Nieves v. State

• Decision Date: 02 August 2019
• Docket Number: Case No. 2D18-613
• Parties: Anthony V. NIEVES, DOC #T80602, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

277 So.3d 745

Anthony V. NIEVES, DOC #T80602, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D18-613

District Court of Appeal of Florida, Second District.

Opinion filed August 2, 2019

Howard L. Dimmig, II, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

SALARIO, Judge.

Anthony Nieves was out on probation when he was arrested on new domestic violence charges. The trial court revoked his probation after finding that he committed a new law violation by resisting that arrest without violence. Mr. Nieves appeals from the revocation order and resulting sentence. We reverse because the police officers were not engaged in the lawful execution of a legal duty when they arrested Mr. Nieves, which is an essential element of the resisting offense. We remand for further proceedings, noting that the trial court did not pass on whether the alleged domestic violence offense, which does not require proof that the police were in the lawful execution of a legal duty, may establish a new law violation justifying the revocation of probation.

I.

The legal questions in this case hinge on whether a warrantless entry by the police into a motel room to arrest Mr. Nieves violated the Fourth Amendment, thereby leaving the State unable to establish that the police were in the lawful execution of a legal duty when they arrested him. The key facts are as follows.

After pleading guilty to burglary of a dwelling and grand theft in 2013, Mr. Nieves was sentenced to five years in prison (with credit for time served) and three years of probation. In 2017, while he was serving the probationary portion of his sentence, Mr. Nieves was arrested on domestic battery charges. The victim of the alleged battery was the mother of his children. Mr. Nieves had a prior domestic violence incident involving the same person and, as a result, was subject to a court order prohibiting him from having contact with her. After the arrest, the State filed an affidavit of violation of probation alleging that Mr. Nieves had violated condition five of his probation, which required that he "live without violating any law," by committing domestic battery and by resisting an officer without violence.

At the hearing on the alleged probation violations, the arresting officer testified that he and other officers were called to a motel to respond to a domestic violence incident.¹ He spoke to the victim in the parking lot and, based on that conversation, decided to arrest Mr. Nieves for domestic battery. The officers went to a room in the motel that Mr. Nieves shared with the victim. Although the sequence of events is not entirely clear from the testimony, there appears to have been an initial conversation among the officers and Mr. Nieves through an open window, during which the officers told him that he was going to be arrested for a domestic battery. Mr. Nieves, however, refused to leave the motel room.

Instead, upping the ante, he barricaded himself in the motel room by placing one of the beds behind the already-locked door. The manager of the motel gave the police a key to the room, but Mr. Nieves' ingenuity with the bed left them unable to enter. One officer started to kick through the door. Some others removed the screen from the open window, grabbed Mr. Nieves, and pulled him through the window and out of the room. He struggled as the police attempted to put him in handcuffs, but they ultimately got him into custody.

After the evidence was in, Mr. Nieves argued that it was insufficient to prove that he committed the new law violation of resisting arrest without violence because the evidence showed that the police were not in the lawful execution of a legal duty. He maintained that the police did not have an arrest warrant and that no exigent circumstances justified a warrantless entry into the motel room and, as a result, that their grabbing him through the motel-room window was in violation of the Fourth Amendment. The trial court rejected that argument and found Mr. Nieves in violation of condition five because he violated the law by resisting arrest without violence. The trial court made no findings with respect to the allegation in the State's affidavit that Mr. Nieves also committed the new law violation of domestic battery. This is Mr. Nieves' timely appeal.

II.

On appeal, Mr. Nieves argues that the trial court erred in revoking his probation because the evidence failed to prove one element of the resisting offense—that the police were acting in "the lawful execution of any legal duty." See § 843.02, Fla. Stat. (2017). To revoke a defendant's probation, the trial court must find, by a preponderance of the evidence, a willful and substantial violation of one of the conditions of his probation. Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013). Where the alleged violation is of a condition prohibiting new law violations, the question is whether a preponderance of the evidence establishes that the probationer committed any alleged offense. Hernandez v. State, 33 So. 3d 143, 144 (Fla. 2d DCA 2010).²

