DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

STATE OF FLORIDA,

Appellant,

v.

GUILLERMO RODRIGUEZ LOPEZ,

Appellee.

No. 2D22-1194

January 19, 2024

Appeal from the Circuit Court for Hillsborough County; Samantha L. 

Ward, Judge.

Ashley Moody, Attorney General, Tallahassee, and Laurie Benoit-Knox, 

Assistant Attorney General, Tampa, for Appellant.

Danielle Villamil and Deborah Goins of Escobar & Associates, P.A., 

Tampa, for Appellee.

ROTHSTEIN-YOUAKIM, Judge.

The State appeals an order granting Guillermo Rodriguez Lopez's 

motion to suppress contraband seized from his house pursuant to a 

search warrant.1 The trial court concluded that the affidavit underlying 

the warrant did not establish probable cause and concluded further that 

the good faith exception to the exclusionary rule was inapplicable. We 

reverse the court's order and remand for further proceedings. We also 

1 We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(B); 9.140(c)(1)(B).
2

take this opportunity to clarify our reasoning in Garcia v. State, 872 So. 

2d 326 (Fla. 2d DCA 2004), to the extent necessary.

Background

Law enforcement officers sought a warrant authorizing the search 

of Rodriguez Lopez's Monique Avenue house and the seizure of certain 

items from there. According to the affidavit supporting the application 

for the warrant, officers had initiated an extensive, twelve-month-long 

investigation after receiving two anonymous tips that Rober Ramos-Pena 

and others were involved in the indoor cultivation of marijuana. The 

affiants, Detectives Antonio Gonzalez and Tylor Lenzmeier, set forth the 

observations that had led officers to suspect that Ramos-Pena was 

cultivating marijuana at a house on Bayou Drive and that others were 

engaged in similar activities at various other houses.

As it relates specifically to Rodriguez Lopez, the affidavit included, 

in sum, the following information.

In the morning of November 28, 2016, Ramos-Pena left the house 

on Bayou Drive, stopped briefly at the La Serena Drive house of Ahmed 

Ali Kalil, a suspected marijuana distributor in the operation, and then 

met with Rodriguez Lopez at the house on Monique Avenue.

On February 9, 2017, Detective Sutter observed five surveillance 

cameras at the front of the Monique Avenue house. He also observed 

that one of the front bedroom windows of the house had been covered 

from the inside with drywall "as if was being sealed off." The affidavit 

stated, "It is common for indoor marijuana grow houses to seal off rooms 

to a residence in order to prevent the odor of marijuana or sodium vapor 

lights from emitting from the residence." The affidavit did not indicate 

Detective Sutter's first name and included no information concerning his 

training or experience.
3

The Monique Avenue house was in Rodriguez Lopez's name, and it 

had an average monthly electricity bill of $360. A photograph of the 

single-story block house was included with the affidavit. 

In the evening of March 22, 2017, Ramos-Pena had a telephone 

conversation with Josue Ortega in which Ramos-Pena asked Ortega if he 

"wanted one or two."2 Ortega then told Ramos-Pena to "bring two" and 

that they would meet at the Publix. The affidavit stated, "Based on 

Detective Sutter's training and work experience, it is believed they were 

discussing a narcotics transaction" and that "[t]he terms 'one or two' 

refer[] to one or two pounds of marijuana." Approximately forty minutes 

later, Detective Sutter observed Ramos-Pena arrive at the Monique 

Avenue house and meet with two Hispanic men. Ramos-Pena then left 

the Monique Avenue house and met with Ortega as planned. Ortega got 

into Ramos-Pena's car and got out approximately eight minutes later 

with a black bag. Ortega asked Ramos-Pena "how much he should 

charge the buyers," and Ramos-Pena said that he "wanted $1900 to 

$2000 for it." The two then discussed the quality of the marijuana.

