Kellom v. State

• Decision Date: 18 June 2003
• Docket Number: No. 1D02-0173.,1D02-0173.
• Citation: 849 So.2d 391
• Parties: Leangelo KELLOM, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

849 So.2d 391

Leangelo KELLOM, Appellant, v. STATE of Florida, Appellee.

No. 1D02-0173.

District Court of Appeal of Florida, First District.

June 18, 2003.

Nancy A. Daniels, Public Defender; Fred Parker Bingham, II, Assistant Public Defender, Tallahassee, for Appellant.

Charlie Crist, Attorney General; Karen Armstrong, Assistant Attorney General, Tallahassee, for Appellee.

LEWIS, J.

Appellant, Leangelo Kellom, appeals the trial court's denial of his dispositive motion to suppress the contraband discovered in his residence. Appellant contends that the officers who executed the search warrant violated the "knock and announce" rule codified in section 933.09, Florida Statutes (2000). We agree and, therefore, reverse and remand with directions that appellant be discharged. We affirm as to appellant's second issue on appeal without further discussion.

By information, the State charged appellant with one count of possession of cocaine, (count one), one count of possession of less than twenty grams of cannabis (count two), and one count of obstructing a police officer without violence (count three). Appellant subsequently filed a motion to suppress the contraband found within his residence as a result of the officers' execution of the search warrant. Deputy O'Leary testified at the hearing that appellant had been suspected of selling crack cocaine from his single residence. O'Leary further testified that, after securing a search warrant, he and the other officers executed the warrant at approximately 5:30 p.m. that same day.

According to O'Leary, the officers knocked on appellant's back door, announced their presence only once, and, upon receiving no response, waited "several seconds" before forcibly entering appellant's residence. When questioned by the State as to the reason for making such a quick entry on a case such as this, O'Leary replied that on this particular case, the officers were not sure whether weapons were involved or whether evidence would be destroyed. O'Leary stated, "They do get rid of the dope once they know—once we knock, they usually get rid of the dope...."

On cross-examination, O'Leary testified that his Affidavit for Search Warrant set forth that the confidential informant observed "a substantial quantity of cocaine," although, according to O'Leary, the informant may have stated that there was a truckload of cocaine in the residence. The affidavit made no mention of possible weapons or of the possibility that the suspected contraband would be destroyed as O'Leary had no knowledge of such at that time either. O'Leary further testified that, prior to their forcible entry, the officers did not hear any noise coming from inside the residence. Nor did the officers know, after knocking and announcing, whether weapons were involved. Upon their forcible entry, the officers found appellant located on his bed attempting to retrieve the contraband that was beside the bed.

Alfred Smith, another officer, testified that he was last in the group of three officers headed towards the back door of appellant's residence. According to Smith, by the time he made it to the back door, entry was already being made. Smith estimated that he was approximately five to ten seconds and ten to fifteen feet behind the other officers.

The trial court subsequently denied appellant's motion to suppress without stating any grounds in support of its ruling. During appellant's trial, the trial court set forth that appellant retained his right to appeal the court's ruling as to his motion. Following jury deliberations, the jury found appellant guilty as to counts one and two and not guilty as to count three. Thereafter, the trial court sentenced appellant to five years' imprisonment as to count one and one year's imprisonment as to count two with credit for time served, the sentences to run concurrently. This appeal followed.

The Fourth Amendment to the United States Constitution and article I, section 12 of the Florida Constitution guarantee the people of this nation the right to be secure in their homes from unreasonable searches and seizures. The common law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry. Wilson v. Arkansas, 514 U.S. 927, 930, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). The knock and announce rule has been recognized as a part of the common law of Florida. Wilson v. State, 673 So.2d 505, 508 (Fla. 1st DCA 1996). The Florida Legislature codified the knock and announce rule in section 933.09, which provides as follows:

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.

Section 933.09 imposes two requirements. First, law enforcement must provide due notice of their authority and purpose. Richardson v. State, 787 So.2d 906, 908 (Fla. 2d DCA 2001). The statute also requires that law enforcement be refused admittance, which can be express or implied. Id. A lack of response is deemed a refusal. Id. Regardless of whether the ultimate refusal will be express or implied, section 933.09 and case law interpreting such require that some quantity of time, sufficient under the particular circumstances, be permitted for an occupant to respond. Id.

The policy underlying section 933.09 "derives from the sentiment that there `is nothing more terrifying to the occupants than to be suddenly confronted in the privacy of their home by a police officer decorated with guns and the insignia of his office. That is why the law protects its entrance so rigidly.'" State v. Bamber, 630 So.2d 1048, 1053 (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). The trial court's decision on the issue of due notice is a decision of fact that is binding on this Court if it is supported by competent, substantial evidence. See State v. Robinson, 565 So.2d 730, 732 (Fla. 2d DCA 1990) (citation omitted).

In the instant case, Deputy O'Leary testified that several seconds elapsed between the officers' knock and announce and their forcible entry into appellant's residence. While O'Leary did not elaborate upon this "several second" period, Officer Smith testified that he was five to ten seconds and ten to fifteen feet behind the other officers. By the time Smith reached the back door of appellant's residence, entry was already being made. During oral argument, the State conceded that it was more likely that some length of time closer to five seconds elapsed between the officers' knock and announce and their forcible entry.

Moreover, O'Leary testified on direct examination that he was not sure whether weapons were involved or whether the evidence would be destroyed. On cross-examination, he similarly testified that the officers did not know, after knocking and announcing, whether weapons were involved. O'Leary's affidavit did not mention the possibility of weapons because he had no knowledge of such at that time either.

Based upon these circumstances, we hold that the officers' execution of the search warrant violated the knock and announce rule in section 933.09. While the quantity of time sufficient to provide a suspect with due notice will vary depending upon the particular circumstances at issue, the facts of this case do not establish that the quantity of time between the officers' knock and announce and their hasty entry was sufficient to permit appellant to respond. See West v. United States, 710 A.2d 866, 869 (D.C.Cir.1998) (holding that the officers' five-second wait between knocking and announcing their presence and their forcible entry at approximately 9:40 p.m. was insufficient, as a matter of law, as the time was simply too short to warrant a conclusion that the occupants had deliberately refused the police entry); United States v. Joyner, No. 96-CR-20063, 1997 WL 129181, at *4 (C.D.Ill. Mar.5, 1997) (holding that the officers' five- to six-second pause between their knock and announce and their forcible entry at approximately 10:15 p.m. was not a reasonable time to conclude that the suspect was denying them entry as the government produced no evidence that the suspect was dangerous or possessed firearms or that he was likely to dispose of the contraband); Commonwealth v. Means, 531 Pa. 504, 614 A.2d 220, 223 (1992) (holding that a five- to ten-second delay between the officers' knocking and announcing and their forcible entry at 5:30 p.m. was not a reasonable time for an occupant to respond). Cf. United States v. Lucht, 18 F.3d 541, 550 (8th Cir.1994) (holding that the officers' vulnerable tactical circumstances, their knowledge of the suspect's extensive criminal record and his current parole status, and their suspicion that the suspect had consummated a drug transaction on the previous day excused their six- to eight-second pause between their knock and announce and their forcible entry into the suspect's residence at 7:00 a.m.); United States...