[a]ppellant Jimmy Ho was convicted of
kidnapping and first degree murder with a firearm and sentenced to consecutive
life terms. We affirm without further discussion the lower court's sentencing
of Appellant, as well as its rulings denying Appellant's motions for judgment
of acquittal. We write solely to address Appellant's challenge as to whether
the trial court properly denied his motion to suppress statements made to the
police during a `knock and talk.’. . .
Ho v. State, supra.
The Court of Appeal went on to explain how, and why, the
prosecution arose:
The victim in this case was a young
woman who ran an escort service from her home. One afternoon, while with a
client, the victim sent a text message to her boyfriend saying the client was
acting strangely and she was scared. Later that night, the victim failed to call
her boyfriend as usual. Subsequently, the victim was found in her bedroom
barely alive (she later died), shot twice with severe wounds on her
neck and torso.
Responding detectives interviewed the
victim's boyfriend. They looked at the text messages on his phone
regarding the encounter the victim had with a client, and obtained the victim's
cell phone number. Then, they subpoenaed the telephone company for the victim's
telephone records, at which point they learned that the victim exchanged
several calls the afternoon of the shooting with another number. Using the
police department's computer records, detectives learned that the other number
was Appellant's. From the records, they also learned his address.
At about 3:00 a.m. the day after the
homicide, a team of about ten armed police officers and a canine unit
surrounded Appellant's home. According to the testimony of one of the arresting
detectives, he and another detective knocked on the door. One detective did not
have a gun drawn, but the other did at the low ready position—pointed towards
the ground.
After the detectives knocked, Appellant
answered the door. His girlfriend was behind him. The detectives informed
Appellant that they were investigating a shooting, and that they had some
questions. Appellant immediately began volunteering statements like `it was
self-defense’ and `my life is ruined.’ Based on these statements, officers
arrested Appellant and commenced a pat down search for weapons.
Ho v. State, supra.
You can, if you are interested, read more about the facts in
this case in the news stories you can find here, here and here. This story explains that Ho was, at the time,
a police officer with the Florida Atlantic University police force.
The court went on to point out that
[a]ppellant's version of the story is
much different—that when Appellant answered the door, officers had their guns
drawn pointing at him. He was immediately ordered out of the house with his
hands raised and then frisked for weapons. Then, he was questioned. At that
point, he made his incriminating statements.
The trial court weighed the evidence
and found the officers' testimony more credible than Appellant's. The court
accordingly denied Appellant's motion to suppress, finding that he had
voluntarily consented to the search and seizure (by making the incriminating
statements) during the knock and talk.
Ho v. State, supra.
The Court of Appeals then articulated the standard it used
in analyzing an appeal, noting that
[i]n reviewing a trial court's
determination as to a motion to suppress, this Court defers to the trial
court's factual findings and reviews any legal conclusions de novo. Backus
v. State, 864 So.2d 1158, 1159 (Fla. 4th DCA 2003). The trial court's
findings of fact must be supported by competent and substantial evidence. Pagan
v. State, 830 So.2d 792, 806 (Florida Supreme Court 2002). They are `clothed
with a presumption of correctness and the court must interpret the evidence and
reasonable inferences and deductions derived therefrom in a manner most
favorable to sustaining the trial court's ruling.’ Terry v. State, 668
So.2d 954, 958 (Florida Supreme Court 1996).
A knock and talk is a `purely
consensual encounter’ that an officer may initiate without any objective level
of suspicion. Hardin v. State, 18 So.3d 1246, 1247 (Fla. 2d
DCA 2009) (citing State v. Triana, 979 So.2d 1039, 1043 (Fla.
3d DCA 2008)). Defendants have no constitutional safeguards during such
encounters. Popple v. State, 626 So.2d 185, 186 (Florida
Supreme Court1993). `The key to the legitimacy of the knock-and-talk technique
. . . is the absence of coercive police conduct. . . . [T]he police should not
“deploy overbearing tactics that essentially force the individual out of the
home.”’ Luna–Martinez v. State, 984 So.2d 592, 598–99 (Fla. 2d
DCA 2008) (quoting United States v. Thomas, 430 F.3d 274,
277 (U.S. Court of Appeals for the 6th Circuit 2005)).
Ho v. State, supra.
It went on to explain that the
trial court conducted a `totality of the
circumstances’ review and properly considered the fact that the victim had been
shot; that Appellant was possibly tied to the victim, if not the shooting; and
that the officers reasonably believed Appellant was a police officer (he was
actually a security guard/former police officer) who would thus possess a
weapon. These factors supported the presence of a number of armed officers
at the scene. By virtue of his law enforcement experience, Appellant would have
been well aware that any police visit to his home would likely have extra security
given the possibility that he was armed and trained himself.
The trial court found the testimony of
the law enforcement officers more credible than Appellant's with respect to the
3:00 a.m. encounter. The trial court noted that Appellant's girlfriend
witnessed the confrontation and disagreed with Appellant's claim that the
officers had their weapons drawn and raised at Appellant when he opened his
apartment door. Under the facts as found by the trial court, Appellant came to
the door and saw multiple officers, but did not see weapons drawn and pointed
at him.
Accordingly, the trial court's
conclusion that Appellant made his incriminating statements prior to his actual
seizure is supported by the record. See G.M. v. State, 19
So.3d 973, 978 (Fla.2009) (holding that a totality of the circumstances
review applies to determining whether police conduct constitutes a
seizure); State v. Ojeda, 147 So.3d 53, 57 (Fla. 3d DCA 2014) (noting
the factors to be considered in a `totality of the circumstances’ determination
as to whether consent to a search was `freely and voluntarily given’); Triana, 979
So.2d at 1044–45.
Appellant's incriminating statements
(made before he was actually asked any questions) were uncoerced and voluntary.
The evidence considered by the trial court, including the testimony of the
detectives that the trial court determined to be more credible than that of
Appellant's, supports the trial court's decision to deny the motion to
suppress.
Ho v. State, supra.
The court then ended the opinion with the following:
[w]e affirm the trial court's ruling
denying Appellant's motion to suppress. The trial court properly found that the
initial knock and talk was not an arrest and that Appellant was not coerced by
police action to speak with the officers, and thus Appellant's incriminating
statements were freely given.
Because the record further supports the
trial court's decision to deny Appellant's motions for judgment of acquittal
with respect to both the first degree murder and the kidnapping charges, as
well as the sentence imposed, we affirm.
Ho v. State, supra.
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