In the early morning hours of April 27, 2017, Detective Mayes and 

Detective Byrne were standing in the street in front of the Monique 

Avenue house and "detected the odor of vegetative marijuana emitting 

from the residence." As they walked up the driveway toward the house, 

which according to the affidavit was "the common access way to [the] 

front door," the odor grew stronger, and as they reached the front door, 

the odor "became overwhelming." The odor then faded as they walked 

away from the house. As with Detective Sutter, the affidavit did not 

2 All of the telephone conversations referenced in the affidavit were 

intercepted through a previously authorized wiretap.
4

include the two detectives' first names or any information concerning 

their training or experience.

The supporting affidavit detailed two recorded phone conversations 

between Rodriguez Lopez and Ramos-Pena. In the first, which took place 

in the evening of March 28, 2017, Rodriguez Lopez told Ramos-Pena that 

"his associate had someone coming to look at the merchandise 

tomorrow." Ramos-Pena then advised Rodriguez Lopez that "he is going 

up there tomorrow to work." The affidavit stated, "Based on your 

Affiant's training and work experience, it is believed they were discussing 

a narcotics transaction." In the second conversation, which occurred on 

April 11, 2017, Ramos-Pena told Rodriguez Lopez that "three are $4,500 

plus the $5,000 for a van equals $10,000." Ramos-Pena then referred to 

$4,500 as "that thing," and Rodriguez Lopez advised Ramos-Pena that 

Ramos-Pena had given Rodriguez Lopez "that thing" for $3,500. The 

affidavit stated, "Based on your Affiants' training and work experience, it 

is believed they were negotiating prices for marijuana and the amounts 

owed for marijuana sales." 

After obtaining the search warrant, officers searched Rodriguez 

Lopez's house and seized nine live marijuana plants and materials for 

their growth. Rodriguez Lopez was one of nine codefendants charged 

with various offenses arising out of the cultivation operation. 

Rodriguez Lopez moved to suppress the evidence seized from his 

house, arguing that the four corners of the warrant affidavit failed to 

establish any nexus between illegal activity and him or the house. He 

argued further that the affidavit had omitted material facts, such as his 

employment with a car dealership and past instances in which he and 

Ramos-Pena had engaged in vehicle transactions. Finally, he argued 
5

that in light of these deficiencies, officers had no reasonable grounds to 

believe that the warrant had been properly issued.

The only witness at the suppression hearing was Detective 

Lenzmeier, one of the supporting affidavit's two affiants.3 Lenzmeier's 

testimony on direct examination was brief: in sum, he testified that the 

facts included in the affidavit were the facts that had led him to believe 

that he had probable cause to obtain the warrant.

Cross-examination was devoted almost entirely to the recorded 

telephone conversations. Lenzmeier acknowledged that while the 

affidavit recounted the conversations in English, they had actually been 

conducted in Spanish and that in analyzing those conversations, he had 

relied on translations by his coaffiant, Detective Gonzalez, and "other 

translators involved in the process." Lenzmeier agreed with defense 

counsel that he should have noted in the affidavit that the conversations 

had been in Spanish and that he had relied on others' translations, and 

he conceded that he could not attest to the others' specific qualifications 

as Spanish-language translators. He testified that coaffiant Gonzalez 

had "had a primary responsibility with reviewing and translating and 

understanding what the Spanish phone calls were," but he also conceded 

that he did not know Gonzalez's specific qualifications either. He 

explained: "[W]hen I work with my fellow detective and we're under the 

investigation, we're accomplishing an objective here. You know, if he 

says I can speak Spanish and listens to a call and says this is what it is, 

you know, I take that at its word."

