State v. Bell, 71--63

• Decision Date: 07 June 1971
• Docket Number: No. 71--63,71--63
• Citation: 249 So.2d 748
• Parties: STATE of Florida, Appellant, v. Richard Stewart BELL and Nancy Carol Yaeger, Appellees.
• Court: Florida District Court of Appeals

Page 748

249 So.2d 748

STATE of Florida, Appellant, v. Richard Stewart BELL and Nancy Carol Yaeger, Appellees.

No. 71--63.

District Court of Appeal of Florida, Fourth District.

June 7, 1971.

Rehearing Denied July 19, 1971.

Marvin U. Mounts, Jr., County Sol., James Carlisle and John H. King, Asst. County Sol., West Palm Beach, for appellant.

David Roth, of Cone, Wagner, Nugent, Johnson, McKeown & Dell, West Palm Beach, for appellees.

MAGER, Judge.

Appellant, the State of Florida, appeals an order suppressing evidence and confessions entered in favor of defendants, Richard Bell and Nancy Yaeger, who had been charged with possession of marijuana.

The facts, as found by the trial court and set forth in the order appealed from, are:

'Police Officer, Joseph McCarthy, of the West Palm Beach Police Department was on routine patrol in a business district within the City of West Palm Beach. At approximately 3:30 in the morning he saw a light in the rear window of a business establishment with a blanket over its window and then proceeded to the front door of the business establishment and found that although it was closed it was not locked. At that time the officer returned to his patrol car and called for assistance for he believed a burglary was in progress. Sergeant Flesh of the West Palm Beach Police Department responded to the call for assistance and Officer McCarthy directed Officer Flesh to the rear door of the premises. Officer McCarthy then, without knocking, without permission, and without a search warrant, entered the front door of the store by opening the door, proceeded to a second door which led to the back room where he saw the light and opened that door and saw: The two defendants sitting on a bed discussing astrology, marijuana, and the heavy odor of burnt marijuana. Brief inquiry of the defendant, Richard Bell, revealed that the latter had just rented the place of business and was living or residing in the back room which eliminated further investigation relating to a breaking and entering.

'Officer McCarthy then summoned Officer Flesh into the room. Officer Flesh directed Officer McCarthy to call the Captain and while this was being done Officer Flesh read to the defendants their constitutional rights pursuant to the Miranda Decision. Officer McCarthy returned to the room, Officer Flesh left, Lieutenant Mann arrived and the defendants were arrested for possession of marijuana, after which, a full search of the room was made with the assistance of the defendant Richard Bell.

'Officer McCarthy had training on the detection of marijuana and could identify its smell, however, on the night in question he was not pursuing any narcotics investigation, but rather, was on routine patrol in a business area and all objects seized within the premises were in plain sight upon entry into the room.'

It is clear that if the arresting officer had a right to enter the building and to be where he was when the defendants were observed, then the marijuana, being contraband in plain view, was subject to seizure without a search warrant and admissible into evidence. Harris v. United States, 1968, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; Webster v. State, Fla.App.1967, 201 So.2d 789. Defendants' arrest would likewise have been proper, and their inculpatory statements admissible. See Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The crucial issue in this case, therefore, Is the propriety of the officer's entry into the building.

Section 901.19(1), Florida Statutes 1969, F.S.A., provides that:

'An officer, in order to make an arrest either by virtue of a warrant, or when authorized to make such arrest for a felony without a warrant, may break open a door or window of any building in which the person to be arrested is or is reasonably believed to be, if he is refused admittance after he has announced his authority and purpose.'

The Florida Supreme Court in Benefield v. State, Fla.1964, 160 So.2d 706, interpreted this statute to mean that

'* * * (E)ven if probable cause exists for the arrest of a person, our statute is violated by an unannounced intrusion in the form of a breaking and entering any building, including a private home, except (1) where the person within already knows of the officer's authority and purpose; (2) where the officers are justified in the belief that the persons within are in imminent peril of bodily harm; (3) If the officer's peril would have been increased had he demanded entrance and stated the purpose, or (4) where those within made aware of the presence of someone outside are then engaged in activities which justify the officers in the belief that an escape or destruction of evidence is being attempted. * * *' (Emphasis added.)

