author: WELLS, Judge. COPE, J.

text:
    The STATE of Florida, Appellant, v. Joelis JARDINES, Appellee.
    No. 3D07-1615.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 2008.

      Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Jorge Rodriguez and Mariam Deghani, Certified Legal Interns, for appellee.
    Before COPE, WELLS, and SALTER, JJ.
   WELLS, Judge.

The State of Florida appeals from an order suppressing evidence seized pursuant to a search warrant executed on the home of Joelis Jardines. We reverse because the trial court erred in ruling that the magistrate lacked probable cause to issue the warrant and because the evidence suppressed was admissible under the “inevitable discovery” doctrine.

On December 5, 2006, William Pedraja, an officer with the Miami-Dade Police Department, obtained a search warrant from Miami-Dade County Court Judge George Sarduy. The warrant was supported by a probable cause affidavit which identified the premises to be searched, detailed Officer Pedraja’s extensive experience in detecting hydroponic marijuana laboratories and the methods and equipment used in such laboratories, and stated:

“Your Affiant’s” reasons for the belief that “The Premises” is being used as [a marijuana hydroponics grow lab] and that “The Property [consisting of marijuana and the equipment to grow it]” listed above is being concealed and stored at “The Premises” is as follows:
On November 8, 2006, “Your Affiant” detective William Pedraja, # 1268, received information from a crime stoppers tip that marijuana was being grown at the described residence.
On December 5, 2006, “Your Affiant” conducted surveillance at the residence and observed no vehicles in the driveway. “Your Affiant” also observed windows with the blinds closed. “Your Af-fiant” and Detective Doug Bartelt with K-9 drug detection dog “FRANKY” approached “The Premises” in an attempt to obtain a consent to search. While at front door [sic], “Your Affiant” detected the smell of live marijuana plants emanating from the front door of “The Premises.” The scent of live marijuana is a unique and distinctive odor unlike any other odor. Additionally, K-9 drug detection dog “FRANKY” did alert to the odor of one of the controlled substances he is trained to detect. ‘Your Affiant,” in an attempt to obtain a written consent to search, knocked on the front door of “The Premises” without response. ‘Your Affiant” also heard an air conditioning unit on the west side of the residence continuously running without recycling. The combination of these factors is indicative of marijuana cultivation.
Based upon the positive alert by narcotics detector dog “FRANKY” to the odor of one or more of the controlled substances that she is trained to detect and “FRANKY” [sic] substantial training, certification and past reliability in the field in detecting those controlled substances, it is reasonable to believe that one or more of those controlled substances are present within the area alerted to by “FRANKY.” Narcotics Canine handler, Detective Bartelt, Badge number 4444, has been a police officer with the Miami-Dade Police Department for nine years. He has been assigned to the Narcotics Bureau for six years and has been a canine handler since May 2004. In the period of time he has been with the Department, he has participated in over six hundred controlled substances searches. He has attended the following training and received certification as a canine handler ....
Since becoming a team, Detective Bartelt and narcotics detector canine “FRANKY” have received weekly maintenance training.... Narcotics detector canine “FRANKY” is trained to detect the odor of narcotics emanating from the following controlled substances to wit: marijuana.... To date, narcotics detector canine “FRANKY” has worked approximately 656 narcotics detection tasks in the field. He has positively alerted to the odor of narcotics approximately 399 times. “FRANKY’S” positive alerts have resulted in the detection and seizure of approximately 13,-008 grams of cocaine, 2,638 grams of heroin, 180 grams of methamphetamine, 936,614 grams of marijuana, both processed ready for sale and/or live growing marijuana.
WHEREFORE, Affiant prays that a Search Warrant be issued ... to search “The Premises” above-described....

(Emphasis added).

A search conducted pursuant to the warrant resulted in seizure of live marijuana plants and the equipment used to grow them, and resulted in Jardines being chai'ged with trafficking in cannabis and theft for stealing the electricity needed to grow it.

Jardines, relying primarily on State v. Rabb, 920 So.2d 1175 (Fla. 4th DCA 2006), moved to suppress arguing that no probable cause existed to support the warrant because: (1) the dog “sniff’ constituted an illegal search; (2) Officer Pedraja’s “sniff’ was impermissibly tainted by the dog’s prior “sniff’; and (3) the remainder of the facts detailed in the affidavit were legally insufficient to give rise to probable cause.

We reverse the trial court’s determination that “the use of a drug detector dog at the Defendant’s house door constituted an unreasonable and illegal search” and that the evidence seized at Jardines’ home must be suppressed. We do so because, first, a canine sniff is not a Fourth Amendment search; second, the officer and the dog were lawfully present at the defendant’s front door; and third, the evidence seized would inevitably have been discovered.

A Canine Sniff Is Not A Fourth Amendment Search

In Illinois v. Caballes, 543 U.S. 405, 408, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), the United States Supreme Court expressly rejected the notion that a “dog sniff itself infringed [a] ... constitutionally protected interest in privacy.” In doing so, the Court confirmed that because a dog sniff detects only contraband, and because no one has a “legitimate” privacy interest in contraband, a dog sniff is not a search under the Fourth Amendment.

Official conduct that does not “compromise any legitimate interest in privacy” is not a search subject to the Fourth Amendment. [United States v. Jacobsen, 466 U.S. 109, 123, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) ]. We have held that any interest in possessing contraband cannot be deemed “legitimate,” and thus, governmental conduct that only reveals the possession of contraband “compromises no legitimate privacy interest.” Ibid. This is because the expectation “that certain facts will not come to the attention of the authorities” is not the same as an interest in “privacy that society is prepared to consider reasonable.” Id., at 122, 104 S.Ct. 1652 (punctuation omitted). In United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), we treated a canine sniff by a well-trained narcotics-detection dog as “sui generis ” because it “discloses only the presence or absence of narcotics, a contraband item.” Id., at 707, 103 S.Ct. 2637; see also Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). Respondent likewise concedes that “drug sniffs are designed, and if properly conducted are generally likely, to reveal only the presence of contraband.”

Caballes, 543 U.S. at 408-9, 125 S.Ct. 834 (some citations omitted).

Based on this reasoning, we reject the notion that Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), relied on in Rabb, makes a dog’s detection of contraband while standing on a front porch open to the public, a search which compromises a legitimate privacy interest. Kyllo involved the use of a mechanical device which detected heat radiating from the walls of a home. There, the Court was concerned with the use of constantly improving technological devices that, from outside a home, could intrude into the home and detect legitimate as well as illegal activity going on inside. Kyllo, 533 U.S. at 40, 121 S.Ct. 2038 (“Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and presumptively unreasonable without a warrant.”).

A dog’s nose is not, however, a “device,” nor is it improved by technology. Dogs have been used to detect scents for centuries all without modification or “improvement” to their noses. That, perhaps, is why the Supreme Court describes them as “sui generis,” in Place. Place, 462 U.S. at 707, 103 S.Ct. 2637. Moreover, and unlike the thermal imaging device at issue in Kyllo, a dog is trained to detect only illegal activity or contraband. It does not indiscriminately detect legal activity.

These differences prompted the Court in Caballes to note that its conclusion that the dog sniff involved there was lawful was consistent with its earlier decision in Kyl-lo:

This conclusion is entirely consistent with our recent decision that the use of a thermal-imaging device to detect growth of marijuana in a home constituted an unlawful search Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2083 [2038], 150 L.Ed.2d 94 (2001). Critical to that decision was the fact that the device was capable of detecting lawful activity-in that case, intimate details in a home, such as “at what hour each night the lady of the house takes her daily sauna and bath.” Id,., at 38, 121 S.Ct. 2038. The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent’s hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.

Caballes, 543 U.S. at 409-10,125 S.Ct. 834.

As recently observed in People v. Jones, 279 Mich.App. 86, 755 N.W.2d 224, 228 (2008), a majority of federal circuit courts have viewed the Place Court’s holding as generally categorizing canine sniffs as non-searches. See, e.g., United States v. Reed, 141 F.3d 644, 648 (6th Cir.1998); see also United States v. Brock, 417 F.3d 692 (7th Cir.2005); United States v. Roby, 122 F.3d 1120 (8th Cir.1997); United States v. Vasquez, 909 F.2d 235 (7th Cir.1990). Likewise, “the vast majority of state courts considering canine sniffs have recognized that a canine sniff is not a Fourth Amendment search.” People v. Jones, 755 N.W.2d at 228.

Thus, as the Fifth District concluded in Nelson v. State, 867 So.2d 534, 537 (Fla. 5th DCA 2004):

The fact that the dog, as odor detector, is more skilled than a human does not render the dog’s sniff illegal. See United States v. Sullivan, 625 F.2d 9, 13 (4th Cir.1980). Just as evidence in the plain view of officers may be searched without a warrant, see Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968), evidence in the plain smell may be detected without a warrant. See United States v. Harvey, 961 F.2d 1361, 1363 (8th Cir.1992); See also Horton v. Goose Creek Independent School District, 690 F.2d 470, 477 (5th Cir.1982); United States v. Pinson, 24

F.3d 1056, 1058 (8th Cir.1994) (“plain feel,” no reasonable expectation of privacy in heat emanating from a home).

See Cardwell v. State, 482 So.2d 512, 514 (Fla. 1st DCA 1986) (“Just as no police officer need close his eyes to contraband in plain view, no police officer armed with a sniff dog need ignore the olfactory essence of illegality.”).

In sum, “persuasive authority convinces us that a canine sniff is not a search within the meaning of the Fourth Amendment as long as the sniffing canine is legally present at its vantage point when its sense is aroused.” People v. Jones, 755 N.W.2d at 228.

The Officer And The Dog Were Lawfully Present At The Defendant’s Front Door

The Fourth Amendment to the United States Constitution clearly protects “the right of the people to be secure in their persons, houses, papers, and effects,” from “unreasonable government intrusions into their legitimate expectations of privacy.” Place, 462 U.S. at 706, 103 S.Ct. 2637 (quoting United, Staten v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977)). However “[t]he Fourth Amendment does not necessarily protect areas of a home which are ‘open and exposed to public view.’ ” State v. Duhart, 810 So.2d 972, 973 (Fla. 4th DCA 2002).

While this right to, and expectation of, privacy, no doubt, extends to the contents of a home, we need not resolve the extent to which this constitutional protection extends to every entryway in every possible factual scenario. Rather, at issue is this officer’s presence at this defendant’s front door. Here, police received a tip as to criminal activity and observed other indications of criminal activity. In such circumstances, the officer had every right to walk to the defendant’s front door, as a number of Florida cases confirm.

