c.     Thirteen days between the observations of the facts which constituted probable cause and the issuance of the warrant did not make the facts stale. The Court pointed out that normally any delay less than thirty days is insufficient to establish staleness.   State v. Lewis, 605 So. 2d 590 (Fla. 2d DCA 1992)

                  d.     Even if the delay is over 30 days the affidavit may still be sufficient based on consideration of these factors: (1) pattern of ongoing criminal activity which may be proven by repeat sales; (2) the nature of the object being sought; (3) the nature of the criminal activity involved; (4) whether there is a continuing flow of information from the informant or an ongoing investigation; or (5) whether the quantity of drugs or contraband involved is so large that it could not be disposed of or consumed in a short period of time. Montgomery v. State, 584 So. 2d 65 (Fla. 1st DCA 1991).

                  e.     "'The rule of thumb is thirty days, but each case must be decided upon its own particular circumstances.... Evidence of an on-going pattern of criminal activity may justify an extended time lapse.'" Haworth v. State, 637 So. 2d 267 (Fla. 2d DCA 1994).

                  f.     The affidavit established probable cause that there "will be cocaine" in the involved premises at a date in the future. § 933.18(5) "requires a search warrant of a private dwelling for violation of the law relating to narcotics or drug abuse not be issued unless upon affidavit showing probable cause that the law is being violated therein." In this case "[i]f the words 'is presently' had been used instead of the words 'will be', the affidavit likely would have passed muster." Pazos v. State, 654 So. 2d 1000 (Fla. 4th DCA 1995).

          10.    Examples.  (Back)

                  a.     The affidavit was sufficient to establish probable cause where it alleged that on two occasions officers removed a garbage can from the side of the road in front of the house and searched it and discovered documents showing the address of the house along with suspected marijuana material, seeds and stems. Those items tested positive for marijuana. State v. Fisher, 591 So. 2d 1049 (Fla. 5th DCA 1991).

                   b.     An affidavit asserted that a detective had been contacted by two postal inspectors, who stated that a pornographic videotape had been recovered from another postal employee. According to the affidavit the film involved the defendant and a female, who may have been underage. A label on the videotape had the date May 6, 1991, which was sixteen months prior to the date on which the affidavit was being submitted. From that label, the detective concluded that the things on the film must have occurred on May 6, 1991 and given the nature of the activity, established probable cause that the defendant had committed lewd and lascivious acts on a child under sixteen. A warrant was issued and executed on September 25, 1992. The defendant's motion to suppress was denied. At the hearing the detective testified that based on his experience, the defendant was the type who would retain his pornographic contraband. On that basis the court felt that the material was likely to be in the defendant's home. On appeal the court reversed. In this case the officer who submitted the affidavit had no information before him as to when the events on the tape actually occurred nor did he have any indication that there was a continuing pattern of criminal activity. Haworth v. State, 637 So. 2d 267 (Fla. 2d DCA 1994).

                  c.     Circumstances were sufficient to show reliability of the officer and to establish the "probability of criminal activity" at defendant's residence even despite absence of a post-buy search of the informant where the supporting affidavit showed: the officer conducted a pre-buy search of the informant; the officer gave the informant money; the officer watched the informant constantly as the informant walked up to, entered, and exited the defendant's residence; and the officer received the drugs that were purchased directly from the informant. Clark v. State, 635 So. 2d 1010 (Fla. 1st DCA 1994).

                  d.     A month and half before the execution of an affidavit an anonymous tipster called the sheriff's department and stated that cocaine and marijuana were being sold at a specified address. It was the defendant's address. The tipster also gave the name of the individual working with the defendant. About two weeks, and again, one week before the execution of the affidavit a sheriff's detective found drug contraband in the trash can on the curb in front of the defendant's house. The can also contained papers with the defendant's and the associate's names on them. A records checked showed that the defendant had previously been arrested for possession of marijuana. This was the information in an affidavit. The trial judge granted a motion to suppress. On appeal the court reversed and ruled that the affidavit was sufficient to establish "'a fair probability that contraband or evidence of a crime'" would be found at the location. "The fact that marijuana and cannabis seeds were found on two separate occasions within one month's time suggests a continuing violation of the drug laws and indicates a 'fair probability' that marijuana or cannabis would be found in the house." State v. Stevenson, 707 So. 2d 902 (Fla. 2d DCA 1998).

                  e.     It was not necessary for police to continuously monitor the garbage to establish that nothing was disturbed. State v. Stevenson, 707 So. 2d 902 (Fla. 2d DCA 1998).

B.     Were there any significant defects in the warrant? Clapsaddle v. State, 545 So. 2d 946 (Fla. 2d DCA 1989); Sands v. State, 542 So. 2d 436 (Fla. 2d DCA 1989); State v. Martin, 539 So. 2d 577 (Fla. 5th DCA 1989).  (Back)

          1.    The affidavit need not be attached to a warrant, but a defective warrant can be cured by a valid affidavit referenced in the warrant and attached to it. State v. Gayle, 573 So. 2d 968 (Fla. 5th DCA 1991).

          2.    The burden is on the state to show the validity of the warrantless seizure. Powell v. State, 649 So. 2d 888 (Fla. 2d DCA 1995).

