Opinion
Case No. 5D20-438
01-08-2021
Gregory A. TOLLIVER, Appellant, v. STATE of Florida, Appellee.
Gregory A. Tolliver, Moore Haven, pro se. Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellee.
Gregory A. Tolliver, Moore Haven, pro se.
Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellee.
EDWARDS, J. Appellant, Gregory Allan Tolliver, appeals the postconviction court's denial of Appellant's Florida Rule of Criminal Procedure 3.850 motion. Appellant is serving a fifteen-year sentence as a prison release reoffender, having pled guilty to burglary of a dwelling, grand theft from a dwelling, and grand theft. We affirm.
The Lady Lake Police Department received a call from the Marion County Sheriff's office advising that stolen firearms were being unloaded from a black pickup truck into a garage. The officers went to the house shared by Appellant and his cousin, Danielle Moore. A black pickup truck was indeed parked out front. When they knocked on the front door, they were greeted by Ms. Moore's boyfriend. The officers talked with the boyfriend and explained that they were looking for Appellant and the reportedly stolen firearms. The boyfriend allowed the officers to enter the house. The officers found Appellant hiding in a closet in a back bedroom, and the stolen firearms were discovered in the garage. They found other stolen property as well. After the search, Ms. Moore later gave the police written consent to enter the house and remove the stolen property.
Appellant's trial counsel filed a motion to suppress the fruits of the officer's search. The trial court found that the boyfriend's consent justified the officers’ entry into the residence after the "knock and talk" encounter. The trial court further found that the State established, "by a preponderance of the evidence, that [the boyfriend] gave voluntary and uncoerced consent to the officers to enter the residence and look for [Appellant] in the common areas of the residence." The trial court also found that the officers reasonably relied upon apparent consent by a third person, the boyfriend, because the homeowner was not home, and the officers reasonably believed that he lived at the house and had general access to the house. Thus, the motion to suppress was denied.
As grounds for his rule 3.850 motion, Appellant's postconviction counsel asserted that Appellant's trial counsel provided ineffective assistance of counsel regarding the motion to suppress and related legal advice. According to Appellant's testimony and his postconviction counsel's comments at the evidentiary hearing, they thought that his trial counsel did a very good job in presenting the motion to suppress. Following an evidentiary hearing, the postconviction court agreed that trial counsel had effectively represented Appellant and denied all grounds of the motion.
Appellant is proceeding pro se and appears to be fixated on the fact that the tip resulting in the police showing up at his door may have been inaccurate or even misleading in some respects. An anonymous tip alone is not enough to justify a warrantless search or entry. Bryant v. State , 265 So. 3d 726, 729 (Fla. 1st DCA 2019) (citing Glass v. State , 736 So. 2d 788 (Fla. 2d DCA 1999) (holding that officers had no right to enter into backyard simply for the purpose of investigating an anonymous tip)). However, "a search will be considered lawful if conducted pursuant to consent which was given freely and voluntarily." Jorgenson v. State , 714 So. 2d 423, 426 (Fla. 1998) (citing Washington v. State , 653 So. 2d 362, 364 (Fla. 1994) ; Norman v. State , 379 So. 2d 643, 646 (Fla. 1980) ). "[N]o level of suspicion [is] required before ... a ‘knock and talk,’ which has been recognized as a legitimate investigate procedure[.]" State v. Triana , 979 So. 2d 1039, 1043 (Fla. 2008) (citing United States v. Grayer , 232 F. App'x 446 (6th Cir. 2007) ; United States v. Thomas , 430 F.3d 274, 277 (6th Cir. 2005) ; People v. Rivera , 41 Cal.4th 304, 59 Cal.Rptr.3d 473, 159 P.3d 60 (2007) ("Even if acting on an anonymous, uncorroborated tip, police may knock on the door of a residence, speak with the occupant, and request permission to enter and search."); Murphy v. State , 898 So. 2d 1031 (Fla. 5th DCA 2005) ).
Here, the boyfriend freely and voluntarily consented to the search of Ms. Moore's residence. The officers validly conducted the search after relying on that consent. Therefore, the accuracy of the tip was irrelevant during the suppression hearing. Appellant cannot show that defense counsel provided ineffective assistance of counsel by failing to develop the argument that the tip "was based entirely on misinformation," "false," or "hearsay" because the tip was irrelevant to the search.
Furthermore, Appellant has decided to raise certain issues on appeal that were not presented to the postconviction court. Appellant argues for the first time on appeal: (1) that his attorney provided ineffective assistance of counsel by failing to develop that argument that the officers exceeded the accepted scope of a knock and talk, (2) that the officers conducted an unwarranted search of a private residence where no exigent circumstances existed, and (3) that counsel was ineffective for failing to call the owner of the stolen property, the owner's employee, and the deputy who relayed the tip to local police, to testify at the suppression hearing. An issue not raised in a Florida Rule of Criminal Procedure 3.850 motion for postconviction relief may not be asserted for the first time on appeal. Connor v. State , 979 So. 2d 852, 866 (Fla. 2007).
AFFIRMED.
EVANDER, C.J., and SASSO, J., concur.