IN THE CIRCUIT COURT OF THE TWENTY-FIFTH JUDICIAL CIRCUIT IN AND FOR CROCODILE COUNTY, FLORIDA State of Florida, Plaintiff

v. Paul Paragon, ) ) ) ) ) ) ) Case No.: 10-3262

Defendant ____________________________/ MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION TO SUPPRESS Plaintiff, the State of Florida, submits this memorandum of law in opposition to defendants motion to suppress all evidence found at defendants house, including marijuana, cocaine, and equipment. Questions Presented: 1. Was Deputy Dorights search of Defendants garbage cans permissible without a search warrant? 2. Did the anonymous tip and the evidence found in Defendants garbage cans, coupled with Defendants previous record, create sufficient probable cause for Deputy Doright to obtain a valid search warrant? Facts: Last November, the Crocodile County, Florida, Sheriffs Office received an anonymous tip that there was drug dealing going on at 2552 Corfield Street, in an unincorporated area of Crocodile County. An officer of the Crocodile County Sheriffs Department, one Deputy Donald Dudley Doright (Deputy Doright), took on the case. Deputy Doright is an outstanding and experienced officer of the Crocodile County Sheriffs Department. He has worked for the Department for 25 years, and has been involved in drug related seizures and arrests on many different occasions.

Responding to the tip, Deputy Doright did a drive by of the residence at 2552 Corfield. He saw nothing unusual at the time. The county land records revealed that the residence was owned by Paul Paragon. There were no outstanding warrants against Paragon at that time, but he did have a previous record. In 2008, Paragon was charged with possession of illegal drugs and was fined $1,000. And in 2010, Paragon was arrested for possession of a controlled substance with intent to supply. He was imprisoned for 18 months. A few days later, Deputy Doright went to the Paragon residence again and saw that there were two garbage cans by the curb, as it was trash collection day. Deputy Doright parked his vehicle a few houses down and exited the car. He then proceeded to search the garbage cans in front of Paragons house. Deputy Doright found a baggy containing seeds and what he believed to be marijuana residue. He also found a baggy containing white powder resembling cocaine. Based on his knowledge and past experience, Deputy Doright knew that he had probable cause and drafted a warrant to search Paragons house. He accompanied the warrant with a sworn affidavit stating the facts concerning Paragons past record, finding the evidence and paraphernalia in the trash and the anonymous tip received about the Paragon residence. After obtaining the valid warrant, Deputy Doright went to the house with the warrant and completed his search. Upon entering the house, Deputy Doright was hit with the strong scent of marijuana and noticed that Paragon was wearing grungy, old clothing with unwashed hair. Deputy Doright stepped into the living room and kitchen area and noticed that there were many illegal substances in plain sight throughout the house. After completing a thorough search of Paragons home, Deputy Doright found six ounces of cocaine and a kilo of marijuana. He also found materials that are typically used for repackaging the drugs for sale, such as weighing scales, rubber gloves, and other evidence.

Mr. Paragon, the only resident of the house, was arrested and charged with possession with intent to sell marijuana and cocaine, and various other felonies. Argument: Courts have addressed a variety of exceptions to the search warrant requirements of the Fourth Amendment. This case stresses the pressure between an individual's right to privacy and a deputys lawful reasoning in obtaining a search warrant. A warrant is only issued if there is probable cause, and it must be supported by an affidavit describing the place, person, or things being searched and seized, and the nature of the evidence that is to be obtained. Fla. Const. Art. I, 12. When the Sheriffs Department received the anonymous tip concerning drug dealing at 2552 Corfield Street, they had cause to watch Defendants residence. Upon seeing the garbage cans set out on the curb, Deputy Doright went through the trash, where he found the baggies containing the drug residue. The Defendant may argue that Deputy Doright going through his garbage and watching his premises was an invasion of privacy. Defendant may argue that there was insufficient probable cause in obtaining the search warrant. Defendant may also argue that the anonymous tip that the Sheriffs Department received did not give them cause to watch Defendants premises. All of these arguments will fail under applicable law, as set out in this memorandum. A. Because the garbage cans were left by the curb the Defendant has no right to privacy in them, which means that Deputy Doright did not have to obtain a search warrant to search Defendants trash cans. Defendants trash cans were put on the curb of the street on trash collection day, awaiting pick up, when Deputy Doright saw them on his second drive by the residence. Garbage that is placed on the curtilage of a residence for the purpose of collection is unprotected by the Fourth

Amendment. This allows officers or any other third parties to lawfully inspect it without showing probable cause or a warrant. United States v. Hedrick, 922 F.2d 396 (7th Cir. 1991). Trash that is on the curb of the street awaiting pick-up does not evidence an expectation of privacy. United States v. Shanks, 97 F.3d 977 (7th Cir. 1996) When Deputy Doright lawfully searched the trash, he found the evidence needed to acquire a warrant for the search of Defendants home. The search of the trash cans left at the curb does not violate Defendants Fourth Amendment rights. In California v. Greenwood, 486 U.S. 35 (1988), the Supreme Court ruled that the Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside of curtilage of the home. In Greenwood, Investigator Jenny Stracner of the Laguna Beach Police Department received information that the respondent, Greenwood, might be involved in drug trafficking. Twice police obtained trash bags left on the curb next to Greenwoods house and found evidence of the use of narcotics and drug trafficking. The police then got a search warrant and searched the house. Police found drugs and narcotics in the house and arrested Greenwood. Greenwood argued that the charges should be dropped because they violated his Fourth Amendment rights in going through his trash, and without doing that they would not have had probable cause to obtain a search warrant. The Supreme Court held that in putting the trash out, Greenwood exposed his garbage bags to the public and forfeited his Fourth Amendment right to protection against unlawful search and seizures. Id. at 40. The Court stated that placing garbage bags at a curb abandons it, and it is free for any third party to go through, such as animals, children, scavengers, and police, if they want to. Id.

