressed in Department of Agriculture & Consumer Services v. Mid-Florida Growers, Inc.,
*1050 In sum, because protecting the citrus industry benefits the public welfare, it is within the state's police power to summarily destroy trees to combat citrus canker. This action does not violate due process so long as compensation is given for the destruction of trees having value.[4]
As to whether the Department's actions violate substantive due process, initially the parties disagree on the test to be applied to determine whether a violation has occurred by extending the citrus tree eradication zone from the original 125 feet from an infected tree in the Department rules considered in Nordmann and Denney to 1900 feet. The Department contends that we should apply the reasonable relationship test, meaning that "due process requires that the law shall not be unreasonable, arbitrary, or capricious, and therefore courts must determine that the means selected by the legislature bear a reasonable and substantial relation to the purpose sought to be attained." In re Forfeiture of 1969 Piper Navajo,
United States Supreme Court precedent supports the application of the reasonable relationship test under these circumstances. Miller v. Schoene,
In its review, the United States Supreme Court determined the state's police power provided Virginia with the discretion to prefer one class of property over another:
When forced to such a choice the state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public. It will not do to say that the case is merely one of a conflict of two private interests and that the misfortune of apple growers may not be shifted to cedar owners by ordering the destruction of their property; for it is obvious that there may be, and that here there is, a preponderant public concern in the preservation of the one interest over the other. And where the public interest is involved preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property.
Schoene,
Corneal explained that where destruction of property is authorized, the police power may be exercised "only within the narrowest limits of actual necessity, unless the state chooses to pay compensation."
The state has adopted as a policy the eradication of citrus canker to protect Florida's economic welfare. Indeed, in Chapter 2000-308, the predecessor to the present law, the legislature found the citrus industry was vital to the state's economy, contributing $8 billion in revenue and employing nearly 100,000 people; and an emergency existed in South Florida regarding the spread of citrus canker which could ultimately cause quarantines to be imposed on the shipment of fresh fruit. Ch.2000-308, at 3225, Laws of Fla. If not eradicated quickly, the canker would spread to other parts of the state and destroy the citrus industry. See id. The legislature also found the recent scientific studies establish that trees as far as 1900 feet from the infected tree will develop citrus canker through wind, rain or other means. See id.
For these reasons, the legislature decided to enact legislation to protect the citrus industry and chose the eradication of canker, rather than the control of it, as the best means to do so. To that end, when it was apparent that the 125 foot eradication rule was not eliminating the spread of canker, the Department conducted a study of the spread of citrus canker in an urban setting. That study, relied on by the legislature, *1052 was conducted by Dr. Tim Gottwald, a nationally recognized expert in the field of plant pathology who worked in conjunction with the United States Department of Agriculture and the University of Florida in conducting the study. His research was published in a peer reviewed journal and provided to the Florida Citrus Canker Technical Advisory Task Force which adopted and recommended to the legislature the 1900 foot buffer, which buffer was based, not only on the results of the study, but also on Florida's practical experience with the disease.
Dr. Gottwald testified that his study measured the distance of the spread of the disease in an urban setting. Although his study showed that canker could spread up to eleven miles from the source tree, the canker advisory group determined to make a compromise between the maximal distance of spread and the minimal distance. The 1900 foot zone would capture 95% of all canker spread. The Legislature chose that zone in order to include the vast majority of canker infection and exposure without having to destroy more trees than absolutely necessary. Dr. Gottwald also testified that he knew of no other means but the destruction and removal of trees to achieve the Legislature's goal to eradicate the disease, nor did he have any suggestions other than eradication for the control of canker in urban settings. All alternative means, such as spraying or developing windbreaks, were either dangerous, impractical in the urban environment, or would not result in the eradication of canker.
Appellees countered with testimony from two experts, one in applied econometrics and one in geostatistics. Neither, however, had any training in applying their fields of expertise to plant epidemiology. They each criticized some of Dr. Gottwald's methods, but Dr. Gottwald and the Department's other experts testified that appellees' experts' criticisms showed their lack of familiarity with plant epidemiological principles. Despite these weaknesses, in rejecting Dr. Gottwald's study as a sound basis for legislative action, the court adopted some of the appellees' experts' criticisms.