3 This was a joint evidentiary hearing with codefendant Ali Kalil, 

who had filed his own suppression motion.
6

Ultimately, the trial court granted Rodriguez Lopez's motion and 

suppressed the evidence obtained from the search of his house.4 

Concluding that the supporting affidavit did not present the issuing 

magistrate with a substantial basis to determine that probable cause 

existed, the court emphasized, among other things, that the anonymous 

tips that had given rise to the entire investigation had not mentioned 

Rodriguez Lopez or the Monique Avenue house; that officers had never 

observed Rodriguez Lopez shopping for hydroponic equipment or 

engaging in drug transactions and had never observed any transactions 

at the Monique Avenue house; and that only a small number of the total 

observations and conversations included in the affidavit involved either 

Rodriguez Lopez or the Monique Avenue house.

The trial court also highlighted information that it determined the 

affiants should have included in the affidavit but did not, most notably 

Rodriguez Lopez's involvement in the vehicle trade. The court concluded 

that this information was material and that had it been included, it 

would have defeated probable cause because it would have cast a 

different and innocent light on Rodriguez Lopez's conduct and 

conversations. With regard to those conversations, the court noted that 

the affidavit failed to connect Rodriguez Lopez to a particular telephone 

number or otherwise explain how detectives had ascertained his 

participation on the calls in the first place. The court noted further the 

affidavit's failure to indicate that the conversations had been in Spanish 

and that Detective Lenzmeier had relied on translations by other 

detectives with unspecified qualifications.

Similarly, the trial court pointed out the lack of information 

concerning the qualifications of Detectives Sutter, Mayes, and Byrne to 

4 The court also granted Ali Kalil's suppression motion.
7

opine as to the significance of their observations. More fundamentally, 

the court concluded that as Mayes's and Byrne's investigation of the odor 

had led them onto Rodriguez Lopez's property and up to the front door of 

the Monique Avenue house, it had morphed into an illegal search. 

Presumably, therefore, the court excluded from the probable cause 

calculus their asserted detection of the odor of vegetative marijuana 

emanating directly from that house. See State v. Hood, 68 So. 3d 392, 

395 (Fla. 2d DCA 2011) ("It is axiomatic that evidence resulting from an 

illegal search cannot be the basis of probable cause supporting a 

subsequent search warrant." (quoting State v. Rabb, 920 So. 2d 1175, 

1187 (Fla. 4th DCA 2006))).5

Finally, the trial court concluded that the good faith exception was 

inapplicable because a "reasonably trained law enforcement officer would 

have known that the affidavit in this case failed to establish probable 

cause for the search" given that the affidavit "show[ed] no nexus between 

the object of the search . . . and the residence." For the reasons set forth 

below, we reverse.

Discussion

Under the Fourth Amendment, "no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons or things to be 

seized." Amend. IV, U.S. Const. 

Probable cause is a practical, common-sense question. 

It is the probability of criminal activity, and not a prima facie 

showing of such activity, which is the standard of probable 

cause. The determination of probable cause involves factual 

5 On appeal, the State does not challenge the trial court's 

conclusion that the investigation into the source of the odor was illegal. 

We therefore assume without deciding that the trial court was correct.
8

and practical considerations of everyday life on which 

reasonable and prudent men, not legal technicians, act.

Polk v. Williams, 565 So. 2d 1387, 1390 (Fla. 5th DCA 1990) (internal 

citations omitted).

"[A] magistrate must . . . examine the sufficiency of the probable 

cause alleged in [an] affidavit under the totality of the circumstances." 

State v. Exantus, 59 So. 3d 359, 361 (Fla. 2d DCA 2011) (citing Illinois v. 

Gates, 462 U.S. 213, 238 (1983)). "The trial court, in turn, must 

determine 'whether the issuing magistrate had a substantial basis for 

concluding that probable cause existed . . . .' " Id. (quoting State v. 

Vanderhors, 927 So. 2d 1011, 1013 (Fla. 2d DCA 2006)). In doing so, 

"[t]he trial court should afford 'great deference' to the magistrate's 

decision and should not review the magistrate's decision de novo." Id.

(first quoting Gates, 462 U.S. at 236; then quoting Pilieci v. State, 991 So. 