          3.    Examples of problems with warrant.  (Back)

                  a.     Pursuant to §933.18(8), which provides that a search warrant may be issued for a private dwelling where "[i]t is in part used for some business purpose such as a store, shop, saloon, restaurant, hotel, or boardinghouse, or lodging house," a warrant was properly issued based on an affidavit establishing that a private dwelling was used for production and sale of video tapes even though the business only shipped obscene materials outside of the state of Florida. State v. Johnson, 605 So. 2d 545 (Fla. 2d DCA 1992).

                  b.     The warrant directed that the officers search for and seize "documents recording the extension of credit to Haya Bigloo." It did not meet the particularity requirement of Art. I, section 12. The warrant should have been sufficiently specific so that any document described in the warrant would be readily recognizable. Nothing should be left to the discretion of the executing officers. Polakoff v. State, 586 So. 2d 385 (Fla. 5th DCA 1991).

                  c.     § 933.02(2)(a) permits issuance of a search warrant, " '[w]hen any property shall have been used as a means to commit any crime.'" Subsection 3 authorizes a warrant "when 'any property constitutes evidence relevant to proving that a felony has been committed.'" "Thus, property used to commit any crime - whether felony or misdemeanor - may be seized under a warrant; while property merely constituting relevant evidence of a crime may be seized only if the suspected crime is a felony." In this case, the warrant authorized officers to seize a variety of materials from a business including books, tapes, television sets, and video tape machines. The seizure was not made based on the theory that these materials constituted violations of the obscenity law, but rather based on the claim that they were involved in the commission of lewd acts in certain booths on the premises. On appeal the court found that the seizure was unlawful because there was no felony involved and the "expressive materials are incapable of being used to commit the crime of lewdness." Thus, the warrant was not consistent with the statute. Bordo, Inc. v. State, 627 So. 2d 561 (Fla. 4th DCA 1993).

                  d.     The warrant authorized seizure of "fiber ... of forensic comparison value." This was a murder case. Pursuant to the warrant, officers seized unstained clothing. The court found that because of the nature of the case the warrant was sufficient to authorize such a seizure. Johnson v. State, 660 So. 2d 637 (Fla. 1995).

                  e.     The warrant authorized seizure "of blood-stained clothing and 'hair, fiber, tissue, or any other items of forensic comparison value.'" The defendant argued that all evidence seized pursuant to this warrant should have been suppressed because the warrant failed to identify the objects to be seized with particularly. On appeal the court held that, even though the language in the warrant, "any other items," might be to broad, "the remainder of the warrant would not thereby be considered invalid." The language concerning fiber was sufficiently broad to allow seizure of unstained clothing. Johnson v. State, 660 So. 2d 637, 643-644 (Fla. 1995).

                  f.     The defendant argued that the warrant authorizing seizure of fiber evidence, was invalid because the affidavit had made no mention that fibers had been gathered at the scene of the crime. On appeal the court disagreed. "As a general rule, American courts have permitted a warrant to include some items not specifically addressed in the affidavit if the overall circumstances of the crime are sufficiently established and the items added are reasonably likely to have evidentiary value with regard to the type of crime." This was a murder case and there was probable cause to believe that the defendant had committed the murder. Fiber evidence is common in a murder investigation, therefore, it was proper to include it in the search warrant. Johnson v. State, 660 So. 2d 637, 644 (Fla. 1995).

                  g.     The trial judge found that the warrant was invalid because it relied on the affidavit to establish probable cause, but it did not incorporate the affidavit by reference. On appeal the court reversed because there was ample evidence to establish that the affidavit was physically attached to the warrant. The affidavit established probable cause. [See the case for statement of the facts that form the basis for probable cause.] State v. Howard, 670 So. 2d 1004 (Fla. 2d DCA 1996).

                  h.     When the officers arrived to execute the search warrant one of them noticed that there was an error in the warrant. It described the subject premises as being north of a complex with the address "6501" and south of a complex with the address "6541". In fact "6501" was to the south and "6541" was to the north. An officer changed the warrant to correct those locations. On appeal the court ruled that the officer had no authority to alter the warrant, but even in the absence of those corrections the warrant was sufficient to identify the premises. Thus, a motion to suppress was properly denied. Swain v. State, 670 So. 2d 186 (Fla. 3d DCA 1996).

                  i.     In a murder case an affidavit for search warrant was filed stating only that an eyewitness to the crime identified the defendant as the perpetrator and described his clothes and that the defendant's girlfriend pointed out the defendant's clothing to the affiant and the clothing matched the eyewitness's description. When the warrant was issued it authorized the police to search for "'the clothing Joseph Nahume Green, Jr. was wearing the evening of the 8th day of December, 1992, the weapon used in the murder of Judith Miscalley and other evidence related to the fatal shooting.'" The Court found that this was too broad as to the clothing. As to the particularly requirement the Court said: "While this requirement must be given a reasonable interpretation consistent with the character of the property sought ... when the purpose of the search is to find specific property, the warrant should particularly describe this property in order to preclude the possibility of the police seizing any other." In this case there was nothing to narrow the scope of the search once the officer's arrived at the premises. "Given the description of the clothing in the warrant, it was not possible for an officer to look at this warrant and decide with reasonable certainty which articles of clothing the officer was empowered to seize. This is not a case in which a broad description is permissible because the items seized are unique or otherwise distinguishable. Further, it is not relevant to this analysis that the officer who actually executed the warrant had information not contained in the warrant." Green v. State, 688 So. 2d 301, 305 (Fla. 1997).

