634 So. 2d 1114 | Fla. Dist. Ct. App. | 1994
Alexander M. Albritton appeals the judgments and sentences against him for first degree murder, attempted robbery with a firearm and conspiracy to commit robbery. He urges: (1) that the’ trial court erred in denying his motion to suppress his confession
On January 25, 1990, at about 11:25 p.m., a police SWAT team converged on the home of appellant Alexander Albritton with a search warrant and an order to pick up appellant. The front entrance of the home was guarded by a main wooden door and an outer screen door, both of which were locked. Officer Reddick testified that he stepped onto an open porch and knocked on the outer screen door twice, 10 to 15 seconds apart, without hearing any response from inside. Anticipating the need for a forced entry, Reddick pushed through the screen, reaching through to unlatch the screen door. Reddick then opened the screen door and knocked on the inner wooden door. Mrs. Albritton, appellant’s mother, answered the door. Officer Reddick identified himself and his team as members of the Gainesville Police Department and announced that he had a search warrant. Mrs. Albritton then attempted to shut the door in Reddick’s face, at which point Reddick and the others burst through the door and entered the home.
Officer Zenuch was positioned at the rear of the house. Zenuch testified that when he heard the SWAT team enter the residence he broke a rear window as a means of distracting the occupants and protecting the entering officers. Officers Reddick and Reiker said they heard the breaking glass after they entered the house. Officer Jempson was in possession of the search warrant, and entered the house after it was secured. Jemp-son testified that no search was conducted until the search warrant had been read to the Albrittons, who were by then handcuffed and sitting in the living room. Shortly thereafter, Lieutenant Morrow read the pickup order to appellant. The search produced a firearm which later proved to be the murder weapon. Appellant was taken to the police station where, in the presence of his father, his confession to the murder for which he was convicted was recorded for trial.
On appeal, appellant contends that the police officers involved violated the “knock and announce” statute in two ways. First, appellant argues that the police officers broke the glass in the rear of the home prior to the announcement of the officers’ authority and purpose. We reject this argument for, as demonstrated by the above facts, there exists competent, substantial evidence to support the trial court’s determination that the glass was broken only after the officers had entered the home. Next, appellant maintains that the officers violated the statute by breaking the screen and opening the outer screen door prior to the announcement of the officers’ authority and purpose. In this regard, the trial court found that the officers did, indeed, break through the screen and unlatch the outer screen door prior to the announcement of their authority and purpose, but that in doing so, there was no attempt by the officers to actually enter the house, and that the officers then knocked on the inner wooden door, announcing their authority and purpose. The trial court found these actions did not constitute a violation of the statute. We agree.
Section 933.09, Florida Statutes (1989), provides:
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 his authority and purpose he is refused admittance to said house or access to anything therein.
Under Florida law, the “knock and announce” statute is subject to four exceptions: (1) where the persons within already know of the officers’ authority and purpose: (2) where officers are justified in the belief that persons within are in peril; (3) if the officers’ peril would be increased if they had demand
In determining whether the statute was violated, we are guided by the Florida Supreme Court’s interpretation of a substantially similar statute, Section 901.19(1), Florida Statutes. In Benefield, supra, the supreme court found that even if there exists probable cause for the arrest of a person, the statute is violated by an “unannounced intrusion in the form of a breaking and entering any building, including a private home,” except where the specified exceptions apply. Benefield v. State, 160 So.2d at 710 (emphasis added). Thus, actual entry into the premises is a necessary element for proving a violation of the statute. In the present case, the officers broke through the screen and unlatched the screen door merely to provide access to the inner wooden door so as to facilitate entry into the premises in the event that a forced entry became necessary. As the “breaking” did not permit entry into the home, the statute was not violated.
We take care to point out that our interpretation of the statute and its application to the present circumstances is not inconsistent with State v. Robinson, 565 So.2d 730 (Fla. 2d DCA 1990), review dismissed, 574 So.2d 143 (Fla.1990), wherein it was held that, 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). Robinson, and the cases cited therein,
Once having opened the outer screen door, the officers knocked on the inner wooden door. Appellant’s mother opened the door. At that point the officers announced their authority and purpose, but appellant’s mother refused to permit entry. In knocking and announcing at the inner wooden door, the officers complied with the statutory requirements, and were justified in forcing their way through the door.
Moreover, even were we to conclude that the officers had violated the “knock and announce” statute, such would not have compelled the suppression of either appellant’s confession or the weapon seized. With respect to appellant’s confession, we observe that New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990), held that where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the use of a statement made outside the suspect’s home, even though the statement follows an arrest made in the home in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Pay-ton earlier held that the Fourth Amendment prohibits the police from effecting a warrant-less and nonconsensual entry into a suspect’s home in order to make a routine felony arrest. Nonetheless, the Supreme Court reasoned that because Harris was lawfully detained even after the unlawful (warrantless) entry, exclusion of the arrestee’s station house confession was not required by the Fourth Amendment because such confession was not the product of the unlawful entry. In the present case, assuming arguendo that a “knock and announce” violation constitutes a Fourth Amendment violation similar to a Payton violation, there is no reason why appellant’s voluntary police station confession should have been suppressed.
We turn now to the question whether the gun seized in appellant’s home should have been suppressed. First, Harris also permits the admission of the gun seized in appellant’s home. Assuming a violation of the “knock and announce” statute, it can be
AFFIRMED.
. See Nank v. State, 406 So.2d 1282 (Fla. 2d DCA 1981); Johnson v. State, 395 So.2d 594 (Fla. 2d DCA 1981); Burden v. State, 455 So.2d 1066 (Fla. 1st DCA 1984), review denied, 464 So.2d 556 (Fla.1985); Boueknight v. State, 455 So.2d 438, 439 (Fla. 1st DCA 1984) (Ervin, C.J., concurring and dissenting), review denied, 461 So.2d 113 (Fla.1985).