F. Was the search and seizure a result of exigent
circumstances? United States v. Burgos, 720 F.2d 1520, 1526
(llth Cir. 1983); Eason v. State, 546 So. 2d 57 (Fla. 1st DCA 1989); Spann
v. State, 529 So. 2d 825 (Fla. 4th DCA 1988); State v. Haines, 543
So. 2d 1278 (Fla. 5th DCA 1989). [Back]
l. Officers received a tip that stolen
property was located on the involved premises and they believed that there was probable
cause to search the involved backyard. "That [the officer] had a good faith belief
there was stolen property on the premises is not dispositive. In order to legally search
the property without a warrant [the officers] needed more than probable cause, they also
must have been faced with exigent circumstances necessitating immediate action on their
part." There were none in this case; therefore, the officers were required to
secure a search warrant for the backyard. Potts v. Johnson, 654 So. 2d 596
(Fla. 3d DCA 1995).
2. Exigent circumstances justifying warrantless
entry into a home are present where officers are in hot pursuit of a fleeing felon or they
have probable cause to believe one of the following:
a. There may be imminent destruction of
evidence.
b. There is a need to prevent a suspect's
escape.
c. There is a risk of danger to the police or
others inside or outside of the dwelling.
Minnesota v. Olson, 495 U.S. 91, 110 S.Ct.
1684, 109 L.Ed.2d 85 (1990).
3. "It is well established that exigent
circumstances created by the police officers themselves cannot justify a warrantless
search." Suspicious movement when officers approach cannot be the basis for exigent
circumstances. Soldo v. State, 583 So. 2d 1080 (Fla. 3d DCA 1991).
4. Officers had information that the defendant was
selling cocaine out of his room. Instead of getting a warrant they went to his room and
knocked and revealed themselves as police officers. When he saw that they were officers
he attempted to destroy the contraband. The officers claimed that they had a right to
enter based on exigent circumstances. On appeal, the court disagreed. The court said
officers could not create the exigency through their conduct. Rebello v. State,
773 So. 2d 579 (Fla. 4th DCA 2000). Levine v. State, 684 So. 2d 903 (Fla.
4th DCA 1996).
5. Exigent circumstances may be present even
without hot pursuit of a fleeing criminal. These factors indicate exigent circumstances:
a. the gravity or violent nature of the
offense with which the suspect is to be charged;
b. a reasonable belief that the suspect is
armed;
c. probable cause to believe that the suspect
committed the crime;
d. strong reason to believe that the suspect
is in the premises being entered;
e. a likelihood that delay could cause the
escape of the suspect or the destruction of essential evidence, or jeopardize the safety
of officers or the public."
Wike v. State, 596 So. 2d 1020 (Fla. 1992).
6. Destruction of evidence. [Back]
a. Officers were not justified in seizing a
bag of clothes from a hospital room without a warrant based on fear that the evidence
might have been destroyed or lost. The exigency exception to the warrant requirement
did not apply because a guard could have been posted to ensure that nothing happened to
the property while officers secured a warrant was secured. Jones v. State, 648
So. 2d 669 (Fla. 1994).
b. The defendant voluntarily opened her mouth
and the officer observed cocaine. Based on those observations the officer had probable
cause to believe that the defendant had drugs in her mouth and the officer had the
right to force the defendant's mouth open. This is in contrast to the situation where
the officer acknowledged that the item in the defendant's mouth could have been something
other than drugs. The officers actions could also be justified as necessary to prevent the
destruction of evidence as an exigent circumstance. Drayton v. State,
601 So. 2d 1248 (Fla. 2d DCA 1992).
c. Officers had a founded suspicion that the
defendant might have been engaged in a drug transaction. They did not make the stop.
Instead they let the defendant go on his bicycle and warned another officer that the
defendant was coming his way. The defendant entered a public restroom. Within minutes he
came out and got a small bag and a aluminum beer can from his bike. He then went back to
the restroom, entered a stall and closed the door. The officers suspected that the
defendant was smoking crack, but they saw no illegal activity, smelled no smoke or the
scent of burning drugs. Nevertheless, the officers rushed into the restroom and entered
the stall. They caught the defendant in possession of crack cocaine. His motion to
suppress was denied. On appeal the court reversed. The defendant had a reasonable
expectation of privacy in the public restroom stall. "We cannot conclude, however,
that the observance of an exchange, coupled with a hunch that the suspect intends to smoke
cocaine through a beer can, are sufficient to reach a finding of probable cause....
(observation of bent beverage can in motel room did not give officer probable cause to
conduct warrantless search). Nor did matters of exigency provide the requisite probable
cause; the officers here did not have the 'fresh, direct, uncontradicted evidence' of a
criminal event necessary to prevail upon the exigency exception." Ramirez
v. State, 654 So. 2d 1222 (Fla. 2d DCA 1995).
d. Imminent destruction of evidence
constitutes exigent circumstances. Awareness of the possessor of contraband that
the police are after him or her is also an exigent circumstance. "‘The
government must show more than a subjective fear of imminent destruction of evidence; the
fear must be objectively reasonable. In determining whether the agents reasonably feared
imminent destruction of the evidence, the appropriate inquiry is whether the facts, as
they appeared at the moment of entry, would lead a reasonable, experienced agent to
believe that evidence might be destroyed before a warrant could be secured.’"
The court ruled that this test was met in this case. Officers went to the defendant’s
motel room because they were advised that he wanted to surrender on some warrants. He
opened the door and the officers could see contraband two or three feet from the door. The
defendant obviously knew that the officers viewed the contraband. Thus, the officers
had exigent circumstances justifying immediate entry to secure the contraband. The court
distinguished the decision in Gnann v. State, 662 So. 2d 406 (Fla. 2d DCA
1995), where the court ruled that entry was not justified by the need to prevent the
destruction of evidence. The difference was that in Gnann the defendant did not
know the officers were present and that they had observed the contraband; therefore, they
could have posted a guard and secured a search warrant. Gilbert v. State,
789 So. 2d 426 (Fla. 4th DCA 2001).
e. "[E]xigent circumstances existed which
allowed the officers to make a warrantless entry into the house to effect Freeman’s
arrest and to prevent the destruction or loss of evidence. See United States v. Santana,
427 U.S. 38, 43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); see also United States v.
Standridge, 810 F.2d 1034, 1037 (11th Cir.1987). In Standridge, the court noted
various factors which may indicate exigent circumstances. Two factors which apply in
the present case are: probable cause to believe that the suspect committed the crime, and
a likelihood that delay could cause the escape of the suspect or the destruction of
essential evidence. Id" Those were present in this case where officers
chased the defendant into a house. State v. Freeman, 796 So. 2d 574 (Fla. 2d
DCA 2001).
f. "Police officers, with probable
cause to believe that a man had hidden marijuana in his home, prevented the man from
entering the home for about two hours while they obtained a search warrant." The
Supreme Court concluded that the officers acted reasonably. The Court found that the
restriction was reasonable for four reasons. First, the defendant’s wife
provided information under circumstances that clearly established probable to believe that
the trailer contained marijuana. Second, the officers had good reason to fear that
the defendant, who was inside the trailer, would destroy the marijuana if he was allowed
to reenter the trailer. This was based on the fact that the officers reasonably could
have thought that the defendant: (1) realized that his wife knew about his stash; (2) saw
that his wife was angry or frightened enough to ask the police to come with her to the
trailer; (3) observed that his wife spoke to the police after leaving the trailer and that
she walked off with one of the officers while leaving another outside the trailer. Third,
the officers made a reasonable effort to balance their law enforcement needs with the
defendants privacy rights. They never entered the trailer until they secured the
warrant and they simply prevented the defendant from reentering unless and officer wwas
with him. Fourth, the restraint was for a limited time - only two hours. Illinois
v. McArthur, 531 U.S. 326, 121 S. Ct. 946, 148 L. Ed.2d 838 (2001).
g. See cases above in section under execution
of a warrant for discussion of small amount of drugs in a dwelling.