                  j.     The defendant argued that the search was invalid because it contained false information and it omitted other information. On appeal, the court agreed and explained the test and standards that apply. “If an affidavit for search warrant contains intentional false statements or statements made with reckless disregard for the truth, the trial court must excise the false material and consider whether the affidavit's remaining content is sufficient to establish probable cause. See Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); Terry v. State, 668 So.2d 954, 958 (Fla.1996). This rule contains two components. First, the trial court must determine whether the affidavit contains an intentional false statement or a statement made in reckless disregard for the truth. Mere neglect or statements made by innocent mistake are insufficient. See Franks, 438 U.S. at 171, 98 S.Ct. 2674. Second, if the court finds the police acted deceptively, the court must excise the erroneous material and determine whether the remaining allegations in the affidavit support probable cause. See id. at 171-72, 98 S.Ct. 2674. If the remaining statements are sufficient to establish probable cause, the false statement will not invalidate the resulting search warrant. See Terry, 668 So.2d at 958. If, however, the false statement is necessary to establish probable cause, the search warrant must be voided and the evidence seized as a result of the search excluded. See id. (citing Franks, 438 U.S. at 156, 98 S.Ct. 2674).... Based on the patent differences in physical characteristics of the three persons involved and the crucial importance of this information in establishing probable cause, we find at least a patent and reckless disregard for the truth in this misstatement.” Thus, that information should have been redacted. The Court also found that descriptions of what the witness heard coming from the park were false and should have been redacted. “Omissions made with intent to deceive or with reckless disregard must also be considered in considering a motion to suppress. See Johnson v. State, 660 So.2d 648, 656 (Fla.1995). The only difference between omitted facts and misstated facts is that in the case of omitted facts, the reviewing court must first determine whether the omitted facts, if added to the affidavit, would have defeated probable cause. See id. The reviewing court must further find that the omission resulted from intentional or reckless police conduct that amounts to deception. See id. ‘When a material fact is omitted from the affidavit filed in support of the probable cause determination, such fact constitutes a material omission if a substantial possibility exists that the omission would have altered a reasonable magistrate's probable cause determination.’ State v. Van Pieterson, 550 So.2d 1162, 1164 (Fla. 1st DCA 1989). Here, several important and relevant facts were omitted which, when considered together with the other errors, appear to indicate a lack of probable cause.” Thorp v. State, 777 So. 2d 385 (Fla. 2000).

                  k.     The trial judge denied a motion to suppress evidence secured pursuant to search warrant. “[T]he affiant averred that he is investigating several burglaries of storage buildings in Mulberry. With regard to King, the affiant set forth the following: ‘On 1/18/97 a burglary was reported to the PCSO [Polk County Sheriff's Office] where a storage building was entered and property was removed. The suspect(s) had cut the lock with bolt-cutters and replaced the victim's padlock with an inexpensive model. The suspect was observed by witness Jim Cannon inside the victim's storage building on two separate occasions and has positively identified Daniel S. King as the perpetrator. Witness further stated that King was driving a light blue Ford Granada. The witness stated that there was a piece of paper on the back of the vehicle indicating that the tag had been lost.’ After explaining how he confirmed King's address and observed the blue Ford Granada at that address, the affiant stated, ‘Further investigation revealed that King is tenant of record of storage building # 113 at Southside U-Store-It on Ventura Drive in Lakeland. The manager of Southside U-Store-It advised that she has received two anonymous phone calls implicating King in burglaries of storage buildings.’ The affiant concluded the statement by asserting that based on these facts there is probable cause to believe that the property taken in the Mulberry burglaries may be located in King's home or in his storage building.” On appeal, the court reversed the denial of a motion to suppress. “[T]here was not a substantial basis for a conclusion that probable cause existed to believe that the stolen property would be found at the places to be searched.” King v. State, 779 So. 2d 385 (Fla. 2d DCA 2000).

                  l.     The court also rejected any suggestion that the search could be sustained based on the good faith exception to the exclusionary. “That exception does not apply where an affidavit is ‘ 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.' ‘Id. at 923, 104 S.Ct. 3405, citing Brown v. Illinois, 422 U.S. 590, 610-611, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (Powell, J., concurring in part). In light of the fact that the search warrant application in this case provided no basis whatsoever for concluding that the stolen property would be found at King's residence or storage building, we cannot say that the officers executing the warrant acted in good faith in doing so” King v. State, 779 So. 2d 385 (Fla. 2d DCA 2000).

          4.    Scrivener's error.  (Back)

                  a.     The warrant incorrectly named the owner of the home as "Donald McNeal" when the home was rented by "Donna McNeal." "This type of scrivener's error does not render a search warrant invalid." Power v. State, 605 So. 2d 856 (Fla. 1992).

          5.    Staleness.  (Back)

                  a.     Staleness may result from a delay between the occurrence of the facts that constituted the basis for probable cause and the actual issuance of the warrant or from delay between the issuance and execution of the warrant. Each time period must be considered separately. State v. Lewis, 605 So. 2d 590 (Fla. 2d DCA 1992).

                  b.     In this case, eight days elapsed between the issuance and execution of the warrant. The court ruled that the eight day delay was insufficient to establish staleness because §933.05 requires a warrant to be executed and returned within ten days after issuance. A warrant only becomes stale due to delays in execution if it is not executed within ten days of issuance. State v. Lewis, 605 So. 2d 590 (Fla. 2d DCA 1992).