2d 883, 892 (Fla. 2d DCA 2008); and then quoting Rios v. State, 483 So. 

2d 39, 41 (Fla. 2d DCA 1986)).

Here, the affidavit provided information concerning the 

investigation of the overarching cultivation scheme involving multiple 

persons and multiple residences, from its inception forward. It stated 

with respect to Rodriguez Lopez and the Monique Avenue house in 

particular that the front window of the house was sealed off with drywall 

in a manner consistent with attempting to conceal the discovery of an 

indoor grow operation; that the front of the house had five security 

cameras; that the single-story block house had an average electricity bill 

of approximately $360 per month;6 and that detectives had smelled the 

6 Although the affidavit did not include neighborhood comparators 

by which the reviewing magistrate could determine whether such a bill 

indicated higher than normal electricity usage, the affidavit included the 

average bills for other residences believed to be involved in the marijuana 
9

odor of vegetative marijuana while walking down the sidewalk in front of 

the house.

The affidavit also described two recorded telephone conversations 

in which Ramos-Pena and Rodriguez Lopez discussed suspected drug 

transactions. Further, the affidavit described two occasions on which 

Ramos-Pena traveled to the Monique Avenue house—the first involving a 

meeting between Ramos-Pena and Rodriguez Lopez right after RamosPena had visited both the Bayou Drive drug house and another 

suspected drug house, and the second involving a meeting between 

Ramos-Pena and two unidentified men shortly after Ramos-Pena had 

arranged a marijuana transaction and immediately preceding his 

execution of that transaction.

We cannot agree with the trial court that taken as a whole, these 

facts fail to establish a nexus between the marijuana cultivation scheme 

and the Monique Avenue house. Although the court concluded that 

omitted information concerning Rodriguez Lopez's involvement in the 

vehicle trade would have negated probable cause because the 

conversations were equally consistent with innocent negotiations 

regarding vehicles, probable cause does not necessarily disappear simply 

because an innocent explanation may be consistent with facts that the 

officer views as suspicious. United States v. Gil, 58 F.3d 1414, 1418 (9th 

Cir. 1995) ("[O]bservations of conduct consistent with drug trafficking, 

even though apparently innocuous, can give rise to probable cause."); 

United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985) (explaining, 

"[t]he fact that an innocent explanation may be consistent with the facts 

cultivation scheme, and the average bill for the Monique Avenue house 

was more than twice as high as nearly all of those.
10

alleged" negates neither probable cause nor a good faith belief in 

probable cause (first citing United States v. Ivic, 700 F.2d 51, 57 (2d Cir. 

1983); and then citing United States v. Webb, 623 F.2d 758, 761 (2d Cir. 

1980))). Rather, it would have simply been one more fact for the 

magistrate to consider in conjunction with the other information 

provided.

Moreover, although the trial court took issue with the affiants' 

failure to lay out the experience and expertise of the other identified 

officers on whom they relied and to explain how they ascertained that it 

was actually Rodriguez Lopez's voice on those record telephone 

conversations, "[s]tatements by law enforcement officials based upon 

personal observation or upon the observation of fellow officers 

participating in the same investigation are entitled to a presumption of 

reliability." United States v. May, 819 F.2d 531, 536 (5th Cir. 1987). 

Notably, Rodriguez Lopez did not argue that he did not participate in the 

recorded conversations or that the translations were inaccurate, only 

that the conversations were equally susceptible to an innocent 

interpretation.

But assuming that given these deficiencies, the existence of 

probable cause presents a close question on which reasonable minds 

could differ—or even that probable cause was in fact lacking—

suppression would nonetheless be unwarranted under the good faith 

exception to the exclusionary rule. See United States v. Morton, 46 F.4th 

331, 338 (5th Cir. 2022) ("Judgment calls in close cases are precisely 

when the good-faith rule prevents suppression based on after-the-fact 

reassessment of a probable-cause determination." (citing United States v. 

