Richardson v. State

• Decision Date: 09 May 2001
• Docket Number: No. 2D00-1885.,2D00-1885.
• Citation: 787 So.2d 906
• Parties: John RICHARDSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

787 So.2d 906

John RICHARDSON, Appellant, v. STATE of Florida, Appellee.

No. 2D00-1885.

District Court of Appeal of Florida, Second District.

May 9, 2001.

Rehearing Denied June 20, 2001.

James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender County; Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.

CASANUEVA, Judge.

Mr. Richardson appeals the denial of his dispositive motion to suppress arguing that law enforcement officers failed to comply with section 933.09, Florida Statutes (1999), the "knock and announce" rule, by failing to wait a reasonable amount of time before forcibly entering his residence. We agree and reverse.

On November 5, 1999, in the darkness of the early morning hours, around 5:30 a.m., members of the Bradenton Police Department executed a search warrant at a residence in that city. Based on undercover operations, they had reason to believe that cocaine had been sold from that home, but the affidavit upon which the search warrant was based contained no mention of a firearm or threat of violence. Detective Leo Donnelly, the leader of the eight-person entry team, was to "knock and announce" the officers' presence and reason for entering and be the first to enter. At the suppression hearing he testified that he did three sets of three loud knocks on the door while yelling "Bradenton Police Department, search warrant," pausing slightly between each set and then getting "out of the way." The team heard no sounds from within the residence. A battering ram was used to open the door. The detective estimated that ten seconds elapsed between his first knock and the officers' entry into the home.

Mr. Richardson testified that at the time of the officers' entry he was trying to sleep in a reclining chair that was only feet from the front door. All he heard was a "boom" and the officers were in the home and upon him before he could even make it out of the reclining chair. Mr. Richardson thought he was being robbed. Upon searching the residence, the officers seized cocaine and drug paraphernalia pursuant to the warrant, as well as a firearm they discovered in the bedroom.

At the suppression hearing Detective Donnelly and the officer who actually battered down the door each demonstrated the knock and announce technique they used at Mr. Richardson's residence. Each demonstration took nine to ten seconds. Officer Donnelly admitted that his training for executing search warrants did not include providing the occupant with an appropriate amount of time to respond to the search warrant announcement. The Fourth Amendment to the Constitution of the United States guarantees the people of this nation the right to be secure in their homes from unreasonable searches. Article I, section 12, of the Constitution of the State of Florida provides the identical guarantee. It is against the backdrop of this vital constitutional right that the government's procedure in this case must be measured.

Section 933.09 permits law enforcement, in the execution of a search warrant, to break open an outer door where "after due notice of the officer's authority and purpose, he or she is refused admittance to said house." 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. This 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 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). See also Craft v. State, 638 So.2d 1011 (Fla. 2d DCA 1994)

; Rodriguez v. State, 484 So.2d 1297 (Fla. 3d DCA 1986). Cf. Braham v. State, 724 So.2d 592 (Fla. 2d DCA 1998) (holding that five- to ten-second wait before forcible entry into very small mobile home was reasonable where deputies could hear someone moving about inside, no one picked up a ringing phone that officers believed was a neighbor trying to warn the occupants of the presence of police, and no one responded to the knock or came to the door).

Here, unfortunately, the officers had not been trained to permit an occupant time to respond, and, consequently, none was provided. We find this defect in training troubling because of its impact upon a basic constitutional and statutory protection. Before law enforcement may forcibly enter a home to execute a search warrant, section 933.09 imposes two requirements. First, law enforcement must provide due notice of their authority and purpose. The detective's announcement, in this instance, met this requirement. Second, the statute requires that law enforcement be refused admittance. Refusal can be express or implied, and lack of response is deemed a refusal. United States v. Moore, 91 F.3d 96 (10th Cir. 1996). But, whether the ultimate refusal will be express or implied, the statute and case law interpreting it require that some quantity of time, sufficient under the particular circumstances, be permitted for an occupant to respond. In this case, especially because the search warrant was executed at a time of day when it was reasonable that persons inside the house would be sleeping, hardly any time was permitted for response, and thus the statute was violated. See Griffin v. United States, 618 A.2d 114 (D.C.1992)

(holding thirty-second wait at 1:40 a.m. unreasonable).

We can envision any number of particular circumstances permitting the police to wait only a minimal amount of time before entry without violating the statute or the constitution. For example, sounds emanating from the interior might suggest imminent resistance, the destruction of evidence, or other relevant scenarios. Braham, 724 So.2d 592; United States v. Markling, 7 F.3d 1309 (7th Cir.1993) (finding no violation where defendant in small hotel room and officers had been told that defendant was likely to destroy drugs on police approach). Evidence in the affidavit or the search warrant itself might indicate the likelihood of weapons, the occupant's violent predisposition, or other forms of officer peril. See United States v. Nabors, 901 F.2d 1351 (6th Cir. 1990)

. None of these circumstances was present in Mr. Richardson's case.

In failing to permit time for a response in executing a search warrant, the police follow a recipe for tragedy. We wish to see neither our law enforcement officers nor our citizens harmed. In this day and age in our country, many citizens lawfully possess firearms and are aware of the frequency of home invasion robberies. Awakening citizens from slumber and depriving them of an opportunity to recognize law enforcement's presence and purpose could result in a misunderstanding with horrific consequences.

Americans have long subscribed to the English common law principle that one's home is one's castle, so that not even the sovereign or its soldiers may enter without the owner's permission.

Entering one's home without legal authority and neglect to give the occupants notice have been condemned by the law and the common custom of this country and England from time immemorial. It was condemned by the yearbooks of Edward IV, before the discovery of this country by Columbus.... William Pitt categorized a man's home as his castle. Paraphrasing one of his speeches in which he apostrophized the home, it was said in about this fashion: The poorest pioneer in his log cabin may bid defiance to the forces of the crown. It may be located so far in the backwoods that the sun rises this side of it; it may be unsteady; the roof may leak; the wind may blow through it; the cold may penetrate it and his dog may sleep beneath the front steps, but it is his castle that the king may not enter and his

...