C.    Was the warrant properly executed? State v. Weber, 548 So. 2d 846 (Fla. 3d DCA 1989); Richardson v. State, 547 So. 2d 323 (Fla. 5th DCA 1989).  (Back)

          1.    General rules.  (Back)

                  a.     Failure to leave a copy of warrant does not invalidate the search in the absence of prejudice. State v. Gayle, 573 So. 2d 968 (Fla. 5th DCA 1991).

                  b.     § 933.08 provides that a search warrant "be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer requiring it, said officer being present and acting in its execution." This case involved Medicaid fraud by a doctor. A warrant for the defendant's office was issued directing various police agencies to conduct a search of the defendant's officer including any officer of the City of Fort Lauderdale. In executing the warrant one officer of that agency and six employees of the Auditor General's office went to the office. The officer provided a copy of the warrant to the defendant's receptionist. The officer waited in the reception area while the six auditors conducted the search and seized documents. After the search was done the officer signed the inventory sheet, which was prepared by the auditors. He signed it at their request and without checking its accuracy. The officer did not know what many of the seized documents were and would not recognize them. The trial judge denied a motion to suppress. On appeal the court reversed because the aforementioned statute must be strictly construed and while an authorized officer can be assisted by a civilian in cases where the officer does not have sufficient knowledge of the material being sought, the officer cannot be displaced by the civilian as was done in this case. The court relied on the decision in Hesselrode v. State, 369 So. 2d 348 (Fla. 2d DCA 1979), cert. denied, 381 So. 2d 766 (Fla. 1980), wherein the Court "invalidated a search conducted by police officers from one jurisdiction where the warrant was directed to officials of another jurisdiction, even though officers of the designated jurisdiction were present during the search." This requirement provides important protection to citizens. Morris v. State, 622 So. 2d 67 (Fla. 4th DCA 1993).

                  c.     A warrant for the defendant's blood was issued to a Duval County officer. The defendant was transported by a Harris County officer to the hospital. The Harris County officer was inside the room when the blood was drawn and took charge of it. He signed the inventory receipt. The Duval County officer drove to the hospital in a separate car and sat outside the room. This case involved a purely statutory question. § 933.08 provides: "The search warrant shall in all cases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer requiring it, said officer being present and acting in its execution." In regard to the statute the court said: "We read the statute to allow the recruitment, by an authorized officer, of assistance in performing search related tasks that are numerous, repetitive or burdensome. The statute does not endorse the vacation of basic duties by the authorized officer." Here the authorized officer did nothing other than to be present outside the room when the blood was drawn. "Mere physical proximity is not sufficient to satisfy the presence and activity requirement of the statute." The assignment, in this case, of the reading, recording, and custodial duties certainly makes the execution suspect, if not out right invalid." The ultimately fatal factor was the authorized officers absence from the room where the blood was drawn. State v. Vargas, 667 So. 2d 175 (Fla. 1995)

                  d.     Officers were investigating an arson. The Defendant was a suspect. They secured a search warrant for his home. “The warrant and the affidavit ... authoriz[ed] a search for ‘certain evidence relating to Arson and Burglary, to wit: Clothing, shoes, and other physical evidence relating to the Crime [sic] of Arson and Burglary.’ During the execution of the search warrant, officers seized a drill, a drill bit, an American flag, rolled coins and money wrappers, bolt cutters, a pry tool, black fingerless gloves, a red tool box, a batting glove, and a yellow legal pad with writing on it.” The Defendant moved to suppress this evidence based on the grounds that the warrant did not describe the material that was the subject of the search with particularity. The trial judge denied the motion. “We agree with his argument in this appeal that the trial court erred in denying the motion to suppress because the search warrant failed to describe the items to be seized with particularity. In fact, the warrant very nearly authorized a general search of Ingraham’s apartment. ‘General searches have long been deemed to violate fundamental rights.’ Marron v. United States, 275 U.S. 192, 195, 48 S.Ct. 74, 72 L.Ed. 231 (1927).... The fact that the officers may have known that they were looking for items of a particular character does not cure a search warrant that is overly broad. ‘[I]t is not relevant to this analysis [of whether a search warrant meets the particularity requirement] that the officer who actually executed the warrant had information not contained in the warrant. As we found in Carlton, the language of the warrant should not be scrutinized or compared to the knowledge of the officer seeking the warrant.’ Green, 688 So.2d at 306 (citing Carlton v. State, 449 So.2d 250 (Fla.1984)).” Ingraham v. State, 811 So. 2d 770 (Fla. 2d DCA 2002).

          2.    Did the knock and announce law (§933.09) apply?   (Back)

                  a.     Authorities which may be of value: Benefield v. State, 160 So. 2d 706 (Fla 1964);Holloway v. State, 718 So. 2d 1281 (Fla. 2d DCA 1998); State v. ElkHill, 715 So. 2d 327 (Fla. 2d DCA 1998); Roundtree v. State, 544 So. 2d 1101 (Fla. 1st DCA 1989); State v. Avendano, 540 So. 2d 920 (Fla. 2d DCA 1989); State v. Fernandez, 538 So. 2d 899 (Fla. 3d DCA 1989).

                  b.     When is forcible unannounced entry proper?  (Back)

                         (1)    The person inside already knows of the officer's authority and purpose.

