State v. Robinson

• Decision Date: 22 June 1990
• Docket Number: No. 89-02133,89-02133
• Citation: 565 So.2d 730
• Parties: 15 Fla. L. Weekly D1681 STATE of Florida, Appellant, v. Pamela D. ROBINSON, Appellee.
• Court: Florida District Court of Appeals

Page 730

565 So.2d 730

15 Fla. L. Weekly D1681

STATE of Florida, Appellant, v. Pamela D. ROBINSON, Appellee.

No. 89-02133.

District Court of Appeal of Florida Second District.

June 22, 1990.

Rehearing Denied July 31, 1990.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellant.

Wilbur C. Smith, III, Fort Myers, for appellee.

ALTENBERND, Judge.

The state appeals an order suppressing two small bags containing approximately twelve rocks of crack cocaine. The trial court suppressed the evidence because the deputy sheriffs who executed the search warrant of the defendant's home did not provide prior "due notice of [their] authority and purpose" before forcibly entering the home. § 933.09, Fla.Stat. (1987). We affirm the order but certify to the Florida Supreme Court the question of the necessity to exclude this evidence.

I.

On February 16, 1989, several deputies of the Lee County Sheriff's Department executed a search warrant at a house owned by the defendant, Pamela D. Robinson. There is no dispute that the search warrant was properly issued on probable cause that the defendant's house contained illegal drugs. With the assistance of a confidential informant, the deputies had purchased illegal drugs at the house shortly before the warrant was obtained.

The search warrant was executed at 6:15 p.m. on a Thursday evening. The sheriff's department dispatched a number of deputies in police cars to execute the warrant. Some of the deputies were in uniform. Some of the cars were marked police cars. When the police cars stopped in front of the home, the deputies observed a man standing at the front doorway inside the house. The front door was open, but the screen door was closed. When the man saw the police, he left the doorway and disappeared from the deputies' sight into the house. A few of the deputies, including uniformed deputies, immediately ran toward the front of the house. At least one of these deputies carried a shotgun.

When this group of deputies reached the front door, they stopped for only a few seconds before entering. Although the record contains conflicting evidence, it supports the trial court's conclusion that the officers entered the home either before or as they announced their purpose. Once inside the home, they located two occupants, Ms. Robinson and the man who had been at the door. Shortly thereafter, a female lieutenant searched Ms. Robinson and found a small quantity of crack cocaine in Ms. Robinson's front pocket. Ms. Robinson was arrested and charged with possession of a controlled substance with intent to sell.

Although the trial court recognized that the police may need to act swiftly in such a case, it suppressed this evidence because it concluded that these officers had been "a little fast" in entering the home. The trial court found no exigent circumstances to except this search from the statutory requirements of due notice. The trial court's decision on the issue of due notice is a decision of fact which is binding on this court if it is supported by substantial competent evidence. Earman v. State, 265 So.2d 695 (Fla.1972); State v. Dominguez, 367 So.2d 651 (Fla. 2d DCA), cert. denied, 373 So.2d 457 (Fla.1979). In this case, the trial court's decision has the appropriate evidentiary support.

As a matter of law, the opening of an unlocked screen door is a breaking which invokes the due notice requirements of section 933.09, Florida Statutes (1987). Nank v. State, 406 So.2d 1282 (Fla. 2d DCA 1981); Johnson v. State, 395 So.2d 594 (Fla. 2d DCA 1981). See also Burden v. State, 455 So.2d 1066 (Fla. 1st DCA 1984), review denied, 464 So.2d 556 (Fla.1985); Bouknight v. State, 455 So.2d 438 (Fla. 1st DCA 1984), review denied, 461 So.2d 113 (Fla.1985).

Several exigent circumstances are recognized as conditions under which the police need not comply with the knock-and-announce requirements. Benefield v. State, 160 So.2d 706 (Fla.1964); State v. Clarke, 242 So.2d 791 (Fla. 4th DCA 1970), cert. denied, 246 So.2d 112 (Fla.1971). In this case, however, the state did not present evidence which established any exception.