7. Emergency or dangerous situation.
[Back]
a. "[T]o allow a warrantless entry
into a person's home in an emergency situation, there must be objectively reasonable
circumstances that convey to the police officer an articulable, reasonable belief that an
emergency exists. An emergency need not, in fact, exist so long as the officer reasonably
believes it to exist because of objectively reasonable facts. The officer's conclusion
then may be based on a combination of the 'objective' nature of the circumstances and the
officer's 'subjective' perception of those circumstances." In this case the
evidence was sufficient to meet this test based on the following facts: (1) the officer
had been dispatched to the scene based upon reports that there was a man in the yard
discharging a firearm; (2) he saw a potentially life-threatening, out-of-control
situation; (3) the officer saw the defendant in the yard at the scene; (4) the defendant
was angry and holding a shotgun shoulder high aimed in the direction of the involved
house; (5) the defendant was yelling, "I'll shoot"; (6) the officer had to point
his gun at the defendant and order him twice to drop the shotgun before he did so; (7) the
officer saw evidence that the weapon had been fired and that another individual might be
involved; (8) after the officer secured the defendant he saw three recently-fired shotgun
shells near the open front door of the house; (9) the officer could get no response from
the house; (10) the name on the mailbox was not that of the defendant. Under these
circumstances the officer had sufficient exigency based on the possibility that someone in
the house might be injured to justify. State v. Boyd, 615 So. 2d 786 (Fla.
2d DCA 1993).
b. A 911 call came into a sheriff's office at
about 5:30 in the afternoon. There was a "disconnect" which means that the
number was activated but no one said anything. The emergency system records the address.
An officer went to the address and rang the bell. The defendant answered the door. He did
not know the defendant. The officer asked if everything was alright. The defendant
responded affirmatively. The officer had a brief conversation with the defendant who then
told him to get off the property. As the defendant was turning around to go back into the
premises the officer thought he saw another person in the house. He also observed that a
screen was off one window and there was trash all over the front room. He was still
concerned and tried to open the screen door between himself and the defendant, but it was
locked. The officer told the defendant to open the door. He refused. When the officer
tried to open the door by reaching through the screen, the defendant slammed the door and
locked it, resulting in a charge of obstructing. The Court concluded that under the
circumstances they would not "second guess the officer's concern that other
persons might be within the premises needing aid or that a burglary had just taken place,
given the screen out on the front window, and condition of the living room." The
court concluded that the disconnect did not mean the termination of the emergency.
"Until the investigating officer is reasonably satisfied that no emergency exists, he
is within his legal duty to investigate such calls in a manner consistent with their
emergency nature." In The Interest of: J.B., 619 So. 2d 524 (Fla. 4th DCA
1993).
c. The court relied upon the decision in United
States v. Barone, 330 F.2d 543 (2d Cir.), cert. denied, 377 U.S. 1004, 84 S.Ct.
1940, 12 L.Ed.2d 1053 (1964). In that case the court held that officers lawfully entered
an apartment upon hearing a scream from the apartment. The officers knocked on the door of
the apartment. A male voice answered. The officers told the occupants they were the police
and demanded that the door be opened. Eventually a woman opened the door and the officers
entered. Another woman was also present. Both women denied that they screamed. The
officers then heard a toilet flushing as the defendant came from the bathroom. The
officers observed counterfeit money in the toilet. On appeal the court held that the
officers had the right, if not the duty, to enter the apartment forcibly due to the
possibly that someone might be in danger. In The Interest of: J.B., 619
So. 2d 524 (Fla. 4th DCA 1993).
d. Officers properly entered a motel room
where they knocked on the door and announced themselves, the defendant opened the door,
left it ajar, walked from the door to a bed, pulled a gun and pointed at his own head. They
reasonably believed that the defendant had an immediate need. Once inside they could
seize evidence in plain view. Turner v. State, 645 So. 2d 444 (Fla. 1994).
e. Officers took the defendant into protective
custody under the Myers Act. Once the defendant was in the ambulance either the officer or
one of the fire rescue people asked him what pills he had taken. The defendant said that
they were in his pocket. The officer removed a pill bottle containing illegal substances.
The trial judge granted a motion to suppress. On appeal the court reversed. We "hold
that the search of [the defendant's] pocket was reasonable. [The officer] found the
illegal drugs during the search, which he believed in good faith to be reasonably
necessary to assist the [defendant] in a potentially life-threatening situation." State
v. Hutchins, 636 So. 2d 552 (Fla. 2d DCA 1994).
f. Pursuant to Payton v. New York, 445
U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), a warrantless entry into a person's home
to make a felony arrest violates the Fourth Amendment unless there are exigent
circumstances. "The kind of exigencies or emergencies that may support a
warrantless entry include those related to the safety of persons or property, see Richardson
v. State, 247 So.2d 296 (Fla. 1971), as well as the safety of police. Jones v.
State, 440 So.2d 570 (Fla. 1983). Of course, a key ingredient of the exigency
requirement is that the police lack time to secure a search warrant. Police may not
enter and search for dangerous instrumentalities or other evidence, even if they have
probable cause to believe it is on the premises or otherwise subject to removal or
destruction, if they have time to obtain a warrant and then enter under that authority. Jennings
v. State, 419 So.2d 750 (Fla. 2d DCA 1982); Graham v. State, 406 So.2d 503
(Fla. 3d DCA 1981). Moreover, an entry based on a exigency must be limited in scope to
its purpose. Thus, an officer may not continue her search once she has determined that no
exigency exists. Anderson v. State, 665 So.2d 281 (Fla. 5th DCA 1995)." Rolling
v. State, 695 So. 2d 278 (Fla. 1997).
g. It was night and there had recently been
three murders and a bank robbery near the involved location. The area was wooded and
deputies saw the defendant go down a path. Officers followed him and announced their
presence. He ran into the woods. One officer followed him, but could not catch him. There
was a tent and campsite in the area. A canine unit led police to the campsite. As they
approached it, they found a raincoat and dye-stained money on the ground. Because of the
bank robbery the officers decided to secure the tent. The officers knew the robber had
been armed. After a search dog entered the tent and came out, a deputy lifted the tent
flaps to confirm it was empty. When the deputy did that he saw a tote bag sitting on top
of more stained money. The deputy was afraid that the defendant may have returned to the
tent for a gun and was concerned about the safety of officers at the scene. For those
reasons the deputy searched the bag for a weapon and found a gun box. He opened the box
and discovered a gun. Crime scene investigators arrived and collected various items from
the campsite and tent, including the tote bag with the weapon. Six days later an
investigator inventoried the contents of the tote bag and found a screwdriver, duct tape
and a dark ski mask." The defendant moved to suppress the evidence on the grounds
that the officers were not justified in conducting a warrantless search of the interior of
his tent because once the dog entered the tent and found it empty the exigency was over.
The trial judge denied the motion. The Court affirmed. "[T]he danger to police,
which justified Deputy Liddell's initial warrantless search of the tote bag for weapons,
remained even after the crime scene unit arrived at the campsite. Thus, we find that the
trial court's conclusion that the warrantless search of Rolling's tent and tote bag was
justified by exigent circumstances, i.e., danger to police, is supported by the
record." Rolling v. State, 695 So. 2d 278 (Fla. 1997).
8. End of exigency. [Back]
a. A deputy received a dispatch concerning a
possible burglary of an apartment. When he arrived at the apartment he found that the
kitchen window was broken and a screen was lying on the ground. He could not see inside
because a curtain blocked his view. No one appeared to be at home. The deputy treated it
as a burglary in progress. He and an off duty deputy entered the apartment through an
unlocked front door and did a room by room search for a possible burglar and to protect
the safety of anyone who lived in the apartment. The deputy admitted that he found no one
in the search and that, after the search, he was unable to determine even whether there
had been a burglary. Nevertheless, he continued to look around in the hope of finding
sufficient information to locate the owner so that the premises could be secured. In doing
so he found incriminating evidence in a plastic bag. The trial judge denied a motion to
suppress because of exigent circumstances. On appeal the court reversed because "when
[the deputy] had completed his search of [the] ... home to locate the intruder and to
ascertain no one was in need of assistance inside the apartment, the exigency that allowed
the warrantless search of the premises had ended." "The desire to contact
the owner did not justify any further search of the apartment or its contents, including
the plastic bag. Other courts also have rejected the notion that the need to secure a
person's property justifies a search once the exigencies which initially permitted entry
onto the premises had ended." Anderson v. State, 665 So. 2d 281
(Fla. 5th DCA 1995).
b. Road patrol officers entered a house
without a warrant based on exigent circumstances. These officers discovered drugs. The
exigency had passed before a second group of officers entered the premises without a
warrant. They were narcotics officers and one of the first officers remained on scene
until the narcotics officers arrived pursuant to departmental policy. On appeal the court
held that, because the first set of officers could have seized the evidence, the second
set of officers did not need a warrant to continue "the police function" that
the first set of officers began. "The second 'entry' was clearly part of one
continuous episode." State v. Craycraft, 704 So. 2d 593 (Fla. 4th
DCA 1997).
