NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

 IN THE DISTRICT COURT OF APPEAL 

 OF FLORIDA 

 SECOND DISTRICT 

LAZARO GUTIERREZ-HERNANDEZ, ) 

 ) 

 Appellant. ) 

 ) 

v. ) Case No. 2D15-3342 

 ) 

STATE OF FLORIDA, ) 

 ) 

 Appellee. ) 

 ) 

Opinion filed July 14, 2017. 

Appeal from the Circuit Court for Polk 

County; Jalal Harb, Judge. 

Valerie Jonas and Beth Weitzner of 

Weitzner & Jonas, P.A., Miami, for 

Appellant. 

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Lisa Martin, Assistant 

Attorney General, Tampa, for Appellee. 

LUCAS, Judge. 

 Lazaro Gutierrez-Hernandez owned a house in Poinciana with a 

marijuana grow room inside of it. At his jury trial on charges of trafficking in cannabis, 

possession of a structure used for trafficking, manufacture of cannabis, and possession 

of drug paraphernalia, he claimed to know nothing whatsoever about the thirty-seven 
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marijuana plants that were being cultivated inside of a partially sealed room of the 

house. Mr. Hernandez's defense was that his house was merely an investment 

property, a place where he let his sister temporarily reside, and that he had no access 

or control over the grow room inside of it. Unfortunately for Mr. Hernandez, the jury was 

presented with unlawfully obtained evidence that made his claim all but untenable. 

Accordingly, we reverse his convictions and sentences.1

I. 

 After learning of an illegal "tap"2 providing electricity to a house in 

Poinciana, Florida, that belonged to Mr. Hernandez (who was already suspected of 

operating a marijuana grow house near Kissimmee), Polk County Sheriff's Detective 

Omar Saenz applied for a search warrant of the property. As it happened, while 

Detective Saenz was en route with an executed search warrant for the Poinciana 

house, he saw Mr. Hernandez and his sister, Yureikis Hernandez, in a white Nissan 

beginning to pull into the house's driveway.3 Other detectives who had secured the 

property attempted to approach the car, but the Nissan changed direction and sped 

down the roadway. Detective Saenz followed the vehicle until it stopped approximately 

 

 1Mr. Hernandez was sentenced to concurrent ten-year prison terms on the 

trafficking and possession of a structure used for trafficking counts, a concurrent fiveyear term in prison on the manufacture of cannabis count, and time served on the 

possession of drug paraphernalia count. 

 2According to the testimony presented at the suppression hearing, a tap is 

a term used to identify any device that reroutes electrical service to bypass a utility's 

meter box, the effect of which is that the meter box will not register the property's actual 

consumption of electricity. Taps are often used to conceal the relatively large amounts 

of electricity that marijuana cultivation requires. 

 

 3The testimony was unclear as to who was driving the vehicle, Mr. 

Hernandez or his sister. 
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a block away, and then, for reasons that are not entirely clear, the detective placed Mr. 

Hernandez under arrest and returned him, handcuffed, to the house where he then read 

the warrant to Mr. Hernandez.4 Ms. Hernandez was also placed in custody. While 

under arrest for a yet-to-be-determined offense (presumably resulting from the yet-tobe-searched house), Mr. Hernandez stated that the bedroom inside of the house 

belonged to him. Detectives uncovered on Mr. Hernandez's person a key to the 

Poinciana house and a driver's license that listed the house's address. At around the 

time of Mr. Hernandez's arrest, Ms. Hernandez, who later pleaded to a misdemeanor for 

her involvement in this case, also made statements to Detective Saenz suggesting that 

the bedroom inside of the house was being used by Mr. Hernandez. 

 The ensuing search of the Poinciana house revealed a one-bedroom 

interior with a kitchen and living room. The bedroom held two mattresses and some 

men's clothing. In the northeastern corner of the house, however, was a room with two 

means of ingress: a door through the living room that had been sealed shut and an 

unlocked door through the bathroom which could be secured by a deadbolt. The 

bathroom, in turn, was next to the bedroom that Mr. Hernandez stated belonged to him. 

Upon breaking down the sealed living room door, the detectives' search revealed what 

was unquestionably a marijuana grow room, complete with an irrigation system, highintensity lighting, a portable air conditioning unit and fan, and thirty-seven marijuana 

plants that measured between six and eight feet in height. Mr. Hernandez was then 

charged by information with the four counts at issue here. 

 

 4The State never contended that Mr. Hernandez was attempting to either 

thwart the execution of the warrant or conceal or destroy any evidence. 
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 The circuit court, however, determined that Mr. Hernandez had been 

improperly arrested under the Supreme Court's decision in Bailey v. United States, 133 

S. Ct. 1031 (2013), and suppressed the statements Mr. Hernandez had made to the 

detective.5 The defense failed to mention the seized driver's license and house key in 

its argument during that hearing. However, shortly before the trial commenced, Mr. 

