State v. Bamber
| Decision Date | 20 January 1994 |
| Docket Number | No. 79263,79263 |
| Citation | 630 So.2d 1048 |
| Parties | 19 Fla. L. Weekly S47 STATE of Florida, Petitioner, v. Earl R. BAMBER, Respondent. |
| Court | Florida Supreme Court |
Robert A. Butterworth, Atty. Gen., and Brenda S. Taylor and Peggy A. Quince, Asst. Attys. Gen., Tampa, for petitioner.
Douglas L. Grose, Tampa, for respondent.
We have for review State v. Bamber, 592 So.2d 1129 (Fla. 2d DCA 1991), based on conflict with cases from Florida's Third and Fifth District Courts of Appeal. 1 We have jurisdiction. Art. V, Sec. 3(b)(3), Fla.Const. We approve Bamber.
Detective Kennedy applied for a no-knock warrant on August 18, 1989, to search the residence of Earl R. Bamber. The proposed search was premised on the following facts as alleged in Kennedy's affidavit:
--Twice during the preceding two weeks a confidential informant had bought cocaine from Bamber in his home.
--According to the informant, Bamber retrieved the drugs from an area near the bathroom.
--Detective Kennedy believes that Bamber has the ability to dispose of the drugs through bathroom facilities.
--Detective Kennedy believes the operation would be "greatly enhanced" if the warrant were executed in no-knock fashion. 2
The magistrate issued a standard search warrant and attached the affidavit. Detective Kennedy instructed the Hillsborough County Sheriff's SWAT team to secure the residence.
At approximately 4:20 p.m., the SWAT team, dressed in military fatigues and vests emblazoned with the word "SHERIFF," detonated a bomb outside Bamber's home, a four-bedroom, four-bath, split-level house in a residential neighborhood. At the time of the raid, Bamber, his wife, and minor child, and two commercial repairmen were inside. Mr. Wilson, one of the repairman, testified that when he heard the "BOOM," he went to the front door:
Q. Did you hear anyone knock on the door?
A. No, sir. I was walking out the door?
Q. Okay. What did they do to you?
A. Well, I opened the door. I had two buckets of water in my hands and they put a gun to my head and threw me back in the house and slammed me on the ground, and they wouldn't let me move my head, or nothing.
Q. Did they have something about them, when they came in the door, that indicated they were Sheriff's Office; they were law enforcement?
A. They didn't really give me no time to look or nothing. They threw me back in the house and my head on the floor.
Tile-setter Randy Rhodes, the second repairman, testified that he was standing on a ladder in the dining area when he heard the "BOOM":
Q. Did you hear anybody say, "Sheriff's Office, police officers, search warrant"?
A. No. My first thing was to get out of that area. I moved directly into the kitchen area.
Q. Okay.
A. By that time that individual had come into that area at gunpoint and was pointing a gun at me.
At that time he did not say nothing, but forcing me to the floor.
Q. Did you know he was a policeman?
A. No, I did not know.
Q. Okay.
A. I was upset for the fact that someone was pointing a gun at me, and I was using some, using some language myself and telling him ....
[A.] I moved to the back of the kitchen. That's when I looked outside and I seen another guy in fatigues, and then another one, and it was like we were in Vietnam. I had never seen anything like that before.
Bamber's wife testified that she too did not know that the men entering her home were officers; she believed her home was being invaded by a gang of robbers. And Bamber himself testified that he was in the bedroom watching television when he heard the bomb:
A. It was a real loud explosion. I stood up and opened the door to see what was going on, and there was a man that ran through the door and knocked me down; hit me with a gun [on] my head.
Q. What was this man wearing?
A. Fatigues.
Q. Did he identify himself as "sheriff"?
A. No, sir.
Q. Okay. Did he have on his person something you could see that you saw and recognized to be a law enforcement officer?
A. No, sir.
Q. Did you hear anyone announce, "police, Sheriff's Office, law enforcement," anything that would indicate who this man was coming in your door?