G. Was the seizure the
result of open or plain view? [Back]
1. Plain view and open view are different concepts.
In plain view situations, an officer is lawfully in a constitutionally protected place and
sees contraband in that place. In open view situations, an officer is outside of a
constitutionally protected place, but can lawfully observe contraband in that place. In
the first situation, the officer may immediately seize the evidence. In the second
situation, the officer must secure a warrant based on his or her observations or establish
some exception to the warrant requirement. Ensor v. State, 403 So. 2d
349 (Fla. 1981); Gilbert v. State, 789 So. 2d 426 (Fla. 4th DCA 2001).
2. An officer may seize objects without a warrant
where they are found in a "public place." The plain view doctrine permits the
seizure of objects found in a private place where the officer observes these objects while
in that place as a result of some prior valid intrusion. In this case the property was
observed in a hospital room. The Court found the room was not a public place; therefore,
the property could not be seized. Jones v. State, 648 So. 2d 669 (Fla.
1994).
3. "All searches must be authorized by a valid
search warrant ... or fall within certain limited exceptions.... Those exceptions are
consent, lawful arrest, hot pursuit, stop and frisk and probable cause with exigent
circumstances." "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 v. Johnson,
654 So. 2d 596 (Fla. 3d DCA 1995).
4. Three things are required for a valid plain view
seizure: (1) the officer is in a place where he or she has a right to be; (2) the
incriminating nature of the material "is immediately apparent;" (3) the officer
has a lawful right of access to the material. Horton v. California, 496
U.S. 128, 1110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); State v. Futch, 715 So.
2d 992 (Fla. 2d DCA 1998); Black v. State, 630 So. 2d 609 (Fla. 1st DCA
1993).
5. Officers received information that a stolen truck
was located in a gated lot. At the location, the officers were able to see through the
fence and identify the stolen truck. They made a warrantless entry to seize the stolen
vehicle. While on the property, the officers discovered other stolen property, which could
not be seen from outside the fence. Officers used that information to secure a warrant.
They then returned to seize the additional contraband. The property was a small fenced
private lot (three adjacent 25 foot lots), located in an urban area. The gate had a chain
and lock hanging from it, but the lock was not locked. There were vehicles and vehicle
parts on the lot. There was a small warehouse like structure in the middle of the lot all
the way back against the fence. The area was mostly residential. No one lived on the
premises and there was no open commercial activity on the lot. The defendant filed a
motion to suppress the vehicles and vehicle parts found on the premises. The trial judge
denied the motion and the appellate court affirmed based on the open field doctrine. The
court relied on Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68
L.Ed. 898 (1924), in support of the proposition that Fourth Amendment protections do
not apply to open fields. The court also cited Oliver v. United States, 466
U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). There the court approved "a
warrantless search of a field where the officers went to a farm, driving past a house to a
locked gate with a 'no trespassing' sign but with a footpath around the gate. The officers
proceeded on the footpath into the field where they found marijuana growing. In
reaffirming the 'open fields' doctrine of Hester, the Court found that 'an
individual may not legitimately demand privacy for activities conducted out of doors in
fields, except in the area immediately surrounding the home.' Oliver, 466 U.S.
at 178, 104 S.Ct. at 1741." "[S]ize and location of the property is
unimportant," In Oliver the Court said, "It is clear ... that the
term 'open fields' may include any unoccupied or undeveloped area outside of the
curtilage. An open field need not be neither 'open' nor a 'field' as those terms are used
in common speech." In this case the lot was "neither a residence, nor the
curtilage of one. Maintenance of a fence around the property provides no safe harbor from
warrantless governmental intrusion upon this 'open field.'" In such case it makes
no difference that one attempts to protect privacy of the open field. "‘[T]he
correct inquiry is whether the government's intrusion infringes upon the personal and
societal values protected by the Fourth Amendment [i.e., the protection of persons,
homes, papers and effects].’" Police inspection of an open field does not
constitute such an infringement. O'Neal v. State, 689 So. 2d 1135 (Fla. 4th DCA
1997).
6. It is no longer necessary that the discovery
of evidence unlisted on a search warrant be inadvertent. See Horton v. California,
496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112(1990). State v. Ridgway,
718 So. 2d 318 (Fla. 2d DCA 1998).
7. Were observations lawfully made from a place
where the officer had a lawful right to be? Horton v. California, 496
U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); Johnson v. State, 537 So.
2d 117 (Fla. 1st DCA 1988; State v. Starke, 550 So. 2d 547 (Fla. 2d DCA
1989); State v. Ecker, 550 So. 2d 545 (Fla. 2d DCA 1989); L.S. v.
State, 547 So. 2d 1032 (Fla. 3d DCA 1989); State v. Carr, 549 So. 2d
701 (Fla. 4th DCA 1989); State v. Milmoe, 541 So. 2d 718 (Fla. 4th DCA
1989); State v. Haines, 543 So. 2d 1278 (Fla. 5th DCA 1989).
[Back]
a. An officer's observations were lawful where
he saw contraband by shining a light into a vehicle. State v. Sowers, 571
So. 2d 11 (Fla. 2d DCA 1990).
b. The defendant was hospitalized as a result
of an auto accident. There was some indication that he may have been involved in the
disappearance of another man and that he might be in possession of some property that
would link him to that man. An officer went to the defendant's room to talk with him and
he looked in a paper bag containing clothing. The officer seized the bag without a
warrant. The Court found that the evidence should have been suppressed and made several
points. The plain view doctrine only applies where the officers have a lawful right of
access to the seized object. "Whether police had a lawful right of access to the
object of a plain view seizure is generally determined by the scope of the search
permitted by either the terms of a validly issued warrant or the character of the relevant
exception to the warrant requirement.... (‘plain view’ should not be considered
an independent exception to the warrant requirement, but rather an extension of a prior
justification for an officer's ‘access to an object’).... There is no
question that at the time of the seizure the officers were not acting pursuant to either a
validly issued warrant or a recognized exception to the warrant requirement that would
have given them access to the bag itself." The officers were there just to
question the defendant. He may have consented to their presence in their room, but he did
not consent to the seizure of a bag in that room. Jones v. State, 648 So. 2d
669 (Fla. 1994).
c. Several officers were involved in the
execution of a search warrant. It appeared that some items seen in plain view may have
been seized after the items in the warrant had been discovered. The court upheld the
seizure because it was "difficult to determine at exactly what point the discovery
of each item of contraband took place, and at what point each officer was aware that the
search for the items listed in the search warrant had apparently been discovered. It [was]
clear, however, from the totality of the circumstances, that the officers had probable
cause to believe that the items plainly visible in the house were the fruits of the
several robberies the appellant was suspected of having committed, and that their seizure
was not unreasonable." Black v. State, 630 So. 2d 609 (Fla. 1st DCA
1993).
d. Plain view seizures by definition do not
involve an invasion of privacy in that they occur when the officers are in a place where
they have a right to be (i.e. consent or serving a warrant). Nevertheless, the seizure
of items pursuant to this doctrine is subject to scrupulous scrutiny and will only be
upheld, in the absence of consent or identification in a warrant, upon a showing of
probable cause and if there is no trespass. Soldal v. Cook County, Ill., 506
U.S. 56, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992).
e. Officers did not have probable cause to
conduct a warrantless search of a public restroom stall and they did not observe any
illegal conduct through a gap in a stall door. "In Moore v. State, 355 So.
2d 1219 (Fla. 1st DCA 1978), the officer observed through a narrow gap in the stall door
the defendant injecting a needle into his arm. In sustaining the intrusion the court
concluded, 'Where an officer is in a place where he has the lawful right to be
and he observes within plain view a person engaged in the commission of a felony, or
engaged in an activity which cause the officer reasonably to believe that a felony is then
being committed, the officer has a right then and there to arrest such person.'"