Hernandez made a motion in limine to clarify that the court's prior suppression order 

should also encompass the seizure of Mr. Hernandez's key and driver's license. Only 

this time, apparently frustrated that the defense waited until the Friday before trial to 

raise the issue, the court apparently denied the motion.6 The case against Mr. 

Hernandez proceeded to trial, and, during its case-in-chief, the State was allowed to 

introduce the house key and driver's license seized when Mr. Hernandez had been 

unlawfully arrested. 

 It was a case, as the prosecuting attorney informed the jury, which hinged 

upon whether Mr. Hernandez had constructive possession of the grow room. Besides 

Mr. Hernandez's ownership of the Poinciana house (a fact that was undisputed) and the 

men's clothing inside the bedroom, the State presented evidence that Mr. Hernandez 

had once been briefly observed exiting the garage to perform some yardwork. The 

State also introduced a certified Department of Highway Safety and Motor Vehicles 

record that showed the Poinciana house as Mr. Hernandez's primary residence, mail 

addressed to Mr. Hernandez at the Poinciana house's address, a pay stub belonging to 

 

 5The State did not appeal the circuit court's suppression order. 

6The circuit court never explicitly denied Mr. Hernandez's motion in limine. 

However, at the end of jury selection, the State asked if the key and driver's license 

were admissible, and the circuit court confirmed that they were. 
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Mr. Hernandez that was found in the Poinciana house, and, of course, the driver's 

license and key. 

 Mr. Hernandez elected not to testify. His defense was that he did not 

have constructive possession over the grow room because he did not live in the house; 

he was simply letting his sister stay there while she went through a divorce. Mr. 

Hernandez's counsel pointed out throughout the trial that the men's clothes found inside 

the room could have belonged to anyone and that subsequent testing did not reveal Mr. 

Hernandez's fingerprints or DNA in the grow room. The State's remaining evidence, his 

lawyer argued, showed only that Mr. Hernandez owned the house—which, again, was a 

fact he conceded. In short, according to the defense's argument throughout the trial, 

the State's evidence failed to prove beyond a reasonable doubt that he was aware of 

the grow room, much less in operative possession of it. 

 The State's case, however, received a lift when the evidence the circuit 

court previously excluded was later allowed to be introduced—through Detective Saenz. 

During cross-examination, Detective Saenz admitted that he did not know whether Mr. 

Hernandez was ever in the grow room or if he used the house as his primary residence; 

but then the following exchange occurred: 

Defense Counsel: Okay. And with respect to all of your 

investigation, is there any evidence whatsoever in terms of 

testimony or — or anybody ever even seeing him inside the 

house? 

Detective: No. 

Defense Counsel: And so when you say the defendant's 

bedroom, that's something you are assuming, right? 

Detective: Not necessarily, sir. 
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Construing that exchange as "opening the door," and over the defense's objection, the 

circuit court permitted Detective Saenz to later relay Mr. Hernandez's statement that the 

bedroom belonged to him. 

After the State rested, the defense re-called Detective Saenz. During 

direct examination, defense counsel questioned Detective Saenz about the means and 

scope of his investigation. 

Defense Counsel: Have you ever considered the possibility 

that somebody else is responsible for that grow room other 

than the people that you arrested, my client and his sister? 

Detective: No, sir. 

Defense Counsel: Didn't even consider it? 

Detective: No, sir. 

The circuit court deemed this as another door opening, and, over defense counsel's 

objection, allowed Detective Saenz to testify on cross-examination that, at the time of 

her arrest, Ms. Hernandez told him that Mr. Hernandez had instructed her to sleep in 

the living room and never explore the rest of the residence. It should be noted that Ms. 

Hernandez was present in the courtroom—as she had been throughout most of the trial 

proceedings—at the time her statement was elicited through Detective Saenz. When 

the circuit court inquired why the State did not simply call Ms. Hernandez to testify, the 

State responded that it did not wish to call a witness who had traveled from Miami to 

support her brother and who "would be motivated to protect her brother and not put him 

in prison." Indeed, the State went so far as to speculate, "[s]he could even potentially 

get up there and say it [the marijuana] was all hers." 
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 The jury returned a guilty verdict as to all of the counts against Mr. 

Hernandez, and this appeal followed. 

II. 

 Mr. Hernandez raises five points on appeal. We find merit in two of his 

arguments. The circuit court erred by allowing Mr. Hernandez's inculpatory statement, 

as well as the hearsay statement attributed to Mr. Hernandez's sister, into evidence for 

the reasons we will explain below. 