Leon, 468 U.S. 897, 914 (1984))). This good faith exception exists where 

evidence has been seized in reasonable reliance on a warrant issued by a 
11

neutral and detached magistrate, even if the affidavit in support of the 

warrant is later found to have been lacking the requisite probable cause. 

See Leon, 468 U.S. at 926 (holding that an officer's objectively reasonable 

reliance on an issuing magistrate's probable cause determination may 

preclude application of the exclusionary rule); Barrentine v. State, 107 

So. 3d 483, 485 (Fla. 2d DCA 2013) ("Under [the good faith] exception, 

evidence seized in reasonable reliance on a warrant issued by a detached 

and neutral magistrate is generally admissible." (citing Pilieci, 991 So. 2d 

at 895)).

"The rationale behind the good faith exception is that the 

exclusionary rule 'is designed to deter police misconduct rather than to 

punish the errors of judges and magistrates.' " State v. McGill, 125 So. 

3d 343, 352 (Fla. 5th DCA 2013) (quoting Leon, 468 U.S. at 916). 

"Therefore, when the police act in good faith on a warrant they have no 

reason to believe is invalid, the deterrent effect of suppressing illegally 

seized evidence is minimal." Id. (citing Leon, 468 U.S. at 919–20).

The good faith exception is unavailable if (1) the issuing magistrate 

was misled by information included in the supporting affidavit "that the 

affiant knew was false or would have known was false" but for the 

affiant's "reckless disregard of the truth," or if material information was 

knowingly or recklessly omitted from the affidavit; (2) the "issuing 

magistrate wholly abandoned" his detached and neutral role; (3) the 

supporting affidavit is " 'so lacking in indicia of probable cause as to 

render official belief in its existence entirely unreasonable' "; or (4) the 

warrant is "so facially deficient . . . that the executing officers cannot 

reasonably presume it to be valid." Leon, 468 U.S. at 922–23 (citations 

omitted); see also Pilieci, 991 So. 2d at 897–98 (applying the Leon

formulation of the good faith exception and remanding for further 
12

proceedings); United States v. Xiang, 12 F.4th 1176, 1182–83 (10th Cir. 

2021) (explaining when good faith exception is unavailable based on 

omitted information). Here, the trial court relied on the third ground, 

concluding that "a reasonably trained law enforcement officer would have 

known that the affidavit . . . failed to establish probable cause" because it 

"show[ed] no nexus between the object of the search" and either 

Rodriguez Lopez or the Monique Avenue house.7

Again, we cannot agree. "To exclude evidence on this [third] 

ground, the affidavit must be so clearly insufficient 'that it provided "no 

hint" as to why police believed they would find incriminating evidence.' " 

United States v. McCall, 84 F.4th 1317, 1325 (11th Cir. 2023) (quoting 

United States v. Morales, 987 F.3d 966, 976 (11th Cir. 2021)). 

Notwithstanding the trial court's meticulous catalog of the affidavit's 

deficiencies,8 the affidavit here is not "so lacking" in probable cause as to 

render official belief in its existence entirely unreasonable. See, e.g.,

Morton, 46 F.4th at 336–37 (discussing "bare bones affidavits" that 

preclude application of the good faith exception and exploring "just how 

bare" they have to be); United States v. Hodge, 246 F.3d 301, 309 (3d Cir. 

2001) ("At a minimum, the affidavit was not clearly lacking in indicia of 

probable cause, but presented a close call. Once the magistrate judge 

7 The trial court made no findings and the record is otherwise bare 

of grounds that would support the application of any of the three other 

limitations on the good faith exception, and we therefore do not consider 

them here.

8 Although we conclude that suppression was unwarranted, we do 

not disagree with the trial court that the affidavit could have included the 

additional information that the court identified and would have been the 

better for it.
13

made that call, it was objectively reasonable for the officers to rely on 

it.").