In this case there was no such observation; therefore, the officer improperly entered the
stall. Ramirez v. State, 654 So. 2d 1222 (Fla. 2d DCA 1995). [Back]
f. In the course of conducting valid search based
on exigent circumstances, officers may exam what they see in plain view. Anderson
v. State, 665 So. 2d 281 (Fla. 5th DCA 1995).
8. Did the officer have reasonable cause to believe
the object was contraband or evidence merely by observing it without a further search?
Caplan v. State, 531 So. 2d 88 (Fla. 1988); State v. Casey,
528 So. 2d 1264 (Fla. 1st DCA 1988); Henderson v. State, 535 So. 2d 659
(Fla. 3d DCA 1988); State v. Milmoe, 541 So. 2d 718 (Fla. 4th DCA 1989).
[Back]
a. The incriminating nature of the item must
be "immediately apparent," but the discovery need not be
inadvertent or unexpected. Horton v. California, 496 U.S. 128, 110
S.Ct. 2301, 110 L.Ed.2d 112 (1990); State v. Lopez, 38 Fla. Supp.2d 200
(llth Cir. 1987).
b. The Court considered the issue of "whether
police officers may seize nonthreatening contraband detected during a protective patdown
search of the sort permitted by Terry." The Court concluded the answer is
in the affirmative "So long as the officer's search stays within the bounds marked
by Terry." The Court concluded that if an officer, while lawfully
performing a pat down for weapons authorized by Terry touches an object which he or
she immediately recognizes as contraband he or she may seize that object. This is
consistent with the "immediately apparent" standard for plain view established
in Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). The Court
applied these standards to the facts of this case and concluded that drugs were unlawfully
seized from the defendant. In this case the officer lawfully detained the defendant and
lawfully did a pat down for weapons. He found no weapons but he did touch a lump in the
defendant's pocket, which he did not immediately recognize it as contraband. By examining
it with his fingers he determined that it was crack cocaine. The Court concluded that "the
officer determined that the item was contraband only after conducting a further search
(beyond determining whether the defendant had weapons), one not authorized by Terry
or by any other exception to the warrant requirement." Thus, the Court found the
search and seizure unlawful. Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct.
2130, 124 L.Ed. 2d 334 (1993).
c. An accessible container may be searched
without a warrant if the contents of the container are unlawful and in plain view or can
be inferred "to a 'virtual certainty.'" State v. V.M., 564 So.
2d 610 (Fla. 3d DCA 1990).
d. From a place where the officer has a right
to be it must be "'immediately apparent to the police that the items that they
observe[d] may be evidence of *** contraband, or otherwise subject to seizure.'"
Here the testimony established little more than that the officers saw two cans before they
entered. Banks v. State, 594 So. 2d 833 (Fla. 4th DCA 1992).
e. Where an officer had consent to enter an
apartment, he did not have to have consent to seize a safe and strongbox. He had a
"hunch" based on observation of material having to do with drug transactions
that these items were evidence of identity and motive for a shooting that had taken place
in the apartment in that there might be prints on them and they might contain evidence of
drug dealings. That seizure was proper because "[t]he facts available to [the
officer] only had to have caused a person of reasonable caution to believe the safe and
strongbox might be useful as evidence of a crime." State v. Heiser, 583
So. 2d 389 (Fla. 4th DCA 1991).
f. Where a search warrant authorized the
seizure of films which might be related to drug transactions, but a viewing of the film
revealed potentially obscene material, the films could be seized under the plain view
doctrine. Lockwood v. State, 588 So. 2d 57 (Fla. 4th DCA 1991).
g. The defendant was hospitalized as a result
of an auto accident. There was some indication that he may have been involved in the
disappearance of another man and that he might be in possession of some property that
would link him to that man. Thus, an officer without a warrant seized a bag containing the
defendant's clothing which was sitting on a chair in his room. He had looked into the bag
before taking this action. The Court found that the evidence should have been suppressed
and made several points. "[T]he incriminating character of the clothing was not
'immediately apparent.'" At the time officers seize the object based on plain view
they must have probable cause that it is contraband or evidence of a crime. Jones
v. State, 648 So. 2d 669 (Fla. 1994).
h. Using a flashlight to see an object
which was otherwise in plain view did not violate any constitutional restrictions. It
merely enhanced the officer's plain view of the object. State v. Carley, 633
So. 2d 533 (Fla. 2d DCA 1994).
i. While executing a warrant for drugs, an
officer looked under a mattress. He saw a pistol. The officer picked up the pistol and
turned it over to reveal that the serial number had been defaced. The trial judge denied a
motion to suppress. On appeal the Court reversed because the incriminating character of
the pistol was not "immediately apparent." The defaced numbers could not be
seen until it was turned over. "In picking up the pistol and turning it over [the
officer] extended the search beyond the scope permitted by the warrant." Ray
v. State, 634 So. 2d 695 (Fla. 1st DCA 1994).
j. Officers were lawfully in the
defendant’s house to execute an arrest warrant. An "officer observed, in a
closet which did not have a door, gun cases. When the officer bent over to look at the gun
cases he saw a shotgun." The trial judge suppressed this evidence. On appeal, the
court reversed. "As to the gun cases and the shotgun which were in the doorless
closet, these were in plain view. Because the officers had reason to believe that
appellant was a convicted felon, it would have been a crime for appellant to have them in
his possession." State v. Lingo, 796 So. 2d 1238 (Fla. 4th DCA
2001).
k. The defendant was charged with possession
of a firearm by a convicted felon. This was based on a shotgun that officers observed when
they lawfully entered a motel room. The defendant’s motion to suppress the shotgun
was denied. On appeal, the court reversed. Defendant’s "sole argument is that it
was unlawful for the officers to seize the weapon because it was not immediately
apparent to the officers that the gun was contraband. We agree.... At the suppression
hearing, there was no testimony concerning facts which would lead a reasonable person
to conclude that the gun was contraband. For example, there was no evidence that the
officers knew appellant to be a convicted felon, that the shotgun was immediately
recognizable as being illegal (i.e., sawed off shotgun), or that the shotgun was suspected
of having been used in a crime which the officers were investigating. Furthermore, since
appellant was arrested outside of the apartment and immediately handcuffed, and the
officers entered the apartment only to check on the welfare of the small child, the safety
of the officers was not a concern which would justify seizure of the gun.... Although
the entry into the apartment was lawful, the ultimate seizure of the shotgun was not
lawful because (1)it was not immediately apparent that the weapon was contraband or
evidence of a crime; (2)the officers did not have a legitimate concern for their safety;
and (3)there was no evidence that appellant had either actual or constructive possession
of the shotgun." Maragh v. State, 801 So. 2d 1006 (Fla. 4th DCA
2001).
l. The defendant was detained. There was no
issue as to the lawfulness of the stop. The defendant consented to a pat down of his
person. The officer felt a "hard, rocky-like substance" inside the defendant's
pants pocket. He realized it was not a weapon or money. The officer seized the object,
which was cocaine. The trial judge denied a motion to suppress based on the conclusion
that the officer had probable cause to put his hand in the defendant's pocket under the "plain
feel’ doctrine established in Minnesota v. Dickenson, 113 S.Ct. 2130
(1993). On appeal the court reversed. The test for this doctrine is the same as the
plain view doctrine. It must be ‘immediately apparent’ that the substance is
contraband. The officer must have probable cause to believe the item is contraband before
seizing it. Based on Doctor v. State, 596 So. 2d 442 (Fla. 1992) a general
statement by the officer that he believed the substance was drugs based on his training,
education, and experience is insufficient. Here the officer did not testify at all
about his experience. There was "no predication information." Jordan
v. State, 664 So. 2d 272 (Fla. 5th DCA 1995).
m. Where the court found that the officer
lawfully patted down the defendant and felt an object that he recognized immediately as
narcotics, without any additional manipulation of the item, he had a right to remove the
item from the defendant's pocket. "[W]e agree with the trial court that the
plain feel doctrine is not without constraints. In fact, this court has previously ruled
that, in order for the state to rely upon the plain feel doctrine, the officer must
testify that he could identify the contraband based upon his specific, personal experience
as an officer." This officer described extensive training and experience. State
v. Burns, 698 So. 2d 1282, 1284 (Fla. 5th DCA 1997).
