State v. Boyd

• Decision Date: 10 March 1993
• Docket Number: 91-03985,Nos. 91-03895,s. 91-03895
• Citation: 615 So.2d 786
• Parties: 18 Fla. L. Week. D720 STATE of Florida, Appellant, v. James R. BOYD, Appellee.
• Court: Florida District Court of Appeals

Page 786

615 So.2d 786

18 Fla. L. Week. D720

STATE of Florida, Appellant, v. James R. BOYD, Appellee.

Nos. 91-03895, 91-03985.

District Court of Appeal of Florida Second District.

March 10, 1993.

Robert A. Butterworth, Atty. Gen., Tallahassee, Dell H. Edwards and Sue R. Henderson, Asst. Attys. Gen., Tampa, for appellant.

James Marion Moorman, Public Defender, and Tonja R. Vickers, Asst. Public Defender, Bartow, for appellee.

CAMPBELL, Acting Chief Judge.

In these consolidated appeals, appellant, the state of Florida, seeks reversal of a pretrial order suppressing evidence and an order dismissing Count II of the information, which charged appellee, James R. Boyd, with the improper exhibition of a firearm in violation of section 790.10, Florida Statutes (1991). In addition to the charge of improper exhibition of a firearm, appellee was also charged with resisting an officer with violence, possession of a firearm with altered serial number, possession of cannabis with intent to sell or deliver, possession of drug paraphernalia, possession of cocaine and grand theft. We agree with the state and reverse both orders.

On April 1, 1991, at approximately 5:30 p.m., Deputy Sheriff Gunnoe was dispatched to a residential address in Eloise, Florida. The call reported that there was a man in the yard firing a shotgun. The deputy observed appellee Boyd standing in the yard, pointing a shotgun at other homes in the vicinity. Appellee appeared angry, was yelling and the deputy heard appellee say, "I'll shoot." The deputy identified himself and told appellee to put the gun down and to walk toward the deputy. The deputy told appellee several times: "Deputy sheriff, stop, put the gun down." Appellee did not respond, but kept the gun and started walking toward the deputy. The deputy stepped behind a tree and told appellee he would be shot if he did not put the gun down. Appellee then dropped the gun, but continued toward the deputy. Appellee was arrested for improper exhibition of a firearm.

The deputy then handcuffed appellee, put him in the sheriff's patrol car, and picked up the shotgun from the ground. The deputy looked around the front yard and found a machete and two recently-fired twelve-gauge shotgun shell casings. The deputy found a third shell casing on the side of the house. The front door of the house was open. Appellee did not have any identification, but he told the deputy his name was James Boyd. The name on the mailbox was "Beardon."

At that point, the deputy testified, he believed that an armed burglary had possibly occurred, and that there might be a shooting victim inside the house. No one answered or came to the door when the deputy called. The deputy had no information as to whether a shooting had occurred inside the house. He did not know whether appellee had been firing a gun from the yard into the house. The deputy testified that, without going inside the house and looking, he could not be sure that someone inside the house had not been injured. Based on what the deputy knew, observed and had been told in being dispatched to the home where a shooting had been reported, he had reason to believe that an injured person needing assistance could be inside.

The deputy then entered the house to determine if there was an injured person or persons inside. He stated he was not searching for any drugs or contraband. Approximately three feet from the front door, the deputy saw in plain view a surgical clamp with stains on the end of it. The deputy recognized the clamp as the kind commonly used for holding marijuana cigarettes. He also saw an alligator clip (electrical clamp) and a pipe with residue and smoke stains. During a visual inspection of all the rooms, the deputy saw a large number of tools, including battery chargers, fishing equipment, circular saws, drills, two mechanics roll-around tool boxes and three weedeaters, which filled a utility room off the kitchen. The amount of equipment seemed to the deputy to be unusual. One of the weedeaters was still in a box. The deputy spent less than five minutes inside the house during his search for a possible victim.

