Murphy v. State, 5D04-1095.

• Decision Date: 11 March 2005
• Docket Number: No. 5D04-1095.,5D04-1095.
• Citation: 898 So.2d 1031
• Parties: Charles MURPHY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

898 So.2d 1031

Charles MURPHY, Appellant, v. STATE of Florida, Appellee.

No. 5D04-1095.

District Court of Appeal of Florida, Fifth District.

March 11, 2005.

Rehearing Denied April 19, 2005.

James S. Purdy, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant

Attorney General, Daytona Beach, for Appellee.

SHARP, W., J.

Murphy appeals from a final judgment of conviction and sentence for possession of cocaine.¹ He filed a motion to suppress evidence of cocaine seized by a police officer who entered his motel room without a warrant.² The trial court denied his motion. It also found the motion was "dispositive."³ Murphy entered a no contest plea and reserved his right to appeal. We have jurisdiction and we affirm.

The record in this case is sparse. At the hearing on the motion to suppress, the state called only one witness, Officer Morford, and the defense called none. Morford testified that he was a patrol officer with the Daytona Beach Police Department and had five years of experience in narcotics investigations and arrests. He and his partner, Officer Youngman, were called by their supervisor to do a "knock and talk" at room 109 of a motel located on the north side of Atlantic Avenue.⁴ The Police Department had received complaints that contraband was being sold out of that room. The owner of the motel told Officer Youngman that Murphy had been residing in room 109 for a couple of weeks.

The two officers approached Murphy's room from a patio area where chairs were placed along the walkway. The defense agrees that the two officers were standing in a public area when they knocked on the door.⁵

Murphy answered the knock and opened the door. Officer Morford testified that within seconds of the door opening he saw, and instantly recognized as cocaine, a white powder substance in two baggies, on a table five or six feet inside the room.

Murphy stepped out of the room. Officer Youngman immediately arrested him and had him sit in a chair in the patio, outside the room. Officer Morford entered the motel room, seized the baggies, and tested them for cocaine. The field test proved positive.

After Officer Morford was in the motel room and after he seized the cocaine, he noticed that there was another person in the room — a young female.

On cross-examination, the defense asked him if he had any specific facts to indicate that his safety was in jeopardy in any way, prior to entering the motel room. He responded he did not believe he was in any danger. The defense asked if there were any specific facts to indicate, prior to entering the room, that the evidence (cocaine) could or would be destroyed. Officer Morford first responded that "there's also a potential" but he admitted he had no specific facts he was aware of that the evidence would be destroyed.

Based on these facts, the trial judge ruled that the police officer had the right to seize the contraband because it was in plain view and because there were exigent circumstances that excused the Fourth Amendment mandate to obtain a warrant prior to entering a private residence to seize evidence of a crime.

A ruling on a motion to suppress comes to the appellate court as presumptively correct as to disputed facts and all reasonable inferences and deductions drawn from them. See Pagan v. State, 830 So.2d 792 (Fla.2002)

; Morris v. State, 749 So.2d 590 (Fla. 5th DCA 2000). However, the trial court's application of the law to the facts is reviewed under the de novo standard. Phuagnong v. State, 714 So.2d 527 (Fla. 1st DCA 1998).

The Fourth Amendment to the United States Constitution and article 1, section 12 of the Florida Constitution guarantee the right to be free from unreasonable searches and seizures, in a constitutionally protected place; i.e., here a rented motel room, which is legally the equivalent of a lawful tenant's residence.⁶ Absent exigent circumstances, warrantless searches and seizures from a constitutionally protected place are per se unreasonable and the state has the burden to establish any exception to the requirement of obtaining a warrant prior to a search or seizure in a protected place. See Davis v. State, 834 So.2d 322 (Fla. 5th DCA 2003)

; LaFave, 3 Search and Seizure, § 6.1(b) at 375 (4th ed. 2004).