n. "Terry and Florida's Stop and
Frisk Law authorize a pat-down search if, during a lawful investigatory stop, an officer
has probable cause to believe that a subject is armed. Terry, 392 U.S. at 30, 88
S.Ct. 1868; § 901.151(5). We find that Frazier's conduct, i.e., briskly removing his
hand from his pocket and reaching underneath his shirt to his waistband, provided probable
cause to justify the pat-down search for weapons. Nevertheless, the search was unlawful
inasmuch as it exceeded the permissible scope of the stop and frisk law. Because the
pat-down revealed nothing which could have been a weapon, Officer Smith's
‘inquiry’ should have stopped there. See, e.g., Winters v. State, 578
So.2d 5 (Fla. 2d DCA 1991). The State maintains that the pat-down and subsequent seizure
were legal based on the ‘plain-feel’ exception to the Fourth Amendment's warrant
requirement adopted by the United States Supreme Court in Minnesota v. Dickerson,
508 U.S. 366, 378, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). The Dickerson court
effectively extended the plain-view doctrine to instances where contraband is discovered
through the sense of touch during an otherwise lawful Terry search. 489 Id.
at 375-76, 113 S.Ct. 2130. Under the ‘plain-feel’ doctrine, ‘[i]f a
police officer lawfully pats down a suspect's outer clothing and feels an object whose
contour and mass make its [illicit] identity immediately apparent, there has been no
invasion of the suspect's privacy ... [,]’ and therefore there is no constitutional
basis for suppressing the seized contraband as fruit of the poisonous tree. Id. at
375, 113 S.Ct. 2130. The State contends that based on Officer Smith's extensive experience
and training in street level narcotics, he was immediately aware of the illicit nature of
the contents of Frazier's pockets upon squeezing them. We reject this argument because
Smith found it necessary to squeeze the items through Frazier's pockets in order to
identify them, indicating that it was not immediately apparent to him that the items were
illegal narcotics. Besides, before groping Frazier's pockets to ascertain their contents,
Officer Smith was fully aware that the pockets did not contain a weapon, the risk of which
precipitated the pat-down in the first instance. Cf. Dickerson, 508 U.S. at
378, 113 S.Ct. 2130." Frazier v. State, 789 So. 2d 486 (Fla. 2d DCA
2001).
o. "The state argues that the seizure was
proper based on the plain feel doctrine established in Minnesota v. Dickerson, 508
U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), which held that the police may seize
contraband during a lawful pat-down if its illicit nature is ‘immediately
apparent’ because the seizure is then supported by probable cause. A police
officer must have probable cause to believe that an item felt during pat-down is
contraband before conducting a more thorough search to retrieve it. Campuzano, 771
So.2d at 1244. This court has previously recognized that: ‘[w]hile conducting the
search, the officer could seize contraband only if, based on the totality of the
circumstances, the officer felt something that he immediately knew was
contraband....’ Jordan v. State, 664 So.2d 272, 273 (Fla. 5th DCA 1995);
see also Doctor v. State, 596 So.2d 442 (Fla.1992). However, probable cause does
not arise any time an officer feels an object that the officer reasonably suspects to be
contraband. Cole v. State, 727 So.2d 280 (Fla. 2d DCA 1999). Rather, the officer
must be reasonably certain it is contraband. See State v. Bellamy, 723 So.2d
402, 404 (Fla. 5th DCA 1999). Officer McAfee's testimony fell short of this standard when
he said: ‘it was unclear what it was but I've been in a drug unit for five years ...
and I knew enough to know that it could possibly be drugs but wasn't sure. I felt it was a
cannister and that's what was holding the cocaine....’ ... The officer had nothing
but a mere suspicion as to the identity of the object." Thus, the court found that
the plain view doctrine did not justify the seizure. Harris v. State, 790
So. 2d 1246 (Fla. 5th DCA 2001).
p. An officer lawfully stopped the defendant
and lawfully did a pat down. He felt a "‘plastic-type’" bag with a
soft substance inside. Based on his training and experience, the officer believed it was
cannabis and seized it The trial judge granted a motion to suppress. The court affirmed. "If,
during a lawful pat-down, the totality of the circumstances gives the officer probable
cause to believe that the defendant is carrying contraband, the officer may seize the
contraband. Doctor v. State, 596 So.2d 442, 445 (Fla.1992). The burden is on
the state to prove that the officer had probable cause to seize items felt during a frisk
for weapons. Id. While an officer's experience and training are relevant to this
determination, the state must present more than the ‘naked subjective statement of a
police officer who has a 'feeling' based on 'experience'’ that the item was
contraband. Id. Probable cause does not arise anytime an officer feels an
object that the officer reasonably suspects to be contraband. ... [U]nlike the deputies in
Doctor and Bellamy, the officer in this case did not provide sufficient
information to support his ‘plain feel’ identification of the narcotic in
question or state that he possessed more than a suspicion that the substance was
contraband.... In this case, the officer did not testify about his experience in
identifying marijuana by its feel or state that there was anything unique or distinctive
about the seized item's texture, size, shape, or method of packaging that made the illicit
nature of the item immediately apparent to him. He merely described the item he felt as a
‘plastic-type bag’ with ‘some substance inside of it’ that could
possibly be marijuana. At most, the state established the officer’s reasonable
suspicion that appellee possessed contraband. Moreover, the officer did not testify about
any additional circumstances, such as furtive movements or concealment of the item in an
unusual area, that gave rise to probable cause. See Doctor, 596 So.2d at 445
(fact that defendant exited vehicle in suspicious manner and was carrying cocaine in his
groin area added to totality of the circumstances giving rise to probable cause). To
the contrary, the officer testified that appellee did not make any furtive or evasive
movements during their encounter. On this record, we cannot conclude that the trial
court erred in determining that the state failed to meet its burden of proving probable
cause. Accordingly, we affirm the order suppressing physical evidence." State
v. J.D., 796 So. 2d 1216 (Fla. 4th DCA 2001). See also Rodriguez v. State,
807 So. 2d 130 (Fla. 2d DCA 2002); C.A.M. v. State, 27 Fla. L. Weekly D35,
2001 WL 1613828 (Fla. 4th opinion filed Dec. 19, 2001).
q. An officer was in a place where he had a
lawful right to be when he observed a white, powdery substance on a mirror. Based on his
experience and training, the officer concluded that the powder was contraband. The officer
seized the mirror. A test proved that the substance was contraband. The defendant was
arrested. The trial judge suppressed all the evidence secured as a result of the seizure
of the mirror. The judge concluded that the contraband on the mirror was not
immediately apparent. On appeal the court reversed on this point. As to the
requirement that the incriminating nature of the evidence be immediately apparent, "police
are not required to know that an item is contraband. (citation omitted) ‘It merely
requires that the facts available to the officer would "warrant a man of reasonable
cause in the belief" (citation omitted) that certain items may be contraband...; it
does not demand any showing that such a belief be correct or more likely true than false.
A "practical, nontechnical" probability that incriminating evidence is involved
is all that is required.’ Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535,
75 L.Ed.2d 502 (1983)." A chemical test was not required to meet the test. "We
conclude that the incriminating nature of the methamphetamine was immediately apparent
upon the officer’s observation of the white, powdery substance on the mirror." State
v. Futch, 715 So. 2d 992 (Fla. 2d DCA 1998).
r. "Contraband not listed in a search
warrant may be seized if found in accordance with the ‘plain view’ doctrine
during the course of the search. Id. It must be readily apparent that the items are
contraband. See State v. Waterman, 638 So.2d 1032, 1038 (Fla. 2d DCA 1994). It is
no longer necessary that the discovery of the unlisted evidence be inadvertent. See
Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112(1990). In this
case, the officers were justified in opening the photo albums to search for additional
drugs, paraphernalia, or written evidence of drug transactions. As soon as the albums were
open, at a minimum, it was readily apparent that the photographs could be seized as
evidence of Mr. Ridgway’s lewd and lascivious conduct with a child." See
discussion of facts above under section dealing with execution of a warrant. State
v. Ridgway, 718 So. 2d 318 (Fla. 2d DCA 1998).
s. An officer lawfully detained the defendant
in connection with the investigation of a stolen truck. The defendant consented to a
pat-down and voluntarily handed keys over to the officer as a result of the pat-down. But
the officer exceeded the scope of the consent by giving the keys to another officer. They
were the keys to the truck, but on appeal the court ruled that they could not be seized
based on plan view. " We recognize that the seizure of contraband in plain view is
authorized where the officers have a lawful right of access to the object seized, and the
incriminating nature of the object is immediately apparent. See Jones v. State, 648
So.2d 669 (Fla.1994). However, under the circumstances of this case, we find that the
incriminating character of the keys was not immediately apparent. In fact, Deputy Perry
testified that he was not concerned about the keys when he placed them on the trunk of the
police car." M.E.S. v. State, 804 So.2d 537 (Fla. 2d DCA 2002).