 We review a circuit court's evidentiary rulings for an abuse of discretion, a 

standard that may be met where the circuit court's ruling either "is based on an 

'erroneous view of the law or on a clearly erroneous assessment of the evidence.' " See 

McDuffie v. State, 970 So. 2d 312, 326 (Fla. 2007) (quoting Cooter & Gell v. Hartmarx 

Corp., 496 U.S. 384, 405 (1990)). The State has never challenged that Mr. 

Hernandez's statement to Detective Saenz about his ownership of the bedroom resulted 

from his unlawful arrest. The circuit court's initial decision to suppress his statement 

was eminently correct. See Bailey, 133 S. Ct. at 1042. The first question before us, 

then, becomes quite discrete: did the defense's questioning of Detective Saenz open 

the door so that what had been plainly inadmissible before the trial commenced became 

admissible after defense counsel posed a question to the detective? 

 "[T]he concept of 'opening the door' allows the admission of otherwise 

inadmissible testimony to 'qualify, explain, or limit' testimony or evidence previously 

admitted." Rodriguez v. State, 753 So. 2d 29, 42 (Fla. 2000) (quoting Tompkins v. 

State, 502 So. 2d 415, 419 (Fla. 1986)). It is an evidentiary rule founded in the common 

law that is premised "on considerations of fairness and the truth-seeking function of a 
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trial." Bozeman v. State, 698 So. 2d 629, 631 (Fla. 4th DCA 1997). A precise formulary 

for how hard a particular question or response must push against a particular threshold 

of fairness or truthfulness in order to open the door for otherwise inadmissible evidence 

has remained elusive, a reflection perhaps of the highly contextual nature of the 

inquiry.7 We are satisfied that in this case the door should have remained shut. 

 In the trial below, Mr. Hernandez did not testify. He never put his 

credibility at issue through any witness's testimony. Thus, under the exclusionary rule, 

the illegally obtained statement could not have been utilized against him. See Agnello 

v. United States, 269 U.S. 20, 34-35 (1925) (holding that, on cross-examination, 

unlawfully seized evidence may not be used to impeach a defendant on collateral 

matters not testified to on direct examination); Dornau v. State, 306 So. 2d 167, 168-70 

(Fla. 2d DCA 1974) (incorporating Agnello and noting that previously suppressed 

evidence of unlawfully seized parking tickets that would show a defendant's 

whereabouts subsequent to the date of a murder should not have been introduced to 

rebut the defendant's testimony, which only concerned the date of the murder and 

preceding events); cf. Walder v. United States, 347 U.S. 62, 65 (1954) ("It is one thing 

 

 7Cf. Golden v. State, 429 So. 2d 45, 56 (Fla. 1st DCA 1983) ("For what 

cross-examination is 'reasonably suggested' by any direct examination testimony 

depends, obviously, on the scope and content of that particular testimony in that 

particular case."). That said, we note that certain broad, categorical limits to the 

doctrine's invocation have emerged. See, e.g., Henderson v. State, 135 So. 3d 472, 

476 (Fla. 2d DCA 2014) ("[T]he State must demonstrate a legitimate need to resort to 

such evidence to correct a false impression. Otherwise, the 'opening the door' rule 

threatens to become a pretext for the illegitimate use of inadmissible evidence . . . ." 

(quoting Redd v. State, 49 So. 3d 329, 333 (Fla. 1st DCA 2010))); Mosley v. State, 739 

So. 2d 672, 676 (Fla. 4th DCA 1999) (recognizing that to open the door to evidence of a 

defendant's prior bad acts, "the defense must first offer misleading testimony or make a 

specific factual assertion which the state has the right to correct so that the jury will not 

be misled" (quoting Bozeman, 698 So. 2d at 630)). 
- 9 - 

to say that the Government cannot make an affirmative use of evidence unlawfully 

obtained. It is quite another to say that the defendant can turn the illegal method by 

which evidence in the Government's possession was obtained to his own advantage, 

and provide himself with a shield against contradiction of his untruths."). While we 

question whether the relatively benign exchange here—a defense attorney suggesting 

that an investigating detective had made an assumption, followed by the detective 

responding, "not necessarily"—could even be said to have opened the door to 

inadmissible evidence (broadly speaking), it assuredly did not provide a doorway to 

introduce an unlawfully obtained statement from the defendant in order to bolster an 

investigating detective's testimony on redirect examination. Cf. Agnello, 269 U.S. at 35 

("[The defendant] did nothing to waive his constitutional protection or to justify crossexamination in respect of the evidence claimed to have been obtained by the search."); 

Dornau, 306 So. 2d at 170 (holding that since illegally seized evidence admitted at trial 

"did not really rebut or contradict anything to which the defendant had previously 

testified," it had been improperly admitted). Mr. Hernandez's inculpatory statements 

about his control over the bedroom should not have been admitted in a trial in which he 

never took the stand and none of his witnesses, it appears, had ever testified in a 

misleading or untruthful manner. 

