State v. Markus

• Decision Date: 31 January 2017
• Docket Number: No. SC15–801,SC15–801
• Citation: 211 So.3d 894
• Parties: STATE of Florida, Petitioner, v. Christopher MARKUS, Respondent.
• Court: Florida Supreme Court

211 So.3d 894

STATE of Florida, Petitioner,

v.Christopher MARKUS, Respondent.

No. SC15–801

Supreme Court of Florida.

[January 31, 2017]

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Michael Layton Schaub, Assistant Attorney General, Tallahassee, Florida, for Petitioner

William J. Sheppard, Elizabeth Louise White, Matthew R. Kachergus, Jesse Barron Wilkison, and Bryan Everett DeMaggio of Sheppard, White, Kachergus & DeMaggio, P.A., Jacksonville, Florida, for Respondent

LEWIS, J.

This case is before the Court to review the decision of the First District Court of Appeal in Markus v. State , 160 So.3d 488 (Fla. 1st DCA 2015). This case concerns a warrantless home entry along with a search and seizure and a motion to suppress material seized by law enforcement. The issue we must address today is whether the exigent circumstance exception of hot pursuit justifies a warrantless home entry, search, and arrest when the underlying conduct for which there is probable cause is only a nonviolent misdemeanor and the evidence of the alleged misdemeanor is outside the home. The dissent prefers to distort the facts to support the government invasion into the home, but our analysis must rely on the actual facts, not a predetermined outcome. The State asserts that the decision of the First District Court of Appeal expressly and directly conflicts with Ulysse v. State , 899 So.2d 1233 (Fla. 3d DCA 2005). We conclude that conflict exists between these decisions. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The totality of the circumstances must be taken into account in evaluating Fourth Amendment cases, and we hold that a warrantless home entry, accompanied by a search, seizure, and arrest is not justified by hot pursuit when the underlying conduct for which there is alleged probable cause is a nonviolent misdemeanor and the evidence related thereto is outside the home. There is no destruction of evidence issue involved here as the dissent would use to divert a proper analysis of the law.

FACTUAL AND PROCEDURAL BACKGROUND

The factual events of the incident began in the early evening of Saturday, April 17, 2010, at the home of Justin McCumbers, Brandon Junk, and Eric Blair. At the time, Christopher Markus had an agreement under which he would live in the home for two to four nights per week in a spare bedroom and pay $400 rent per month. McCumbers testified that Markus was staying overnight on the evening of the incident, as Markus normally stayed overnight during weekends.

That night, Markus, McCumbers, Junk, and Blair invited Joseph Winters, Cassie Gurley, and Julia Martin to their garage/recreation room to socialize. The interior of this space was initially designed as a garage under the home which had been transformed into a common multi-purpose living or recreational room. The inside of the room contained two couches, one against the back wall and another against the right-side wall. A pool table was located in the center of the room. Located between the pool table and the back-wall couch was a small coffee table. The room also housed a small motorcycle and two grills.

Because the chain of events leading to the home entry, detention, and arrest of Markus were in dispute during trial, the officer's recollection of the facts are presented first, followed by the testimony of the witnesses who were present in the recreation room gathering that night. Our analysis must consider the totality of the facts, not simply aspects that may tend toward a predetermined result.

Officer Testimony

At 12:20 a.m. on April 18, 2010, Officer Roger David Prendergast and Officer R. Edu were dispatched to respond to a noise disturbance at a residence in Jacksonville Beach. The reported disturbance had already dissipated by the time the officers arrived. Prendergast noticed Markus and two other males standing outside a nearby residence, near a pickup truck parked along a public road. After observing that the two other males with Markus appeared to be drinking beer, Prendergast approached the men with the intent to instruct them to pour out their beverages. Prendergast testified that as he walked closer to Markus, he smelled marijuana. Markus then purportedly exhaled away from Prendergast and flicked his cigarette he was smoking onto the ground outside the home behind the truck on the street. The dissent calls on factors not supported by or part of this record. Although Prendergast conceded that the smell of marijuana is not uncommon in Jacksonville Beach, and the only light available came from the street lights and the light emanating from the recreation room, Prendergast believed that Markus' cigarette contained marijuana. The exaggerated circumstances suggested by the dissent are not found in the record before us. As Prendergast approached Markus, he identified himself as law enforcement and asked Markus to stop to detain him and confiscate the marijuana. At this point, Prendergast was ten feet away from Markus. In response, Markus raised both hands and began to walk backward. Prendergast repeatedly instructed Markus to stop, but Markus allegedly turned around and ran into the opening to the garage/recreation room. Rather than stopping to collect the allegedly illegal marijuana cigarette, both officers followed Markus into the home. There is no suggestion in this record to support the speculation of the dissent for any other probable cause factors.