In State v. Morsman, 394 So.2d 408, 409 (Fla.1981), the Florida Supreme Court concluded that a police officer had the right to approach a front door after being told by a neighbor that Morsman was growing marijuana plants in his backyard:

When the officer went to respondent’s front door to investigate the neighborhood complaint, he was not infringing upon respondent’s privacy. Under Florida law it is clear that one does not harbor an expectation of privacy on a front porch where salesmen or visitors may appear at any time. State v. Detlef-son, 335 So.2d 371 (Fla. 1st DCA 1976); State v. Belcher, 317 So.2d 842 (Fla. 2d DCA 1975).

Our decision that this officer was lawfully present at defendant’s door is likewise consistent with Potts v. Johnson, 654 So.2d 596, 597-98 (Fla. 3d DCA 1995). Potts was a police detective investigating a theft and had been given a suspect’s name. At the suspect’s home, Potts stepped into a hole, was injured, and sued. Discussing Potts’ right to be on the property, we observed:

A police officer in the scope of his duties may approach a suspect’s front door and knock in an attempt to talk to that suspect. See United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); Younger v. State, 433 So.2d 636 (Fla. 5th DCA), rev. denied, 440 So.2d 354 (Fla.1983). “Under Florida law it is clear that one does not harbor an expectation of privacy on a front porch where a salesman or visitor may appear at any time.” State v. Morsman, 394 So.2d 408, 409 (Fla.1981).

Potts, 654 So.2d at 598.

We also noted:

The “Plain View” doctrine has frequently been considered an exception to the warrant requirement. In reality, materials that are seized because they are in plain view of an officer who observes from a location where he has a legal right to be are not subject to [a] Fourth Amendment [analysis] ...

Potts, 654 So.2d at 599 n. 5 (quoting Hornblower v. State, 351 So.2d 716, 718 n. 1 (Fla.1977)).

Also supporting our conclusion is State v. Pereira, 967 So.2d 312, 313 (Fla. 3d DCA 2007). In Pereira, officers went to the defendant’s home based on an anonymous tip that the defendant was growing marijuana. A detective walked toward the premises and, while standing in front of the premises, smelled marijuana. Officers returned the next day with a narcotics-search dog. Approaching the front door, the officer again smelled the marijuana, and the canine alerted.

While we chose not to address the legality of the dog sniff, we rested our decision on the officer’s right to be on the defendant’s front porch:

We disagree with the defendant’s contention that the officers’ detection of the odor of marijuana emanating from the defendant’s home while standing on the sidewalk and front porch of the defendant’s home is an invasion of the defendant’s privacy protected by the Fourth Amendment. Admittedly, there was no evidence that the front yard or porch was enclosed by a fence or any other structure and was, in fact, open to public access. We follow those cases which hold that there is no reasonable expectation of privacy at the entrance to property which is open to the public, including the front porch. See State v. Morsman, 394 So.2d 408 (Fla.1981); State v. E.D.R., 959 So.2d 1225 (Fla. 5th DCA 2007), and cases cited; Ramize v. State, 954 So.2d 754 (Fla. 3d DCA 2007); Potts v. Johnson, 654 So.2d 596 (Fla. 3d DCA 1995); see, e.g., United States v. Cota-Lopez, 104 Fed.Appx. 931 (5th Cir.2004). Compare State v. Rabb, 920 So.2d at 1191.

Pereira, 967 So.2d at 314 (footnote omitted); State v. E.D.R., 959 So.2d 1225, 1226 (Fla. 5th DCA 2007) (concluding that defendant’s porch “was not a constitutionally protected area”); see also State v. Garcia, 374 So.2d 601, 602-03 (Fla. 3d DCA 1979) (concluding “[w]hen the lawful performance of his duty requires that an officer enter upon private property to make a general inquiry, such an entry is justifiable,” and holding that officers smelling “the odor of marijuana smoke” at the front door of a residence was a factor supporting a finding of probable cause).

From these cases, it is clear that Officer Pedraja had a right to approach Jardines’ front door. The fact that he waited for the dog and approached with the dog does not change this result, even if the dog alerted before the officer detected the scent. The officer’s presence with the dog and their sniff of the odor of marijuana as well as the other facts identified in the probable cause affidavit was sufficient to establish probable cause for the warrant to issue. The trial court erred in concluding that the magistrate lacked probable cause to issue the warrant and erred in suppressing the evidence obtained as a result of the warrant.

Inevitable Discovery

Even if the dog sniff constituted an illegal search, the evidence seized at Jar-dines’ home would still be admissible under the inevitable discovery rule. In Fitzpatrick v. State, 900 So.2d 495, 514 (Fla.2005), our Supreme Court explained that illegally seized evidence may still be admitted into evidence if that evidence inevitably would have been discovered by legal means:

In Nix v. Williams, 467 U.S. 431, 448, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), the United States Supreme Court adopted the “inevitable discovery” exception to the “fruit of the poisonous tree” doctrine. Under this exception, “evidence obtained as the result of unconstitutional police procedure may still be admissible provided the evidence would ultimately have been discovered by legal means.” Maulden v. State, 617 So.2d 298, 301 (Fla.1993). In adopting the inevitable discovery doctrine, the Supreme Court explained, “Exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial.” Nix, 467 U.S. at 446, 104 S.Ct. 2501. In making a case for inevitable discovery, the State must demonstrate “that at the time of the constitutional violation an investigation was already under way.” Moody v. State, 842 So.2d 754, 759 (Fla.2003) (quoting Nix v. Williams, 467 U.S. 431, 457, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (Stevens, J., concurring in the judgment)); see also Jeffries v. State, 797 So.2d 573, 578 (Fla.2001); Maulden, 617 So.2d at 301. In other words, the case must be in such a posture that the facts already in the possession of the police would have led to this evidence notwithstanding the police misconduct. See Moody, 842 So.2d at 759.

See Moody, 842 So.2d at 759 (confirming that “fruit of the poisonous tree” doctrine does not automatically render all illegally seized evidence inadmissible and that such evidence may be admitted if the State can show that the evidence inevitably would have been discovered in the course of a legitimate investigation); Rosales v. State, 878 So.2d 497, 500 (Fla. 3d DCA 2004) (“Evidence which was originally obtained improperly should not be suppressed, provided that it would have been legitimately uncovered pursuant to normal police practices.”); State v. Ruiz, 502 So.2d 87, 87 (Fla. 4th DCA 1987) (finding that “to apply this doctrine, there does not have to be an absolute certainty of discovery, but rather, just a reasonable probability” (citing United States v. Brookins, 614 F.2d 1037 (5th Cir.1980))); see also Jeffries, 797 So.2d at 578 (quoting Ruiz).

Both the affidavit and the evidence adduced below confirm that an investigation was already well under way, and Officer Pedraja had already decided to knock on Jardines’ front door to see if he could obtain consent to search, by the time the dog got involved. Thus, even in the absence of the canine sniff, Officer Pedraja would, pursuant to normal police practices, have detected the scent of marijuana as he approached Jardines’ door. See Potts, 654 So.2d at 599 (confirming that a “police officer in the scope of his duties may approach a suspect’s front door and knock in an attempt to talk to that suspect”). With or without the canine alert, the contraband would inevitably have been detected. On this basis alone, the motion to suppress should have been denied. See Robb, 920 So.2d at 1196 n. 8 (Gross, J., dissenting); see generally Zeigler v. State, 922 So.2d 384, 385 (Fla. 1st DCA 2006) (“Under the inevitable discovery rule, when evidence is obtained through the result of unconstitutional police procedures, the evidence will still be admissible if it would have been discovered through legal means.”). See Jeffries, 797 So.2d at 577-78 (“Here, the trial court determined that Officer Brownfield smelled marijuana when he went to Appellants’ stopped vehicle. Had Officer Brownfield immediately explained the reason for the stop when he made personal contact with Appellants, rather than first asking Appellants for their identification, he would have still smelled marijuana and thus developed probable cause to detain Appellants.”); Jones v. State, 758 So.2d 722, 722 (Fla. 3d DCA 2000) (citing Maulden, 617 So.2d at 298, for the proposition that “under ‘inevitable discovery’ doctrine, evidence obtained as the result of an unlawful search is admissible if the evidence would ultimately have been discovered by legal means”); A.J.M. v. State, 746 So.2d 1222, 1225 (Fla. 3d DCA 1999) (“Florida has adopted the inevitable discovery doctrine which provides that ‘evidence obtained as the result of unconstitutional police procedure may still be admissible provided the evidence would ultimately have been discovered by legal means.’ ” (quoting Maul-den, 617 So.2d at 298)).

Conclusion

In sum, we reverse the order suppressing the evidence at issue. We conclude that no illegal search occurred. The officer had the right to go up to defendant’s front door. Contrary to the holding in Rabb, a warrant was not necessary for the drug dog sniff, and the officer’s sniff at the exterior door of defendant’s home should not have been viewed as “fruit of the poisonous tree.” The trial judge should have concluded substantial evidence supported the magistrate’s determination that probable cause existed. Moreover, the evidence at issue should not have been suppressed because its discovery was inevitable. To the extent our analysis conflicts with Rabb, we certify direct conflict. To the extent that Judge Gross’ dissent in Rabb is consistent with this analysis we adopt his reasoning as our own. See Rabb, 920 So.2d at 1196 (Gross, J., dissenting). Reversed and remanded.

SALTER, J., concurs.

COPE, J.

(concurring in part and dissenting in part).

The question before us is whether, and to what extent, the Fourth Amendment is applicable when the police seek to use a drug-sniffing dog at the front door of a private home. I agree with that part of the majority opinion which holds that a warrant is not necessary for a drug-dog sniff, and agree on certifying direct conflict with the Fourth District decision in State v. Rabb, 920 So.2d 1175 (Fla. 4th DCA 2006).

I do not agree with the majority opinion’s “sniff anytime” rule. We should instead follow those courts which hold that a drug sniff is permissible at the door of a dwelling only if there is a reasonable suspicion of drug activity.

I.

The Miami-Dade County Police Department received a Crime Stoppers tip that marijuana was being grown at the home of defendant-appellee Joelis Jardines. One month later the detective went to the home at 7 a.m. He watched the home for fifteen minutes. There were no vehicles in the driveway, the blinds were closed, and there was no observable activity.