We note that legislatures are not limited to acting only where there is scientific certainty. See Johnson v. City of Cincinnati,
Based upon these principles, the Legislature's action was amply supported by the scientific studies and Florida's practical experience with citrus canker. The Legislature *1053 followed the recommendations of the scientific community to eradicate the disease. Destruction of exposed trees and those within the area where the disease is likely to spread is neither arbitrary nor capricious and bears a reasonable relationship to the goal of canker eradication. See Schoene,
Even if we were to apply the "narrowly tailored" test, we would find that the statute passes constitutional muster. While appellees offered experts to attack the scientific reliability of the Legislature's basis for enacting the 1900 foot eradication zone, they offered no alternative solutions. They did not point to any studies or data to show other means were available to eradicate citrus canker other than destruction of infected trees and those trees exposed to infection. Nor did they propose any other buffer measure that would prove effective in eradicating the disease. They merely asserted the study was not reliable enough to prove all the trees in the 1900 foot zone needed to be destroyed. Faced with the extreme threat to the citrus industry and the state's economic welfare, the Legislature was not required to wait until other studies could be designed and implemented to determine if there was an alternative to their chosen course of action.
[T]he choice of least infringement required under the principle enunciated in State v. Leone [118 So.2d 781 (Fla.1960)] is a choice between or among possible regulatory devices. The principle was not meant to require a choice between regulation or nonregulation. Obviously, nonregulation will always be the choice that will infringe the least on the rights of the individual.
Fla. Canners Ass'n v. State, Dep't of Citrus,
Appellees also claim the statute violates procedural due process because it does not provide for a meaningful predeprivation hearing. In Smith, the court held that due process requires notice and a hearing before the state can deprive a person of a substantial right, e.g., the destruction of citrus trees, unless there is a reason for summary destruction, such as the "imminent danger" of the spread of the disease.
"Where only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for the ultimate judicial determination of the liability is adequate." Phillips v. Comm'r of Internal Revenue,
While the statute at issue in the instant appeal requires an immediate final order for the destruction of citrus trees to be served on the owner of the trees and provides for the opportunity of the owner to appeal and obtain a stay from an appellate court, the only issues considered at the stay are whether there is an infected citrus *1054 tree and whether the owner's citrus trees are within 1900 feet of the infected tree. Liability, meaning whether the destruction of the tree constitutes a taking, and the amount of just compensation due, are not determined in administrative proceedings. These are judicial questions based upon the constitution, and thus, not questions for the legislature. See Smith,
Furthermore, the availability of inverse condemnation proceedings provides the avenue for judicial review the trial court found lacking. The statute does not remove from the judge the issue of whether a taking has occurred. Nor does it remove from the jury the determination of value. Although section 581.1845 provides for a set amount of compensation per tree, it provides that the per-tree compensation "does not limit the amount of any other compensation that may be paid by another entity or pursuant to court order for the removal of citrus trees as part of a citrus canker eradication program." § 581.1845(4) (emphasis added). We conclude, therefore, that the statute does not purport to exclude inverse condemnation actions.
The homeowners' remedy for destruction of their trees is an action for inverse condemnation, an action which these homeowners have already brought. See Fla. Dep't of Agric. & Consumer Servs. v. City of Pompano Beach,
Necessity and Procedure for Obtaining Search Warrants
The trial court made several rulings with respect to the Department's ability to search private backyards to inspect for citrus canker. The court held section 933.07(2) unconstitutional.[6] It also required the Department to obtain a search warrant issued by a judge and executed by law enforcement officers, and it enjoined the use of area-wide search warrants. In two later orders, the trial court prohibited the Department from seeking search warrants based upon an affidavit of probable cause that covered more than one property and that contained the issuing judges' electronic signature.
The Department challenges these various orders. First, it claims a search warrant *1055 is not required, because these searches were conducted pursuant to the "exigent circumstances" exception to the warrant requirement of the Fourth Amendment. Second, it contends that section 933.07(2) authorizes area-wide administrative search warrants. Third, it challenges the court's proscription against a single application and search warrant for multiple properties, as well as its proscription against Department contractors executing the warrants. Finally, it contends that the prohibition against a judge's electronic signature also is beyond the court's power.
The Fourth Amendment right against unreasonable searches and seizures is one of the fundamental rights guaranteed in both the Federal and Florida constitutions. The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Article I, Section 12 of the Florida Constitution, is nearly identical, except that it provides that no warrant shall be issued except upon an affidavit "particularly describing the place or places to be searched." Id. (emphasis added). The Florida Constitution requires that Article I, Section 12, be construed in conformity with the Fourth Amendment to the United States Constitution.[7]See id.