                         (2)    The officers are justified in the belief that someone inside is in imminent peril of bodily harm.

                         (3)    The officers' peril would be increased if they demanded entrance and stated their purpose.

                         (4)    The people inside are aware of the presence of someone outside and are engaged in activities which justify the officers in the belief that an escape or destruction of evidence is being attempted.

                         State v. Bamber, 630 So. 2d 1048 (Fla. 1994).

                  c.     The Court cited Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed. 2d 615 (1997), where the Court held that “‘no-knock’ entries are justified when police officers have a ‘reasonable suspicion’ that knocking and announcing their presence before entering would be ‘dangerous or futile, or ... inhibit the effective investigation of the crime.’” This case focused on the question of whether an otherwise valid entry without knocking, would be made invalid by the fact that property was destroyed. The Court ruled that no higher standard is required even if the entry results in the destruction of property. United States v. Ramirez, 523 U.S. 65, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998).

                  d.     Officers were not required to comply where they walked past the defendant and others in the yard and through the open door of the involved residence. It only applies where the officer desires to effect a forcible entry. State v. Brown, 564 So. 2d 136 (Fla. 2d DCA 1990).

                  e.     Officers entered without complying when they saw a man at the screen door who disappeared as they arrived. The entry was improper because the state failed to introduce sufficient evidence that the deputies had a reasonable basis to fear that a gun might be used by the occupants of the house or that the man at the door or anyone else would destroy evidence or become violent. State v. Robinson, 565 So. 2d 730 (Fla. 2d DCA 1990).

                 f.     "[I]n the absence of express statutory authorization no-knock search warrants are without legal effect in Florida." State v. Bamber, 630 So. 2d 1048 (Fla. 1994).

                 g.     The requirements of § 939.09 only apply to forcible entries. They do not apply to entry by deception. "Because the officers had gained peaceable entry, albeit by deception, they were not required to comply with the 'knock and announce' provision of section 933.09" State v. Herstone, 633 So. 2d 110 (Fla. 2d DCA 1994).

                  h.     Forcible entry through a screen door without actually entering the home before knocking was not a violation of the statute. It is only actual entry that constitutes a violation. This did not constitute a violation of the statute. Albritton v. State, 634 So. 2d 1114 (Fla. 1st DCA 1994).

                  i.     For a case holding that the state established a reasonable basis for fear that a weapon might be used to justify a no?knock entry see State v. Price, 564 So. 2d 1239 (Fla. 5th DCA 1990).

                  j.     It was proper for an officer to enter a house to serve a warrant without knocking and announcing where the officer had been informed that the suspect had used a gun or knife to rape several woman, had committed armed robbery of a deputy, was a black belt in karate, and had a gun. Power v. State, 605 So. 2d 856 (Fla. 1992).

                  k.     "The law is ... well settled that a nonconsensual police entry into private premises to effect an arrest therein is unlawful if, subject to certain exceptions, the police fail to announce their authority and purpose prior to entering the premises." An entry is consensual where undercover officers are permitted into the premises. The fact that they used deception or trick to gain entry does not change that result. When the undercover officers leave purportedly for the purpose of doing something in connection with the drug deal and they send in other officers to make the arrest, the other officers need not announce their presents and authority before entry. They have implied consent even though the undercover officers do not return with them. Fidalgo v. State, 659 So. 2d 290 (Fla. 3d DCA 1994).

                  l.     A search may be constitutionally defective if officers enter the dwelling without announcing, but circumstances may show that unannounced entry was reasonable. The Court named three examples: (1) an escaped prisoner has entered the premises; (2) announcement would endanger the officer; and (3) there is reason to believe that evidence will be destroyed. Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995).

                  m.     § 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).

                  n.     Officers went to a residence to execute an arrest warrant for the defendant. They could see him through the front screen door. One officer went to the back door of the house and entered without knocking or announcing his presence when he saw the defendant get up from the sofa and walk toward the front door. An officer entered the front door of the residence without knocking or announcing his presence, arrested the defendant, and read Miranda. Drugs were found in open view. The trial judge denied a motion to suppress. On appeal the court reversed. "[O]pening an unlocked screen door is a 'breaking' which invokes the knock and announce requirements for execution of a search warrant." None of the exceptions applied in this case. W.R. v. State, 688 So. 2d 1000 (Fla. 2d DCA 1997).

                  o.     Small amount of drugs in dwelling. (Back)