To the extent that Rodriguez Lopez claims that that is not the test 

in light of our decision in Garcia, 872 So. 2d at 326, he misinterprets our 

holding in that case. There, the affidavit recounted that the confidential 

informant had twice made controlled purchases of cocaine from Garcia. 

Id. at 327–28. But it did not mention Garcia's residence other than 

noting that Garcia had traveled from his residence to the prearranged 

meeting place for the second controlled purchase and had then been 

arrested "before he drove back" to that residence. Id. A search warrant 

nonetheless was issued for Garcia's residence. On appeal, we concluded 

that the affidavit "fail[ed] to establish a nexus between the object of the 

search, cocaine, and Garcia's residence." Id. at 330. Given the 

wholesale absence of any nexus, we held that the good faith exception 

was inapplicable, adding that "[w]here, as here, the supporting affidavit 

fails to establish probable cause to justify a search, Florida courts refuse 

to apply the good faith exception." Id. (first citing Getreu v. State, 578 So. 

2d 412 (Fla. 2d DCA 1991); and then citing Bonilla v. State, 579 So. 2d 

802 (Fla. 5th DCA 1991)).

It is on that last line that Rodriguez Lopez hangs his hat. And we 

recognize, as have some of our sister districts, that stripped of its 

context, that line may be misleading. See McGill, 125 So. 3d at 350–51 

(expressing concern that this "unfortunate language" in Garcia may have 

misled the trial court "in its understanding of the good faith exception"); 

Wingate v. State, 289 So. 3d 566, 570 (Fla. 1st DCA 2020) (rejecting the 

defendant's reliance on "[t]his portion of Garcia," which "misconstrues 

the Leon rule and the few instances where it is inapplicable"). We 

therefore take the opportunity to reiterate that it is only in cases in which 
14

the affidavit is not "merely" lacking in indicia of probable cause but " 'so

lacking in indicia of probable cause as to render official belief in its 

existence entirely unreasonable' " that courts must set aside the good 

faith exception and apply the exclusionary rule. Leon, 468 U.S. at 923 

(emphasis added) (quoting Brown v. Illinois, 422 U.S. 590, 610–11 (1975)) 

(Powell, J., concurring in part). Such was the case in Garcia as well as in 

subsequent cases in which we have referred to that portion of Garcia. 

See, e.g., Smitherman v. State, 342 So. 3d 685, 688–89 (Fla. 2d DCA 

2022) (concluding that the good faith exception was inapplicable given 

the affidavit's wholesale failure to establish a nexus between the 

suspected criminal activity and the premises to be searched); Chery v. 

State, 331 So. 3d 789, 792 (Fla. 2d DCA 2021) (concluding that the good 

faith exception was inapplicable given that the affidavit was devoid of 

facts to establish that the affiant had personal knowledge of the 

reliability of the informant or to independently corroborate the 

information supplied by the informant); Gonzalez v. State, 38 So. 3d 226, 

230 (Fla. 2d DCA 2010) (determining "that the facts as alleged in the 

affidavit failed to demonstrate a reasonable probability that contraband 

would be found in the residence" where the affidavit lacked any 

allegation that anyone had seen contraband inside the home or that 

officers had observed unusual activity at the residence). Indeed, taking 

that one line out of context as a self-contained and reasoned holding 

would, as the First District noted in Wingate, 289 So. 3d at 570, 

impermissibly "vitiate[] the holding in Leon, and create[] an exception 

that swallows the rule."

Accordingly, taken as a whole, the statements in the affidavit 

provided a substantial basis for the magistrate's determination that 

probable cause existed for the issuance of a warrant. But even if they 
15

did not, the good faith exception to the exclusionary rule precluded 

suppression of the evidence seized at the Monique Avenue house. We 

therefore reverse the trial court's order granting suppression and remand 

for further proceedings.

Reversed and remanded.

CASANUEVA and MORRIS, JJ., Concur. 

Opinion subject to revision prior to official publication.