 The same holds true for Ms. Hernandez's incriminating statements about 

Mr. Hernandez's directions to her concerning the Poinciana house. Defense counsel 

asked Detective Saenz only if he considered whether someone besides Mr. Hernandez 

or Ms. Hernandez could be responsible for the grow room, and the detective responded 

"No, sir." The State convinced the circuit court that Detective Saenz was permitted to 
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then recount what Ms. Hernandez had told him in order to show that he "did investigate 

other occupants of the house, that being specifically Yureikis Hernandez." But it was 

never disputed that Detective Saenz spoke with Ms. Hernandez as part of his 

investigation. Indeed, the question he was posed concerning his investigation included 

Ms. Hernandez within its ambit. While hearsay may, in some circumstances, be used to 

qualify or explain the scope or means of an investigation, see, e.g., Dennis v. State, 817 

So. 2d 741, 751-53 (Fla. 2002), nothing about Detective Saenz's testimony required 

further qualification or explanation. See Redd v. State, 49 So. 3d 329, 333-34 (Fla. 1st 

DCA 2010) (holding that testifying officer's testimony about why a codefendant was not 

charged was not "misleading or so incomplete as to be unfair" such that "the door was 

not opened to the admission of hearsay to explain, qualify, or limit his answers"). There 

was simply nothing to clarify.8

III. 

 The erroneous admission of Mr. Hernandez's inculpatory statement and 

Ms. Hernandez's hearsay, which became focal points of the latter part of the trial and 

the State's closing arguments, cannot be said to have been harmless. See Redd, 49 

So. 3d at 334 (holding hearsay evidence erroneously admitted under concept of 

"opening the door" was not harmless because the court could not "conclude beyond a 

 

 8Mr. Hernandez never raised a Sixth Amendment confrontation clause 

objection to the admission of Ms. Hernandez's hearsay statements against him, either at 

the trial or in this appeal. Otherwise, we would be troubled by the admission of her 

statements through the detective given that she was present throughout the trial—and 

the very candid representations made by the assistant state attorney who elected not to 

call her. See Crawford v. Washington, 541 U.S. 36, 68 (2004) (holding testimonial 

hearsay evidence inadmissible against criminal defendant where the declarant is 

available to testify and be cross-examined at trial). 
- 11 - 

reasonable doubt that the erroneous admission . . . did not contribute to the verdict" 

(citing State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986))); see also Bell v. State, 201 

So. 3d 1267, 1281 (Fla. 2d DCA 2016) ("[T]he State has not met its burden of 

demonstrating that there [was] no reasonable possibility that the erroneous admission of 

[the defendant's] second statement contributed to the verdict."); President v. State, 884 

So. 2d 126, 127 (Fla. 4th DCA 2004) (holding that the erroneous admission of a 

defendant's confession could not be deemed harmless beyond a reasonable doubt). 

Accordingly, we must reverse the convictions and sentences of the circuit court and 

remand this case for a new trial. 

 Having so held, we note one final point concerning the inculpatory house 

key and driver's license found on Mr. Hernandez's person during his unlawful arrest, to 

the extent that the admissibility of this evidence may present itself again as an issue in 

the remanded proceedings of this case. In an apparent denial of Mr. Hernandez's 

motion in limine, the circuit court permitted the State to introduce both of these pieces of 

evidence. The court offered no rationale for why this evidence had become admissible. 

At the hearing on Mr. Hernandez's motion in limine, the State suggested that the key 

and driver's license could have also been admitted under the inevitable discovery 

doctrine. Cf. Young v. State, 207 So. 3d 267, 269 (Fla. 2d DCA 2016) ("The inevitable 

discovery doctrine allows evidence obtained as the result of unconstitutional police 

procedure to be admitted if the evidence would ultimately have been discovered by 

legal means." (quoting Hatcher v. State, 834 So. 2d 314, 317-18 (Fla. 5th DCA 2003))). 

Certainly, that seems a plausible contention. The circuit court, however, never ruled on 

that precise argument. Accordingly, we express no opinion as to whether the inevitable 
- 12 - 

discovery doctrine would have permitted the introduction of the key and driver's license 

found on Mr. Hernandez's person. Nothing in our holding today should be construed to 

suggest otherwise. On remand, the circuit court may consider that argument if it is 

properly raised. 

 Reversed and remanded. 

VILLANTI and BLACK, JJ., Concur.