After fifteen minutes, the dog handler arrived with the drug detection dog. The handler placed the dog on a leash and accompanied the dog up to the front door of the home. The dog alerted to the scent of contraband.

The handler told the detective that the dog had a positive alert for the odor of narcotics. The detective went up to the front door for the first time, and smelled marijuana. The detective also observed that the air conditioning unit had been running constantly for fifteen minutes or so, without ever switching off.

The detective prepared an affidavit and applied for a search warrant, which was issued. A search was conducted, which confirmed that marijuana was being grown inside the home. The defendant was arrested.

The defendant moved to suppress the evidence seized at his home. The trial court conducted an evidentiary hearing at which the detective and the dog handler testified. The trial court suppressed the evidence on authority of State v. Rabb. The State has appealed.

II.

The Fourth Amendment protects “[t]he right of the people to be secure in their ... houses ... against unreasonable searches and seizures.... ” U.S. Const, amend. IV; Art. I, § 12, Fla. Const.

The majority opinion takes the position that constitutional protection extends only to the interior of a home, and not the front porch. However, the cases the majority relies on do not apply in the present context.

While the United States Supreme Court has “decoupled violation of a person’s Fourth Amendment rights from trespasso-ry violation of his property,” Kyllo v. United States, 533 U.S. 27, 32, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the law of trespass is useful by way of analogy. In an ordinary residential neighborhood, a typical home has walkway (or possibly driveway) access leading to the front porch. Although the walkway, driveway, and porch are part of the homeowner’s private property, the owner “by implication, invites others to come to his house as they may have proper occasion, either of business, or courtesy, for information, etc. Custom must determine in these cases what the limit is of the implied invitation.” Prior v. White, 132 Fla. 1, 180 So. 347, 355 (1938) (italics and internal quotation marks omitted). The homeowner may expect a knock at the door from a seller of goods, a solicitor of charitable contributions, or a neighbor on a social call. The postal service will deliver the mail and a delivery truck may drop off a package.

On the other hand, there is no such thing as squatter’s rights on a front porch. A stranger may not plop down uninvited to spend the afternoon in the front porch rocking chair, or throw down a sleeping bag to spend the night, or lurk on the front porch, looking in the windows. The vendor who may hawk his goods during daylight hours is not welcome to knock at the door at two o'clock in the morning.

Turning to crime investigation, it is perfectly acceptable for a detective to come to the front door to speak with the owner. Where the officer has come to the front door to speak to the owner, there is no expectation of privacy regarding any incriminating objects the owner has left in plain view, or in any odors (such as marijuana) that may be emanating from the dwelling. The cases relied on by the majority opinion fall into this fact pattern. See State v. Morsman, 394 So.2d 408, 408-09 (Fla.1981) (permissible for officer to go to front door to investigate complaint); State v. Pereira, 967 So.2d 312, 314 (Fla. 3d DCA 2007) (officer walked from sidewalk to the home and smelled marijuana); State v. E.D.R., 959 So.2d 1225, 1226 (Fla. 5th DCA 2007) (officer walked up walkway to determine why several young men were asleep on front porch and observed crack cocaine on E.D.R.’s lap); Potts v. Johnson, 654 So.2d 596, 599 (Fla. 3d DCA 1995) (permissible for officer to go to front door to investigate theft); see also Ramize v. State, 954 So.2d 754 (Fla. 3d DCA 2007) (no facts given; cites Morsman and Potts).

But here, too, there are limits. A crime scene investigation unit cannot (absent consent or a warrant) cordon off the front porch and begin dusting the porch for fingerprints, or conduct a microscopic examination for blood stains, or deploy a magnetometer or sonar to determine what lies beneath the porch.

In short, it is inaccurate to say that there is never any reasonable expectation of privacy with regard to the front porch of a house, although it is a more reduced expectation than applies to the house interior.

III.

A number of courts have considered the question how the Fourth Amendment applies in the context of a dog sniff at the door of a house or apartment. Three schools of thought have emerged: (1) A dog sniff of a dwelling is a search which can only be conducted pursuant to a warrant. United States v. Thomas, 757 F.2d 1359, 1366-67 (2d Cir.1985); Robb, 920 So.2d at 1186-87. (2) A dog sniff can only be conducted where there is a reasonable, articulable suspicion of drug activity inside the residence, but no warrant is required. State v. OHiz, 257 Neb. 784, 600 N.W.2d 805, 820 (1999).(3) A dog sniff is not a search and can be conducted without a warrant and without a reasonable suspicion. People v. Jones, 279 Mich.App. 86, 755 N.W.2d 224 (2008). See generally Brian L. Porto, Annotation, Use of Trained Dog to Detect Narcotics or Drugs as Unreasonable Search in Violation of Fourth Amendment, 150 A.L.R. Fed. 399 (1998); Lewis R. Katz & Aaron P. Golemboewski, Curbing the Dog: Extending the Protection of the Fourth Amendment to Police Drug Dogs, 85 Neb. L. Rev. 735 (2007); 1 Wayne R. LaFave, Search and Seizure, § 2.2(g) (4th ed. 2004).

Turning to the first alternative — a dog sniff at the front door is a search requiring a warrant — the Second Circuit has explained, “It is one thing to say that a sniff in an airport is not a search, but quite another to say that a sniff can never be a search. The question always to be asked is whether the use of a trained dog intrudes on a legitimate expectation of privacy.” Thomas, 757 F.2d at 1366 (citing Katz v. United, States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). The courts “have recognized the heightened privacy interest that an individual has in his dwelling place.” Thomas, 757 F.2d at 1366; Kyllo, 533 U.S. at 34, 121 S.Ct. 2038. “Thus, a practice that is not intrusive in a public airport may be intrusive when employed at a person’s home.” Thomas, 757 F.2d at 1366. Because of the defendant’s “heightened expectation of privacy inside his dwelling, the canine sniff at his door constituted a search,” id. at 1367, for which a warrant was required. The Fourth District reached the same conclusion in Rabb, 920 So.2d at 1187.

The second school of thought is that a dog sniff does not require a search warrant, but should instead be allowed on the showing of a reasonable suspicion. The Nebraska Supreme Court explained:

We agree with the courts which conclude an individual’s Fourth Amendment privacy interests may extend in a limited manner beyond the four walls of the home, depending on the facts, including some expectation of privacy to be free from police canine sniffs for illegal drugs in the hallway outside an apartment or at the threshold of a residence, and that a canine sniff under these circumstances must be based on no less than reasonable, articulable suspicion.

Ortiz, 600 N.W.2d at 817 (Neb.1999).

The Court ruled:

We believe that there is a Fourth Amendment middle ground applicable to the investigations conducted by police handlers of narcotics detection dogs. On the one hand, much of the law enforcement utility of such dogs would be lost if full blown warrant procedures were required before a canine sniff could be used; but on the other, it is our view that a free society will not remain free if police may use this, or any other crime detection device, at random and without reason. Accordingly, we hold that a narcotics detection dog may be deployed to test for the presence of narcotics ... where:

(1) the police are able to articulate reasonable grounds for believing that drugs may be present in the place they seek to test; and
(2) the police are lawfully present in the place where the canine sniff is conducted.

Id. at 816 (quoting Commonwealth v. Johnston, 515 Pa. 454, 580 A.2d 74, 79 (1987)).

The third school of thought is that a dog sniff is not a search, and there is no reasonable expectation of privacy on a front porch, so that a dog sniff can be conducted at the front door, without a warrant and without having a reasonable suspicion. The majority opinion adopts that position.

A number of courts have expressed concern about the breadth of such a rule. The Fourth District expressed disapproval of the prospect that a drug-sniffing dog could be brought at random to the front door “of every house on a street hoping the dog sniffs drugs inside.” Rabb, 920 So.2d at 1190. The Nebraska Supreme Court and New York Court of Appeals likewise disapprove the prospect that such a rule would allow drug-sniffing dogs to be brought at random through the corridors of public housing projects. Ortiz, 600 N.W.2d at 816 (quoting People v. Dunn, 77 N.Y.2d 19, 563 N.Y.S.2d 388, 564 N.E.2d 1054, 1058 (1990)). Those jurisdictions conclude that a rule must be crafted which reasonably balances law enforcement and privacy interests.

In my view the balance is best struck by the second option: a drug-dog sniff is permissible only if there is a reasonable suspicion that drugs may be present in the place the police seek to test. As Professor LaFave points out, “with rare exception the [reported] cases have involved situations in which the [dog] alert occurred after a pre-existing reasonable suspicion.” 1 Wayne R. LaFave, supra, § 2.2(g), at 533-34 (footnotes omitted).

The State argues that the third option'— sniff anytime — is correct and is mandated by the United States Supreme Court’s decision in Caballes, 543 U.S. at 405, 125 S.Ct. 834, but that is not so. In Caballes, the defendant was stopped in a legal traffic stop. Although there was no reasonable suspicion of drug activity, the police brought a drug dog to the car, which alerted on the trunk. The Court upheld the search, saying, “A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate Fourth Amendment.” Id. at 410,125 S.Ct. 834. The State argues that this logic is equally applicable, and dispositive, of a dog sniff at a front door. The State’s reliance on Caballes is misplaced.

In the first place, the Caballes Court was careful to tie its holding to the facts of the case: “the use of a well-trained narcotics-detection dog — one that ‘does not expose non-contraband items that otherwise would remain hidden from public view,’— during a lawful traffic stop, generally does not implicate legitimate privacy interests.” Id. at 409, 125 S.Ct. 834 (citation omitted); see also id. at 417, 125 S.Ct. 834 (Souter, J., dissenting) (“The Court today does not go so far as to say explicitly that sniff searches by dogs trained to scent contraband always get a free pass under the Fourth Amendment, since it reserves judgment on the constitutional significance of sniffs assumed to be more intrusive than a dog’s walk around a stopped car[.]”).