9. Did the officer have a lawful right of access to the object
without a warrant? Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110
L.Ed.2d 112 (1990). [Back]
H. Was the seizure the
result of a valid inventory search of
property other than a motor vehicle? [Back]
1. It was night and there had recently been three
murders and a bank robbery near the involved location. The area was wooded and deputies
saw the defendant go down a path. Officers followed him and announced their presence. He
ran into the woods. One officer followed him, but could not catch him. There was a tent
and campsite in the area. A canine unit led police to the campsite. As they approached it,
they found a raincoat and dye-stained money on the ground. Because of the bank robbery the
officers decided to secure the tent. The officers knew the robber had been armed. After a
search dog entered the tent and came out, a deputy lifted the tent flaps to confirm it was
empty. When the deputy did that he saw a tote bag sitting on top of more stained money.
The deputy was afraid that the defendant may have returned to the tent for a gun and was
concerned about the safety of officers at the scene. For those reasons the deputy searched
the bag for a weapon and found a gun box. He opened the box and discovered a gun. Crime
scene investigators arrived and collected various items from the campsite and tent,
including the tote bag with the weapon. Six days later an investigator inventoried the
contents of the tote bag and found a screwdriver, duct tape and a dark ski mask." The
defendant moved to suppress the evidence on the grounds that the officers were not
justified in conducting a warrantless search of the interior of his tent because once the
dog entered the tent and found it empty the exigency was over. The trial judge denied the
motion. On appeal the Court affirmed found that there were exigent circumstances and that
the inventory search was valid. "An inventory search is a Fourth Amendment search and
seizure. Elson v. State , 337 So.2d 959 (Fla. 1976), but is unique in that its
purposes are for the protection of property and persons rather than to investigate
criminal activity. Miller v. State, 403 So.2d 1307 (Fla. 1981). Contraband or
evidence seized on a valid inventory search is admissible because the procedure is a
recognized exception to the warrant requirement. Caplan v. State, 531 So.2d 88
(Fla. 1988)." In South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49
L.Ed.2d 1000 (1976), the Court held that the probable cause standard and the warrant
requirement are not relevant to an inventory search analysis. "The test is solely one
of 'reasonableness.' The reasonableness of a purported inventory search is dependent
upon it being a true good-faith inventory search and not a subterfuge for a criminal,
investigatory search. If the search is not, in fact, an inventory search, then it must be
justified on some other basis. Fields v. State, 369 So.2d 603 (Fla. 1st DCA
1978)." Here the investigator testified that he itemized the contents of the tote
bag and catalogued the serial numbers on the red-stained money recovered from the campsite
and that this was a routine inventory The Court found that this was a valid inventory
search. Rolling v. State, 695 So. 2d 278 (Fla. 1997).
VIII. DID THE SEARCH OR DETENTION INVOLVE A STUDENT ON SCHOOL PROPERTY OR
INVOLVED IN SCHOOL ACTIVITY? IF SO, SOME SPECIAL RULES APPLY. [Back]
A. "Particularly with regard to medical
examinations and procedures ... ‘students within the school environment have a lesser
expectation of privacy than members of the population.’ ... Legitimate privacy
expectations are even less with regard to student athletes." 115 S.Ct. at 2392.
"Somewhat like adults who choose to participate in a ‘closely regulated
industry,’ students who voluntarily participate in school athletics have reason to
expect intrusions upon normal rights and privileges, including privacy." 115
S.Ct. at 2393. The Court noted that a school policy requiring testing of school athletes
for drugs was relatively inobtrusive and was lawful considering the need and the reduced
expectation of privacy. Vernonia School District 47J v. Acton, 515 U.S. 646,
115 S. Ct. 2386, 132 L.Ed.2d 564 (1995).
B. Through an anonymous tip, a school security
employee learned that a student in phys ed class had a bulge in his pants and was believed
to have a gun. The tip gave a description of the clothing the student was wearing. The
employee went to the gym and told the student to step outside. At this point the student
was not free to go. The employee did not notice a bulge. The employee asked the student if
he could search him, but the student did not respond. As they entered the locker room a
gun dropped out of the student's pants. The employee was not acting on a request from law
enforcement officers. The trial judge denied a motion to suppress the gun. On appeal the
court affirmed. "When law enforcement is not involved 'the legality of a search of
a student should depend simply on the reasonableness, under all the circumstances, of the
search.'" Given the information the employee had and "[w]hen taking into
consideration that there were approximately 150 students in the gym and that it was
possible that [the student] was carrying a firearm" he acted reasonably in
stopping the student for a brief investigation. S.D. v. State, 650 So. 2d
198 (Fla. 3d DCA 1995).
C. The involved school board adopted a policy
authorizing random searches of students in high school classrooms with hand-held metal
detector wands. The board hired an independent security firm and there was no police
involvement. The classroom to be searched was selected in a purely random fashion. When
the security people entered the classroom, students were told to empty their pockets of
all metal objects. Refusal could result in discipline. The students were then examined
with the wand by a person of the same gender. If the wand indicated the presence of metal,
the student was asked to remove the metal object and then the wand was used again. If it
still signaled, then the student was patted down. If it alerted again, the operator looked
inside the container for a weapon. A student could refuse, but that might result in
discipline. If contraband was discovered, the police were notified. This was all done
without reasonable suspicion or probable cause. A gun was discovered in the
defendant's coat. He moved to suppress. The trial judge granted the motion on the grounds
that the search was a police search and there was no probable cause, so that it was
unconstitutional. On appeal the court reversed. The court relied on Vernonia School
Dist. 47J v. Acton, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995) and New Jersey v. T.L.O.,
469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) in support of the proposition that "‘the
legality of a search of a student should depend simply on the reasonableness, under
all the circumstances of the search.’ T.L.O., 469 U.S. at 341, 105 S.Ct. at
742." The court must balance the effect on the privacy of the student
against the governmental interests. "[B]ecause of the state's custodial and tutorial
authority over the student, public school students are subject to a greater degree of
control and administrative supervision than is permitted over a free adult." Thus,
the students at school have a lesser expectation of privacy than the general population.
The court must also consider the "character of the intrusion". The court
found that this was a "minimal intrusion into the student's privacy." The
violence and threat of violence in schools establish an adequate governmental interest. "The
Board has chosen the method it felt would best satisfy the needs of its high schools. The
Supreme Court has never declared that 'only the "least intrusive" search
practicable can be reasonable under the Fourth Amendment.' Acton, 115 S.Ct. at
2396." The court found that when the privacy interest of the student is
balanced against "the nature of the search, and the severity of the need met by the
search" it was reasonable and constitutional. State v. J.A., 679 So. 2d
316 (Fla. 3d DCA 1996).
D. One student advised an assistant principle
that another identified student had a gun. That information was sufficient to establish
reasonable suspicion to interrogate and search the student. New Jersey v. T.L.O.,
469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). The assistant principle called the
"'school resource officer'," who was a deputy assigned to the school. The
assistant principle told the deputy about the problem and they found the defendant. The
deputy performed the pat-down which discovered the gun in the child's waistband. The trial
judge denied a motion to suppress. On appeal the court affirmed. The major problem in the
case was that the search was done on reasonable suspicion by a deputy, who generally
needs probable cause. On appeal the court noted that it was significant that this case
involved a gun rather than drugs or contraband. "Here, the assistant principle was
faced with the possibility that a child was carrying a gun on his person in a classroom
during the school day. "It would be foolhardy and dangerous to hold that a teacher or
school administrator, who often is untrained in firearms, can search a child reasonably
suspected of carrying a gun or other dangerous weapon at school only if the teacher or
administrator does not involve the school's trained resource officer or some other police
officer.... If a school official has a reasonable suspicion that a student is carrying
a dangerous weapon on his or her person, that official may request any police
officer to perform the pat-down search for weapons without fear that the involvement of
the police will somehow violate the student's Fourth Amendment rights or require probable
cause for such a search." J.A.R. v. State, 689 So. 2d 1242 (Fla. 2d DCA
1997).
