State v. Collier, 72--394
| Decision Date | 19 December 1972 |
| Docket Number | No. 72--394,72--394 |
| Citation | 270 So.2d 451 |
| Court | Florida District Court of Appeals |
| Parties | STATE of Florida, Appellant, v. Terry Kerr COLLIER and Maria Isabel Collier, Appellees. |
Rom W. Powell, County Sol., and Warren H. Petersen, Asst. County Sol., Orlando, for appellant.
Michael F. Cycmanick and James M. Russ, of Law Offices of James M. Russ, Orlando, for appellees.
The issue on this interlocutory appeal by the state is whether or not the trial court correctly suppressed evidence seized by officers of the Winter Park Police Department in the execution of a search warrant, on the ground that the execution of the warrant was not in compliance with the requirements imposed by F.S. Section 933.09, F.S.A.1971.
On 8 May 1970 a search warrant was issued to the Chief and officers of the Winter Park Police Department authorizing a search of a garage apartment occupied by the appellees, Terry Collier and Maria Collier, for barbiturate drugs. The warrant was executed by officers of the Winter Park Police Department on the same date or in the early hours of 9 May 1970. As a result of the search the appellees were apparently found to be in possession of cannabis (commonly known as marijuana) and an information was filed in the present case charging them with unlawful possession of the aforementioned narcotic. On 14 February 1972 the appellees filed a motion to suppress the evidence seized under the warrant.* Following an evidentiary hearing the trial court entered the order granting the motion to suppress, and this appeal followed.
The facts surrounding the execution of the search warrant were related at the hearing on the motion to suppress by one Betty McDonnell who appeared as a witness for the appellees and William J. Hill, a police officer with the Winter Park Police Department. From the testimony of these witnesses it appears that on 7 May 1970, Officer Hill arranged with the Colliers to come to their apartment the following evening to purchase narcotics. Officer Hill then obtained the search warrant. On the evening of 8 May 1970 he joined the Colliers and several other persons at the Colliers' garage apartment in Winter Park. Officer Hill testified that the gathering appeared to be a pot party. Officer Hill, whose identity as a policeman was then unknown to the Colliers, mingled with those present for approximately thirty minutes. He then left the garage apartment by the only doorway which led by way of an exterior stairway to the ground level.
After Officer Hill left the apartment he was joined by two other officers from the Winter Park Police Department who had been waiting in the vicinity. The three officers then returned to the apartment and, according to Officer Hill, identified themselves at the door as police officers and upon entry announced that they had a search warrant. McDonnell's version of the events surrounding the entry of the officers varies only in that she did not recall the announcement of the search warrant when the officers entered. She verified, however, that the officers announced themselves as Winter Park police at the door which was open or partially open when the officers arrived at the entrance. McDonnell testified that there was no knocking or other request for permission to enter before the officers entered the premises.
The controlling statute is F.S. Section 933.09, F.S.A.1971. It provides:
'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.'
This statute by its express language and by the reasonable implication thereof requires a police officer engaged in the execution of a search warrant Before entering one's residence to attempt to call to the attention of those within the residence the presence of the officer outside the dwelling by knocking or any other reasonable means and thereafter to announce his authority (i.e., officer of the Winter Park Police Department) and the purpose of his presence at the residence (i.e., to execute a search warrant). See Benefield v. State, Fla.1964, 160 So.2d 706, where the Florida Supreme Court construed F.S. Section 901.19(1), F.S.A.1969, which is closely analogous to F.S. Section 933.09, F.S.A.1971, the statute now before this court. The only significant difference between the two statutes is that the former governs official entries for the purpose of effecting an arrest while the latter governs official entries for the purpose of executing a search warrant. Benefield v. State, supra, is, therefore, persuasive authority for the construction of F.S. Section 933.09, F.S.A.1971.
In the present case, the evidence clearly revealed that the officers did not comply with the controlling statute in that before entry they did neither knock nor otherwise announce their presence to the Colliers within nor did they announce their purpose. As a result of the failure of the officers to comply with the statute, the evidence seized under the warrant was seized illegally, was not admissible in evidence, and was, therefore, subject to suppression. Benefield v. State, supra; McLendon v. State, Fla.App.196...
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...a reentry by the initially invited officer, the arrest or seizure was effected either (a) by that particular officer, State v. Collier 270 So.2d 451 (Fla. 4th DCA 1972), followed in State v. Roman, 309 So.2d 12 (Fla. 4th DCA 1975), cert. dismissed, 312 So.2d 761 (Fla.1975); see also, Urquha......
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