Prendergast further testified that once inside the home, Markus had situated himself on the right-side couch and began to resist the officers as they attempted to "take him down." Three additional officers arrived at the scene, including Officer T. Hawes. The officers pulled Markus off of the couch and onto the ground, face-down. Prendergast straddled Markus to apply the handcuffs, turned Markus on his side, and was alerted by Hawes that there was a black semiautomatic pistol in Markus' waistband. Hawes retrieved the pistol and removed the ammunition. Prendergast proceeded to handcuff Markus and had him patted down. Edu and Hawes then escorted Markus to the police vehicle. It was not until after the officers entered the home without a warrant, physically handled Markus, and arrested Markus that Prendergast returned to the area near the pick-up truck to collect the marijuana cigarette.

Prendergast testified that neither he nor Edu had a warrant to enter the home, and they did not seek consent. In addition, Prendergast and Hawes stated that they did not observe or participate in any search of the residence beyond the garage/recreation room.

Finally, Prendergast admitted that his arrest report totally failed to mention that Markus had turned around and fled into the home, but instead stated: "The defendant immediately began to walk backwards in attempt to move away from me." (Emphasis supplied.)

Witness Testimony

Justin McCumbers, who was in the home, testified that earlier that evening, he handed Markus a tobacco cigarette and lit it for him while in the recreation room. Markus then walked outside to talk to two young men who were standing along the road, very close to their vehicles which were parked in the driveway. McCumbers then observed two law enforcement officers with a flashlight approach Markus and the two other men. Markus raised his hands and asked, "What did I do? What did I do?" McCumbers observed Markus, who stands at six feet five inches and weighs almost 300 pounds, walking backward at a slow pace until he reached the couch inside the recreation room. The officers followed.

The officers had their Tasers drawn by the time they entered the recreation room. Markus sat down on the couch, hands still in the air. The officers instructed Markus to stand, but Markus replied that he could not stand due to knee problems.¹

The officers proceeded to physically remove Markus from the couch, causing Markus to hit the pool table, fall backward, and strike one of the grills. The officers then pushed Markus forward, and he landed on the floor in front of the back-wall couch. McCumbers testified that Markus spun around like a human top. McCumbers observed the officer with his knee in Markus' lower back, holding both of his arms, and his foot on Markus' ear. At that point, a gun was recovered from Markus' area. As the officers attempted to handcuff Markus, Markus complained that he was experiencing intense pain in his wrist.

At one point during the scuffle, Eric Blair's motorcycle was nearly knocked over, which prompted Blair to move toward the motorcycle to prevent it from falling. An officer shoved Blair against the wall and into Brandon Junk's guitar. Junk reactively arose from the couch, but was met with an officer's flashlight to his throat.

Meanwhile, Julia Martin had been upstairs in the restroom and heard a loud commotion. Martin testified that three officers ascended the stairs with their guns drawn and shouted, "Is anyone up there?" Martin made her presence known, and the officers pulled her out of the bathroom, threw her against the wall, and searched her. Martin further stated that the officers proceeded to search the upstairs bedrooms before escorting her downstairs to the recreation room, where she saw Markus on the ground with an officer standing over him.

McCumbers also confirmed that he saw an officer enter the interior of the residence while Markus was handcuffed. Upon reentering the home, McCumbers stated that he could see that the desk drawers, cabinets, and closet drawers had all been searched.

After Markus was detained, McCumbers observed an officer return from the direction of the street holding the remainder of an alleged marijuana cigarette.

Trial Court Proceedings

Markus was subsequently charged with possession of a firearm by a convicted felon, possession of less than twenty grams of cannabis, and resisting an officer without violence. Markus pled not guilty, and later filed a motion to suppress the evidence seized inside of the recreation room on the night of the...