E. It is lawful for an officer to detain a
juvenile to transport him or her back to school pursuant to section 39.421(1)(b). C.G.
v. State, 689 So. 2d 1246 (Fla. 4th DCA 1997).
F. "[T]he appropriate standard to be applied
in determining the validity of a search by a school official on school property is whether
the official had a reasonable suspicion of illegal activity....’However, where
outside police officers initiate a search, or where school officials act at the behest of
law enforcement agencies, the probable cause standard has been applied.’" A
school official had reasonable suspicion to search students in a bathroom based on
information from other students that students were smoking marijuana in the bathroom.
There was heavy cigarette (not marijuana) smoke in the bathroom and smoldering butts on
the floor. The fact that the resource officer watched did not change the result. K.K.
v. State, 717 So. 2d 629 (Fla. 5th DCA 1998).
G. § 39.421(1)(b) authorizes an officer to take a
child into custody for the purpose of returning the child to school, if the officer has
reasonable grounds to believe the child is away from school without authorization. The
defendant was a school age child. The officers saw him walking away from the school while
all of the other children were walking towards the schools. The officers had a
well-founded suspicion to stop the child to investigate the facts. K.A.C. v. State,
707 So. 2d 1175 (Fla. 3d DCA 1998).
H. The appropriate standard where a school board
employee searches a student is reasonable suspicion. The fact that a school board police
officer acquiesces in the search does not raise the standard to probable cause. Thus,
the fact that the officer was standing nearby during the search did not raise the
standard. "In order for reasonable suspicion to exist, the action must be
justified at its inception, and the search must be reasonably related to the reason for
the search." In this case a student told the principle that the defendant had
drugs at school. The principle took the boy to the first available office, told the
student that she had been given information that he had an illegal substance and asked him
if it was true. She told the student that she intended to search him. The student began
emptying his pockets. He produced a baggie containing the drugs. The trial judge ruled
that the search was improper. The appellate court reversed. Based on these facts the court
found that the search met the foregoing two prong test. This was in contrast to A.S. v.
State, 693 So. 2d 1095 (Fla. 2d DCA 1997), where the court found that the search was
unlawful. There the principle saw a group of boys together. One of the boys had money in
his hand and the defendant was "fiddling in his pocket." This was insufficient
to provide reasonable suspicion for a search. State v. Whorley, 720 So. 2d
282 (Fla. 2d DCA 1998).
IX. DID THE SEARCH INVOLVE AN INTRUSION INTO A HOME? IF SO, SOME
SPECIAL RULES APPLY.
A. Special nature of the home. [Back]
1. "It is a 'basic principle of Fourth
Amendment law' that searches and seizures inside a home without a warrant are
presumptively unreasonable.... '[T]he Fourth Amendment has drawn a firm line at the
entrance to the house.'... Indeed, 'physical entry of the home is the chief evil against
which the wording of the Fourth Amendment is directed.'" The court cites from Payton
v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980) in support
of these principles. Anderson v. State, 665 So. 2d 281 (Fla. 5th DCA 1995).
2. "Because his arrest had been set in
motion in a public place, Freeman could not avoid arrest by retreating or escaping into a
private home. Santana, 427 U.S. at 43, 96 S.Ct. 2406. As part of the search
incident to that arrest, the officers properly searched the couch that Freeman was
standing next to and into which he appeared to have hidden something or from which he
could have grabbed a weapon. See Chimel v. California, 395 U.S. 752, 763, 89 S.Ct.
2034, 23 L.Ed.2d 685 (1969). State v. Freeman, 796 So. 2d 574 (Fla. 2d DCA
2001).
3. "Police officers, with probable cause to
believe that a man had hidden marijuana in his home, prevented the man from entering the
home for about two hours while they obtained a search warrant." The Supreme Court
concluded that the officers acted reasonably. Illinois v. McArthur, 531
U.S. 326, 121 S. Ct. 946, 148 L. Ed.2d 838 (2001).
B. Felony. [Back]
1. circumstances, the police may not make a
warrantless entry into a suspect's home in order to make a felony arrest." For
standards relating to third party consent see cases under "consent". Saavedra
v. State, 622 So. 2d 952 (Fla. 1993).
2. Pursuant to Payton v. New York, 445 U.S.
573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), a warrantless entry into a person's home to
make a felony arrest violates the Fourth Amendment unless there are exigent circumstances.
"The kind of exigencies or emergencies that may support a warrantless entry
include those related to the safety of persons or property, see Richardson v. State,
247 So.2d 296 (Fla. 1971), as well as the safety of police. Jones v. State, 440
So.2d 570 (Fla. 1983). Of course, a key ingredient of the exigency requirement is that the
police lack time to secure a search warrant. Police may not enter and search for
dangerous instrumentalities or other evidence, even if they have probable cause to believe
it is on the premises or otherwise subject to removal or destruction, if they have time to
obtain a warrant and then enter under that authority. Jennings v. State, 419 So.2d
750 (Fla. 2d DCA 1982); Graham v. State, 406 So.2d 503 (Fla. 3d DCA 1981).
Moreover, an entry based on a exigency must be limited in scope to its purpose. Thus,
an officer may not continue her search one she has determined that no exigency exists. Anderson
v. State, 665 So.2d 281 (Fla. 5th DCA 1995)." Rolling v. State,
695 So. 2d 278 (Fla. 1997).
3. Based on a tip officers went to the apartment
where the defendant was believed to be living. They were taken to the apartment. The door
was ajar. The officers entered and saw the defendant run to the bathroom. They chased him,
pulled him into the living room and read him his rights. The trial judge found that this
was an unlawful entry. He said: "The police, however, had no right to chase after
him. They had no warrant for his arrest, nor were they there even for the purpose of
making an arrest so why should it concern the police that he might jump out of his second
story bathroom window? There existed no exigent circumstances to justify invasion of the
defendant's home." On appeal, the court agreed. State v. Sakezeles,
778 So. 2d 432 (Fla. 3d DCA 2001).
4. Where officers had plenty of time to secure a
secure warrant, the fact that they wanted to make a routine felony arrest did not create
an exigency justifying entry into an apartment. State v. Sakezeles, 778 So.
2d 432 (Fla. 3d DCA 2001).
5. "The record reflects that the officer who
conducted the drug buy called in the arresting officer and gave a description of Freeman
and a second person. The arresting officer had been waiting nearby and quickly arrived at
the scene. Freeman ran from the officers and into a house. The officers immediately
pursued him into the house, and the arresting officer observed Freeman hide something in a
couch. Because the arresting officer had a reasonable belief that a felony had been
committed and Freeman was identified as an individual who participated in the commission
of the felony, the arresting officer properly arrested Freeman without a warrant. See
§ 901.15(2), Fla. Stat. (1997)." State v. Freeman, 796 So. 2d 574
(Fla. 2d DCA 2001).
6. "The State contends, however, citing Warden
v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), that the warrantless
entry was proper because law enforcement officers may enter to arrest a felony suspect
when exigent circumstances exist, such as where any delay would endanger the lives of
officers and citizens. We agree that this is a correct statement of the law. See Saavedra
v. State, 622 So.2d 952 (Fla.1993), cert. denied, 510 U.S. 1080, 114 S.Ct. 901, 127
L.Ed.2d 93 (1994). However, Deputy Englebright testified that he intended to arrest Espiet
for the misdemeanor offense of domestic violence. The State argues that despite Deputy
Englebright's intent to arrest Espiet for a misdemeanor, the facts of this case clearly
show that probable cause existed to arrest him for a felony. We conclude that this
argument is without merit because the State failed to present evidence of exigent
circumstances excusing the deputies' failure to obtain an arrest warrant. See United
States v. Burgos, 720 F.2d 1520, 1526 (11th Cir.1983); Wike v. State, 596 So.2d
1020, 1024 (Fla.1992). Mildred was at her in-laws’ and Espiet, barricaded in
his home, simply refused to come outside. He was not armed (he only armed himself after
Deputy Englebright entered the house) and was not shouting threats at them. All
communication was conducted via telephone (initially) and then through the screened
window. The SWAT team and negotiators had been summoned and were in place. There was no
reason for Deputy Englebright to force the situation. In fact, according to the testimony
of Deputy Lucas, Deputy Englebright's actions were a surprise to his fellow deputies who
were present at the scene. Absent valid consent or exigent circumstances, law enforcement
may not cross the threshold of a residence without a warrant. Payton v. New York,
445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Saavedra." Espiet
v. State, 797 So. 2d 598 (Fla.. 5th DCA 2001).
