Koptyra v. State, 4965

• Decision Date: 26 February 1965
• Docket Number: No. 4965,4965
• Citation: 172 So.2d 628
• Parties: Michael Leroy KOPTYRA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 628

172 So.2d 628

Michael Leroy KOPTYRA, Appellant, v. STATE of Florida, Appellee.

No. 4965.

District Court of Appeal of Florida, Second District.

Feb. 26, 1965.

Rehearing Denied March 25, 1965.

William T. Swigert, of Greene, Ayres, Swigert & Cluster, Ocala, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Robert G. Stokes, Asst. Atty. Gen., Lakeland, for appellee.

SMITH, Chief Judge.

The defendnat seeks reversal of his conviction for unlawfully possessing and having in his control a certain narcotic drug, cannabis, commonly known as marijuana. He contends that the trial court erred in refusing to suppress and in admitting into evidence over his objection certain evidence allegedly obtained as the result of an unreasonable search and seizure. He further contends that the trial judge erred in holding that the evidence as a whole was legally insufficient to warrant giving an instruction to the jury on the defense of entrapment.

The record discloses that the search and seizure complained of occurred under the following circumstances. In the course of his official duties in Inspector with the Florida State Bureau of Narcotics successfully cultivated the friendship of the defendant, Theodore Salute and Pamela Hardin, an eighteen year old girl. At about 12:30 A.M. on May 16, 1961, the inspector proceeded to the vicinity of the Hardin residence in the company of Deputy Sheriffs Vincent and Meeks, another officer of the State Narcotics Bureau and Detective Holloway of the Tampa Police Department. The inspector alone approached the Hardin house, was admitted by Salute, and proceeded into the living room where the defendant and Miss Hardin were seated. The defendant, Salute and Miss Hardin appeared to be lethargic. In the inspector's words, 'They were sitting there, not moving, not talking, but just staring.' He noticed heavy smoke having a strong odor of marijuana. Salute produced a marijuana cigarette, lit it, and passed it around, among others, to the defendant and to the inspector, who simulated smoking it. The inspector saw Salute take an envelope containing marijuana from a bread box in the kitchen and roll a cigarette with it. This was one of three cigarettes which were handed, among others, to the defendant and smoked in the inspector's presence. He retained the butt of one of these cigarettes.

After about an hour the inspector temporarily excused himself, met the other enforcement officers nearby, showed them the marijuana cigarette butt and returned with them to arrest the defendant and his companions. The inspector was admitted by Salute, who still had no knowledge of the inspector's official status or purpose. Salute did not notice the other enforcement officers until they followed the inspector through the open door. After the officers arrested the defendant and his companions they searched the premises. Meeks found a rolled paper containing five cigarettes on the floor near the seat which the defendant had occupied. The material which Salute had taken from the bread box in the inspector's presence was found by Holloway in a paper bag under the steps leading to the entrance to the Hardin home. Analysis confirmed the presence of marijuana in these two items and in the cigarette butt retained by the inspector.

The exact sequence of all of the events pertaining to the entry, the arrest, and the search is not entirely clear. However, the record indicates that Salute voluntarily admitted the inspector without knowing his official status or purpose; that the other enforcement officers followed the inspector through the open door; that one of the officers other than the inspector arrested the defendant; and that Meeks and Holloway initially located the two items of evidence found in the search following the arrests. It does not appear that any of the officers announced their purpose before entering; at least the State failed to clearly show that any of them did so.

Section 22 of the Declaration of Rights in the Constitution of the State of Florida, F.S.A., expressly provides that the right of persons to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated. In Florida a peace officer may arrest a person without a warrant, among others, under the following circumstances: (1) when the person to be arrested has committed a felony in his presence, (2) when a felony has in fact been committed and he has reasonable ground to believe that the person to be arrested has committed it; (3) when he has reasonable ground to believe that a felony has been or is being committed and reasonable ground to believe that the person to be arrested has committed or is committing it. Section 901.15, Fla.Stats., F.S.A. Unlawful possession of cannabis is a felony. Sections 398.02, 398.03, 398.22, Fla.Stats., F.S.A. When authorized to make an arrest for a felony without a warrant, an officer may break open a door or window of any building in which the person to be arrested is or is reasonably believed to be, if he is refused admittance after he has announced his authority and purpose. Section 901.19, Fla.Stat., F.S.A.

Here, as in Benefield v. State, ¹ the arresting officer had probable cause for believing that the defendant had committed or was committing a felony, but he did not announce his authority and purpose before entering the premises to make the arrest. The appellant contends that the method of entry into the Hardin dwelling constituted a 'constructive breaking' in violation of Section 901.19, Fla.Stats., F.S.A., and that this rendered the arrest and subsequent search illegal under the rule of the Benefield case. In Benefield there was some testimony that the individual who had passed marked money to the defendant held the door open for the arresting officer. However, the Supreme Court based its decision on that individual's testimony to the contrary and decided that there was a breaking because the arresting officer entered by opening an unlocked screen-door. In the present case the record discloses that the inspector was first voluntarily admitted by Salute and that the arresting officer then followed him through an open door.

The requirement of prior notice of authority and purpose before forcing entry into a home is discussed in Miller v. United States, ² which, like Benefield, involved an actual breaking without prior notice of authority or purpose by an officer who had authority to arrest without a warrant. As noted in that case, the requirement is deeply rooted in our heritage and should not be given grudging application; further, compliance is also a safeguard for the police themselves, who might otherwise be mistaken for prowlers and shot down by a fearful householder.

Ker v. State of California, ³ also involved what amounted to an actual breaking without compliance with the demand and explanation requirements of a California statute. The California courts sustained the arrest on the basis of a judicial exception which had been engrafted on the statute. Under his exception compliance was not required where the officer's peril would have been increased or the arrest frustrated by destruction of evidence if he had demanded entrance and stated his purpose. Four justices found this exception to be reasonable under the Fourth Amendment in the particular circumstances of the case, which they summarized as follows: 'In addition to the officers' belief that Ker was in possession of narcotics, which could be quickly and easily destroyed, Ker's furtive conduct in eluding them shortly before the arrest was ground for the belief that he might well have been expecting the police.' Four members of the Court dissented on the ground that the Fourth Amendment is violated by any unannounced police intrusion except (1) where those within already know the officer's authority and purpose, (2) where officers are...