Rodriguez v. State
| Decision Date | 04 March 1986 |
| Docket Number | No. 84-2209,84-2209 |
| Parties | 11 Fla. L. Weekly 563 Juan RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Charles M. Fahlbusch, Asst. Atty. Gen., for appellee.
Before HENDRY, HUBBART and NESBITT, JJ.
This is an appeal from a final judgment of conviction and sentence for unlawful possession of a short-barreled shotgun entered upon a nolo contendere plea in which the defendant properly reserved for appellate review the denial of a motion to suppress. We conclude that the trial court erred in denying the motion to suppress and reverse.
The order denying the motion to suppress states the facts pertaining to the subject search as follows:
It is plain from the above that the police forcibly entered the defendant's apartment after announcing their authority and purpose--but before they had been denied admittance to the house. As the trial court recognized, this action plainly violated Section 933.09, Florida Statutes (1983), which provides:
"933.09 Officer may break open door, etc., to execute warrant.--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 his authority and purpose he is refused admittance to said house or access to anything therein." (emphasis added).
This being so, the short-barreled shotgun seized while executing the warrant was, on its face, inadmissible in evidence at trial and was subject to being suppressed below. Benefield v. State, 160 So.2d 706 (Fla.1964); Whisnant v. State, 303 So.2d 397 (Fla. 3d DCA 1974), cert. denied, 323 So.2d 273 (Fla.1975).
The trial court, however, denied the motion to suppress on the ground that an exception engrafted on the above statute in Benefield v. State, supra, was applicable in this case, namely, that the knock and announce requirements need not be complied with where the officer's peril would have been increased had he properly announced his authority and purpose and then been denied admittance. The trial court concluded that this exception was applicable because (1) the search warrant directed the officers to search for a stolen gun, and (2) the officers had received reliable information that there was cocaine on the premises and that the purpose of the weapon was for use in protecting the cocaine. We cannot agree.
First, a search warrant, as...
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