Burden v. State, s. AU-271
| Decision Date | 27 July 1984 |
| Docket Number | Nos. AU-271,AU-272,s. AU-271 |
| Citation | 455 So.2d 1066 |
| Parties | Marvin A. BURDEN, Appellant, v. STATE of Florida, Appellee. Robert C. DILLMAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Louis O. Frost, Public Defender, Jacksonville, for appellant Burden.
Janine Yunker, Asst. Public Defender, Jacksonville, for appellant Dillman.
Jim Smith, Atty. Gen., Tallahassee, and Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellees.
Appellants Burden and Dillman appeal the trial court's denial of their motions to suppress physical evidence seized pursuant to a search warrant. 1 They contend the warrant was executed in violation of section 933.09, Florida Statutes (1981), the "knock and announce" statute. We agree and reverse.
On February 24, 1983, appellants Burden and Dillman were arrested for possession of controlled substances after a search warrant was executed at their dwelling in Jacksonville. Prior to trial, appellants moved to suppress the physical evidence seized under the warrant, alleging the warrant was executed in violation of section 933.09, Florida Statutes (1981). At the suppression hearing, detective Toohey testified that he and other law enforcement officers executed the warrant; that the main entrance to the house was a small porch (measuring eight feet by four feet) that had been enclosed to make a protected foyer with a wooden louvered door on the exterior; that based on information provided by a confidential informant prior to executing the warrant, he understood "that was not the main entrance door, it was only an outside shelter door for this porch area" and that the main entrance door was inside the foyer; that the outside door to the foyer "was always closed" and had no doorknob but "only a hole where the doorknob would be installed"; and that the house was brick but the foyer was enclosed by wood. Toohey further testified that he approached the house and entered the unlocked exterior door; that, although he neither knocked on the foyer door nor announced his presence before opening it, he did intend to knock on the door inside the foyer and announce his presence as he believed his knock on the foyer door would not be heard from the inside; and that upon opening the foyer door, he discovered the interior door to be open and observed several people sitting on two couches directly in front of the foyer, who were as "surprised to see me as I was to see them"; and that he immediately announced himself as a police officer with a search warrant. Toohey explained that his intention "was to enter the foyer so that I could knock."
Burden and Dillman, as well as two other persons, testified that they were eating breakfast in a den in the back of the house when they noticed several cars drive up and that before anyone could reach the front room, or within thirty to forty-five seconds of the appearance of the cars, a police officer was "half-way through the house" before announcing his presence to serve a search warrant. During cross-examination of Dillman, the court asked:
The court, adopting Toohey's version of the execution of the warrant, denied appellants' motions to suppress upon the finding that defendants had no reasonable expectation of privacy in the foyer, "at least in the wintertime," and that the police made a "good faith attempt" in keeping with both the spirit and the letter of the "knock and announce" statute.
The state, citing Walden v. State, 397 So.2d 368 (Fla. 1st DCA 1981), concedes that for the present there is no good faith exception to the knock-and-announce rule in Florida, but urges this point to preserve its right to appellate review of that issue. We adhere to Walden and decline to fashion such an exception.
Section 933.09 provides:
The officer may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if after due notice of his authority and purpose he is refused admittance to said house or access to anything therein. (Emphasis added.)
This statute requires that before an officer engaged in the execution of a search warrant "may break open any outer door" to enter the residence described in a search warrant, that officer must notify those within the residence of the officer's presence by knocking or some other reasonable means and announce his authority and the purpose of his presence. State v. Collier, 270 So.2d 451, 453 (Fla. 4th DCA 1...
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