Appellee was still sitting in the back of the patrol car when the deputy came out of the house. The deputy called his sergeant and explained the situation. The deputy then asked appellee to sign a consent to search the house. Appellee was given the Miranda warning, and the deputy read the consent to search form to him. The deputy believed appellee had been drinking alcohol, but he appeared to be coherent and to understand the deputy. Appellee signed the consent to search form and the written Miranda warning. He was neither threatened nor coerced to sign the form. Before he signed the consent to search form, he requested that he be present when the search was conducted. Appellee was advised that he had a right to refuse consent. Appellee was taken back inside the house and sat at the table in the dining room while the search was conducted. Three additional deputies arrived and assisted in the search. Some of the equipment found in the house was listed as stolen. Drugs, including eighty grams of marijuana and cocaine residue, were also discovered.

The trial judge, in granting appellee's motion to suppress, apparently relied to a large degree on Gonzalez v. State, 578 So.2d 729 (Fla. 3d DCA1991). Neither of the orders, however, reveals the reasoning of the judge, nor do the transcripts of the hearings reflect such reasoning except for the judge's oral inquiries as to whether this case was so similar to Gonzalez as to be controlled by it. The issue was not resolved at the hearing. Instead, the trial judge took the matter under advisement and received memoranda from counsel prior to entering his rulings.

We find that the trial judge's reliance on Gonzalez was misplaced because the circumstances of this case are clearly distinguishable from those in Gonzalez. The first question is whether appellee voluntarily consented to the search of his house which resulted in the seizure of the contraband. That single principal issue breaks down into two sub-issues.

The first sub-issue is whether Deputy Gunnoe's initial entry into appellee's residence was a legal, nonconsensual, warrantless entry and search. As we will explain, we conclude it was a legal entry and search. The compelling and controlling factors surrounding the legality of warrantless searches of a person's home have been rather frequently pronounced by the courts of this state. In Cross v. State, 469 So.2d 226 (Fla. 2d DCA1985), affirmed, 487 So.2d 1056, cert. dismissed, 479 U.S. 805, 107 S.Ct. 248, 93 L.Ed.2d 172 (1986), this court clearly pronounced its own understanding and conclusions regarding these factors as follows:

Warrantless searches are per se unreasonable under the Fourth Amendment to the United States Constitution and Article I, section 12, of the Florida Constitution, subject to a few specifically established and well-delineated exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One such exception is the emergency doctrine. This exception had its origin in the dictum in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), where the Supreme Court stated that exceptional circumstances could dispense with the need for a warrant.

This emergency or exigency rule first received recognition in Florida in Webster v. State, 201 So.2d 789 (Fla. 4th DCA1967), and has been applied under various circumstances. See, e.g., Guin v. City of Riviera Beach, 388 So.2d 604 (Fla. 4th DCA1980) (reasonable belief that a crime was in progress held sufficient to justify a warrantless entry); Grant v. State, 374 So.2d 630 (Fla. 3d DCA1979) (officers responding to reported shooting held to have properly entered apartment where they discovered certain evidence); Long v. State, 310 So.2d 35 (Fla. 2d DCA1975) (preservation of human life justified an emergency entry of a home and admissibility of contraband obtained).

To invoke the emergency rule to search a person's home, the exigencies of the situation must be so compelling as to make a warrantless search objectively reasonable. See Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).

469 So.2d at 227.

The implementation of the emergency or exigency rule exception to the per se unreasonableness of warrantless searches seems to us to require the application of a standard of review that combines the "objective" and "subjective" view of the facts which lead a person to believe that the emergency or exigency exists. The various opinions of our courts on this standard have not been always consistent in the language employed to articulate the standard. Appellee relies on State v. Starkey, 559 So.2d 335, 337 (Fla. 1st DCA1990), for the rule that "[t]he law is now well settled that the lawfulness of a warrantless search is to be determined by an objective view of the facts, not the subjective view of the person conducting the search. See Padron v. State, 449 So.2d 811, 812 (Fla.1984), and Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978)." It appears that while that statement in Starkey is a correct statement of the law as applied to the facts in that case, the statement also appears to be dicta. Starkey did not deal with a warrantless entry or search into a constitutionally protected area based upon exigent or emergency circumstances without an accompanying intent either to seize or arrest. Starkey dealt instead with the warrantless seizure of evidence from an automobile in a public parking lot which the officer had lawfully observed in plain view from a point outside the...