                         (1)    Pursuant to § 933.09 (the no-knock statute) the State argued that the Court should adopt a blanket approach, as set forth in Armenteros v. State, 554 So. 2d 574 (Fla. 3d DCA 1989) and State v. Bell, 564 So. 2d 1235 (Fla. 5th DCA 1990), that forcible entry is proper "any time a small quantity of drugs is believed to be present in a residence with standard plumbing - regardless of immediacy of destruction." The Court rejected this position: "We reaffirm our conclusion in Earman that police may engage in a no-knock search of a residence where officers have 'reasonable grounds to believe the [contraband] within the house would be immediately destroyed if they announce their presence,' Earman, 265 So. 2d at 697. We find the particularity approach applied by this Court in Earman and Kelly and adopted by a majority of courts preferable to Clarke's blanket approach for assessing the reasonableness of an officer's belief. Accordingly, we hold that an officer's belief in the immediate destruction of evidence must be based on particular circumstances existing at the time of entry and must be grounded on something more than his or her generalized knowledge as a police officer and the presence of a small quantity of disposable contraband in a home with standard plumbing. In short, forcible entry is lawful only under exceptional circumstances, where no reasonable alternative is available. State v. Bamber, 630 So. 2d 1048 (Fla. 1994). [This decision effectively overrules State v. Bell, 564 So. 2d 1235 (Fla. 5th DCA 1990); Armenteros v.State, 554 So. 2d 574 (Fla. 3d DCA 1989); State v. Price, 564 So. 2d 1239 (Fla. 5th DCA 1990); State v. Thomas, 604 So. 2d 1277 (Fla. 5th DCA 1992); Napoli v. State, 596 So. 2d 782 (Fla. 1st DCA 1992) and State v. Delasierra, 614 So. 2d 564 (Fla. 3d DCA 1993) and affirms State v. Bamber, 592 So. 2d 1129 (Fla. 2d DCA 1991).]

          3.    Persons and property on the premises.   (Back)

                  a.     The Court held that officers executing a search warrant for a bar and its bartender did not have authority to search all of the bar’s patrons. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed. 210 (1948). See also Wyoming v. Houghton, 524 U.S. 983, 119 S.Ct. 31, 141 L.Ed.2d 791 (1999)/

                  b.     A car was partially on the road and partially in the yard of the place which was the subject of a warrant. The court held that the car was in the curtilage and was subject to search pursuant to a warrant. "Where a vehicle is substantially within the curtilage of premises described in the warrant, all other things being equal, a search of that vehicle is appropriate and authorized."State v. Reaves, 627 So. 2d 54 (Fla. 4th DCA 1993).

                  c.     Detectives secured a search warrant for an apartment. Just before they were going to execute the warrant, they saw the defendant and another person leave the premises. They seized the two men and took them back to the apartment and executed the warrant. The defendant was also searched. The trial judge denied a motion to suppress on the grounds that the defendant was reasonably connected to the premises. On appeal the Court reversed. "A warrant only authorizes a search of persons on the described property if they are reasonably suspected of being involved in the illegal activity which is the subject of the warrant.... A visitor's mere presence on the premises authorized to be searched is insufficient evidence of criminal conduct to justify a search of his person." The officer had no reasonable suspicion in this case. Calhoun v. State, 627 So. 2d 60 (Fla. 2d DCA 1993).

                  d.     "[A] person's mere presence at a residence during the execution of a search warrant does not justify a search of that person absent the discovery of something which creates reasonable cause to believe that the person is involved in the criminal activity." In this case the defendant pulled into the parking lot while officers were executing a search warrant in the apartment. An officer recognized him as being a resident of the apartment being searched. The defendant was escorted inside. A search of his person revealed cocaine. A motion to suppress was denied. On appeal the court reversed. Stahl v. State, 634 So. 2d 258 (Fla. 2d DCA 1994).

                  e.     Where the search warrant authorized a search of those on the premises connected with the illegal activity a search of a person is invalid where there is no evidence that the person was involved in illegal activity except for his presence. The premises was a pool hall. Smalls v. State, 581 So. 2d 1003 (Fla. 2d DCA 1991).

                  f.     In another case a pat down of persons in the pool hall was upheld because the officers had information that the people on the premises were armed. During that pat down an object was touched which the officer reasonably believed was a device used to smoke drugs which gave the officer grounds for the search. Allen v. State, 585 So. 2d 366 (Fla. 2d DCA 1991).

                  g.     The court found a search of a passenger in a vehicle which drove into the drive-way of a house where a warrant was being executed based on these principles: (1) "[t]he search-all-persons-present warrant is unobjectionable if the evidence tendered to the issuing magistrate supports the conclusion that it is probable anyone in the described place when the warrant is executed is involved in the criminal activity in such a way as to have evidence of the criminal activity on his person;" (2) a search of those on the premises is reasonable if there are reasonable grounds to believe that they are connected with the unlawful activity which is the subject of the search; (3) the circumstances surrounding the defendant's presence at this location did not support a reasonable suspicion that the defendant was engaged in unlawful activities; (4) mere presence is insufficient; (5) the defendant was not located within the premises described in the warrant because the warrant did not authorize a search of all persons within the curtilage. Bergeron v. State, 583 So. 2d 790 (Fla. 2d DCA 1991).

                  h.     In order to detain anyone located on the premises, including the curtilage, listed in a search warrant which authorizes the detention of persons found on the premises it is not necessary for officers to have reasonable suspicion to believe the individuals are involved in crime. Officers may detain all such persons for investigation, but after the initial detention "the officers must discover something during that temporary detention that gives them reasonable cause to proceed further and search the persons detained." The Court drew a clear distinction between the power to detain and the power to search. This decision was based in part on Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), where the Court held that it was proper to detain residents and occupants of premises which are the subject of a search warrant while the warrant is executed. Belvin v. State, 585 So. 2d 1103 (Fla. 2d DCA 1991).

                  i.     Where the warrant authorized searches of vehicles located on the "curtilage" it was lawful for officers to search the car of a visitor which was parked in the driveway of the residence. State v. Booream, 560 So. 2d 1303 (Fla. 2d DCA 1990).

