State v. Pruitt

Decision Date02 November 2007
Docket NumberNo. 2D06-4006.,2D06-4006.
PartiesSTATE of Florida, Appellant, v. Tony PRUITT, Appellee.
CourtFlorida District Court of Appeals

Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellant.

James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellee.

PER CURIAM.

The State challenges the trial court's order granting Tony Pruitt's motion to suppress the evidence obtained in a search of his home. We reverse.

During the course of an ongoing investigation of a large-scale heroin trafficking operation conducted by the St. Petersburg Police Department ("Department") in cooperation with the United States Drug Enforcement Agency ("DEA") and the Organized Crime Drug Enforcement Task Force (OCDETF), Tony Pruitt was identified as a key participant in that operation and as a distributor of heroin in the St. Petersburg area. After further investigation involving confidential informants, controlled buys of narcotics, and warrant-authorized wiretaps, the Department had enough information to seek a warrant to search Pruitt's home for further evidence of his drug trafficking business. The warrant was issued, and at 5:15 a.m., on January 6, 2004, the St. Petersburg Tactical Apprehension and Control Team (TACT) executed it. In doing so, TACT waited twelve seconds after knocking and announcing their purpose before forcibly entering the home. The subsequent search resulted in the seizure of two firearms, marijuana, heroin, electronic scales, currency, and documents.

Pruitt filed a motion to suppress the evidence seized in the search on the basis that the forced entry violated Florida's knock-and-announce statute, section 933.09, Florida Statutes (2003). The trial court agreed, holding that the twelve-second delay between the knock and announce and TACT's entry was insufficient, and granted Pruitt's motion to suppress the evidence.

In its appeal, the State argues that there were exigent circumstances justifying the short delay between announcing and forcing entry, specifically law enforcement's knowledge that Pruitt was a suspect in a murder investigation in which the murder weapon was an AK-47. Alternatively, the State argues that based on the recent United States Supreme Court case, Hudson v. Michigan, ___ U.S. ___, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), suppression of the evidence was error even if the time between knocking and announcing and the actual entry was too short.

Our review of a trial court's ruling on a motion to suppress evidence involves a mixed question of law and fact. We accord a presumption of correctness with regard to the trial court's determination of facts where the trial court's factual findings are supported by competent, substantial evidence. However, we review the trial court's application of the law to those facts de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598 (Fla.2001).

Section 933.09 states:

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 the officer's authority and purpose he or she is refused admittance to said house or access to anything therein.

Two requirements are imposed by the statute. First, law enforcement must announce their authority and purpose. Richardson v. State, 787 So.2d 906, 908 (Fla. 2d DCA 2001). Second, before law enforcement may forcibly enter the home, they must have been refused admittance. Id. "Refusal can be express or implied, and lack of response is deemed a refusal." Id. Rarely is the first requirement not met. Thus the question typically then arises in conjunction with the second requirement, i.e., how much time should be allowed before the lack of response may be deemed by law enforcement officers at the scene to be a refusal. There is no bright line answer; the only answer found in our case law is that the occupant must have a "reasonable opportunity" to respond. Id. at 908; Holloway v. State, 718 So.2d 1281, 1282 (Fla. 2d DCA 1998). "Time periods less than five seconds are rarely deemed adequate, and periods in excess of fifteen seconds are often adequate." State v. Cassells, 835 So.2d 397, 399 n. 2 (Fla. 2d DCA 2003); see also Richardson, 787 So.2d at 907 (holding that ten-second wait before forcible entry into cocaine dealer's home at 5:30 a.m. and with no indication of exigent circumstances was not long enough); State v. Robinson, 565 So.2d 730, 732 (Fla. 2d DCA 1990) (holding that wait of only "a few seconds" before entering was too short where there were no exigent circumstances); Kellom v. State, 849 So.2d 391, 394 (Fla. 1st DCA 2003) (holding that delay of approximately five seconds was not enough); cf. United States v. Banks, 540 U.S. 31, 38, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003) (holding that delay of fifteen to twenty seconds did not violate the knock-and-announce rule); Braham v. State, 724 So.2d 592, 594 (Fla. 2d DCA 1998) (holding that five to ten seconds between the knock-and-announce and forced entry in early morning execution of search warrant was reasonable where the officers heard movement within, residence was a small trailer, phone was ringing, and no one responded verbally); Hernandez v. State, 863 So.2d 484 (Fla. 4th DCA 2004) (holding that fifteen seconds was reasonable when footsteps were heard within the residence but no one responded to the door).

In this case, the TACT commander testified that he waited "about" twelve seconds after his initial knock and announce before calling for a breach of the door of the residence and that, based on his training and experience, twelve seconds was a reasonable amount of time for a person inside the home to respond to his knock and announcement of authority. The State also argues that the twelve-second delay was reasonable given the small size of the house and the fact that Pruitt could have easily answered the door in that amount of time. However, the trial court likened the delay in this case to the ten-second delay in Richardson, 787 So.2d 906, concluding that there was insufficient time to respond at an hour when the occupants were most likely asleep and no sounds were heard coming from within the house.