When Deputy Doright went through Defendants trash cans, he did not need to obtain a warrant. The garbage was placed outside of the home and available to all. When the Defendant placed it at the curb he exposed it to all third parties, and relinquished his rights to any Fourth Amendment protection. B. Because the Sheriffs Department received an anonymous tip, they had reason to believe that Defendants residence should be under surveillance, and since Deputy Doright also found drug evidence in the trash cans, he had probable cause to get a search warrant and search the residence for any illegal substances. Finding the evidence in the trash, combined with the anonymous tip and Defendants past record gave Deputy Doright probable cause to get a search warrant. Therefore, the search of Defendants house was lawful. To determine the existence of probable cause, the issuing magistrate is to look at the totality of the circumstances before issuing a search warrant. Illinois v. Gates, 462 U.S. 213 (1983). The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Gates. at 2332. The duty of the court is to review the affidavit and ensure that the magistrate had a substantial basis for concluding that probable cause existed. When an official drafts an affidavit for a warrant, sufficient information must be presented. His actions cannot be just a ratification of the bare conclusions of others. Id. An

affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause. Id. at 2332. This flexible standard better serves the purposes of the Fourth Amendments probable cause requirement. Id. Having a lot of experience in this field was beneficial to Deputy Doright. For a magistrate to issue a warrant, they must look at the totality of the circumstances. Id. Deputy Doright knew the standard set for a magistrate to issue a warrant, and looking at the fact that Defendant has two prior drug offenses, coupled with the anonymous tip and the evidence found in the trash, Deputy Doright felt confident that he would have enough evidence for a magistrate to issue a warrant. State v. Gross, 833 So. 2d (Fla. 3rd DCA 2002) is a case with similar facts to the Paragon case. After a trash pull uncovered evidence, Diane Gross and Jerry Goodner were charged with possession of cocaine and marijuana. The key issue in Gross was whether there was sufficient probable cause to issue the search warrant. The Sheriffs Department received an anonymous tip that there was drug trafficking going on at the defendants residence. After officers watched the premises a few times, they discovered drug evidence in the trash cans left out by the curb, just as Deputy Doright found. In Gross, the officers performed one garbage search and found fifty two inch by two inch ziploc bags, half of which contained cocaine residue. Other paraphernalia was also found in the garbage cans. Gross also had a previous drug record, from when he resided at his old address. In looking at the existence of probable cause the totality of the circumstances is to be considered, and Gross prior history of drug offenses is a factor that was taken into account. And since officers also found residue in the trash cans that matched the anonymous tip they received, they had enough evidence to establish that other illegal substances would be found inside of the house.

Gross is similar to Deputy Dorights case in that Gross and Defendant both have previous drug offenses that were taken into consideration when determining probable cause. Deputy Doright also found two baggies containing drug residue when he completed a garbage search, one with cocaine residue and another with marijuana seeds. Defendant might argue that there was no probable cause for Deputy Doright to obtain a search warrant, but the past drug offenses of Defendant and Deputy Doright watching the house on more than one occasion, as well as finding evidence in the garbage search created probable cause for Deputy Doright to believe that there was more evidence inside of the house. Both Gesell v. State, 751 So.2d (Fla. 4th DCA 1999) and Raulerson v. State, 714 So.2d (Fla. 4th DCA 1998) are cases in which the Courts granted a motion to suppress evidence. Both cases involved an anonymous tip and a garbage search. The issue in both cases was that an anonymous tip and evidence found in the garbage was not enough to establish any evidence of sale. The amount of drug paraphernalia found was consistent for personal use, but [t]he garbage contents yielded no packaging materials which would have indicated that sales were being conducted. Gross at 781. Gesell and Raulerson differ from Deputy Dorights case because Defendant has two prior drug offenses, which involve the sale of drugs. Also, in Raulerson, officers only found cannabis in the trash, while Deputy Doright found baggies with cocaine and marijuana residue, which are stronger evidence towards the activity of the sale of drugs. This distinguishes the two cases from the Paragon case in establishing probable cause. In looking at all of the details of the Paragon case, it is easy to see that there was sufficient probable cause to obtain a search warrant.
Baker v. State, 762 So.2d (Fla. 4th DCA 2000) is another case that has similar facts to

Deputy Dorights case. In Baker, the Sheriffs Department received an anonymous phone call

telling them that there were cocaine sales going on at the appellants home. They checked the appellants home and completed one garbage search, as was done by Deputy Doright, and found baggies that matched the description of what the anonymous caller claimed. Officers found cocaine residue in the baggies they found, as well as a plastic straw with cocaine residue. Baker shows that receiving an anonymous tip and doing one garbage search can provide sufficient probable cause to obtaining a search warrant. With Deputy Dorights past knowledge in this field of enforcement, the standard for obtaining a search warrant from a magistrate was met. He had enough information to show in the affidavit that drug dealing was being done at Defendants residence. In looking at the totality of the circumstances, in Deputy Dorights case it shows that he did have probable cause in the issuance of the search warrant. Conclusion For the reasons set forth, the State of Florida requests this court to deny the defendants motion to suppress the marijuana and cocaine residue found in the garbage search and the marijuana and cocaine found in Defendants home. The search warrant was obtained with sufficient probable cause, and no violations of Defendants privacy rights or Fourth Amendment rights were made. Respectfully submitted, ________________________
Manal Abraham, Esq. Assistant State Attorney Florida Bar Number 525358 625 5th St. Orlando, Fla.