Second, the unusual procedural history of the Fourth District’s Rabb decision indicates that the Court has, for now, decided to leave the issue open. In 2004, the Fourth District issued its initial decision in State v. Rabb, 881 So.2d 587 (Fla. 4th DCA 2004), in which it held that a warrant is required for a dog sniff at the door of Rabb’s house. Id. at 595-96. On the State’s petition for writ of certiorari, the United States Supreme Court granted the petition, vacated the judgment, and remanded the matter to the Fourth District for further consideration in light of the Court’s 2005 decision in Caballes. Florida v. Rabb, 544 U.S. 1028, 125 S.Ct. 2246, 161 L.Ed.2d 1051 (2005). On remand, the Fourth District issued a new and more detailed opinion, again deciding that a warrant was necessary for a dog sniff at the front door of the house. Rabb, 920 So.2d at 1188-92. Review was denied by the Florida Supreme Court, State v. Rabb, 933 So.2d 522 (Fla.2006), and certiorari was denied by the United States Supreme Court in Florida v. Rabb, 549 U.S. 1052, 127 S.Ct. 665, 166 L.Ed.2d 513 (2006). While the denial of certiorari by the United States Supreme Court has no prece-dential effect, it certainly indicates that the Court has decided to leave this dog sniff question open for decision another day.

For the stated reasons, we should adopt the middle alternative, which is to allow a drug-dog sniff at a front door if there is a reasonable suspicion of drug activity. When this case was pending in the trial court, the debate was about whether the warrant requirement of Rabb should be followed, and there was no consideration of a reasonable suspicion standard. We should therefore remand the case to the trial court to consider whether there was a reasonable suspicion which supported the dog sniff in this case.

IV.

The majority opinion contains an alternative analysis for reversal which is based on the inevitable discovery rule of Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), and Fitzpatrick v. State, 900 So.2d 495, 514 (Fla.2005). The majority opinion reasons that even if the dog sniff must be excluded from consideration, the detective came to the porch after the dog sniff and also smelled marijuana. The majority opinion concludes that the detective’s own “sniff’ is sufficient to supply probable cause for the issuance of the search warrant. I am unable to agree.

The problem here is that the dog handler went to the porch first, and informed the detective that the dog had a positive alert. It was with the knowledge of the positive alert that the detective then went to the front door and smelled marijuana. In light of this time sequence, the second identification is tainted by the first. That being so, I do not believe that we can reverse the trial court’s ruling on the basis of the inevitable discovery rule. I agree with the Rabb decision on this point. 920 So.2d at 1191.

V.

Although we are reversing the trial court order, it bears mention that the trial court should not be faulted for its ruling. That is so because under Florida Supreme Court precedent, the trial court had no realistic alternative other than to follow the Fourth District’s decision in Rabb. The Florida Supreme Court has explained that when “the only case on point on a district [court of appeal] level is from a district other than the one in which the trial court is located, the trial court [is] required to follow that [other district’s] decision.” Pardo v. State, 596 So.2d 665, 666 (Fla.1992) (quoting State v. Hayes, 333 So.2d 51 (Fla. 4th DCA 1976)). The only decision squarely addressing a dog sniff at the front door of a private home was Rabb, and the trial court correctly concluded that the court was bound to follow it.

VI.

For the stated reasons, I agree that a search warrant was not required for a dog sniff at the door of a dwelling, and concur in reversing the order now before us. I concur in certifying direct conflict with the Fourth District’s decision in Rabb.

We should, however, adopt the rule that a reasonable suspicion is required before a drug-dog sniff is allowed at the front door of a dwelling. We should remand for a determination whether a reasonable suspicion existed.

      . Florida Rule of Criminal Procedure 3.190 provides in pertinent part:
      (h) Motion to Suppress Evidence in Unlawful Search.
      (1) Grounds. A defendant aggrieved by an unlawful search and seizure may move to suppress anything so obtained for use as evidence because:

      (D) there was no probable cause for believing the existence of the grounds on which the warrant was issued.

      . We commend the Public Defender for the 11th Judicial Circuit, and particularly, Howard K. Blumberg, Esq., for its arid his professionalism in bringing this case — which undercuts their position here — to our attention.

      . People v. Jones identifies United States v. Thomas, 757 F.2d 1359 (2d Cir.1985), as an exception to the "sniff is not a search” holdings. People v. Jones, 755 N.W.2d at 228. Thomas was relied on in Robb which we decline to follow. Rabb, 920 So.2d at 1184; but see Nelson v. State, 867 So.2d 534, 536 (Fla. 5th DCA 2004) (observing "the very correctness of the Thomas decision is called into question by its assertion that the defendant ‘had a legitimate expectation that the contents of his closed apartment would remain private.’ As was shown above, the Supreme Court’s analyses in Place and Jacobsen indicate that a possessor of contraband can maintain no legitimate expectation that its presence will not be revealed. No legitimate expectation of privacy is impinged by governmental conduct that can ‘reveal nothing about noncontraband items.' " (quoting United States v. Colyer, 878 F.2d 469, 475 (D.C.Cir.1989))).

      . As listed in People v. Jones, the following states, including Florida, have in various contexts concluded that a canine sniff is not a Fourth Amendment search:

        State v. Box, 205 Ariz. 492, 496-497, 73 P.3d 623 (Ariz.App.2003); Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004); People v. Ortega, 34 P.3d 986, 991 (Colo.2001); Bain v. State, 839 So.2d 739 (Fla.App.2003); Cole v. Stale, 254 Ga.App. 424, 562 S.E.2d 720 (2002); State v. Parkinson, 135 Idaho 357, 17 P.3d 301 (Idaho App.2000); People v. Cox, 318 Ill.App.3d 161, 251 Ill.Dec. 133, 739 N.E.2d 1066 (2000); Bradshaw v. Stale, 759 N.E.2d 271 (Ind.App.2001); State v. Bergmann, 633 N.W.2d 328 (Iowa 2001); State v. Barker, 252 Kan. 949, 850 P.2d 885 (1993); State v. Kalie, 699 So.2d 879 (La.1997); State v. Washington, 687 So.2d 575 (La.App., 1997); Fitzgerald v. Stale, 384 Md. 484, 864 A.2d 1006 (2004); Commonwealth v. Feyenord, 62 Mass.App. 200, 815 N.E.2d 628 (2004); Millsap v. State, 767 So.2d 286 (Miss.App., 2000); State v. LaFlamme, 869 S.W.2d 183 (Mo.App.1993); Gama v. State, 112 Nev. 833, 920 P.2d 1010 (1996); State v. Van Cleave, 131 N.M. 82, 33 P.3d 633 (2001); People v. Offen, 78 N.Y.2d 1089, 578 N.Y.S.2d 121, 585 N.E.2d 370 (1991); State v. Fisher, 141 N.C.App. 448, 539 S.E.2d 677 (2000); Stale v. Kesler, 396 N.W.2d 729 (N.D.1986); State v. Rusnak, 120 Ohio App.3d 24, 696 N.E.2d 633 (1997); Scott v. State, 927 P.2d 1066 (Okla.Crim.App.1996); State v. Smith, 327 Or. 366, 963 P.2d 642 (1998); Commonwealth v. Johnston, 515 Pa. 454, 530 A.2d 74 (1987); State v. England, 19 S.W.3d 762 (Tenn.2000); Rodriguez v. State, 106 S.W.3d 224 (Tex.App.2003); State v. Miller, 256 Wis.2d 80, 647 N.W.2d 348 (Wis.App.2002); Morgan v. State, 95 P.3d 802 (Wy.2004).

        People v. Jones, 755 N.W.2d at 228 n. 4.

      . Contrary to Nelson and Cardwell, State v. Ortiz, 257 Neb. 784, 801, 600 N.W.2d 805, 819-20 (1999), relied on by the partial dissent, likens the canine sniff to electronic surveillance equipment.

      . To our way of thinking, this factual pattern, including the crime stopper tip leading to the officer’s presence at defendant's front door meets "option two” of the dissent's "three option” analysis, and the trial court's decision would require reversal on that basis. The officer did not decide to do a random stroll of the neighborhood in search of drugs behind closed doors so there is no need to address such a factual scenario.

      . While we conclude that existing case law, both Federal and State, support our analysis, we, like the dissent, cannot fault the trial court's reliance on Rabb. See Pardo v. State, 596 So.2d 665, 666-67 (Fla.1992) (observing that "in the event the only case on point on a district level is from a district other than the one in which the trial court is located, the trial court [is] required to follow that decision”).

      . According to the detective, in a hydroponics lab for growing marijuana, high intensity light bulbs are used which create heat. This causes the air conditioning unit to run continuously without cycling off.

      . Questions have been raised about the reliability of dog sniffs. Illinois v. Caballes, 543 U.S. 405, 417, 125 S.Ct 834, 160 L.Ed.2d 842 (Souter, J., dissenting); Lewis R. Katz and Aaron P. Godemboewski, supra, 85 Neb. L.Rev. at 752-65; 1 Wayne R. LaFave, supra, § 2.2(g), at 532-34.
      Requiring either a warrant or reasonable suspicion addresses this concern by requiring articulable facts pointing to existence of drug activity within the dwelling. In the event of a positive alert by the dog, the affidavit in support of the search warrant for the search of the home will then include the articulable facts plus the sniff, not just the sniff alone.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jonathan and Ana-Karina POLITANO, Appellant, v. GPA CONSTRUCTION GROUP, Appellee.
    No. 3D07-3179.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2008.
    Rehearing and Rehearing En Banc Denied April 28, 2009.
    Deborah Marks, for appellant.

      Stephen E. Tunstall, for appellee.
    Before COPE and RAMIREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an appeal in a construction lien case, where the trial court declined to find that a lien was fraudulent. We affirm because the trial court did not abuse its discretion in concluding that the disallowed items included in the lien were a result of mistake and not a willful exaggeration.

Paragraph 713.31(2)(a), Florida Statutes (2007), defines a fraudulent lien as one where “the lienor has willfully exaggerated the amount for which such lien is claimed or in which the lienor has willfully included a claim for work not performed upon or materials not furnished.... ” Here, the contractor had included items that it should not have, including overhead and profit. As a result, appellants-owners rely on our decision in Martin v. Jack Yanks Construction Co., 650 So.2d 120 (Fla. 3d DCA 1995), to support their position that if the lien includes amounts for non-lienable items, then the lien is fraudulent without regard to ignorance or good faith.

The owners’ reliance on Martin is misplaced. In Martin the parties did not have a valid contract. Id. at 121. More importantly, although the contractor had done little to no work, it asserted a lien for the full amount. This court held that “[t]he asserted lien was in no way the result of a contractor’s miscalculation or overestimation, but rather was a lien for non-lienable items in an amount far beyond anything that could have possibly been owed to the contractor.” Id. at 122.

Here, the parties not only had a valid contract but the contractor had furnished materials and labor over a period of years during the construction of appellants’ new home. The contractor testified at trial, the owners did not testify and the successor contractor testified. The trial court found that the owners had breached the contract. The evidence showed that the contractor had spent more than the amount of the lien, but there was a dispute about how much was compensable based on the percentages of completion of various components of the job at the time the owners terminated the contractor.