Whether the evidence in this case established the lawful execution of a legal duty—a necessary element of the new law violation of resisting an officer without violence that Mr. Nieves was found by the trial court to have committed—depends on the answers to two questions: (1) whether the warrantless arrest of Mr. Nieves was lawful under the Fourth Amendment and, if not, (2) whether that defect renders the State's proof that the police were in the lawful execution of a legal duty legally insufficient. The first question involves the application of Fourth Amendment law to the facts, and the second is one of pure law; our review of these issues is de novo. See Lawson v. State, 969 So. 2d 222, 229 (Fla. 2007) (holding that where the probation revocation decision hinges on legal questions, the de novo standard applies); Jones v. State, 117 So. 3d 818, 820 (Fla. 4th DCA 2013) (evaluating sufficiency of the evidence to establish a new law violation as a basis to revoke probation under the de novo standard); Cote v. State, 14 So. 3d 1137, 1139 (Fla. 4th DCA 2009) (holding that whether the exigent circumstances exception to the Fourth Amendment's warrant requirement applied to the facts of the case was reviewed under the de novo standard).

Turning first to whether the warrantless arrest of Mr. Nieves was lawful, it is settled that it is unlawful for the police to make a warrantless entry into a place protected by the Fourth Amendment for the purpose of arresting a suspect unless an exception to the warrant requirement applies. Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). This is true even where the police otherwise have probable cause to arrest the suspect and could make the arrest without a warrant were he, for example, just out on the street. See, e.g., Bennett v. State, 46 So. 3d 1181, 1185 (Fla. 2d DCA 2010) ; Burt v. State, 821 So. 2d 437, 439 (Fla. 2d DCA 2002). Thus, the fact that the police had probable cause to arrest Mr. Nieves for the offense of domestic battery does not, by itself, excuse the police from getting a warrant before entering a space protected by the Fourth Amendment to arrest him for that offense.³

No one in this case has disputed that under the facts adduced at the hearing on the affidavit of violation, the motel room in which Mr. Nieves barricaded himself was a place protected by the Fourth Amendment. See Holloman v. State, 959 So. 2d 403, 406 (Fla. 2d DCA 2007) ("The constitutional rights and privileges that apply to those who occupy private permanent dwellings also apply to those who occupy a motel room when the ‘occupant is there legally, has paid or arranged to pay, and has not been asked to leave.’ " (quoting Turner v. State, 645 So. 2d 444, 447 (Fla. 1994) )). Nor has anyone disputed that the police reaching through the motel-room window and pulling Mr. Nieves out constituted a warrantless entry. See Espiet v. State, 797 So. 2d 598, 603 (Fla. 5th DCA 2001) (treating a deputy's reaching through a screen-covered 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 warrantless arrest here could be lawful under the Fourth Amendment only if an exception to the warrant requirement applies. See Sosnowski v. State, 245 So. 3d 885, 888 (Fla. 1st DCA 2018) (stating that evidence of domestic abuse, standing alone, is not sufficient to justify a warrantless entry into a place protected by the Fourth Amendment), review denied, No. SC18-2004, 2019 WL 1349271 (Fla. Mar. 26, 2019).

The only exception that could possibly apply in this case is the exigent circumstances exception.⁴ See Sturdivant v. State, 578 So. 2d 869, 870 (Fla. 2d DCA 1991) ("The [F]ourth [A]mendment prohibits a warrantless and nonconsensual entry of a lawfully occupied motel room for the purposes of making a felony arrest absent exigent circumstances."). The exception is generally triggered when the police have an urgent need to address some sort of emergency, such as a threat to the safety of persons or property, a reasonable concern that the suspect might flee, or a reasonable concern that evidence may be destroyed. See Kentucky v. King, 563 U.S. 452, 460, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) ; see also Hanifan v. State, 177 So. 3d 277, 279-80 (Fla. 2d DCA 2015) (destruction of evidence); Barth v. State, 955 So. 2d 1115, 1117 (Fla. 2d DCA 2006) (threat to safety); A.E.R. v. State, 464 So. 2d 152, 154 (Fla. 2d DCA 1985) (possibility of fleeing suspect). To establish exigent circumstances, the State must show a "compelling need for official action and no time to secure a...