Titus v. State

• Decision Date: 02 July 1997
• Docket Number: No. 96-3259,96-3259
• Citation: 696 So. 2d 1257
• Parties: 22 Fla. L. Weekly D1645 Johnny TITUS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1257

696 So.2d 1257

22 Fla. L. Weekly D1645

Johnny TITUS, Appellant, v.STATE of Florida, Appellee.

No. 96-3259.

District Court of Appeal of Florida Fourth District.

July 2, 1997.

Richard L. Jorandby, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Barbra Amron Weisberg, Assistant Attorney General, West Palm Beach, for appellee.

FARMER, Judge.

Although not so framed by the parties, the real issue in this case is whether there is a "rooming house" exception to the warrant requirement of the Fourth Amendment to the United States Constitution for police officers to enter and search a kitchen in such a residence.We think not and reverse the conviction in this case.

The facts are starkly simple.An officer on routine patrol in a residential section of the city was stopped by a citizen who told him that someone was smoking narcotics in a nearby home.The officer, who was familiar with the home from previous visits, walked in the back door without any prior announcement or permission and proceeded to the kitchen on the first floor.There he saw defendant placing a pipe into his pocket and the other person smoking crack cocaine in a similar pipe.He immediately arrested both.

Defendant moved to suppress the evidence.The officer and both persons arrested--defendant and a Ms. Hudson--testified at the evidentiary hearing.Both of the persons arrested testified that they were or had been residents of the rooming house.¹The testimony showed that it was a two-story house surrounded by a fence, with entrances from the street on the side and in the back.Ms. Hudson testified that the back door has both a screen door and wooden outer door which are left open during the day, but the officer testified that on the day in question there were no doors on the back entrance, only empty hinges.

Both floors are bisected by a corridor with rooms on each side.The officer testified that one can stand at either the front or rear entrance and see through the opposite entrance of the building.The kitchen is located at the back end on the ground floor on one side of the corridor.The testimony was that the interior of the kitchen could not be seen from the threshold or outside the rooming house, but it could be seen from the corridor.The residents testified that the house is, effectually, private for the tenants and their guests, and that the kitchen is available for use only by the tenants.In fact, some of the tenants store personal belongings in the kitchen.

Ms. Hudson testified that there were "4 or 5 people just off the street" in the kitchen area that day who were neither tenants nor guests.Neither she nor anyone else testified that the house or kitchen is open to the public generally, or that the general public is permitted to enter the premises without restraint.Both the officer and one of the residents testified that the tenants keep locks on the entrance to their individual rooms, but no one testified that the absence of locked doors at the entrances was intended as an invitation to the public to enter at will.The state stipulated that the officer did not have probable cause to enter the premises.

During closing argument the court commented to the prosecutor as follows:

"All right, now if he had no reason to go in the house, then it seems to me that the only way the search can be sustained is to determine that a police officer has the right ... any time a police officer is riding down Ninth Street and wants to go in the rooming house and look around, they can."

To this, the prosecutor responded that "under this fact situation, I think that an officer any time of the day or night could walk through this open area, walk through the back, and leave."He then added,

"But just to distinguish the types of areas, my position is he could walk through the common areas of the building--it doesn't have a locked door on either side."

In refusing to suppress the evidence, the court made the following findings of fact:

"One, that the defendantJohnny Titus was a tenant or lessee in the rooming house; two that [Ms.] Hudson was an invited guest in the rooming house; three that both of them had reasonable expectations of privacy in the rooms in the rooming house that were utilized for the sole and exclusive use of the lessee for that particular room.I find that, as to the kitchen area, that it was accessible from both the front door and the back door to not only the tenants or their invited guests but to the persons who were neither tenants nor invited guests.I find that there was no security on the doors, as testified to by the officer, and as I believe corroborated by at least one of the witnesses, one of the defendants.I find that Ms. Hudson--I recall that Ms. Hudson testified there were persons in the kitchen who were neither invited guests nor tenants, and I find that's further evidence that the rooming--the kitchen--was accessible to persons....I find, therefore, that the officers in this instance, as any other member of the public in the area, apparently could have come into the home, or come into the rooming house into the common areas."

The court thereupon found the paraphernalia in plain view.The trial judge further explained that he read State v. Batista, 524 So.2d 481(Fla. 3d DCA1988), cited by the prosecutor, to hold that no resident of an unlocked, unsecured common or shared area in an apartment building has a reasonable expectation of privacy in such areas.

We begin with the principle that "[w]ithout question, the home is accorded the full range of Fourth Amendment protections."Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 427, 17 L.Ed.2d 312(1967).As the Supreme Court also once explained:

"The Fourth Amendment, and the personal rights which it secures, have a long history.At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion."

Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734(1961).²The history of the home as a Fourth Amendment object of punctilious protection was thoroughly justified in the following:

"Resistance to these practices ³ had established the principle which was enacted into the fundamental law in the 4th Amendment, that a man's house was his castle, and not to be invaded by any general authority to search and seize his goods and papers....'The maxim that 'every man's house is his castle' is made a part of our constitutional law in the clauses prohibiting unreasonable searches and seizures, and has always been looked upon as of high value to the citizen....[N]o man's house can be forcibly opened, or he or his goods be carried away after it has thus been forced, except in cases of felony; and then the sheriff must be furnished with a warrant, and take great care lest he commit a trespass.This principle is jealously insisted upon....'

"... It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offense,--it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment....'The effect of the 4th Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law."

Weeks v. United States, 232 U.S. 383, 389-392, 34 S.Ct. 341, 343-44, 58 L.Ed. 652(1913).⁴Moreover, as the Court reemphasized in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685(1969):

"Even in the Agnello casethe Court relied upon the rule the '[b]elief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant.And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.'269 U.S., at 33, 46 S.Ct., at 6.Clearly, the general requirement that a search warrant be obtained is not lightly to be dispensed with, and 'the burden is on those seeking [an] exemption [from the requirement] to show the need for it....' "

395 U.S. at 762, 89 S.Ct. at 2039[citingAgnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145(1925);andUnited States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59(1951)].We note that in the present casethe state made no attempt to show any need for the officer to make an immediate entry because of some particular circumstance inside the house.Rather, the sole basis for proceeding without a warrant or seeking consent to go in seems to have been the absence of doors or locks preventing the officer's entry.

In the present case, we deal with a rooming house.⁵Traditionally, that is a residence is which tenants have individual rooms and share some common spaces--whether a bath, a dining room or as here a kitchen.The Supreme Court has directly confronted a warrantless search of a rooming house in McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153(1948).There a police officer climbed into a window in the landlady's bedroom in a rooming house and proceeded to the second floor.From the hallway, the officer stood on a chair and peered into the transom above the door to defendant's room and saw gambling paraphernalia.As a result, the officer entered the room and arrested the defendant.In finding the resulting arrest illegal, as without a prior warrant, the court said:

"We are not dealing with formalities.The...