Thomas v. State, No. 1D11–6156.

CourtFlorida District Court of Appeals
Writing for the CourtBENTON
Citation127 So.3d 658
Docket NumberNo. 1D11–6156.
Decision Date20 November 2013
PartiesJames L. THOMAS, Appellant, v. STATE of Florida, Appellee.

127 So.3d 658

James L. THOMAS, Appellant,
v.
STATE of Florida, Appellee.

No. 1D11–6156.

District Court of Appeal of Florida,
First District.

Nov. 20, 2013.


[127 So.3d 659]


Barbara S. Sanders, Sanders and Duncan, P.A., Apalachicola, and Michael J. Titus, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Meredith Hinshelwood, Donna Gerace, and Brooke Poland, Assistant Attorneys General, Tallahassee, for Appellee.


BENTON, J.

James L. Thomas appeals convictions and sentences for sexual battery and petit theft, contending that evidence obtained in violation of the Fourth Amendment, and article I, section 12 of the Florida Constitution, was introduced against him at trial.1 We reverse and remand for a new trial.

In the early morning hours of Saturday, September 13, 2008, a young woman reported that she had been raped and that her purse, containing a cellular telephone, had been stolen. Approximately 24 hours later, police were able to track her cell

[127 So.3d 660]

phone 2 to the apartment Mr. Thomas shared with his girlfriend.3 The investigators settled on a specific apartment “shortly after midnight” or “approximately 1:00 to 2:00 a.m.” on September 14, 2008. For the next few hours, six or seven police officers milled around outside the apartment, but made no effort to obtain a search warrant.

They did not want to obtain a search warrant because they did not want to reveal information about the technology they used to track the cell phone signal. “[T]he Tallahassee Police Department is not the owner of the equipment.” The prosecutor told the court that a law enforcement officer “would tell you that there is a nondisclosure agreement that they've agreed with the company.” An investigator with the technical operations unit of the Tallahassee Police Department testified: “[W]e prefer that alternate legal methods be used, so that we do not have to rely upon the equipment to establish probable cause, just for not wanting to reveal the nature and methods.” He also testified: “We have not obtained a search warrant [in any case], based solely on the equipment.”

The police eventually decided to knock on the door and ask for permission to enter,4 and, at about five o'clock in the morning, three Tallahassee police officers knocked on the door of the apartment, and identified themselves as policemen. After about a minute, Mr. Thomas's girlfriend, Ms. Simmons, answered the door in her night clothes. Learning they did not have a warrant, she told them to come back when they had one, and attempted to close

[127 So.3d 661]

the door, but a police officer placed his foot inside the doorway to prevent her closing the door,5,6 removed her from the apartment, commanded anyone else inside the apartment to come outside, and entered the apartment with other officers.

Only after Mr. Thomas and the cell phone had been taken to the police station, Ms. Simmons testified, did she allow the police to search for and seize some of his other possessions.7 But the trial court found that she had consented earlier—at a time when several officers remained inside the apartment and she was not permitted to reenter—to the search of the apartment and the seizure of its contents. The cell phone and a purse were seized, and Mr. Thomas was arrested and taken to jail. After further interrogation there, he was formally arrested on charges of kidnapping to facilitate a felony, sexual battery involving serious physical force, and robbery.

Trial counsel filed a motion to suppress all evidence obtained as a result of the warrantless search of the apartment, and as a result of interrogation at the apartment and at the police station. After an evidentiary hearing, the trial court orally denied the motion, determining the forcible entry and “protective sweep” were not illegal on grounds the police had a reasonable concern that other people were in the apartment who might have posed a threat to police officers' safety, and that consent by Ms. Simmons could not have been tainted by an illegal entry because the entry was not illegal. Even if it were, the trial court said, there was a break in the chain of events leading to consent.

The cell phone, other physical evidence seized at the apartment, and statements Mr. Thomas made in the course of interrogations at the apartment and at the police

[127 So.3d 662]

station all came in evidence against him at trial. 8 While acquitting him of the kidnapping charge, the jury found him guilty on the lesser-included offenses of sexual battery and theft, despite the victim's inability to identify him as the perpetrator.

The trial court's conclusion that the police entry into the apartment was lawful was error. Our “analysis begins, as it should in every case addressing the reasonableness of a warrantless search, with the basic rule that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’ Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnote omitted).” Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). The warrant requirement is among the “fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.” Johnson v. United States, 333 U.S. 10, 17, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

The home is at the “very core” of the interests the Fourth Amendment protects, and enjoys the maximum protection it provides. See Florida v. Jardines, ––– U.S. ––––, ––––, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013). While the home Mr. Thomas and Ms. Simmons shared might not fit some definitions of a traditional home, overnight houseguests have a legitimate expectation of privacy even in temporary quarters. See Minnesota v. Olson, 495 U.S. 91, 96–97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). The Fourth Amendment 9 guarantees to the people “[t]he right ... to be secure in their ... houses ... against unreasonable searches and seizures.” Unwarranted “searches and seizures inside a home” require special scrutiny.

[127 So.3d 663]

Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Government agents' warrantless entry into a home is presumptively, constitutionally unreasonable.