The court made reductions in the lien, concluding that there had been a legitimate dispute over some items, and there were other items which had been included in error. The court made a specific finding that “[h]aving observed the demeanor of the Plaintiffs representative [the contractor], the plaintiff [contractor] did not willfully exaggerate the lien, and ... the lien is not void.” We see no abuse of discretion in the trial court’s determination, after hearing the testimony and observing the demeanor of the contractor, that the lien was not fraudulent.

The owners argue that under Delta Painting, Inc. v. Baumann, 710 So.2d 663 (Fla. 3d DCA 1998), if the trial court reduces the amount of the lien, it follows that the lien is fraudulent. That is not correct. In Delta the trial court found, after a trial, that the contractor’s lien was fraudulent. On appeal to this court, the contractor challenged the sufficiency of the evidence. This court said:

We begin our review by recognizing that a finding of a fraudulent lien by a trial court is not a discretionary matter. As with any other contested issue, the lienor’s intent and good or bad faith in filing a lien must be based on competent substantial evidence in the record. In this case, we find that the lower court’s determination that Delta’s lien was fraudulent was amply supported by competent substantial evidence adduced at the trial. For example, there was evidence that Delta’s claim of lien included amounts for additional work unauthorized by the Baumanns. There was also evidence that Delta had knowingly included a claim for work not performed or materials not furnished. We think that such evidence is wholly inconsistent with any notion of a minor mistake or good faith dispute between the parties. Thus, because there was competent substantial evidence to support the lower court’s finding, we cannot disturb the lower court’s conclusions in this regard.

Id. at 664 (citations omitted).

In saying that the finding of a fraudulent lien is not a discretionary matter, id., this court signified that the question of fraud is a factual matter to be proven like any other fact. In Delta there was evidence which supported the trial court’s determination of a fraudulent lien. In the present case, by contrast, the trial court found no fraud to exist, and in the present case that determination is supported by the evidence.

The owner relies on Ponce Investments, Inc. v. Financial Capital of America, 718 So.2d 280 (Fla. 3d DCA 1998), but that case is likewise not on point. In that case, the trial court had denied a claim of fraudulent lien, but this court reversed, concluding that the evidence did not support the trial court’s ruling. Id. at 282. In this case, by contrast, the evidence (including the trial court’s credibility determination) supports the trial court’s ruling.

Affirmed.


author: SCHWARTZ, Senior Judge. ROTHENBERG, J.

text:
    MIAMI-DADE COUNTY, Petitioner, v. Rene Miguel VALDES, Respondent.
    No. 3D08-1064.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2009.
    Rehearing Denied June 5, 2009.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and John Mclnnis, Assistant County Attorney, for petitioner.

      Gonzalez & Rodriguez and Javier L. Gonzalez, for respondent.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

In an excellent opinion by Judge Venzer, the appellate division determined that the County’s refusal to relax the single-family residential zoning on the respondent’s property notwithstanding that it was effectively surrounded by a busy thoroughfare, commercial property, and a group home, resulted in the continuance of an impermissible instance of “reverse spot zoning.” See Tollius v. City of Miami, 96 So.2d 122 (Fla.1957); City of Miami Beach v. Robbins, 702 So.2d 1329 (Fla. 3d DCA 1997); Debes v. City of Key West, 690 So.2d 700 (Fla. 3d DCA 1997); City of Coral Gables v. Wepman, 418 So.2d 339 (Fla. 3d DCA 1982), review denied, 424 So.2d 760 (Fla.1982); Olive v. City of Jacksonville, 328 So.2d 854 (Fla. 1st DCA 1976); City of S. Miami v. Hillbauer, 312 So.2d 241 (Fla. 3d DCA 1975); Manilow v. City of Miami Beach, 213 So.2d 589 (Fla. 3d DCA 1968); Kugel v. City of Miami Beach, 206 So.2d 282 (Fla. 3d DCA 1968).

There is no departure from the essential requirements of the law in this decision, much less, as is required to grant relief on second-tier certiorari review, one which resulted in a miscarriage of justice. See City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982); Kirpalani v. State Dep’t of Highway Safety & Motor Vehicles, 997 So.2d 502 (Fla. 4th DCA 2008) (on motion for rehearing granted). We think that the direct contrary is true.

Certiorari denied.

CORTINAS, J„ concurs.

ROTHENBERG, J.

(dissenting).

Miami-Dade County seeks second-tier certiorari review of an opinion issued by the circuit court, sitting in its appellate capacity, quashing a decision of the Miami-Dade County Board of County Commissioners (“the Board”). The decision the circuit court quashed was the Board’s affirmance of the denial of Rene Miguel Valdes’ (“Valdes”) application for a district boundary change from RU-1 (single family use) to RU-5A (semi-professional office district), or in the alternative, a use variance to permit RU-5A uses within his property’s RU-1 zoning district. Because the circuit court panel failed to observe the essential requirements of the law during its review, the petition should be granted, and the circuit court’s opinion should be quashed.

The subject property is a single family residence that faces S.W. 82nd Avenue and is one lot south of Coral Way. Because of the increase in traffic and noise along Coral Way, most of the residences that front Coral Way have been converted to nonresidential uses and offices. After public hearings, the lots facing Coral Way were granted use variances converting the residential uses, RU-1, to non-residential office uses, zoned either RU-2 or RU-5A. Although Valdes’ residential property does not face Coral Way, and the properties to the north, east, and west of Valdes are all zoned RU-1, single family residences, he sought approval of a zoning change or a use variance to permit him to use his property as an office. Valdes’ application was rejected. The Board affirmed the denial of Valdes’ application. The circuit court, sitting in its appellate capacity, reviewed the Board’s decision on certiorari review, and quashed the Board’s decision after concluding that the denial of Valdes’ request “appears to us as arbitrary and not fairly debatable” and “[a]s such, the Board’s actions amount to reverse spot zoning which is impermissible.”

THIS COURT’S STANDARD OF REVIEW

Because the circuit court’s opinion is before this Court on second-tier certiorari review, our review is limited to determining whether the circuit court appellate panel afforded the parties procedural due process and followed the essential requirements of the law. Dusseau v. Metro. Dade County Bd. of County Commr’s, 794 So.2d 1270, 1274 (Fla.2001). The parties do not dispute, and I agree with the majority that the circuit court appellate panel afforded the parties procedural due process. The following analysis, therefore, only addresses the second prong and will demonstrate that the circuit court failed to follow the essential requirements of the law and why its opinion must be quashed.

LEGAL ANALYSIS

The circuit court’s opinion must be quashed as the court departed from the essential requirements of the law by: (1) failing to address whether there was competent substantial evidence to support the Board’s decision, opting instead to conduct its own independent review; and (2) ignoring clear and unambiguous statutory authority when it concluded that the group home to the south of the subject property was “commercial in nature.”

(1) Failure to address whether the Board’s decision was supported by competent substantial evidence

Similar to this Court’s review, the circuit court’s certiorari review when it sits in its appellate capacity is prescribed by law. In City of Deerfield Beach, v. Vaillant, 419 So.2d 624, 626 (Fla.1982), the Florida Supreme Court outlined the correct law applicable to the circuit court’s certiorari review as follows:

Where a party is entitled as a matter of right to seek review in the circuit court from administrative action, the circuit court must determine whether procedural due process is accorded, whether the essential requirements of the law have been observed, and whether the administrative findings and judgment are supported by competent substantial evidence.

Thus, after disposing of the due process issue, the circuit court panel’s review was limited to determining whether the Board followed the law and whether its decision was supported by competent substantial evidence. The circuit court, however, reweighed the evidence and reconsidered the merits of Valdes’ application, which it was not permitted to do, thereby usurping the fact-finding authority of the Board. Id. at 1275.

The circuit court panel stated that it was “not persuaded by the Board’s argument,” and held that the Board’s denial of Valdes’ request for re-zoning appeared arbitrary, and not fairly debatable, resulting in impermissible reverse spot zoning. These findings and the opinion issued by the circuit court reflect that the circuit court: (A) failed to consider whether there was competent evidence that supported the Board’s decision; and (B) reweighed the evidence, which it was not permitted to do.

The circuit court’s findings that the Board’s decision was arbitrary and not fairly debatable are conclusory, as the panel failed to address whether the record facts supported the Board’s decision to deny Valdes’ application. Instead of reviewing the record to determine whether the Board’s decision was supported by competent substantial evidence, the circuit court proceeded to explain, at length, the evidence contrary to the Board’s decision. The evidence contrary to the Board’s decision was, however, outside the scope of the circuit court panel’s review. Dusseau, 794 So.2d at 1276. On first-tier certiorari review, the circuit court’s task was not to reweigh the evidence or to determine if a contrary conclusion could be reached. See Town of Manalapan v. Gyongyosi, 828 So.2d 1029, 1034 (Fla. 4th DCA 2002). In Dusseau, 794 So.2d at 1275-76, the Florida Supreme Court held as follows:

The sole issue before the court on first-tier certiorari review is whether the agency’s decision is lawful. The court’s task vis-a-vis the third prong of Vaillant is simple: The court must review the record to assess the evi-dentiary support for the agency’s decision. Evidence contrary to the agency’s decision is outside the scope of the inquiry at this point, for the reviewing court above all cannot reweigh the “pros and cons” of conflicting evidence. While contrary evidence may be relevant to the wisdom of the decision, it is irrelevant to the lawfulness of the decision. As long as the record contains competent substantial evidence to support the agency’s decision, the decision is presumed lawful and the court’s job is ended.

(emphasis added). Accord Gyongyosi, 828 So.2d at 1034; see also Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089, 1093 (Fla.2000) (holding that where the circuit court “substituted its judgment for that of the City ... the circuit court departed from the essential requirements of the law”); City of Hialeah Gardens v. Miami-Dade Chatter Found., Inc., 857 So.2d 202, 206 (Fla. 3d DCA 2003) (holding that reweighing the evidence is synonymous with failing to observe the essential requirements of the law).

The circuit court’s disagreement with the Board’s decision without deferring to the Board’s fact-finding authority, was clearly error requiring quashal. As the Florida Supreme Court stated in Dusseau:

The issue before the [circuit] court is not whether the agency’s decision is the “best” decision or the “right” decision or even a “wise” decision, for these are technical and policy-based determinations properly within the purview of the agency. The circuit court has no training or experience — and is inherently unsuited — to sit as a roving “super agency” with plenary oversight in such matters.

794 So.2d at 1276.

(2) The panel ignored binding statutory authority

Central to the circuit court panel’s decision was its finding that the denial of Valdes’ request for a zoning change was an impermissible act of reverse spot zoning. Such a finding required the circuit court panel to ignore or reweigh the record evidence and findings of the Board and to ignore binding statutory authority.

Reverse spot zoning occurs when a zoning ordinance prevents a property owner from utilizing his or her property in a certain way, when virtually all of the adjoining neighbors are not subject to such a restriction, creating, in effect, a veritable zoning island or zoning peninsula in a surrounding sea of contrary zoning classification.

City of Miami Beach v. Robbins, 702 So.2d 1329, 1330 (Fla. 3d DCA 1997) (emphasis added).

The circuit court panel found that Valdes’ lot was alone in the “surrounding sea of contrary zoning classification.” In making this finding, the circuit court ignored the record evidence that supported the Board’s findings — that all of the properties surrounding the Valdes property, other than those facing Coral Way, are zoned RU-1 single family residences and based its conclusion, in part, upon its finding that the group home to the south of Valdes’ property was “commercial in nature.” The circuit court reasoned that: “Typically, group homes have caretakers assisting the occupants or providing services to assist the elderly with daily activities. This Court is mindful of these activities and agrees with Mr. Valdez [sic] that operating a group home for the elderly is commercial in nature.” (emphasis added). Thus, the circuit court deemed that the lot was being used for a commercial purpose.

In making this finding, the circuit court panel ignored clear statutory authority. Section 419.001(2), Florida Statutes (2006), specifically defines the type of group home in question as a single family home with a residential use. “Homes of six or fewer residents which otherwise meet the definition of a community residential home shall be deemed a single-family unit and a non-commercial, residential use for the purpose of local laws and ordinances.” (emphasis added). Where the legislature establishes the public policy of the state in crystal-clear terms, the circuit court cannot ignore or re-write the law, nor form its own conclusions.

The circuit court departed from the essential requirements of the law when, without constitutional challenge or a finding holding the statute to be unconstitutional, it failed to apply the statutory definition regulating the treatment of the property on which the group home sits. Thus, the evaluation performed by the circuit court was based upon a false premise that the property to the south of Valdes’ property was “commercial in nature.”

CONCLUSION

The circuit court’s job was simple — to determine whether the Board’s decision was supported by the evidence. Rather than performing this review, the circuit court panel failed to address whether there was competent substantial evidence in the record to support the Board’s findings, reweighed the evidence, ignored binding statutory authority which requires that the group home in question be treated as a single family residence with a non-commercial residential use, and reached its own conclusions. This was a clear departure from the law requiring that the instant petition be granted and the opinion under review be quashed. For the above stated reasons, I respectfully dissent from the contrary opinion reached by my learned colleagues.

      . Except to the rear.

      . That a group home, with its accompanying elevated human and vehicular traffic, is permitted by the Code in a single-family residential zone does not make it a single-family residence, see generally 2 Kenneth H. Young, Anderson’s Am. Law of Zoning § 9.31 et seq. (4th ed. 1996), so as to avoid contributing to the legal isolation of Valdes's property. See Tollius v. City of Miami, 96 So.2d 122 (Fla.1957). Legal consequences are "determined not by what [something] is called, but by what it does” and is. Boyd v. Boyd, 478 So.2d 356, 357 (Fla. 3d DCA 1985), review denied, 488 So.2d 67 (Fla. 1986). See also Walls v. Endel, 20 Fla. 86 (1883). Otherwise stated, "you can put nail polish on an elephant, but....”

      . In deciding whether a particular zoning scheme results, as here, in an instance of spot or reverse spot zoning, the familiar "fairly-debatable-competent-substantial-evidence” standards of review do not strictly apply. Instead, the issue is more appropriately considered as a matter of law, applying undisputed facts concerning the characteristics of the location in question and its surroundings to established legal principles. See City Comm’n of the City of Miami v. Woodlawn Park Cemetery Co., 553 So.2d 1227, 1230-33 (Fla. 3d DCA 1989), and cases collected. In any event, as was said in Debes, 690 So.2d at 701 n. 4:
      [T]he application of any possible formulation of the showing necessary either to support or to overturn a local government's decision of the present kind, including the "fairly debatable” standard deemed appropriate in Martin County v. Yusem, 690 So.2d 1288 (Fla.1997); e.g., Allapattah Community Ass'n v. City of Miami, 379 So.2d 387 (Fla. 3d DCA 1980), cert. same result. See Metropolitan Dade County v. Fuller, 515 So.2d 1312, 1314 n. 4 (Fla. 3d DCA 1987).

      . Although the circuit court refers to the respondent as Rene Miguel Valdez, the application reflects that the correct spelling of the respondent’s name is Rene Miguel Valdes.

      . In Dusseau, the Florida Supreme Court rioted that the questions of whether the circuit court applied the correct law, and whether the circuit court observed the essential requirements of tire law, are equivalent. Id.

      . The "fairly debatable" test sometimes provides for review of legislative municipal zoning actions; however, it "effectively provides” the same standard as the competent substantial evidence standard outlined above. Town of Indialantic v. Nance, 400 So.2d 37, 40 (Fla. 5th DCA 1981), approved, 419 So.2d 1041 (Fla.1982). "By whatever name it is called, the task of the court reviewing a zoning variance decision is to insure that the authority’s decision is based on evidence a reasonable mind would accept to support a conclusion.” Id.


author: MAY, J. POLEN, J.,

text:
    Ricardo VELASQUEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 4D08-4894.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 2009.
    Rehearing Denied Feb. 10, 2009.

      Ralph S. Behr, Fort Lauderdale, for petitioner.
    No appearance required for respondent.
   MAY, J.

The defendant filed a petition for writ of prohibition challenging the trial court’s failure to find the defendant immune under section 776.032, Florida Statutes (2008), the “Stand Your Ground” law. The defendant argues he is entitled to immunity under the statute because the trial court failed to make a probable cause finding that the force he used was unlawful. We disagree and deny the petition.

We write to clarify the procedure to be followed in handling Florida Rule of Criminal Procedure 3.190(c)(4) motions to dismiss based on section 776.032. In doing so, we certify conflict with the First District Court of Appeal in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008).

The State charged the defendant with attempted murder. The defendant filed a motion to dismiss, pursuant to section 776.032 and Florida Rule of Criminal Procedure 3.190(c)(4). The defendant’s affidavit attested that he was attacked by the victims the night before the incident giving rise to the charge. The next day, one of the victims sent a text message asking the defendant to come to an apartment. When the defendant knocked on the door, one of the victims opened the door and began to attack him. The other victim joined the attack, stabbing and beating the defendant unconscious.

The trial court held a hearing on the motion. The State introduced the testimony of an officer and a detective, who testified that their investigation revealed the defendant’s use of force was unjustified. Specifically, the officers testified that the defendant arrived at the victim’s apartment armed, vandalized the victim’s vehicle with a knife, forced his way into the apartment, and attacked the victim with a knife. Based on this testimony, the trial court found the defendant had not established by a preponderance of the evidence that he was immune from prosecution under section 776.032.

We deny the petition for writ of prohibition because the trial court reached the correct conclusion and acted within its jurisdiction. English v. McCrary, 348 So.2d 293, 296 (Fla.1977) (“Prohibition may only be granted when it is shown that a lower court is without jurisdiction or attempting to act in excess of jurisdiction.”). We disagree however that the procedure outlined in Peterson is correct.

Rule 3.190(c)(4) of the Florida Rules of Criminal Procedure provides for the filing of a motion to dismiss when “[tjhere are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.” Subsection (d) allows for the state to traverse or demur the motion and for the court to receive evidence on any issue of fact. It then provides that “[a] motion to dismiss under subdivision (c)(4) of this rule shall be denied if the state files a traverse that, with specificity, denies under oath the material fact or facts alleged in the motion to dismiss.” Fla. R. Civ. P. 3.190(d). Here, the State presented evidence disputing the attestations of the defendant and creating issues of fact. As set forth in the rule, under such circumstances the motion to dismiss “shall be denied.”

The “Stand Your Ground” statute provides:

A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

§ 776.032(1), Fla. Stat. (2007). The statute then provides for law enforcement to make an initial determination of whether there was probable cause that the force used was unlawful. § 776.032(2), Fla. Stat. This allows law enforcement officers to determine a suspect’s immunity prior to making an arrest.

By defining “criminal prosecution” to include the arrest, detention, charging, or prosecution of the defendant, the statute allows for an immunity determination at any stage of the proceeding. Created to eliminate the need to retreat under specified circumstances, the statute authorized the immunity determination to be made by law enforcement officers, prosecutors, judges, and juries. In enacting the' statute, however, the legislature did not restrict the time frame for determining immunity, but rather provided a time continuum stretching across the entire criminal process.

When rule 3.190(c)(4) is used as the vehicle to raise the issue of immunity under section 776.032(2), that rule provides the procedural framework by which the court makes its determination. That rule mandates the denial of a motion to dismiss when as here, the facts are in dispute. Thus, the trial court properly denied the motion.

In Peterson, the First District held that the procedure established by rule 3.190(c) does not control the immunity determination. 983 So.2d at 28-29. Instead, the Peterson court found guidance in People v. Guenther, 740 P.2d 971 (Colo.1987). Id. at 29. There, the Colorado Supreme Court held that a defendant, raising an immunity defense under a similar statute, had the burden of proving the entitlement to immunity by a preponderance of the evidence. To do so, the trial court was authorized to weigh conflicting evidence. Following Guenther, the Peterson court held “that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.” Id.

We recognize the efficacy of the procedure outlined in Peterson, but disagree that it is within our province to create a process sanctioned neither by statute nor existing rule.

Petition Denied.

HAZOURI, J., concurs.

POLEN, J., specially concurs.

POLEN, J.,

concurring specially.

I agree with the result reached by the majority and most of the majority’s analysis. I disagree, however, as to the rejection of the procedure approved by the First District Court of Appeal in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008). While I question whether a trial court could properly determine factual disputes solely on the strength of one eye-witness deposition and argument of counsel, as the court did in Peterson, there was a full evidentiary hearing in this case. Nonetheless, I think the first district was correct in holding that the trial judge must make the initial decision whether the defendant has met her or his burden of establishing the right to immunity, and hence dismissal, under section 776.032, Florida Statutes. This would be so whether or not the state has filed a “traverse” as provided in Florida Rule of Criminal Procedure 3.190(d). In my view, a traverse would not automatically send the case to the jury. And if a trial court were to find entitlement to section 776.032 immunity and dismiss the charges, such a ruling would then be subject to immediate appellate review. I would not certify conflict with Peterson.

      . The trial court correctly relied on the procedure dictated by Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008), because this court had not yet addressed the issue. McGauley v. Goldstein, 653 So.2d 1108, 1109 (Fla. 4th DCA 1995) (citations omitted).


text:
    TL DALLAS (SPECIAL RISKS) LTD. and Great Lakes Reinsurance (U.K.) Plc., Appellants, v. REPECHAGE INVESTMENTS, LTD., Appellee.
    No. 3D08-2315.
    District Court of Appeal of Florida, Third District.
    Feb. 18, 2009.
    McAlpin Conroy and Richard J. McAl-pin and Gabriela M. Prado, for appellants.
    Daniel W. Courtney, Miami, for appel-lee.
    Before COPE, SUAREZ, and CORTEÑAS, JJ.
   PER CURIAM.

Affirmed. Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732 (Fla.2002); Quinones v. Swiss Bank Corp. (Overseas), S.A., 509 So.2d 273 (Fla.1987).


author: DAMOORGIAN, J.

text:
    Danny Lee MAULDIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3985.
    District Court of Appeal of Florida, Fourth District.
    March 4, 2009.

      Danny Lee Mauldin, South Bay, pro se.
    No appearance required for appellee.
   DAMOORGIAN, J.

We affirm the trial court’s denial of Danny Lee Mauldin’s Florida Rule of Criminal Procedure 3.800(a) motion to correct an illegal sentence. Mauldin’s consecutive sentences for two counts of aggravated assault do not violate the prohibition against double jeopardy.

In 2002, Mauldin pointed a BB gun at two people seated in a car and threatened to “cap them.” He was arrested shortly after and charged with two counts of aggravated assault with a deadly weapon. He entered a plea and was placed on probation. He later violated his probation and was placed on community control followed by probation. He again violated his supervision, and on January 10, 2006, the court sentenced him to two consecutive terms of five years in prison.

Following his sentence, Mauldin filed a Rule 3.800(a) motion arguing that the multiple convictions for aggravated assault and the consecutive sentences he received violated the prohibition against double jeopardy. A Rule 3.800(a) motion cannot be used to set aside the convictions, but Mauldin could raise a double jeopardy challenge to his sentences if the illegality of the sentence is apparent from the face of the record. See Henry v. State, 920 So.2d 1204 (Fla. 4th DCA 2006). See also Coughlin v. State, 932 So.2d 1224 (Fla. 2d DCA 2006); Smith v. State, 886 So.2d 336 (Fla. 5th DCA 2004).

The factual basis for Mauldin’s plea is not disputed and it is clear from the face of the record. The only cognizable issue in this case is whether he could receive consecutive sentences. Section 775.021(4)(a), Florida Statutes (2002), permits consecutive sentences for multiple convictions arising from a single episode. Therefore, we review the propriety of the multiple convictions solely to determine whether consecutive sentences are permitted. We also write to address an aspect of double jeopardy analysis that requires some clarification.

The State, in its response to the trial court, argued that multiple convictions for aggravated assault were authorized by sections 775.021(4)(a) and (b). These provisions were enacted by the legislature following the decision in Carawan v. State, 515 So.2d 161 (Fla.1987), which held that a single act could not form the basis for more than one conviction and sentence. Id. The legislature, in response to that decision, enacted and essentially codified the Bloclcburger “same elements” test in section 775.021(4), Florida Statutes (2002), which is used when determining whether an act that violates multiple statutes can be punished separately. The State asserts that the Bloclcburger test was not violated in this case because the two offenses involved different victims.

Mauldin, however, was charged with two counts of the same offense for a single act against multiple victims. The Supreme Court has held that when performing Bloclcburger double jeopardy analysis the court is to look solely to the staUitory elements and not to the allegations in the charging document or the evidence adduced at trial. State v. Paul, 934 So.2d 1167, 1173 (Fla.2006) (emphasis added). Section 775.021(4)(a) provides that offenses should be considered separate “if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.” (emphasis added).

If a defendant is charged with two counts of the same statutory offense, then obviously those counts have the same elements. The proper double jeopardy analysis that applies in that situation is the “allowable unit of prosecution” standard of Sanabria v. United States, 437 U.S. 54, 69-70, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978). McKnight v. State, 906 So.2d 368, 371 (Fla. 5th DCA 2005) (applying the allowable unit of prosecution standard and finding that two convictions for vehicular homicide for the death of two victims in a single accident was permissible). “The Legislature defines whether offenses are the same by prescribing the ‘allowable unit of prosecution,’ which is the aspect of criminal activity that the Legislature intended to punish.” Id. at 371. Double jeopardy is not violated if the legislature intended separate punishments.

Here, we hold that consecutive sentences from these multiple convictions were permissible. It is clear from the assault statute that the legislature intended to punish the criminal defendant separately for each victim the defendant placed in fear by his or her threat. The assault statute defined the offense as: “[A]n intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such person that such violence is imminent.” § 784.011(1), Fla. Stat. (2002). An element of assault is the placing in fear of a “person,” and the statute criminalizes unlawful threats to “the person of another.” Where multiple persons are placed in well-founded fear of imminent violence by a single threat, and the elements of the offense are otherwise satisfied, multiple convictions are permissible. Thus, the statute is not ambiguous as to the allowable unit of prosecution. The rule of lenity does not apply in this situation.

We further find that Vance v. State, 472 So.2d 734 (Fla.1985), Green v. State, 706 So.2d 884 (Fla. 4th DCA 1998), and Canion v. State, 661 So.2d 931 (Fla. 4th DCA 1995), relied upon by Mauldin, are distinguishable. In these cases, the courts held that multiple convictions for improper firearm display were not authorized because the statute provided that the offense was committed when a person exhibited a firearm “in the presence of one or more persons.” § 790.10, Fla. Stat. (2002) (emphasis added). In contrast to the assault statute, the statutory language in those cases showed that the legislature intended to punish the conduct of improperly displaying a firearm and did not intend separate punishments for each person that witnessed the display. Id.

Further, multiple convictions under the assault statute do not violate the prohibition against double jeopardy because the assault statute does not criminalize a “course of conduct.” In Blockburger, the Court discussed the distinction between continuing offenses and offenses that punish individualized conduct. Quoting Wharton’s Criminal Law, the Supreme Court explained that: “The test is whether the individual acts are prohibited, or the course of action which they constitute.” 284 U.S. at 302, 52 S.Ct. 180. If a statute intends to punish individual acts, then separate punishments are permitted. If the intent is to punish the course of conduct, then only one penalty can be imposed.

The gravamen of the assault statute is the placing in fear of a person. The legislature intended separate punishments when a defendant’s threat places more than one person in well-founded fear. Accordingly, the prohibition against double jeopardy was not violated.

Affi'rmed.

GROSS, C.J., and MAY, J., concur.

      . The State did not argue that Mauldin waived a double jeopardy claim in this case through entiy of a negotiated plea. Novaton v. State, 634 So.2d 607 (Fla.1994). The record indicates that Mauldin entered a general or open plea which does not waive a double jeopardy claim where the other elements of the Novaton exception are met. See Demps v. State, 965 So.2d 1242, 1243 (Fla. 4th DCA 2007).

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      . In Section 775.021(4)(b), the legislature provided: "The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent."


author: TAYLOR, J.

text:
    Bruce BRIGGS as Personal representative of the Estate of Neila Briggs, Appellant, v. JUPITER HILLS LIGHTHOUSE MARINA, Jeffrey Briggs and Harris-Kayot, Appellees.
    No. 4D07-1997.
    District Court of Appeal of Florida, Fourth District.
    March 4, 2009.

      Ramon Rubio of the Law Offices of Ramon Rubio, PL, Fort Lauderdale, for appellant.
    David J. Millheiser and Peter A. Miller of Peter A. Miller & Associates, P.A., Coral Gables for Appellee-Jupiter Hills Lighthouse Marina, G. William Bisset of Kubicki Draper, P.A., Miami, for Appellee-Jeffrey Briggs, and Shelley H. Leinicke and H. Wayne Clark of Wicker, Smith, O’Hara, McCoy & Ford, P.A., for Appellee-Harris-Kayot.
   TAYLOR, J.

In this action for personal injuries resulting from a boat accident, plaintiff, Bruce Briggs, the personal representative of the estate of Neila Briggs, appeals the trial court’s order granting summary judgment for the defendants, Jupiter Hills Lighthouse Marina (“Jupiter Hills”), Jeffrey Briggs, and Harris-Kayot. The trial court determined that the accident occurred on navigable waters and that plaintiffs tort claims are barred by expiration of the three-year statute of limitations for maritime torts. We affirm summary judgment as to all counts except the state statutory cause of action against Jupiter Hills.

On March 4, 2001, Jeffrey Briggs rented a boat from Jupiter Hills Lighthouse Marina after consuming alcohol. His mother and father, Neila and Bruce Briggs, were passengers on the boat. Two to three hours into their trip on the Loxahatchee River, Jeff hit the wake from a larger boat. Neila flew from her seat up into the air and landed on the floor of the boat. She broke her back and was placed in a body cast for about eight months following the accident. On March 2, 2005, almost four years after the accident, Neila Briggs filed a lawsuit seeking damages for her personal injuries. She sued three parties: (1) the operator of the vessel at the time of the accident, Jeff Briggs; (2) the company that rented the vessel, Jupiter Hills Lighthouse Marina; and (3) the manufacturer of the vessel, Harris-Kayot.

Plaintiff amended her complaint and added allegations that Jupiter Hills negligently entrusted the boat to Jeff Briggs, violated sections 327.50 and 327.54, Florida Statutes, and breached the rental agreement between Jupiter Hills and Jeff Briggs. Plaintiff also added a breach of contract claim against Jeff Briggs. The defendants’ initial motions for summary judgment were denied. After discovery was completed, the defendants re-filed motions for summary judgment. They asserted that plaintiffs claims were barred by the three-year statute of limitations for torts under maritime law. In support of their positions, the parties submitted the depositions and affidavits of key participants and various experts. After considering the materials, memoranda, and argument of counsel, the trial court granted summary judgment in favor of the defendants. The court found that “the incident occurred in navigable waters and that the parties were engaged in activity which bears a substantial relationship to traditional maritime activity.” It determined that the “three-year statute of limitations for maritime torts (46 U.S.C. § 763a) applies to the claims in this case,” and that, because the action was not filed until almost four year’s after the incident, the plaintiffs action was time-barred.

The standard of review for the trial court’s granting of a summary judgment motion is de novo. Major League Baseball v. Morsaui, 790 So.2d 1071, 1074 (Fla.2001); Patten v. Winderman, 965 So.2d 1222, 1224 (Fla. 4th DCA 2007). When an appellate court reviews a ruling on a summary judgment motion, it “must examine the record and any supporting affidavits in the light most favorable to the non-moving party.” City of Lauderhill v. Rhames, 864 So.2d 432, 434 n. 1 (Fla. 4th DCA 2003).

The party who moves for summary judgment “has the burden of proving the absence of a genuine issue of material fact.” Patten, 965 So.2d at 1224 (citing Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966)). Moreover, evidence that raises an issue of material fact, conflicts, permits different reasonable inferences, or tends to prove issues should be submitted to the jury. Id. In other words, “[a] motion for summary judgment should not be granted if the record reflects the existence of genuine issues of fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist.” Walter T. Embry, Inc. v. LaSalle Nat’l Bank, 792 So.2d 567, 568 (Fla. 4th DCA 2001). After the movant has provided competent evidence to establish his or her claim, the non-moving party must provide counter-evidence which shows a genuine issue. Id.

Plaintiffs first argument on appeal is that there were genuine issues of material fact in dispute concerning the location of the accident. As defendant Jeff Briggs acknowledges, he and Neila Briggs gave conflicting testimony about where the accident actually occurred. However, in ruling on the motion for summary judgment, the trial court expressly stated that “[f]or purposes of the motions, the court assumed that the incident occurred at the location identified by the plaintiff.” Moreover, the record establishes that both locations identified by the parties are located well within the navigable waters of the Loxahatchee River, which provides vessels up to forty feet in length with access to the Intracoastal Waterway and the Atlantic Ocean. Thus, no issue of material fact existed regarding the accident site so as to preclude summary judgment.

Plaintiff next argues that there was a dispute among the experts regarding the navigability of the accident site for purposes of admiralty jurisdiction. The record, however, reveals that there were no conflicts in the “facts” relating to the physical and navigability attributes of the Loxahatchee, just a conflict in the ultimate legal conclusions reached by the experts. Although the issue of navigability requires resolving some factual questions based on the particular circumstances of each case, the ultimate conclusion as to navigability is a question of law inseparable from the particular facts to which they are applied. Loving v. Alexander, 745 F.2d 861, 865 (4th Cir.1984); see also Brevard County v. Blasky, 875 So.2d 6, 13 (Fla. 5th DCA 2004); Bd. of Trs. of Internal Imp. Trust Fund v. Fla. Pub. Utils. Co., 599 So.2d 1356, 1358 (Fla. 1st DCA 1992). The trial court properly disregarded those portions of the expert witnesses’ affidavits which were merely legal conclusions. A trial judge may not rely on expert testimony “to determine the meaning of terms which were questions of law to be decided by the trial court.” Devin v. City of Hollywood, 351 So.2d 1022, 1026 (Fla. 4th DCA 1976); see also Palm Beach County v. Town of Palm Beach, 426 So.2d 1063, 1070 (Fla. 4th DCA 1983) (expert witnesses are not supposed to draw legal conclusions; this is the function of trial courts).

Among the factors relied upon by plaintiffs expert to support his claim of the Loxahatchee’s non-navigability were the presence of sandbars and shallow areas in the vicinity of the accident and the Tequesta Drive Bridge, a fixed bridge. These factors, however, do not negate the status of the Loxahatchee River as a navigable waterway. Plaintiff failed to produce any evidence that the bridge created an obstruction to interstate commerce and travel. Moreover, the undisputed evidence shows that the subject vessel was able to travel under the bridge and that there were other vessels traveling in the area as well. The sandbar areas were marked by navigational aids and were not a contributing cause of the accident. See, e.g. United States v. Utah, 283 U.S. 64, 51 S.Ct. 438, 75 L.Ed. 844 (1931) (holding that the mere presence of sandbars impeding navigation does not make a river unnavigable). The accident was caused when the subject vessel hit the wake of a passing vessel, which was thirty to thirty-eight feet in length.

Plaintiff argues that his personal injury suit does not involve a maritime tort subject to the three-year-statute of limitations. Under maritime or admiralty law, a civil action for damages for personal injury or death arising out of a maritime tort must be brought within three years after the cause of action arose. 46 U.S.CApp. 763a (2001). A personal injury tort claim is governed by maritime law when it (1) arises on navigable waters (the locus test) and (2) bears a substantial relationship to a traditional maritime activity (the nexus test). Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972); Foremost Ins. Co. v. Richardson, 457 U.S. 668, 676, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982). Here, it is clear that the operation of the vessel involved in the subject accident bears a significant relationship to a traditional maritime activity. Thus, the controlling issue to be decided is whether the alleged tort occurred on “navigable waters.”

In The Daniel Ball, 77 U.S. (10 Wall.) 557, 19 L.Ed. 999 (1870), superseded by statute, Federal Water Pollution Control Act Amendments of 1972, § 404(G)(1), 33 U.S.C.A. § 1444(g)(1), as recognized in Rápanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), the Supreme Court enunciated the test for determining whether a specific body of water constitutes navigable waters for purposes of federal admiralty jurisdiction:

Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.

Id. at 563. Although The Daniel Ball was essentially a Commerce Clause case, it has been applied by many courts in deciding admiralty jurisdiction and is considered to be the ground breaking decision in this area of law. LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir.1999).

The test of navigability is whether a waterway “is presently used, or is presently capable of being used, as an interstate highway for commercial trade or travel in the customary modes of travel on water.” LeBlanc, 198 F.3d at 359. In this case, no evidence was presented regarding commercial maritime activity on the Loxa-hatchee River where the accident occurred. However, “the test for navigability is based on a broader and more stable factor than whether the body of water is currently being used for commercial navigation. It must also include a consideration of whether the body of water is capable of bearing commercial navigation.” Price v. Price, 929 F.2d 131, 134 (4th Cir.1991); Mullenix v. United States, 984 F.2d 101, 104 (4th Cir.1993) (a purely recreational waterway can be deemed navigable for purposes of federal admiralty jurisdiction). We can find no support for plaintiffs position that a waterway is navigable for purposes of admiralty jurisdiction only if the waterway can support “ocean going commercial vessels.”

Unlike the cases cited by plaintiff, which involved waterways with dams, waterfalls, or other impediments that made it physically impossible for commercial shipping to ever take place, no evidence was presented in this case that there are any natural or artificial obstructions on the Loxahatchee which would effectively prohibit future commerce. See LeBlanc, 198 F.3d at 359 (stating that if “natural and artificial obstructions” effectively prohibit commerce, admiralty jurisdiction cannot lie). In fact, Bruce, Neila, and Jeff Briggs all stated in their depositions that relatively large boats were on the Loxahatchee on the day of the accident and that a boat approximately thirty feet long created the wake which caused the accident. The undisputed evidence established that the Loxahatchee River flows and/or unites with the Intracoastal Waterway and the Atlantic Ocean, thus permitting vessel traffic between the accident site and the Atlantic Ocean, which can continue on to foreign states and countries.

In sum, there are no disputed facts regarding the navigability issue and the trial court properly determined that the area of the Loxahatchee where the accident occurred was a navigable waterway for maritime purposes. Thus the trial court properly applied the three-year statute of limitations for admiralty jurisdiction in granting summary judgment for the defendants.

We find no merit to plaintiffs argument that the maritime three-year statute of limitations does not apply to the negligent entrustment and breach of contract causes of action. We do agree with plaintiff, however, that his state statutory cause of action against Jupiter Hills should not have been barred by the three-year statute of limitations. In Count One of the amended complaint, plaintiff alleged that Jupiter Hills violated section 327.54, Florida Statutes (2001). Section 327.54(1) states that a “livery may not knowingly lease, hire, or rent a vessel to any person” under certain conditions. A cause of action under section 327.54 is considered independent from a negligence cause of action. See Meyers v. Scoot-a-Way Corp., 662 So.2d 411 (Fla. 3d DCA 1995); see also Ruano v. Water Sports of Am., Inc., 578 So.2d 385, 386 (Fla. 3d DCA 1991) (holding that the statute “supplants the common law theories of vicarious liability and negligent entrustment”). The plaintiffs cause of action under the statute does not fall within the ambit of admiralty jurisdiction because the statute clearly provides for a state-created cause of action that is independent from other common law torts. Accordingly, we affirm final summary judgment on all counts for the defendants, except the state statutory cause of action against Jupiter Hills.

Affirmed in part; Reversed in part.

HAZOURI and MAY, JJ., concur.

      . During the pendency of this appeal, Neila Briggs passed away from causes unrelated to this lawsuit.

      . This statute has been renumbered as 46 U.S.C.A. § 30106 (2006).

      . The Supreme Court has explained that the nexus test does not require that the maritime activity be an exclusively commercial activity; the negligent operation of a boat on navigable waters is enough. Foremost, 457 U.S. at 674, 102 S.Ct. 2654. In fact, the Supreme Court has held,
      The potential disruptive impact of a collision between boats on navigable waters, when coupled with the traditional concern that admiralty law holds for navigation, compels the conclusion that this collision between two pleasure boats on navigable waters has a significant relationship with maritime commerce.

        Id. at 675, 102 S.Ct. 2654; see also Wilson v. Suzuki of Orange Park, Inc., 2005 WL 3372839 (M.D.Fla.2005) (holding that admiralty jurisdiction applied to the case of a malfunctioning Sea Doo).

      . Lockheed Martin Corp. v. Morganti, 412 F.3d 407 (2d Cir.2005); Livingston v. United States, 627 F.2d 165 (8th Cir.1980); Chapman v. United States, 575 F.2d 147 (7th Cir.1978); Adams v. Mont. Power Co., 528 F.2d 437 (9th Cir.1975); Dunham v. DeMaine, 559 F.Supp. 224 (E.D.Ark.1983); Smith v. Hustler, Inc., 514 F.Supp. 1265 (W.D.La.1981).