Johnson v. State, 80-1882
| Decision Date | 20 March 1981 |
| Docket Number | No. 80-1882,80-1882 |
| Citation | 395 So.2d 594 |
| Parties | Robert JOHNSON, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida District Court of Appeals |
Robert E. Jagger, Public Defender, and Stephanie L. Willis, Asst. Public Defender, St. Petersburg, for petitioner.
Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for respondent.
Robert Johnson petitions for writ of common law certiorari to review the circuit court's reversal of county court orders granting petitioner's motion to dismiss, motion to suppress evidence, and motion to suppress statements made by petitioner. We grant the writ and quash the order and opinion of the circuit court.
Petitioner has previously been before this court on a charge arising from this episode. See State v. Johnson, 382 So.2d 866 (Fla. 2d DCA 1980).
The facts in this case are that on June 10, 1979, shortly after 2:00 a. m., Sergeant Brubaker of the St. Petersburg Police Department was on routine patrol when he observed activity on the porch of petitioner's duplex. The officer recognized the duplex as being the home of petitioner, whom Brubaker had arrested several years earlier for a liquor law violation. Noting that it was after the time lawful liquor sales could be made in the city, the officer positioned himself behind the package store across the street from petitioner's home to observe the activity at the duplex. From that position, the officer saw several different persons separately approach the house. Each person would knock on the door, enter, remain inside for several minutes, then leave carrying a brown paper bag. There were no lights on inside the house. After observing this activity, Brubaker positioned himself in the walkway running between petitioner's duplex and the connected duplex. From there he watched two persons enter petitioner's home and was able to see into the living room through a window with slightly parted curtains. He also overheard the ensuing conversation within. The persons who had just entered indicated they wanted two beers and asked how much; petitioner responded that it was eighty-five cents a can. When the two persons left petitioner's home, Brubaker stopped them, confiscated the bag each was carrying and, after calling for another unit, went up onto petitioner's porch and knocked on the front door. Petitioner came to the door, but remained inside behind the closed screen door. Brubaker informed petitioner he was under arrest for a liquor law violation, but petitioner refused to allow the officer into his home and walked back into the house. Brubaker then opened the screen door himself and entered the residence. Once inside, he attempted to arrest and take petitioner into custody, which action petitioner resisted. A struggle followed. Petitioner was ultimately taken into custody, and, incident to petitioner's arrest, various pieces of evidence were taken from the house. Petitioner was also questioned about his liquor sales and made several statements regarding them. Petitioner was subsequently charged by information with selling an alcoholic beverage without a license, in violation of section 562.06, Florida Statutes (1979), and resisting a law enforcement officer without violence, in violation of section 843.02.
Section 562.45(1), the penalty statute covering a violation of section 562.06, classifies a violation of any provision of the Beverage Law, Chapter 562, for which no penalty has been specifically provided as a second-degree misdemeanor unless the offender has previously been convicted of a Beverage Law violation, in which case the violation is a third-degree felony. Petitioner had been convicted of a Beverage Law violation in 1976. However, the allegations of the information concerning the Beverage Law violation charged only a misdemeanor violation, and the information was properly filed in county court.
The county court granted petitioner's motions to suppress evidence and statements and his motion to dismiss the charge of resisting an officer without violence. The trial court's rationale was that the initial misdemeanor arrest of petitioner was unlawful. The circuit court sitting in its appellate capacity reversed, and this petition for writ of common law certiorari followed timely.
An officer is limited in making a warrantless arrest for a misdemeanor committed within his lawful presence by section 901.19(1), Florida Statutes (1979), entitled "Right of officer to break into building," which provides:
If a peace officer fails to gain admittance after he has announced his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, he may use all necessary and reasonable force to enter any building or property where the person to be arrested is or is reasonably believed to be.
By the clear wording of the statute, the right of an officer to enter a building to make an arrest is limited to two situations: (1) where he holds an arrest warrant, regardless of the classification of the offense, and (2) where he has the power under section 901.15, Florida Statutes (1979) to make a warrantless arrest for a felony. Under state law, there is simply no authority given to a police officer to enter a building to effect a warrantless arrest for a misdemeanor. Rucker v. State, 302 So.2d 490 (Fla. 2d DCA 1974); Prather v. State, 182 So.2d 273 (Fla. 2d DCA 1966); see Benefield v. State, 160 So.2d 706 (Fla.1964). Furthermore, Benefield made it crystal clear that the limitations on an officer's authority contained in section 901.19 are to be very strictly adhered to where the building to be entered is a person's home.
The act of opening an unlocked screen door constitutes a "breaking" or entry within the meaning of section 901.19. Benefield, supra; Boynton v. State, 64 So.2d 536, 548 (Fla.1953).
Even assuming Sergeant...
To continue reading
Request your trial
-
State v. Markus
...... Therefore, the officers did not have the authority under subsection 901.19(1) to enter Ortiz' apartment."); Johnson v. State , 395 So.2d 594, 596 (Fla. 2d DCA 1981) ("Under state law [section 901.19, Florida Statutes (1979),] there is simply no authority given to a police officer to ent......
-
Madison v. State
...of resisting arrest without violence; if arrest is not lawful, then defendant cannot be guilty of resisting it); Johnson v. State, 395 So. 2d 594 (Fla. 2d DCA 1981) (holding that as defendant's arrest was unlawful, prosecution against defendant for resisting arrest without violence also fai......
-
State v. Robinson
...due notice requirements of section 933.09, Florida Statutes (1987). Nank v. State, 406 So.2d 1282 (Fla. 2d DCA 1981); Johnson v. State, 395 So.2d 594 (Fla. 2d DCA 1981). See also Burden v. State, 455 So.2d 1066 (Fla. 1st DCA 1984), review denied, 464 So.2d 556 (Fla.1985); Bouknight v. State......
-
Nieves v. State
...window to grab a domestic violence suspect who had barricaded himself inside as a warrantless entry); cf. Johnson v. State, 395 So. 2d 594, 596 (Fla. 2d DCA 1981) (holding that the act of opening an unlocked screen door was an "entry" for purposes of section 901.19(1) ). Thus, the warrantle......