The trial court ruled in the present case, however, that exigent circumstances excused the lack of a warrant: “I think they had a reasonable basis to be concerned about other people being in the apartment and doing the sweep was not illegal.” But there was absolutely no indication that any suspect would escape or that any evidence inside the apartment would be destroyed. Testimony that a cell phone could be flushed down the toilet does not meet the test. See Missouri v. McNeely, ––– U.S. ––––, ––––, 133 S.Ct. 1552, 1567, 185 L.Ed.2d 696 (2013) (rejecting argument “that the fact that alcohol is naturally metabolized by the human body creates an exigent circumstance in every [DWI] case” and requiring a warrant, absent proof of exigency). Nor was there any imminent risk of death or serious injury to any police officer that failing to get a search warrant ameliorated. See generally Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (defining exigent circumstances). “Accordingly, neither the officer protection nor the evidence preservation justification for the warrant exception applied.” Smallwood v. State, 113 So.3d 724, 735 (Fla.2013). Until the police knocked, Mr. Thomas and Ms. Simmons, in fact the apartment's only two occupants, were apparently asleep.

For purposes of decision, we assume the police had probable cause to believe the missing cell phone was inside the apartment. But they needed a warrant, as well, absent any exception justifying their forced entry. See Coolidge v. New Hampshire, 403 U.S. 443, 449, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (requiring police to seek the authorization of a neutral magistrate before undertaking a search or seizure); Katz; 389 U.S. at 357, 88 S.Ct. 507.

Warrantless searches are disfavored and, with limited exceptions “ per se unreasonable.” Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). See also Groh v. Ramirez, 540 U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). “[T]he police bear a heavy burden,” the cases teach, “when attempting to demonstrate an urgent need that might justify warrantless searches.” Welsh v. Wisconsin, 466 U.S. 740, 749–750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); Seibert v. State, 923 So.2d 460, 468 (Fla.2006). Exceptions to the warrant requirement are “few in number and carefully delineated.” United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U.S. 297, 318, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). See also Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). No exception applied here.

As more than one officer testified, Ms. Simmons did not consent to their entering the apartment. Plainly the decision to prevent her from closing the apartment door was the beginning of a warrantless search. The trial court did not find otherwise. This was no mere “knock and talk.” A

“knock and talk” is only justified as a consensual encounter during which officers are authorized to “approach a dwelling on a defined path, knock on the front door, briefly await an answer, and either engage in a consensual encounter with the resident or immediately depart.” Powell v. State, 120 So.3d 577 (Fla. 1st DCA 2013) (citing Nieminski v. State, 60 So.3d 521, 526 (Fla. 2d DCA 2011); Waldo v. State, 975 So.2d 542, 543 (Fla. 1st DCA 2008)). Given the consensual nature of the contact, of

[127 So.3d 664]

course, a resident is supposed to have the option of refusing to open the door. Kentucky v. King, ––– U.S. ––––, ––––, 131 S.Ct. 1849, 1862, 179 L.Ed.2d...

To continue reading

Request your trial
3 practice notes
  • State v. Ware, No. 1D18-1443
    • United States
    • Court of Appeal of Florida (US)
    • March 20, 2020
    ...raise the legality of the search. See Minnesota v. Olson , 495 U.S. 91, 95-96, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) ; Thomas v. State , 127 So. 3d 658, 662 (Fla. 1st DCA 2013).Knock and Talk Not Allowed Here Law enforcement officers are generally allowed to initiate a voluntary police-citi......
  • State v. Thomas, No. 1D15–4718.
    • United States
    • Court of Appeal of Florida (US)
    • November 2, 2016
    ...later, police were able to track [the victim's] cell phone to the apartment Mr. Thomas shared with his girlfriend." Thomas v. State, 127 So.3d 658, 659–60 (Fla. 1st DCA 2013) (footnotes omitted). Due to considerations relating to the confidential nature of the technology used to locate the ......
  • State v. Thomas, CASE NO. 1D15-4718
    • United States
    • Florida District Court of Appeals
    • November 2, 2016
    ...later, police were able to track [the victim's] cell phone to the apartment Mr. Thomas shared with his girlfriend." Thomas v. State, 127 So. 3d 658, 659-60 (Fla. 1st DCA 2013) (footnotes omitted). Due to considerations relating to the confidential nature of the technology used to locate the......
3 cases
  • State v. Ware, No. 1D18-1443
    • United States
    • Court of Appeal of Florida (US)
    • March 20, 2020
    ...raise the legality of the search. See Minnesota v. Olson , 495 U.S. 91, 95-96, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) ; Thomas v. State , 127 So. 3d 658, 662 (Fla. 1st DCA 2013).Knock and Talk Not Allowed Here Law enforcement officers are generally allowed to initiate a voluntary police-citi......
  • State v. Thomas, No. 1D15–4718.
    • United States
    • Court of Appeal of Florida (US)
    • November 2, 2016
    ...later, police were able to track [the victim's] cell phone to the apartment Mr. Thomas shared with his girlfriend." Thomas v. State, 127 So.3d 658, 659–60 (Fla. 1st DCA 2013) (footnotes omitted). Due to considerations relating to the confidential nature of the technology used to locate the ......
  • State v. Thomas, CASE NO. 1D15-4718
    • United States
    • Florida District Court of Appeals
    • November 2, 2016
    ...later, police were able to track [the victim's] cell phone to the apartment Mr. Thomas shared with his girlfriend." Thomas v. State, 127 So. 3d 658, 659-60 (Fla. 1st DCA 2013) (footnotes omitted). Due to considerations relating to the confidential nature of the technology used to locate the......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT