Hornblower v. State

• Decision Date: 27 October 1977
• Docket Number: No. 49568,49568
• Citation: 351 So.2d 716
• Parties: David Jon HORNBLOWER, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 716

351 So.2d 716

David Jon HORNBLOWER, Petitioner, v. STATE of Florida, Respondent.

No. 49568.

Supreme Court of Florida.

Oct. 27, 1977.

Michael J. Minerva, Public Defender, Tallahassee, for petitioner.

Robert L. Shevin, Atty. Gen., Tallahassee, Carolyn M. Snurkowski and Charles W. Musgrove, Asst. Attys. Gen., Tallahassee, for respondent.

SUNDBERG, Justice.

By the constitutional authority conferred on this Court through Article V, Section (3)(b)(3), Florida Constitution, we entertain this petition for certiorari to resolve a conflict between the decision of the District Court of Appeal, First District, reported at 331 So.2d 339 (Fla. 1st DCA 1976), and Parsons v. State, 334 So.2d 308 (Fla. 1st DCA 1976), the latter case involving a different party to the same criminal transaction. The issue involved is the legality of a warrantless search of premises occupied by petitioner and the seizure of contraband in connection with that search.

Petitioner was charged by information with possession of amphetamines with intent to sell and possession of less than five grams of marijuana. He was apprehended after his brother, Dale, had arranged a sale of amphetamines to Deputy Sheriff Crook (acting in an undercover fashion) at the mobile home where the brothers resided. When the deputy arrived, he did not enter the mobile home but during a conversation with Dale outside, observed persons smoking inside and smelled the odor of marijuana or hashish smoke emanating from the trailer. The deputy then asked Dale if he had marijuana or hashish for sale. Dale responded in the affirmative and entered the mobile home to procure the cannabis. He returned punctually with the hashish which Crook examined. Dale then informed the deputy that although he had some amphetamine tablets on hand, he did not have the quantity which the deputy desired to purchase. However, Crook was informed that an additional amount could be obtained at another mobile home park. The deputy followed Dale by automobile to the other park where Dale effected the sale of the tablets and the hashish. At that point, he was arrested by Detectives O'Brien and Clark who had been electronically monitoring the "buy." Following the arrest, Dale admitted that he and petitioner were selling amphetamine tablets and that petitioner had given him the first group of tablets. O'Brien and Clark then transported Dale to jail while Crook proceeded back to the brothers' residence to take up surveillance.

At least forty-five (45) minutes elapsed at the jail before all the officers were reunited at the mobile home. The deputies maintained their surveillance until someone left the home and began to exit in his vehicle. This vehicle was stopped and searched, but no contraband was found. Later, a second vehicle drove away from the trailer and that automobile was also apprehended. A subsequent search produced a quantity of marijuana residue in the vehicle, seven foil packets of hashish and a homemade pipe on the person of the driver, Parsons.

The officers then decided to return to petitioner's trailer and search for additional drugs. Without any effort to obtain a search warrant, the officers approached, knocked, announced who they were, and after detecting noise of scurrying activity within, forceably entered. They seized some amphetamine pills and marijuana cigarette butts which were the subject of petitioner's motion to suppress.

At the suppression hearing, it was alleged that the search and seizure were conducted without warrant and without probable cause, in violation of the petitioner's rights under the Fourth and Fourteenth Amendments to the United States Constitution, and Article I, Section 12 of the Florida Constitution. The motion was denied. Petitioner then pleaded nolo contendere, reserving the right to appeal the denial of his motion to suppress. The District Court of Appeal, First District, held that the officers had probable cause to search the residence and that exigent circumstances existed to make the warrantless search. (Mills, J., dissenting.)

The Fourth Amendment to the United States Constitution is an expression of our founding fathers' uneasiness with the potential omnipotence of a federal government. It reflects the notion that an individual can never enjoy the tranquility which he deserves if the government is free to tamper with his expectations of privacy through arbitrary searches. Consequently, the central theme of the Fourth Amendment is its prohibition against general searches. Practices like random entries into people's homes or random searches of people walking the streets, to acquire information or obtain evidence are repulsive to our concept of a democratic society. See Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949). In essence, the Fourth Amendment forbids those occurrences and evinces the axiom that privacy is not a gratuity which we hold at the whim of our government. Only when there is a special governmental need that can be stated with particularity, will we allow the government to intrude on an individual's privacy.

To implement this principle, the Supreme Court of the United States has mandated that warrantless searches "are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); accord, United States v. United States District Court, 407 U.S. 297, 317, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). These exceptions have been "jealously and carefully drawn," Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958), and the burden is upon the State to demonstrate that the procurement of a warrant was not feasible because "the exigencies of the situation made that course imperative." McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948). See also Coolidge v. New Hampshire, 403 U.S. 443, 445, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925); Root v. Gauper, 438 F.2d 361, 364 (8th Cir. 1971); Shepard v. State, 319 So.2d 127 (Fla. 1st DCA 1975); Hannigan v. State, 307 So.2d 850 (Fla. 1st DCA 1975).

In the instant case, the State did not obtain a warrant to search the petitioner's trailer. Consequently, precedent mandates that respondent demonstrate the existence of exigent circumstances which made the acquisition of a warrant unfeasible. Because the State has been unable to carry this burden, we are constrained to quash the decision of the District Court of Appeal, First District.

Initially, we note that there was ample probable cause to support the search. A controlled purchase was made from the premises, State v. Gieseke, 328 So.2d 16 (Fla.1976), the seller indicated he had plenty of "smoke," and the officers smelled burning cannabis emanating from the trailer. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Porter v. State, 302 So.2d 481 (Fla. 3d DCA 1974). But probable cause itself is not sufficient to support a warrantless search. As enunciated above, any warrantless search is presumed to be illegal unless there are exigent circumstances in addition to probable cause. The State submits that the scurrying around by the occupant when the police knocked at the door and announced their presence supplied justification for a warrantless search. It speculates that evidence might have been destroyed had the police taken time to obtain a warrant. We reject this rationale. In his testimony, the officer acknowledged that he intended to enter and search the trailer before he ever approached the mobile home. To sustain respondent's argument would be to endorse the precise kind...