Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT SHAWN CHU RAMOS, JR., Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-598 June 15, 2022 Appeal from the Circuit Court for Manatee County; Lon Arend, Judge. Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee and Jonathan S. Tannen, Assistant Attorney General, Tampa, for Appellee. STARGEL, Judge. Shawn Chu Ramos, Jr., appeals the denial of his motion to suppress evidence after his plea of no contest led to a judgment and sentence for the charge of possession of a firearm by a convicted felon. For the reasons explained below, we affirm the trial court's denial of the motion to suppress evidence. Ramos was on probation for the offenses of carrying a concealed firearm, delinquent in possession of a firearm, and possession of cocaine on March 26, 2019, when a bulletin went out through the Sarasota Police Department that Ramos was suspected of being involved in a shooting and being in possession of a firearm. After receiving the bulletin, Ramos' probation officer, three other probation officers, and a detective from the Manatee County Sheriff's Office went to Ramos' home and conducted a probationary search. During the search, one of the officers discovered a gun in Ramos' bedroom, immediately stopped the search, and informed the detective about the discovery. The detective read Ramos his Miranda1 rights, and Ramos agreed to speak with the detective. Ramos admitted to knowing the gun was in his residence and admitted to handling it. The detective then applied for and received a search warrant for Ramos' residence approximately an hour and a half later and 1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 conducted a search. On April 12, 2019, Ramos was charged by information in Manatee County circuit court with one count of possession of a firearm by a convicted felon. On May 4, 2020, Ramos filed a "Motion to Suppress Evidence Based on Illegal Search" pursuant to Florida Rule of Criminal Procedure 3.190(g). A hearing on that motion was held on November 9, 2020. Ramos argued that because the firearm was located as the result of a probationary search, its discovery cannot be used in the "new law case" against him. The State argued that because the probationary search was halted and a search warrant was obtained upon the discovery of a firearm in Ramos' residence, the firearm should be admitted as evidence in the case against Ramos for possession of a firearm by a convicted felon. The trial court denied Ramos' motion to suppress. Ramos entered a plea of no contest to the charged offense, while reserving the right to appeal the denial of his motion to suppress. The trial court accepted the plea, adjudicated him guilty, and sentenced him to five years in prison, including a three-year minimum mandatory sentence. 3 I. Motions to Suppress Evidence This court reviews motions to suppress evidence for the existence of competent substantial evidence supporting the trial court's determination of historical facts and reviews legal conclusions and mixed questions of law and fact de novo. See State v. Clark, 986 So. 2d 625, 628 (Fla. 2d DCA 2008). II. Analysis In denying the motion to suppress in this case, the trial court relied on Harrell v. State, 162 So. 3d 1128 (Fla. 4th DCA 2015). In Harrell, [t]he final hearing on the alleged violation of probation and trial for the new offense were combined, and a bench trial was conducted. Evidence of the items obtained in the search was admitted during the proceedings, after which Harrell was found to have violated his probation and found guilty of felon in possession of a firearm. Id. at 1130. The Harrell court cited multiple cases holding that the warrantless search of the residence of a probationer by a probation officer does not constitute a Fourth Amendment violation. Id. at 1131-32. In his appeal, Ramos relies primarily on Grubbs v. State, 373 So. 2d 905 (Fla. 1979), to support his claims that his Fourth 4 Amendment rights were violated—specifically that the discovery of the firearm during a probationary search cannot support new criminal charges against the probationer. In Grubbs, the Florida Supreme Court addressed a certified question regarding whether a condition of probation requiring a probationer to consent to a search at any time violated the probationer's rights under the Fourth Amendment and article I, section 12 of the Florida Constitution. Id. at 906. In answering the question, the court recognized that "an individual does not absolutely forfeit the protection of the [F]ourth [A]mendment prohibition of unreasonable searches and seizures merely by assuming the status of a probationer, . . . however, these rights are qualified rights." Id. at 907 (citations omitted). The Florida Supreme Court did not hold in Grubbs, however, that information discovered by probation officers during a probationary search cannot later be used to obtain a search warrant or that evidence obtained through such a warrant is inadmissible in a new criminal case. Specifically, the court held in Grubbs: 5 (1) the authority of law enforcement officers and probation supervisors to conduct a warrantless search of a probationer is not dependent upon the presence of an express search condition in an order of probation; (2) a warrantless search of a probationer's person or residence by a probation supervisor is valid to the extent that the evidence discovered is used only in probation violation proceedings; (3) the use of seized evidence in a new criminal proceeding requires compliance with customary [F]ourth [A]mendment requirements although the opportunity to meet those requirements may be easier because the defendant is a probationer; (4) to the extent it intends to grant greater authority to law enforcement officers to conduct a warrantless search, a unilateral search condition set forth in an order of probation requiring a probationer to consent at any time to a warrantless search is a violation of the fourth amendment to the United States Constitution and article I, section 12, of the Florida Constitution. Id. Ramos also argues that Soca v. State, 673 So. 2d 24 (Fla. 1996), supports his analysis of the holding in Grubbs. In Soca, the court reaffirmed its holding in Grubbs and noted that "[t]he Grubbs rule gives the State considerable leeway in investigating and monitoring probationers. When the State believes that a probationer is engaging in criminal behavior, the State may choose to inform probation officials of his alleged criminal conduct . . . ." Id. at 28. At that point, the probation officer may conduct a search, and if evidence of criminal activity is discovered, that evidence "can 6 be used against the probationer in a probation revocation proceeding." Id. The court continued: On the other hand, the State may choose to continue its investigation and attempt to secure a warrant to search the probationer's residence in compliance with traditional search and seizure standards under article I, section 12, of the Florida Constitution. The State may also utilize the fact that the subject of its investigation is on probation as part of the circumstances establishing the probable cause necessary to secure a warrant. Id. The Fourth District Court of Appeal specifically addressed evidence obtained following a probationary search in Lawson v. State, 751 So. 2d 626 (Fla. 4th DCA 1999). In Lawson, the discovery of weapons during a probationary search led to the issuance of a search warrant and new criminal charges against the probationary defendant. Id. at 626. The trial court denied the defendant's motion to suppress, and the Fourth District Court of Appeal affirmed, stating: "We, therefore, hold that where evidence observed during a valid administrative search is used by the state to obtain a search warrant, the fruits of a subsequent search pursuant to the warrant are legally seized and may be used to support a separate substantive charge." Id. at 627. 7 Similarly, we conclude in this case that the original probationary search in which the firearm was found was not a violation of Ramos' Fourth Amendment rights. We also conclude that the warrant issued following the probationary search was supported by probable cause and that the fruit of that search (the firearm), which became the basis for the new charge against Ramos, was legally seized. III. Conclusion Accordingly, because the trial court correctly determined that the evidence supporting the new criminal charge against Ramos was obtained during a lawful search following the issuance of a warrant in accordance with the Fourth Amendment, we affirm. Affirmed. CASANUEVA and LaROSE, JJ., Concur. Opinion subject to revision prior to official publication. 8