State v. Fultz

• Decision Date: 22 January 2016
• Docket Number: No. 2D14–5582.,2D14–5582.
• Parties: STATE of Florida, Appellant, v. John FULTZ, Appellee.
• Court: Florida District Court of Appeals

189 So.3d 155

STATE of Florida, Appellant,

v.John FULTZ, Appellee.

No. 2D14–5582.

District Court of Appeal of Florida, Second District.

Jan. 22, 2016.

Rehearing Denied March 22, 2016.

Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellant.

J. Andrew Crawford of J. Andrew Crawford, P.A., St. Petersburg, for Appellee.

SLEET

, Judge.

The State appeals the order granting John Fultz's motion to suppress evidence in his criminal prosecution for possession with intent to sell, manufacture, or deliver methamphetamine. In this case, we are called on to determine whether the exigent circumstances exception to the warrant requirement for a feared medical emergency or performance of a community caretaking function justified the warrantless entry and search of Fultz's home. Because the police had no objectively reasonable basis to believe that there was an emergency inside Fultz's residence to justify a warrantless search, we affirm.

Officer Lovelace, a patrol officer for the Treasure Island Police Department, was in the area of Fultz's townhouse at around 7:45 a.m. on November 26, 2013, where she had just completed a "house check" on a nearby home.¹ Officer Lovelace testified that she had been previously contacted by a citizen who had been keeping traffic logs for Fultz's townhouse due to "suspicious foot traffic." Two weeks prior to the search at issue, Officer Hansell, a St. Petersburg police officer who lived in the area, told Officer Lovelace that he suspected there was drug activity at the townhouse. Further raising her suspicions, when Officer Lovelace reported for her shift roll call that morning, Patrol Sergeant DeShay informed her of unconfirmed information he received from an informant regarding a possible meth lab in the garage of the townhouse.

After conducting the requested house check, Officer Lovelace decided to drive by Fultz's townhouse, which she suspected contained a meth lab. As she was passing by, she noticed that the front door to the townhouse was open, a light was on upstairs, some mail was on the floor under the mail slot, the garage door was closed, and a car was parked in the driveway. Officer Lovelace testified that based on her suspicion of drug activity, she called for backup about a minute after observing the open door.

Sergeant DeShay and Officer Smallen arrived on the scene ten minutes later. Before proceeding any further, DeShay contacted Detective Taylor in the Treasure Island police drug division and informed him of the situation, but Taylor declined to join them at the scene. Notwithstanding, based on the open door, mail, and unconfirmed reports of drug activity, the three officers decided to enter the home to conduct a "welfare check" on the residents. Sergeant DeShay testified that he knocked on the open door, announced "police," and then entered the residence. He immediately opened the door leading into the garage and discovered signs of an active meth lab. The trial court ultimately suppressed this evidence, and this appeal ensued.

A warrantless search of a home is "per se unreasonable under the Fourth Amendment ... and Article I, section 12, of the Florida Constitution

, subject to a few specifically established and well-delineated exceptions." State v. Boyd, 615 So.2d 786, 788 (Fla. 2d DCA 1993) (quoting Cross v. State, 469 So.2d 226, 227 (Fla. 2d DCA 1985) ); see also Seibert v. State, 923 So.2d 460, 468 (Fla.2006). Exigent circumstances are one such exception that may justify a warrantless search, but the police must have an objectively reasonable basis to support their actions. Vanslyke v. State, 936 So.2d 1218, 1221–22 (Fla. 2d DCA 2006) (citing Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ); see also Boyd, 615 So.2d at 789 ("[T]o allow a warrantless entry into a person's home in an emergency situation, there must be objectively reasonable circumstances that convey to the police officer an articulable, reasonable belief that an emergency exists.").

The exigent circumstances exception is not a shortcut by which police may circumvent the requirement of a search warrant. These exceptions are based on a police officer's ability to articulate objective facts which make the procuring of a warrant impractical. See Davis v. State, 834 So.2d 322, 327 (Fla. 5th DCA 2003)

("The sine qua non of the exigent circumstances exception is ‘a compelling need for official action and no time to secure a warrant.’ " (quoting Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) )). "[I]f time to get a warrant exists, the enforcement agency must use that time to obtain the warrant." Herring v. State, 168 So.3d 240, 244 (Fla. 1st DCA 2015), review dismissed, 173 So.3d 966 (Fla.2015) (alteration in original) (quoting Hornblower v. State, 351 So.2d 716, 718 (Fla.1977) ).

In this case, the State contends that the police were justified in entering Fultz's townhouse because they reasonably believed that the open door and scattered mail portended an emergency. Specifically, the State argues that two particular types of exigencies justified the police action in this case: the community caretaker exception and the feared medical emergency exception.

The community caretaker exception arises from the duty of police officers to "ensure the safety and welfare of the citizenry at large." Ortiz v. State, 24 So.3d 596, 600 (Fla. 5th DCA 2009)

(quoting 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 5.4(c), at 201–02 (4th ed.2004) ). It is clear from our review of the record that the officers involved in this case were motivated by a desire to serve and protect the Treasure Island community. And this court has held that "the operation of a methamphetamine lab is inherently dangerous, presents an immediate threat to public safety, and is well within the scope of the exigent circumstance exception." Barth v. State, 955 So.2d 1115, 1118 (Fla. 2d DCA 2006). However, police community caretaker functions are "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). And to justify entry under this exigency, the police must have a reasonable belief that a meth lab is being operated within a residence "based on their experience, facts developed during investigation, and observance of [the suspect's] activities." Barth, 955 So.2d at 1118.

In this case, the officers who entered Fultz's home did not have any special training related to meth labs, had not conducted any investigation into the reports of possible drug activity in the home, and had not made any observations of the residents or their activities that morning. Prior to the warrantless entry, police had not conducted any surveillance or controlled drug buys, made contact with Fultz, or initiated any other investigation into the potential criminal activity or habits of Fultz. Accordingly, we agree with the trial court's conclusion that the police did not have a...