Falcon v. State
| Decision Date | 27 October 2017 |
| Docket Number | Case No. 2D15–4134 |
| Citation | 230 So.3d 168 |
| Parties | Juan FALCON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Christopher H. Brown of Brown, Suarez, Rios & Weinberg, P.A., Naples, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa, for Appellee.
Juan Falcon pleaded no contest to charges of maintaining a marijuana "grow house" and possessing drug paraphernalia based on the seizure of twenty-six marijuana plants from a shed in his back yard. As part of his plea, Falcon preserved his right to appeal the trial court's denial of his dispositive motion to suppress evidence on the grounds that (1) the deputies had violated Florida's "knock-and-announce" statute, section 933.09, Florida Statutes (2013), and (2) the search warrant had issued on insufficient probable cause. We hold that Falcon's first ground is meritorious, decline to reach the second ground, and reverse.
In denying Falcon's suppression motion, the trial court made no explicit findings of fact. Consequently, we must construe the factual record in the light most favorable to the denial of the motion, see In re Doe, 932 So.2d 278, 283–84 (Fla. 2d DCA 2005) (), which we do as follows:
After learning that Falcon was engaged in a marijuana-growing operation out of his residence and/or a shed in his back yard, the Collier County Sheriff's Office independently confirmed the presence of items consistent with a grow operation near and connected to the shed. Thus, at just past 6:45 a.m. on April 9, 2014, a SWAT unit of at least six heavily armed deputies appeared on the front doorstep of Falcon's residence to execute a search warrant.
Less than an hour earlier, the deputies had all been briefed on the fact that Falcon lived in the residence with his family, which included an adolescent son and a teenage daughter. Notwithstanding the nature of the suspected offense,1 the deputies had no reason to believe that there were any weapons in the residence or that Falcon was armed and dangerous; his criminal history consisted of one arrest for driving under the influence. The deputies also had no reason to believe that Falcon knew that they were coming, that anyone inside the residence was at risk of harm, or that Falcon or his family might try to escape or destroy evidence.
Over a public address system, the deputies thrice announced "Sheriff's Department" and demanded that those inside the residence open the door. The deputies observed no activity inside the residence. Their demand unmet, the deputies breached the door with a battering ram and another tool and then set off two pyrotechnic "noise flash diversion devices" at the front and side of the residence.
Falcon and his family had been sleeping when the deputies had arrived on their doorstep, and Falcon and his daughter were walking toward the front door when it was forced open. Numerous deputies entered the residence and secured Falcon, his wife, and his daughter by zip-tying their hands behind their backs. Although Falcon's son was not zip-tied, the record establishes that the deputies' entry terrified him.
Approximately twenty seconds elapsed between the moment that the deputies began the knock-and-announce procedure and their breach of the front door. At the suppression hearing, one deputy "estimate[d]" that "more than fifteen seconds" had elapsed between the first knock-and-announce and the breach. Accordingly, we must assume that, after duly notifying Falcon and his family of their authority to enter, deputies waited more than fifteen seconds but less than twenty seconds before breaching their front door.
Falcon argues that the SWAT deputies violated the knock-and-announce statute when they forcibly breached the front door of his residence to execute the search warrant. That statute 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 the officer's authority and purpose he or she is refused admittance to said house or access to anything therein.
§ 933.09.
The policy underlying section 933.09 derives from the sentiment that State v. Bamber, 630 So.2d 1048, 1052 (Fla. 1994) (quoting Benefield v. State, 160 So.2d 706, 709 (Fla. 1964) ). Where officers knock, announce their authority and purpose, and then enter with such haste that the occupant does not have a reasonable opportunity to respond, the search violates section 933.09. Holloway v. State, 718 So.2d 1281, 1282 (Fla. 2d DCA 1998). And absent certain exigencies, a violation of section 933.09 warrants suppression. See generally State v. Cable, 51 So.3d 434, 444 (Fla. 2010) (); see also Benefield, 160 So.2d at 710 ().
Significantly, however, section 933.09 does not provide how long"after due notice" the officer must wait before forcibly entering the residence, and case law provides no bright-line rule, although "[t]his court has noted that ‘[t]ime periods less than five seconds are rarely deemed adequate, and periods in excess of fifteen seconds are often adequate.’ " Spradley v. State, 933 So.2d 51, 55 (Fla. 2d DCA 2006) (quoting State v. Cassells, 835 So.2d 397, 399 n.2 (Fla. 2d DCA 2003) ) (second alteration in original). "[T]he question is whether the officer has waited a sufficient period, under all of the circumstances, so that the officer can reasonably infer or conclude that he or she has been refused admittance by the occupants,"2 id., and "the only answer found in our case law is that the occupant must have a ‘reasonable opportunity’ to respond," State v. Pruitt, 967 So.2d 1021, 1023 (Fla. 2d DCA 2007) (quoting Richardson v. State, 787 So.2d 906, 908 (Fla. 2d DCA 2001) ). In determining whether the occupant has been afforded a reasonable opportunity, "some factors the courts have considered include the nature of the underlying offense, the time of day the warrant is executed, the size of the home, whether any activity or movement is observed within the home at the time of execution, and whether any exigencies exist."
Mendez–Jorge v. State, 135 So.3d 464, 467 (Fla. 5th DCA 2014).
Although failing to explicitly find how long the deputies had waited, the trial court concluded that it had been "reasonable." Upon our de novo review of the pertinent factors, however, see Daniels v. State, 208 So.3d 1223, 1226 (Fla. 2d DCA 2017) (), we conclude that the fifteen to twenty seconds that the deputies provided Falcon and his family was not reasonable. Apart from the bare nature of the offense, no factor supported the urgency with which the deputies executed the warrant, and the facts of...
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