                  j.     It was improper to search a person who walked into a house while it was being searched pursuant to a warrant, where there was no other evidence of criminal activity or knowledge of such activity. Knight v. State, 566 So. 2d 8 (Fla. 1st DCA 1990).

                  k.     Officers were executing a search warrant. As they approached they saw the defendant on the stairs and searched him. Drugs were discovered. The court upheld the search for the following reasons: (1) the deputy saw the defendant seated directly in front of the apartment to be searched, within two to six feet of the door; (2) when the defendant gave his name the deputy recognized it as a name provided by the informant as being a person who routinely sold crack cocaine from the apartment; (3) when the deputy announced that they were there to execute a search warrant the defendant began to behave as if he were going to run; (4) the deputy believed based on information that drugs were sometime sold on the stairs that were included in the search authorized by the warrant. When executing a search warrant that authorizes the search of persons on the premises officers may search such persons only if "there are reasonable grounds to believe 'that such persons are engaged in or connected with the unlawful activities that are the subject-matter of the search.'" Stokes v. State, 604 So. 2d 836 (Fla. 1st DCA 1992).

                  l.     An informant made two controlled buys at the involved residence. The informant told the police that a female and a man called "Sweet Pea" were present when the buy was made. The informant did not give the name of the individual that sold him the drugs. Police learned that the house was listed in a woman's name. A maroon Cadillac was seen in the carport by the informant and a police officer during one of the buys. The officers did not determine the owner of the vehicle and they did not know "Sweet Pea's" real identity. They secured a search warrant to search the premises, the yard, and the curtilage "and any and all outbuildings and vehicles thereon." The police searched the residence and found a woman and her son present. The woman told the officers that the defendant lived with her at the house. About 20 minutes after the search began, a maroon Cadillac driven by the defendant pulled into the carport. When the car started to back out an officer compelled the driver to stop. The officer thought he saw the defendant put something under the seat. The police got the defendant from the vehicle. A search of his person revealed nothing, but a search of the vehicle revealed cocaine, cannabis and a gun. The trial judge suppressed all the evidence because the police only had a hunch that the defendant was "Sweet Pea" and this did not provide a sufficient nexus between the vehicle within the curtilage and the alleged illegal activity. On appeal the court reversed because: (1) the officers had a reasonable belief that the defendant was involved in the illegal activity; (2) police properly detained the defendant when he entered the premises; (3) the search warrant gave authority to search any vehicle within the curtilage and there did not have to be a nexus between the vehicle and the alleged illegal activity. State v. Freeman, 673 So. 2d 139 (Fla. 5th DCA 1996).

                  m.     In Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), the Court held that three different interests justify limited detention of occupants during a search of premises pursuant to a search warrant: (1) prevention of flight should incriminating evidence be found; (2) minimization of risk of harm to the officers and the occupants; and (3) orderly completion of the search. State v. Cromatie, 668 So. 2d 1075 (Fla. 2d DCA 1996).

                  n.     Officers were looking for an individual in a certain house. They had a warrant for his arrest. They detained the people long enough to determine whether the armed felon was present. But, then, after the officers made that determination they remained in the house and kept the occupants there to conduct other investigations irrelevant to the case involving the subject of the warrant. It was reasonable to detain the occupants for officer safety until it was determined that the felon was not present, but thereafter it was unreasonable. Deleon v. State, 700 So. 2d 718 (Fla. 2d DCA 1997).

                  o.     Officers had a right to enter the defendant’s motel room based on a warrant for a co-occupant and any evidence discovered as to the defendant was admissible. State v. Wesley, 749 So. 2d 592 (Fla. 5th DCA 2000).

                  p.     The defendant was in a vehicle on the curtilage of property being search pursuant to warrant and officers required that the defendant exit and patted him down as a a matter of routine. The officers discovered drugs on his person. “We agree with the trial court's conclusion that the vehicle occupied by Harris was on the curtilage of the property and that as a result, Harris could be detained during the execution of the search warrant. A search warrant search founded on probable cause carries with it the limited authority to detain occupants of the premises while the search is conducted. Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). Consequently, the officers had the right to detain the occupants found on the property being searched during the execution of the search warrant in order to minimize any risk of harm to the officers or the occupants of the property. Id. (citations omitted).Having concluded that Harris' detention was proper, we must now determine whether the officers had any legal basis to justify the search of his person. The search warrant authorized a search of persons present on the premises ‘reasonably believed to be connected with the said illegal activity, for the property described in [the] warrant....’ In other words, Harris could be searched if there was some reasonable connection between him and the illegal activity that had allegedly occurred at the property being searched. Smalls v. State, 581 So.2d 1003, 1004 (Fla. 2d DCA 1991). The record before us contains no such evidence. To the contrary, the evidence suggests nothing more than Harris just happened to be there when the search warrant was executed. The mere presence of a visitor on premises authorized to be searched is insufficient evidence connecting him with criminal conduct to justify a search of his person. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979).” Harris v. State, 790 So. 2d 1246 (Fla. 5th DCA 2001).

                  q.     A search warrant did not authorize the search of a person on the premises where there was no reason to believe the residence belonged to that person or that he was involved in the criminal activity. D.M.D. v. State, 798 So. 2d 851 (Fla. 1st DCA 2001).

