State v. Peters

• Decision Date: 22 December 1986
• Docket Number: No. BM-128,BM-128
• Citation: 12 Fla. L. Weekly 22,499 So.2d 908
• Parties: 12 Fla. L. Weekly 22 STATE of Florida, Appellant, v. Robert L. PETERS, Appellee.
• Court: Florida District Court of Appeals

Page 908

499 So.2d 908

12 Fla. L. Weekly 22

STATE of Florida, Appellant, v. Robert L. PETERS, Appellee.

No. BM-128.

District Court of Appeal of Florida First District.

Dec. 22, 1986.

Rehearing Denied Jan. 26, 1987.

Jim Smith, Atty. Gen. and Andrea Smith Hillyer, Asst. Atty. Gen., Tallahassee, for appellant.

Elizabeth L. White and Wm. J. Sheppard, Sheppard & White, Jacksonville, for appellee.

ERVIN, Judge.

The state appeals suppression of evidence found during the search of an apartment pursuant to a search warrant. The search was held invalid on the ground that it violated Section 933.09, Florida Statutes, the "knock and announce" statute. ¹ Two sheriff's deputies were permitted entry into the apartment by appellant after they had identified themselves by name. They did not, however, as the lower court apparently believed the statute required, disclose the purpose of their visit. We reverse and remand.

We find there was no violation of the knock and announce rule, codified at Sections 901.19 and 933.09, Florida Statutes, simply because the rule is inapplicable to a situation in which entry is obtained by the owner's or lawful possessor's permission. There is "nothing in the language of the statute, or the case law interpreting it, to support the proposition that a police officer must announce his purpose when a suspect consents to the officer's entry into his home." State v. McGriff, 404 So.2d 814 815 (Fla. 2d DCA 1981) (e.s.). See also United States v. DeFeis, 530 F.2d 14 (5th Cir.1976) (entry obtained by ruse does not violate a knock and announce statute); State v. Clarke, 387 So.2d 980, 981 (Fla. 2d DCA 1980) ("[w]here entry is gained peaceably, as by invitation, the 'knock and announce' requirement does not apply."); Koptyra v. State, 172 So.2d 628, 631 (Fla. 2d DCA 1965) (an officer's concealment of his identity, used to gain admission into a house, does not constitute a breaking within the meaning of 901.19). In the instant case, because the officers were invited into the house, there was no forcible entry, and consequently no violation of the knock and announce rule.

Neither is a different result required by the fact that appellant explicitly extended consent to enter to only two of the five officers who conducted the search of appellant's apartment. This case is distinguishable from State v. Hume, 463 So.2d 499 (Fla. 1st DCA 1985), where we found that an undercover officer already on the premises violated the knock and announce rule...