We are guided by the Supreme Court's decision in Camara v. Municipal Court of City & County of San Francisco,
The Supreme Court held that "administrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual...." Id. at 534,
While the petitioner in Camara argued the Fourth Amendment required the inspector to have probable cause to believe a code violation was present in the premises sought to be searched, the Court explained that because the only effective way to achieve code enforcement was through periodic inspections of all structures, "the agency's decision to conduct an area inspection is unavoidably based on its appraisal of conditions in the area as a whole, not on its knowledge of conditions in each particular building." Id. at 536,
The court also excepted the warrant requirement for administrative inspections in emergency situations, such as to seize unwholesome food. See id. (citing N. Am. Cold Storage Co. v. City of Chicago,
Relying upon this reasoning, the Department first argues that section 581.031(15)(a), Florida Statutes (2002), allowing the Department "to enter into or upon any place" to inspect for citrus canker does not violate appellees' Fourth Amendment rights because the intrusion into the constitutionally protected areas is so de minimus as to be reasonable. Camara, however, disposed of this argument when it held that administrative searches of constitutionally protected areas are "significant intrusions" of the type protected by the Fourth Amendment.
Even if a warrant is normally required, the Department also argues its search for citrus canker infected trees falls within the "exigent circumstances exception to the warrant requirement." Again, we disagree that citrus canker inspections are the type of exigent circumstance which dispenses with the requirement of a warrant. In the criminal context, the term "exigent circumstances" has been defined as "a situation where the inevitable delay incident to obtaining a warrant must give way to an urgent need for immediate action." United States v. Burgos,
Although there is an "economic emergency" to the citrus industry from the spread of citrus canker, that does not suggest the type of emergency or exigent circumstance necessary to dispense with the warrant requirement. The infected trees themselves are not immediately dangerous to public health and safety, even if they may be imminently dangerous to the citrus industry. Moreover, there is no danger the trees will be moved during the *1058 period of time necessary to get a warrant. In fact, the Department's own conduct during the inspections as described at the hearing suggests that even they are not concerned that these trees pose an immediate danger to the citrus industries. Many times infected trees are identified and not removed for days, weeks or months. That is more than sufficient time to honor the constitutional rights of the citizen and obtain a warrant issued by a neutral magistrate. We hold the exigent circumstances exception does not excuse the Department from obtaining a warrant to search constitutionally protected property.[8] Furthermore, the Legislature itself appears to have concluded that warrants should be required for administrative searches because it enacted section 933.07(2), authorizing area-wide search warrants. That section provides:
(2) Notwithstanding any other provisions of this chapter, the Department of Agriculture and Consumer Services, based on grounds specified in s. 933.02(4)(d) or (e), may obtain a search warrant authorized by this chapter for an area in size up to and including the full extent of the county in which the search warrant is issued. The judge issuing such search warrant shall conduct a court proceeding prior to the issuance of such search warrant upon reasonable notice and shall receive, hear, and determine any objections by property owners to the issuance of such search warrant. Such search warrant may be served by employees or authorized contractors of the Department of Agriculture and Consumer Services. Such search warrant may be made returnable at any time up to 6 months from the date of issuance.
Next, the Department maintains Camara permits area-wide search warrants. Camara suggests no such thing. As explained above, Camara allows a relaxed probable cause evaluation based upon findings that "reasonable legislative or administrative standards for conducting an area inspection are satisfied with respect to a particular dwelling." Camara,
The trial court also enjoined the Department from seeking search warrants for multiple parcels of property based upon a single affidavit of probable cause. It required one affidavit for each search warrant, and neither could include more than one parcel of property to be searched. It also prohibited the Department from relying on the statutory 1900 foot requirement to justify searches for infected or exposed trees. We conclude that the trial court erred in imposing these restrictions on the Department.