Appellant concedes that the arresting officer's entry into the building in the instant case was an entry by breaking within the meaning of F.S. § 901.19(1), F.S.A., as interpreted by Benefield. Appellant, however, contends that the third exception set forth in Benefield to the requirement of knocking and announcing purpose is applicable--that is, that the officer's peril would have been increased had he demanded entrance and stated his purpose.

The trial court was of the opinion that there was insufficient justification for entry of the arresting officer into appellant's premises without announcing his authority and purpose within the meaning of Section 901.19(1), as construed in the Benefield case.

We readily recognize that a trial court's ruling on a motion to suppress comes to this court with a presumption of correctness and in testing the accuracy of a trial court's conclusion we should interpret the evidence and all reasonable inferences and deductions capable of being drawn therefrom in a light most favorable to sustain these conclusions. Rodriguez v. State, Fla.App.1966, 189 So.2d 656. From our review of the record, however, we are of the opinion that the evidence before the court justified the entry by arresting officer Joseph McCarthy into the premises without first announcing his authority. As was observed in Webster, supra, what the state and federal constitutions forbid is Not all searches and seizures but Unreasonable searches and seizures; and whether a particular search is or is not reasonable must be determined by the circumstances surrounding the search and the manner in which it was conducted. See State v. Parnell, Fla.1969, 221 So.2d 129; see also Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. The testimony of officer McCarthy clearly reveals that he was patrolling the alleys In a business area when at approximately 3:30 A.M. he saw a light in the rear window of a business establishment with a blanket over the window. In being questioned as to why he entered the building by the front door (which was not locked) without knocking or otherwise announcing his entry, officer McCarthy stated:

'Not in that circumstances, and at that time I wasn't about to open a door where there is a light on in the back, fearing it could be a burglar.'

The arresting officer was not on a special narcotics detail but was patrolling the general area in connection with his assignment. The arresting officer also indicated that he had no prior information either concerning the existence of narcotics or that the premises in question was anything other than A business establishment. As far as the officer was concerned, as the evidence reflects, to have knocked on the door would have placed him in peril if a burglary was in process, within the meaning of the Benefield case. The fact that it turned out that there was no breaking or entering or any burglary in process does not in our opinion negate the propriety of the officer's presence on the premises in the first instance. We feel that the criterion is the reasonableness of the belief as to the peril, not the existence of a peril in fact. Judge Barkdull in his concurring opinion in Rodriguez, supra, observed in part:

'* * * (I)f the record reveals that the facts known to the arresting officers before their entry are not inconsistent with a good faith belief on their part that compliance with § 901.19(1) Fla.Stat., F.S.A., is excused, their failure to comply with the formal requirements of said section does not justify the exclusion of the evidence they obtain. See: People v. King, 140 Cal.App.2d 1, 294 P.2d 972; People v. Ramsey, 157 Cal.App.2d 178, 320 P.2d 592. This is so because the officers must decide this question ordinarily on the spur of the moment and without benefit of hindsight. * * *' The rationale for a police officer's nighttime inspection of a business premises while on routine patrol is aptly demonstrated in People v. McErlean, 1962, 38 Misc.2d 634, 235 N.Y.S.2d 657, at p. 660:

'Police Departments were created and have developed in metropolitan areas to meet a Need of the citizenry for protection of not only life and property, but of the peace of the community and the social order. Police practices, procedures and systems have evolved over the years to more adequately meet The needs of the communities they serve.

'Among these is the Crime prevention activities of the police. The citizenry of such areas Relies upon this police activity and regards it as a right of citizenship in such areas. There is much Need for crime preventive police activity in metropolitan areas as there is for fire prevention activity of Fire Departments, or for preventive medicine by Health Departments and the medical profession.'

The rules and procedures relating to patrol activities involved in the McErlean case, supra, require police officers 'to note where lights are ordinarily left burning at night * * * at night frequently examine all doors on his post * * * investigate all suspicious circumstances, persons loitering about or acting suspicious.'

It is not unreasonable to assume that the patrol procedures applicable to the police department of West Palm Beach require police...