A. No.
....
A. As soon as he knocked me down, I got up, and they knocked me down again and broke my finger.
Detective Kennedy arrived after the occupants had been subdued and read them the warrant. During the subsequent search, police found a small amount of cocaine in Bamber's pants pocket and a small quantity of marijuana. Bamber was charged with simple possession of cocaine and marijuana. The trial court granted Bamber's motion to suppress the drugs and the district court affirmed, ruling that section 933.09, Florida Statutes (1989), requires officers to knock and announce their presence and purpose before forcibly entering a residence. The State sought review based on conflict with cases approving no-knock raids. 3 The State argues that Detective Kennedy's affidavit reasonably established that Bamber had the immediate ability to destroy drugs through standard bathroom facilities and the magistrate was thus justified in issuing a no-knock search warrant.
The issue before us is twofold: 1) May a magistrate issue a no-knock warrant for the search of a residence? 2) If not, may police nevertheless engage in a no-knock search based on exigent circumstances arising at the scene?
No-knock warrants are disfavored under the law and limited largely to those states that have enacted statutory provisions authorizing their issuance. In fact, "[t]he prevailing ... view is that a magistrate may not issue a so-called no-knock search warrant in the absence of such a statutory provision." 2 Wayne R. LaFave, Search and Seizure Sec. 4.8(g) (1987). No statutory authority exists under Florida law for issuing a no-knock search warrant.
The reasoning against no-knock warrants is convincing. Circumstances that may seemingly justify issuance of a no-knock search warrant may change drastically after issuance but before execution of the warrant. Conditions must be assessed at the scene at the time of entry:
While a search warrant must necessarily rest upon previously obtained information.... Facts existing at the time of obtaining a warrant may no longer exist at the time of entry. Such an emergency, therefore, can be judged only in light of circumstances of which the officer is aware at the latter moment.
Parsley v. Superior Court, 9 Cal.3d 934, 109 Cal.Rptr. 563, 566, 513 P.2d 611, 614 (1973). As a matter of policy, no-knock warrants are disfavored because of their staggering potential for violence to both occupants and police, as Congress recently discovered 4 and as is apparent in the present case. We conclude that in the absence of express statutory authorization no-knock search warrants are without legal effect in Florida.
We must now determine whether a no-knock search of a residence may be lawful based on exigent circumstances arising at the scene.
A strong presumption existed against the validity of no-knock searches at common law. Benefield v. State, 160 So.2d 706 (Fla.1964). In fact, it is generally recognized that police have been required to knock and announce their authority and purpose before breaking into a home since time immemorial. Id. at 709.
This Court in Benefield explained the basis for the knock-and-announce requirement that has governed residential searches in our state:
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. Judge Prettyman for the Court of Appeals in Accarino v. United States, discussed the history and reasons for it. 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 men dare not cross the threshold without his permission.
This sentiment has moulded our concept of the home as one's castle as well as the law to protect it. The law forbids the law enforcement officers of the state or the United States to enter before knocking at the door, giving his name and the purpose of his call. 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. The law so interpreted is nothing more than another expression of the moral emphasis placed on liberty and the sanctity of the home in a free country. Liberty without virtue is much like a spirited horse, apt to go berserk on slight provocation if not restrained by a severe bit.
Benefield v. State, 160 So.2d 706, 709 (Fla.1964) (citations omitted).
Several practical reasons underlie this rule, as noted by Professor LaFave:
Although it has been argued that the protections flowing from the notice requirement are "somewhat tenuous," this is hardly the case. The constitutional requirement of announcement serves a number of most worthwhile purposes: (i) "decreasing the potential for violence"; (ii) "protection of privacy"; and (iii) "preventing the physical destruction of property." As to the first of these, it has been cogently noted that an "unannounced breaking and entering into a home could quite easily lead an individual to believe that his safety was in peril and cause him to take defensive measures which he otherwise...
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