The problem with attempting to analyze whether the time delay was long enough so as to be in compliance with section 933.09 is that there is insufficient case law covering the plethora of factual permutations, such as the fact pattern in this appeal, that might occur in any given case. In Hudson, 126 S.Ct. at 2163, the Court noted that "[w]hen the knock-and-announce rule does apply, it is not easy to determine precisely what officers must do. How many seconds' wait are too few? Our `reasonable wait time' standard is necessarily vague." (Citation omitted.) For the most part, Florida opinions either hold that the time delay is too short and conclude that the police violated the knock-and-announce rule or find that exigent circumstances were present excusing compliance with the rule. Hernandez, 863 So.2d 484, and Braham, 724 So.2d 592, appear to be exceptions, but in both cases the finding that the rule was not violated was nevertheless heavily influenced by the circumstances. In the instant case, the trial court found it "unreasonable to expect a sleeping occupant of even a small home to open the front door within twelve seconds." Giving deference to the trial court's factual finding that twelve seconds was insufficient time to allow Pruitt a reasonable opportunity to respond, we turn to the question of whether the premature entry was nevertheless justified by exigent circumstances.

There are four exceptions to the reasonable time requirement of the knock-and-announce rule: (1) the occupant already knows of the officers' authority and purpose, (2) there is a reasonable belief that persons within are in peril of bodily harm, (3) the officers' peril would increase, and (4) the occupants might attempt to escape or to destroy the evidence. Kellom, 849 So.2d at 395 (citing Benefield v. State, 160 So.2d 706, 710 (Fla.1964)). The pertinent exception in this case is the officer peril exception, based on the information that Pruitt was suspected of using an AK-47 in a murder six months earlier and on his history of criminal violence. The State's claim of exigent circumstances based on officer safety is summed up in its response to Pruitt's motion to suppress:

At 5:15 a.m. on January 6th, 2004, the Tactical Apprehension and Control Team (TACT) executed a high risk search warrant at 1000 13th Street North in St. Petersburg after knocking and announcing and then delaying 12 seconds before entering by breaching the door with a battering ram while simultaneously detonating a distraction device in the kitchen. This was done pursuant to a lawfully executed search warrant. . . .

The TACT team is St. Petersburg's version of a SWAT team and they are utilized to execute search warrants only "with high-risk situations, barricaded subjects, hostage rescue, things of that nature" according to the testimony of Damian Schmidt.[1] According to Schmidt this was a "high risk situation in which information was given fitting the criteria where firearms or the subject involved is known to use violence."

At the time that the TACT team entered, they were aware that the subject known to live in the residence was a violent felon and the suspect in a homicide involving the use of an AK-47 in the past 6 months. The TACT team's body armor was not capable of stopping rounds from an AK-47.

Although the TACT team did not have an exact diagram of the residence, they knew from surveillance that the residence was a small single story house. Based on the time given after the initial knock-and-announce, it was the opinion of the knocking officer that the residence had been...

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7 cases
  • Upshaw v. Jones, Case No. 4:14cv155-WS/CAS
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • October 18, 2016
    ...less than five seconds are rarely deemed adequate, and periods in excess of fifteen seconds are often adequate." State v. Pruitt, 967 So. 2d 1021, 1023 (Fla. 2d DCA 2007). Factors that courts have considered include the nature of the underlying offense, whether any activity or movement is o......
  • Soto v. State, 3D10-2511
    • United States
    • Court of Appeal of Florida (US)
    • November 30, 2011
    ......The trial court based its decision on the application of the "officer peril" exception. See Jones v. State, 440 So. 2d 570, 573 (Fla. 1983); State v. Pruitt, 967 So. 2d 1021 (Fla. 2d DCA 2007); Williams v. State, 403 So. 2d 430 (Fla. 3d DCA 1981). On appeal the State has wisely abandoned this ground and raises "useless gesture" as a tipsy coachman reason for affirmance. See Miller, 357 U.S. at 301; Ealey, 714 So. 2d at 1162; Van Allen, 454 So. 2d ......
  • Soto v. State , 3D10–2511.
    • United States
    • Court of Appeal of Florida (US)
    • November 30, 2010
    ......The trial court based its decision on the application of the “officer peril” exception. See Jones v. State, 440 So.2d 570, 573 (Fla.1983); State v. Pruitt, 967 So.2d 1021 (Fla. 2d DCA 2007); Williams v. State, 403 So.2d 430 (Fla. 3d DCA 1981). On appeal the State has wisely abandoned this ground and raises “useless gesture” as a tipsy coachman reason for affirmance. See Miller, 357 U.S. at 301, 78 S.Ct. 1190; Ealey, 714 So.2d at 1162; Van ......
  • Falcon v. State
    • United States
    • Court of Appeal of Florida (US)
    • October 27, 2017
    ......Pruitt, 967 So.2d 1021, 1023 (Fla. 2d DCA 2007) (quoting Richardson v. State, 787 So.2d 906, 908 (Fla. 2d DCA 2001) ). In determining whether the occupant has been afforded a reasonable opportunity, "some factors the courts have considered include the nature of the underlying offense, the time of day the ......
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1 books & journal articles
  • Search and seizure
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 2
    • April 30, 2021
    ...and announce statute, and the argument that the exclusionary rule should not apply to knock and announce violations.) State v. Pruitt, 967 So. 2d 1021 (Fla. 2d DCA 2007) The National Center for Missing and Exploited Children provided information that America Online had reported that a parti......

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