          4.    Scope of search.  (Back)

                  a.     Officers had a search warrant for specific pornographic films. In executing the warrant they brought video equipment and viewed many films. They seized all copies of the films in the warrant, many films they viewed and decided were obscene, and a variety of office equipment. On appeal the court held that the warrant was improperly executed and all the seized evidence should have been suppressed. "'When law enforcement officers grossly exceed the scope of a search warrant in seizing property, the particularity requirement is undermined and a valid warrant is transformed into a general warrant thereby requiring suppression of all evidence seized under the warrant.'" This principle applies especially to material presumptively protected by the First Amendment. State v. Johnson, 605 So. 2d 545 (Fla. 2d DCA 1992).

                  b.     An officer executed a search warrant for a single family dwelling. The target of the search lived in the house and in one of the bedrooms. The defendant lived in another bedroom where officers found evidence. The defendant argued on a motion to suppress that she owned the house and rented it to the target of the search. She claimed, however, that she retained one bedroom for her separate residence. The trial judge suppressed the evidence found in her room on the grounds that the warrant was executed in an overbroad matter because the officers knew or should have known that the defendant’s bedroom was a separate dwelling. On appeal the court disagreed. The case turned on the ruling in Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987). There the Court held “that, when officers, in executing the search warrant, know or should have known, that the premises described in the warrant actually constitute two separate dwellings, only the dwelling of the person being investigated pursuant to the warrant should be searched.” In this case the court pointed out, however, that in Garrison, two separate apartments obviously existed on the third floor of the involved house. Here however, there was nothing to alert the officers that the bedroom was a separate dwelling. “Nothing in Garrison suggests that an officer must curtail his search of a single family dwelling based solely upon the probability that a housemate of the person under investigation had a reasonable expectation of privacy in his or her bedroom area.” State v. McKewen, 710 So. 2d 638 (Fla. 5th DCA 1998).

                  c.     Officers had a warrant to search for drugs, paraphernalia, and serialized money used in controlled drug buys. When the officers arrived the defendant cooperated by taking the officers to a location where they found drugs, but the officers continued their search and discovered a cooler. They opened it and found more drugs. They also found photo albums with what appeared to be photos of nude teenage girls. They also found other similar photos. Those photos formed the basis for a criminal charge. The trial court suppressed the photos because the warrant was a pretext for a search for child pornography, the scope of the search exceeded the warrant, and the duration of the search was extended to search for the nude photos. On appeal the court reversed. The officers lawfully entered the premises. “Police officers are allowed to search the entire premises specified in a warrant if the areas and containers searched might reasonably hold the object of the search.” The cooperation of the individual did not bar the police from continuing the search. The photos were found in plain view. State v. Ridgway, 718 So. 2d 318 (Fla. 2d DCA 1998).

          5.    Curtilage.  (Back)

                  a.     "[I]n United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), [the Court] held that for purposes of determining whether an area is part of the "curtilage," and, hence, entitled to Fourth Amendment protection, the fact of enclosure is only one of four factors to be considered. The court described the four?factor test: (1) the proximity of the area claimed to be curtilage to the home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the uses to which the area is put; and (4) the steps taken by the resident to protect the area from observations by people passing by. Id. at 301, 107 S.Ct. at 1139?40. In discussing the relationship between fences and the extent of curtilage, the Court held that fencing configurations are important factors in defining the curtilage of a home, but the nearest fence surrounding a fenced house does not necessarily define the extent of curtilage. Id. at 301 n. 4, 107 S.Ct. at 1139 n. 4. Rather, the Court said, for purposes of determining Fourth Amendment protection, "the primary focus is whether the area in question harbors those intimate activities associated with domestic life and the privacies of the home. Id." State v. Hamilton, 660 So.2d 1038 (Fla. 1995) [This is dictum]

                  b.     Two officers received a tip that marijuana was growing in the defendant's backyard. The officers walked between the lawn of the residence and a wooded section of the property to a place where they could see the rear of the house. Using binoculars, the officers saw several marijuana plants on a picnic table on the lanai of the residence. The officers entered the area without a warrant or consent or any other exception to the warrant requirement and seized the plants. The trial judge denied a motion to suppress. On appeal the court reversed. In reaching this conclusion the court noted that the deputies did not enter the property illegally. "United States v. Dunn, 480 U.S. 294, 303-304, 107 S.Ct. 1134, 1141, 94 L.Ed.2d 326 (1987)(no constitutional violation occurred when officers crossed the defendant's perimeter fence in order to look into defendant's barn; government intrusion on an open field is not an unreasonable search proscribed by the Fourth Amendment)." In Dunn the officers used the information they got to secure a search warrant. Here the officers entered without a search warrant. That was unlawful because the lanai was within the curtilage and accordingly it was protected by the Fourth Amendment. In State v. Lewinson, 644 So.2d 137 (Fla. 2d DCA 1994), the court adopted this four part test established in Dunn to determine whether an area is within the curtilage: "(1) the distance between the home and the area; (2) whether the area is within an enclosure surrounding the house; (3) how the area is used; and (4) how the owner protects the area from the observation of others." In this case the lanai abutted the residence and was connected by a sliding glass door. The owners apparently used it for intimate activities like eating. "While the area is not enclosed, it cannot be easily observed." It is behind the house. The house is located on property that is bordered on one side and the back by woods and the other side by property belonging to the owner's mother. It was a constitutionally protected area. Abel v. State, 668 So. 2d 1121 (Fla. 2d DCA 1996).