*1059 Nothing in the statutes or case law prohibits an affidavit of probable cause from including more than one parcel of property upon which the affiant seeks the issuance of a search warrant. The Florida Constitution impliedly permits search warrants, and thus affidavits, to cover more than one parcel of property when it states that the warrant must describe the "place or places" to be searched. See Art. I, § 12, Fla. Const. (emphasis added). So long as the affidavit provides probable cause to search and lists with particularity the properties to be searched, the constitutional and statutory requirements have been satisfied. Courts in other states have upheld the issuance of warrants, upon a single application, providing for the search of multiple properties. See State v. Mehner,
In the cases of an administrative search, the same area wide probable cause, based upon "reasonable legislative or administrative standards" will apply to all properties in the area. See Camara,
While multiple properties may be included in a single search warrant, it is our conclusion that this must be left to the discretion of the issuing neutral magistrate. The magistrate must review each warrant to assure that it covers only property upon which probable cause has been established based upon the affidavit. How the magistrate accomplishes this is within the magistrate's discretion. Moreover, it is also limited by the statutory and practical necessity that a copy of the warrant be provided to the person named in the warrant. See § 933.11, Fla. Stat. (2002). Duplicating and delivering a warrant hundreds of pages thick would likely prove impractical.
Likewise, the affixing of an electronic signature of a judge to a warrant is also within the discretion of the issuing magistrate. There is no constitutional or statutory prohibition to a judge affixing his or her signature electronically to a warrant. In an analogous case, the second district opined in State v. Hickman,
The record here, however, discloses that in one instance an issuing magistrate authorized the Department to affix his signature to search warrants. We disapprove of a procedure which would permit the Department itself to prepare and electronically sign warrants with the judge's signature. However, technologically there is no reason why the Department could not provide the judge the software, expertise, and assistance to issue such warrants without the judge actually permitting the Department to electronically sign the warrants on the judge's behalf.
In summary, we conclude and hold that section 581.184 is constitutional. The statute does not violate either substantive or procedural due process, and does not permit a taking without just compensation. In order to conduct administrative inspections of appellees' property without their consent, the Department is required to obtain search warrants in conformance with the Fourth Amendment and Article I, Section 12, of the Florida Constitution. We hold that section 933.07(2), providing for area-wide warrants, is unconstitutional and a violation of the Fourth Amendment. However, we conclude that the trial court's remaining restrictions on the issuance of a warrant, including the requirement of a single affidavit and search warrant for each individual property and the prohibition of the issuing judges' electronic signature, are neither statutorily nor constitutionally based. We therefore reverse the temporary injunction and quash the orders of the trial court restricting the application for warrants in this case. We remand for further proceedings consistent with this opinion.
KLEIN and STEVENSON, JJ., concur.
NOTES
Notes
[1] This subsection of the statute is repealed effective July 1, 2005. It will be reviewed by the legislature prior to that date. See Ch.2002-11, § 4, at 314, Laws of Fla.
[2] Although this order is technically a temporary injunction, the trial court held that after appellate review, all of the questions of law resolved in the order would become law of the case. Thus, the trial court intended its ruling as to the constitutionality of the statutes to be final.
[3] While the Mid-Florida Growers' court relied on Article X, Section 6, which authorized the exercise of the power of eminent domain, in Smith the court expressly rejected the eminent domain power as the source of the taking of trees.
[4] We are aware of Department of Agriculture & Consumer Services v. Polk,
[5] Although Department of Agriculture & Consumer Services v. Bonanno,
[6] The order actually states that section 933.02 is declared unconstitutional, but the rationale in the order applies to section 933.07(2). We therefore conclude that this was a clerical error in the opinion.
[7] The court found that all intrusions by the Department onto the property of appellees constituted a search of a constitutionally protected area. Although it is in no way determinative of the issues of this appeal, the trial court's determination was over-inclusive of what is protected by the Fourth Amendment. Courts have extended the Fourth Amendment protection to the "curtilage" of the home, meaning that area "so intimately tied to the home itself that it should be placed under the home's `umbrella' of Fourth Amendment protection." U.S. v. Dunn,
The above analysis is necessarily dependent on the facts comprising each individual situation. While the trial court announced that it found the concept of "curtilage" encompasses the entirety of the property surrounding the home, the court's bright line test does not comport with the case-based analysis of what constitutes curtilage. An unfenced front yard, for instance, is not generally considered protected by the Fourth Amendment due to the lack of expectation of privacy in what is visible to the entire public, while a backyard is, as a general rule, protected. Compare Wysong v. State,
[8] The Department also contends that the warrant is not required based upon the "traditionally regulated industry" exception to the warrant requirement. See U.S. v. Biswell,