C. Misdemeanors.
[Back]
1. An officer has no authority to enter a private
home without a warrant to make an arrest for a misdemeanor even though he observed the
offense and is in hot pursuit. This position is based on the restrictions set forth in
§ 901.19(1). The Gasset decision does not warrant a different result because in
that case the officer went into an open garage and the decision was based solely on the
Fourth Amendment and the court did not discuss the statute. Ortiz v. State,
600 So. 2d 530 (Fla. 3d DCA 1992).
2. There is no authority to enter a home to make a
warrantless arrest on a misdemeanor. Green v. State, 632 So. 2d 197 (Fla. 3d
DCA 1994).
3. § 901.19, which limits unannounced entry onto
premises to felony charges, applies only to entry into buildings. The officer observed the
defendant drop a misdemeanor amount of marijuana and run into his yard. The officer
pursued him into the yard in hot pursuit. Neither the statute nor the Fourth Amendment
prohibited a warrantless entry into the yard for the purposes of making a misdemeanor
arrest. Dyer v. State, 680 So. 2d 612 (Fla. 3d DCA 1996).
4. The officer was chasing the defendant, when the
defendant dropped a misdemeanor amount of marijuana. The defendant then jumped a fence
into an enclosed yard. The officer followed him and arrested him. Drugs were found on the
defendant's person. It turned out that the yard and house at the location where the arrest
took place belonged to the defendant, but the officer did not know that at the time he
made the arrest. The trial judge denied a motion to suppress. The court affirmed. The
trial judge distinguished the decision in Welsh v. Wisconsin, 466 U.S. 740, 104
S.Ct. 2091, 80 L.Ed.2d 732 (1984). In that case the Court found that the officer could not
pursue the defendant into his home based on a misdemeanor. The trial judge reached the
following conclusions, which were adopted by the appellate court: "'It is,
however, classified as a much more serious offense than in Welsh, since it is
clearly a criminal offense as opposed to a civil forfeiture and is punishable up to a year
in jail.... This Court finds it reasonable for Officer Vila, who had chased the Defendant,
who he did not know, through a vacant lot and then over a fence, to believe that the
Defendant was going to continue to hop fences and flee through yards until apprehended. It
is undisputed that he did not know this was the Defendant's yard. It was also reasonable
for him to conclude that when the Defendant entered the curtilage of that house to commit
the crime of resisting arrest without violence, the Defendant was committing the felony
offense of Burglary. The seriousness of the Defendant's offense was certainly greater than
in Welsh which was classified as a civil forfeiture only. The second major
distinction is that Officer Vila was clearly in hot pursuit... The third distinction is
that there existed an exigency apart from the hot pursuit.'" It consisted of the fact
that the officer was alone and had no knowledge as to the Defendant's intent, had no time
to call for back-up and he "'believed he was going to continue to flee across the
yard and into the adjacent yards to escape the officer. And finally'" the intrusion
was slight since it did not actually involve entry into the home or any use of force in
entry or in the apprehension of the Defendant. Dyer v. State, 680 So. 2d 612
(Fla. 3d DCA 1996).
5. The only basis for entry into the home without a
warrant was to arrest the defendant for knowingly sheltering or aiding an unmarried minor
without the consent of the minor’s parent or guardian or for resisting arrest without
violence. However, these are misdemeanors and pursuant to Welsh v. Wisconsin, 466
U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), "there is no authority given to a
police officer to enter a suspect’s home to effect a warrantless arrest for a
misdemeanor." M.J.R. v. State, 715 So. 2d 1103 (Fla. 5th DCA 1998).
6. "The courts generally agree that a law
enforcement officer may not make a warrantless entry into a person's home to arrest the
person for a misdemeanor offense. (citations omitted)" Espiet v. State,
797 So. 2d 598 (Fla.. 5th DCA 2001).
7. "The provisions of section 901.15(7)
which allow a law enforcement officer to arrest a person for an act of domestic violence
without a warrant do not permit the forcible entry into the person's home to effectuate
the arrest based on a misdemeanor offense. See § 901.19(1), Fla. Stat. (1999); Green
v. State, 632 So.2d 197, 198 (Fla. 3d DCA 1994) (‘Section 901.19, Florida
Statutes (1991), authorizes the police to enter a dwelling without a warrant only if the
police are authorized to make a felony arrest.’); Ortiz (holding that police
cannot make a warrantless entry into a house in order to make a misdemeanor arrest); Johnson,
395 So.2d at 596 (‘By the clear wording of the statute, the right of an officer to
enter a building to make an arrest is limited to two situations: (1) where he holds an
arrest warrant, regardless of the classification of the offense, and (2) where he has the
power under section 901.15, Florida Statutes (1979) to make a warrantless arrest for a
felony. Under state law, there is simply no authority given to a police officer to
enter a building to effect a warrantless arrest for a misdemeanor.’); Rucker v.
State, 302 So.2d 490, 491 (Fla. 2d DCA 1974) (‘An officer is not authorized to
break open a door in a private dwelling in order to make an arrest without a warrant for a
misdemeanor.’); see also Benefield v. State, 160 So.2d 706 (Fla.1964). We note
with interest that the 1979 version of section 901.15 under consideration in Johnson
specifically provided that an officer could arrest a person without a warrant if probable
cause existed to believe a battery on the person's spouse had been committed, battery
being a first-degree misdemeanor. See §§ 784.03(2), 901.15, Fla. Stat. (1979). Johnson
specifically requires either a warrant or an arrest for a felony to permit the forcible
entry into the person's home. Moreover, Johnson specifically requires exigent
circumstances as a basis for a warrantless arrest for a felony, citing Payton v. New
York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Espiet v. State,
797 So. 2d 598 (Fla.. 5th DCA 2001).
8. "Police officers, with probable cause to
believe that a man had hidden marijuana in his home, prevented the man from entering the
home for about two hours while they obtained a search warrant." The Supreme Court
concluded that the officers acted reasonably. There was a small amount of marijuana
involved. The defendant was charged with two misdemeanors: (1) possession of 2.5 grams of
marijuana, which carried up to a 30 day jail sentence; (2) possession of drug
paraphernalia, which carried up to one year in jail. The defendant argued that the
officer could not have entered h is home to secure these misdemeanor items without a
warrant, and accordingly they could not keep him from entering his home. This position was
based on Welsh v. Wisconsin. The Court drew a distinction. In Welsh, the
offense was nonjailable. Here the offense were jailable. Additionally, the restriction
was less serious since the officers kept the defendant from entering his home, but did not
forcibly enter the defendant’s home. Illinois v. McArthur, 531 U.S.
326, 121 S. Ct. 946, 148 L. Ed.2d 838 (2001).
D. Observations from adjoining property. [Back]
1. Officers received information that marijuana
plants were growing in the defendant's backyard, which was surrounded by a six foot
fence. The officers walked into a neighbor's yard without seeking permission. From
that location they observed marijuana in the neighboring yard. The civil trespass by
the officer did not make the search illegal. Sarantopoulos v. State, 629
So. 2d 1212 (Fla. 1993).
E. Where there is probable cause for the defendant's
arrest, statements that are made outside of the home are admissible even though the entry
into the home without a warrant was improper. Maulden v. State, 617 So. 2d
298 (Fla. 1993).
F. In Segura v. United States, 468 U.S. 796,
104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), the Court held "'that securing a dwelling,
on the basis of probable cause, to prevent the destruction or removal of evidence while a
search warrant is being sought is not itself an unreasonable seizure of either the
dwelling or its contents.'" In Sequra officers were present in the
apartment for 19 hours awaiting a search warrant and the Court ruled that this was
reasonable. In the instant case, officers entered the house, after the husband had been
arrested and the wife was still there. They conducted a protective sweep for weapons and
secured the location until the warrant was secured and arrived. The court found that this
was proper. Conner v. State, 701 So. 2d 441 (Fla. 4th DCA 1997).
G. See cases above under arrest, consent, exigent
circumstances, and plain view. |