Two possible exceptions warrant comment. First, the state did not present evidence that the deputies reasonably believed that this search involved substantially more peril to life, if they announced their purpose and waited for permission to enter. State v. Hills, 428 So.2d 715 (Fla. 4th DCA), review denied, 438 So.2d 833 (Fla.1983). Although the testimony contained vague references to a possibility of guns in the home, the confidential informant's information and the other evidence did not establish a reasonable basis to fear that a gun would be used. Compare State v. Avendano, 540 So.2d 920 (Fla.2d DCA 1989) with State v. Drowne, 436 So.2d 916 (Fla. 4th DCA), review denied, 441 So.2d 633 (Fla.1983), and Moreno v. State, 277 So.2d 81 (Fla. 3d DCA 1973).

Second, the state did not present evidence that the deputies reasonably believed that the man at the screen door, who disappeared inside the house, would destroy evidence or become violent. Although this situation may have concerned the deputies, the evidence on this factor did not compel the trial court to find an exigent circumstance. Hunsucker v. State, 379 So.2d 1043 (Fla. 1st DCA 1980); see also Bouknight.

II.

Both the trial court and this court are required to use the exclusionary rule as the remedy for any violation of section 933.09, Florida Statutes (1987). This judicially created remedy was announced as a matter of common law in Benefield. This common law exclusionary rule is based on the sanctity of the home and the need for privacy. While these reasons are as important, if not more important, today as they were in 1964, there have been many changes in Florida and in legal remedies over the last twenty-six years. At this point, we believe it would be constructive for the supreme court to reconsider the exclusion of evidence as an essential remedy in cases where the police have obtained a proper search warrant and the violation of section 933.09 results from a negligent execution of the warrant which results in no significant personal injury or property damage.

We emphasize that the exception to the exclusionary rule which we propose is a narrow exception and should be applicable only under limited circumstances. We are not proposing any modification in cases involving warrantless searches or in cases of police misconduct resulting in significant violence or property damage. We are suggesting a modification for only those cases in which the police misconduct can be fairly categorized as a matter of negligence or good faith mistake, not for those cases in which the statutory violation is deliberate or willful. See § 933.17, Fla.Stat. (1989). We make this proposal because we believe that it will strengthen compliance with section 933.09 and the privacy rights which the statute promotes.

In suggesting this reconsideration, we point out several important developments since 1964. First, the state has waived sovereign immunity for the operational negligence of police officers. § 768.28, Fla.Stat. (1989); Kaisner v. Kolb, 543 So.2d 732 (Fla.1989). Ms. Robinson may have a viable civil claim against the Lee County Sheriff's Department for any violation of this statute and for any resulting trespass. ¹ Thus, unlike Mr. Benefield, Ms. Robinson has a potential civil remedy in which a judge or jury could award damages which would be measured by the actual extent of her injury.

From a jurisprudential perspective, Ms. Robinson's civil remedy seems superior to the suppression of this evidence and the dismissal of the criminal charges because the suppression does not seem to be a remedy for damages which are proximately related to the deputies' wrong. The deputies had a valid warrant. They simply failed to wait a few seconds at the door while identifying themselves and announcing their purpose before entering the home. ² This wrong may be an invasion of privacy and a trespass for a few seconds, but it did not result in the discovery of evidence which the deputies had no right to gather. At most, that evidence was gathered a few seconds early.

Second, the rule of inevitable discovery has significantly developed since 1964. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); 4 LaFave, Search and Seizure, § 11.4(a) (2d ed. 1987). If the rule of inevitable discovery were applied to all cases in which primary evidence was seized in violation of the knock-and-announce requirement, the rule would emasculate the requirement. This problem, however, should not exist if the exception is limited to cases in which the civil remedy is available and the circumstances otherwise fall within our limited proposal.

Third, given that the exclusion of evidence is intended to prevent police misconduct, we think it is significant to consider the steps which Florida has taken over the last twenty-six years to increase professionalism within law enforcement agencies. The Florida Legislature has established the Criminal Justice Standards and Training Commission. § 943.11-.12, Fla.Stat. (1989). It has created substantial minimum qualifications for employment as a police officer. § 943.13, Fla.Stat. (1989). The legislature requires police officers to take continuing education courses to retain their officer status. § 943.135, Fla.Stat. (1989). It also requires every law enforcement agency to have a system to receive and review complaints concerning officer misconduct. § 112.533, Fla.Stat. (1989). This system results in frequent disciplinary actions by departments against their own officers. Although these steps have not created a perfect law enforcement system, they have established a system which is better able to enforce the requirements of section 933.09 and similar laws. More important, the system should also be able to effectively supervise, correct, and discipline...