Braham v. State, 97-02559

• Citation: 724 So.2d 592
• Decision Date: 20 November 1998
• Docket Number: No. 97-02559,97-02559
• Parties: Anthony Lavon BRAHAM, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

724 So.2d 592

Anthony Lavon BRAHAM, Appellant, v. STATE of Florida, Appellee.

No. 97-02559

District Court of Appeal of Florida, Second District.

November 20, 1998.

James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.

CAMPBELL, Judge.

In this "knock and announce" case, appellant challenges the denial of his motion to suppress cannabis and a firearm discovered during the execution of a search warrant at his mobile home in the early morning hours. The trial court viewed the video tape of the officers' entry and concluded that the totality of the circumstances justified a finding that this was not a "no-knock" case and that the motion to suppress was properly denied. We agree and affirm.

The facts reveal that on August 23, 1996, members of the special response unit arrived at appellant's very small trailer early in the morning, between 4 a.m. and 6 a.m. They drove up in several vehicles, exited the vehicles, and walked to the door. As they arrived at the door and before they knocked and announced, they heard the phone ringing, and no one was picking it up. They also heard someone moving around in the rear of the trailer. Sergeant Potorff then banged loudly on the door three or four times with his searchlight/flashlight. He announced as loudly as he could, "Glades County Sheriff's Office—Search Warrant." No one came to the door. Another officer who was present at the scene, Officer Bronson, testified that Sergeant Potorff then repeated the banging and the announcement. When no one answered the door, the team made forcible entry with a hooligan bar and a sledgehammer. While holding the door open to allow the other officers to enter, Potorff continued yelling, "Glades County Sheriff's Office— Search Warrant."

Potorff explained that the team made forcible entry because, despite the fact that they could hear someone moving around in the trailer, no one called out, "just a minute," no one picked up the phone, and no one came to the door. According to Potorff, they waited five to ten seconds before they made entry. The officers suspected that the phone call was from someone in the neighborhood warning the occupants of the officers' presence. Potorff testified that because of the officers' knowledge that appellant possessed a weapon inside the trailer, for officer safety, they made entry. On cross-examination, Potorff said that the officers believed that the occupants knew the officers were there, but simply did not come to the door.

Once inside, the officers found appellant standing in the kitchen. They also found forty-one bags of marijuana in the living room and a firearm in plain view on the entertainment center, which was also in the living room. Officer Bronson testified that it is standard procedure to secure a firearm during execution of a search warrant for the safety of all involved.

As a result of the search, appellant was charged by information with possession of cannabis over twenty grams (§ 893.13(6)(a), Fla. Stat. (1995)), possession of cannabis with intent to sell (§ 893.13(1)(a), Fla. Stat. (1995)), and possession of a firearm with the serial number removed (§ 790.27, Fla. Stat.(1995)).

Appellant moved to suppress the evidence and certain statements he had made, arguing that the officers had not waited long enough before they made forcible entry, and that this "no-knock" search tainted the evidence that was subsequently collected and the statements that he made. The court denied the motion to suppress, stating:

[G]iven the totality of the circumstances as portrayed on the video tape and the testimony of the witnesses, the officers were justified in concluding that admittance to the house was being refused by people who were moving about inside and had a reasonable opportunity to be aware of the presence of law enforcement officers. Given the force of the knocking and the volume of the announcement of a search warrant by Glades County Sheriff Office, the occupants could not reasonably have been unaware that there were law enforcement officers seeking admittance to the residence for a lawful purpose, that is, execution of a search warrant. The Court having concluded that based upon the testimony and the evidence, this was not a "no-knock" search for the reasons set forth above but was executed in accordance with F.S. 933.09 and F.S. 933.10.

We agree with the trial court that this was not a "no-knock" search, that given the totality of the circumstances the officers were justified in concluding that they were being denied admittance, and that the evidence that was discovered following the officers' forcible entry was properly admitted. A "no-knock" search occurs where officers, prior to executing a search warrant at a residence, do not knock and announce their presence before entering the residence. "No-knock" searches are generally disfavored except in certain enumerated exigent circumstances. See State v. Bamber, 630 So.2d 1048 (Fla.1994)

; Benefield v. State, 160 So.2d 706 (Fla.1964).

While the amount of time between the initial knock and announce and the subsequent entry was admittedly short, the trial judge, who had the benefit of viewing the videotape and hearing the volume of the banging and the announcement, concluded that the officers waited a sufficient amount of time to reasonably conclude that the occupants of the house were refusing them admittance. The record on appeal reveals no reason to disturb that finding.

A...