The state and the defense agree that an item may be seized from a constitutionally protected place without a warrant if: 1) the police view the contraband from a place they have a legitimate right to be; 2) the incriminating character of the contraband is immediately apparent to the viewing police officer; and 3) the police officer has a lawful right of access to the contraband. See Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)

; Rimmer v. State, 825 So.2d 304, 313 (Fla.2002). If one of these requirements is not met, then the state must establish an exception to the warrant requirement, such as consent or exigent circumstances.⁷

The trial court justified the warrantless seizure partially on the ground that the contraband was in plain view from the patio area where Officer Morford was standing when he first saw it. However, the Florida Supreme Court in Ensor v. State, 403 So.2d 349 (Fla.1981) distinguished the plain-view situation, which permits a warrantless seizure, from an open-view situation, which may not.⁸ In the plain-view situation, the officer has a constitutional right to be in the place where the seizure is made.⁹ In an open-view situation, the officer sees the contraband from a place he or she has a right to be, outside a constitutionally protected area, but may not have constitutional access to the place the contraband is located when seized. In such cases, there must be a Fourth Amendment exception, such as exigent circumstances, to justify the warrantless entry and seizure. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)

; Ensor.

Murphy argues that there is no basis in this record to conclude, as the trial judge did, that there were any exigent circumstances that justified Officer Morford's dashing into Murphy's motel room and seizing the contraband without first obtaining a warrant. Murphy had been arrested and was seated outside the room. The officers had no reason to think there was anyone else in the room. They could have sealed off the room, held Murphy in custody, and obtained a warrant prior to the seizure.

The fact that there was another person in the room who could have destroyed the contraband during the time the officers sealed off the room and went to obtain a search warrant is a problem for the defense in this case.

The cases which have dealt with this kind of issue appear to turn on a determination of whether a reasonable police officer had an objective basis to conclude that there was not sufficient time to seal off the constitutionally protected area and obtain a search warrant before the contraband could or likely would be destroyed, looking at the facts known to the police officer at the moment of entry.¹⁰

Because of their nature, drugs are different. They are easily and quickly disposed of. If persons in possession of drugs in a residence are aware that the police are on their "trail," or that they suspect drugs are inside the residence, it is reasonable for the police to conclude they do not have time to obtain a search warrant before entering and seizing the contraband because the drugs will likely be destroyed or disposed of.¹¹ Courts have summarized these as "now or never" situations.¹²

In Gilbert v. State, 789 So.2d 426 (Fla. 4th DCA 2001), the court concluded that entry of police officers into a motel room without a warrant did not violate the defendant's fourth amendment rights. In that case, police officers were asked to go to the defendant's room at a motel for other reasons. When the door was opened by the defendant, they saw contraband on the dresser. The police officers entered the room, seized the drugs, and arrested the defendant. The court concluded that the entry and seizure were justified by exigent circumstances — imminent destruction of evidence when the possessor of the drugs was aware the police were on his trail. Cases reach the opposite conclusion if the circumstances objectively establish the occupants of the residence are unaware that the police know or suspect drugs or contraband are in the residence and there is time to seal off the residence and obtain a search warrant.¹³ Another line of cases reach this result also, in circumstances where the police have no objective basis to think there is another person or persons in the residence and the residence can be sealed off without any danger of having the contraband destroyed while a warrant is being obtained.¹⁴

Murphy argues that his case is similar to Vasquez v. State, 870 So.2d 26 (Fla. 2d DCA 2003), which concluded that the search and seizure of evidence in a motel room was not justified by exigent circumstances or a protective sweep. In that case, officers saw, from the public hallway, drugs, drug paraphernalia and a bullet on a table in the room when one defendant opened the door to their knock. The police officers arrested and detained both of the residents of the motel room in the hallway.

Thereafter, the police officers entered the room and found evidence, which tied the two residents to a robbery. The defendants were being prosecuted in that case for the robbery, not possession of the contraband. Vasquez might be applicable to this case if Murphy were being prosecuted for the additional contraband discovered in the search following the police officers' entry into his room.

The Vasquez court stressed that the officers had no reason to suspect a third person was inside the room under the circumstances of that case, and therefore, there was time to obtain a search warrant and no exigent circumstances. The state attempted to...