The State Of Fla. v. Brown

• Decision Date: 12 May 2010
• Docket Number: No. 3D08-1444.,3D08-1444.
• Citation: 36 So.3d 770
• Parties: The STATE of Florida, Appellant,v.Mark BROWN, Appellee.
• Court: Florida District Court of Appeals

36 So.3d 770

The STATE of Florida, Appellant,v.Mark BROWN, Appellee.

No. 3D08-1444.

District Court of Appeal of Florida Third District.

May 12, 2010.

Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellant.

Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellee.

Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.

SCHWARTZ, Senior Judge.

The state appeals from an order in a prosecution for possession of cannabis and of a firearm by a convicted felon suppressing the defendant's inculpatory statement and a weapon and drugs found in his apartment. The trial court concluded that the entry into the apartment which preceded the seizure and statement was unjustified. We reverse.

I

The facts are undisputed. During an unrelated field investigation at around midnight, two Miami police officers noticed two men outside an apartment complex. One of them, Brown, had an assault-type rifle in his right hand by his side and was walking to a vehicle with its engine running but the lights turned off. Disregarding police orders to stop, the men ran into an apartment which turned out to be Brown's. The officers followed and, with the front door still open, entered the apartment where they found a rifle and over twenty grams of marijuana, which the defendant admitted were his.

The trial court granted a defense motion to suppress, concluding in part that Brown's action “would have been a misdemeanor, and the officer cannot follow him into the home for that purpose.” We conclude however that (1) no constitutional violation occurred; and (2) Brown's reliance on the knock and announce statute, section 901.19(1), Florida Statutes (2007), is misplaced.

II

Warrantless searches or arrests in constitutionally protected areas, particularly one's home, are per se unreasonable unless they fall within one of the established exceptions to the warrant requirement. See Shapiro v. State, 390 So.2d 344 (Fla.1980); Morales v. State, 407 So.2d 321, 324-25 (Fla. 3d DCA 1981); Adams v. State, 240 So.2d 529 (Fla. 3d DCA 1970). One of these is the existence of “exigent circumstances,” ¹ which in turn include those which arise when police are conducting lawful “hot pursuits.” See Alvarez v. State, 573 So.2d 400, 401 (Fla. 3d DCA 1991); see also Georgia v. Randolph, 547 U.S. 103, 117 n. 6, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) (listing “hot pursuit,” “protecting the safety of ... police officers,” “imminent destruction [of a] building,” “likelihood that [a] suspect will imminently flee,” and “a fairly perceived need to act on the spot to preserve evidence” as exigent circumstances that might justify a warrantless search of a residence); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Lee v. State, 856 So.2d 1133, 1136 (Fla. 1st DCA 2003); Gnann v. State, 662 So.2d 406, 407 (Fla. 2d DCA 1995). See generally D. Gilsinger, Annotation, When is Warrantless Entry of House or Other Building Justified Under “Hot Pursuit” Doctrine, 17 A.L.R. 6th 327 (2006). That doctrine applies to this case.

It is true that, as the trial court found, the offenses observed by the officers, possession of an assault-type rifle, and fleeing from an officer were “only” misdemeanors. See § 775.082(4)(b), Fla. Stat. (2007); § 790.25(3), Florida Statutes (2007); § 790.053(3), Fla. Stat. (2007); see also § 775.082(4)(a), Fla. Stat. (2007); § 843.02, Fla. Stat. (2007). In Ulysse v. State, 899 So.2d 1233, 1234 (Fla. 3d DCA 2005), however, this Court squarely held that the hot pursuit exception to the warrant requirement is nonetheless fully applicable.

The defendant suggests that the hot pursuit exception to the warrant requirement of the Fourth Amendment does not apply if the officers are pursuing a fleeing misdemeanant. That point has been resolved in this district adversely to the defendant's position. See Gasset v. State, 490 So.2d 97 (Fla. 3d DCA 1986). Hot pursuit of a fleeing misdemeanant is permissible where the misdemeanor is punishable by a jail sentence. Id. at 98.

Ulysse, 899 So.2d at 1234. Indeed, section 901.15, Florida Statutes (2008) specifically provides:

A law enforcement officer may arrest a person without a warrant when: (1) The person has committed a felony or misdemeanor or violated a municipal or county ordinance in the presence of the officer. An arrest for the commission of a misdemeanor or the violation of a municipal or county ordinance shall be made immediately or in fresh pursuit. [e.s.]

See generally

Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (observing that hot pursuit is the immediate or continuous pursuit of the suspect from the scene of a crime).

In Ulysse, as officers pursued a stolen vehicle, its passenger fled on foot, running into the defendant's home. The officers followed into the house, where they spotted narcotics and a firearm. Ulysse was charged with possession and thereafter argued suppression of the evidence was required. We disagreed, observing that “on the facts here, a reasonable officer would have probable cause to believe that the passenger had participated in the theft of the car ... or at the least, trespass in a conveyance” and “the officers were justifiably in hot pursuit of the passenger who ran into [Ulysse's] house” and the evidence was therefore admissible. Id. at 1234.

Similarly, in Gasset, officers observed the defendant driving erratically and a high-speed chase ensued. He drove onto his property and into an attached garage, with the officers immediately behind him. As Gasset exited his vehicle, the officers entered the garage and arrested him, ultimately charging him with DUI. We decided that the officers had probable cause to make a warrantless arrest and could enter the garage because:

Gasset waived any expectation of privacy he may have had in his garage by engaging in the high-speed chase previously described and leading the officers directly to the place of his arrest. The enforcement of our criminal laws, including serious traffic violations, is not a game where law enforcement officers are “it” and one is “safe” if one reaches “home” before being tagged. Accord State v. Blake, 468 N.E.2d 548, 553 (Ind.Ct.App.1984). “[A] suspect may not defeat an arrest which has been set in motion in a public place ... by the expedient of escaping to a private place.” United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 2410, 49 L.Ed.2d 300, 306 (1976) (act of retreating into house cannot thwart an otherwise proper arrest); see also Bey v. State, 355 So.2d 850 (Fla. 3d DCA 1978).

Gasset, 490 So.2d at 98-99 (footnote omitted).

The time of day, the presence of an assault-type rifle, the disregarded commands to stop, and the possible threat of an uncooperative suspect with a weapon, were overwhelming reasons to follow Brown into the home. In accordance with Ulysse and Gasset, we therefore find that no constitutional violation was involved in this case.

III

Brown's argument for affirmance is based on the “knock and announce” statute, § 901.19(1), Fla. Stat. (2007) ², as interpreted in Ortiz v. State, 600 So.2d 530 (Fla. 3d DCA 1992). For several reasons we reject this position.

1. In the first place, this case is decisively distinguishable from Ortiz. There, officers had received an anonymous tip that illicit activity was taking place in an apartment complex. After watching the defendant for thirty minutes, officers decided to question him. When Ortiz saw the officers approaching, he ran into an apartment, dropping a misdemeanor amount of marijuana-conduct unrelated to the reason for the chase. Relying on section 901.19, this court concluded the officers' warrant-and-knock and announce-less entry after him was unlawful. See also Espiet v. State, 797 So.2d 598, 603 (Fla. 5th DCA 2001) (concluding that the State failed to present evidence of exigent circumstances excusing the deputies' failure to obtain an arrest warrant); M.J.R. v. State, 715 So.2d 1103, 1104 (Fla. 5th DCA 1998) (concluding that a warrantless non-emergency arrest of a suspect at his or her home is presumed illegal); compare Rucker v. State, 302 So.2d 490, 491 (Fla. 2d DCA 1974). The officers' “chase” of Brown was a far cry from what occurred in Ortiz, which was in sum not in “hot” or “fresh,” but rather lukewarm and stale pursuit. See When is Warrantless Entry of House or Other Building Justified, supra §§ 17-40 passim (citing cases where entries held unjustified as not true hot pursuits). By virtue of their respective resemblance or lack of it to our case Ortiz does not control and Ulysse and Gasset do.

Moreover, we find Ortiz' analysis of the statute even on its own facts quite problematic. As we see it, the portion of the statute on which it primarily relies, that the police may enter “when authorized for a felony without a warrant,” which Ortiz takes as negatively implying the reverse that is, that police cannot enter, presumably even in hot pursuit, when making a warrantless arrest for a misdemeanor, cannot be properly read in that way. On its face, the quoted provision applies only when, as in U.S. v. Banks, 540 U.S. 31, 43, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003), the police receive no reply in response to a lawful knock and announcement: it cannot apply when, as in this case, no knock and announce is required or appropriate. See id. at 36, 124 S.Ct. 521 (“the [knock and announce] obligation gives way when officers ‘have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or ... would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence,’ ”) (quoting Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997)). If literally applied, the court's language in Ortiz unacceptably would nullify the portion of section 901.15 which authorizes an arrest after a fresh...