Dedmon v. StateDedmon v. State
Appellant appeals his convictions and sentences for attempted first degree murder with a firearm and possession of a firearm by a convicted felon. He raises four points
First, appellant argues that the trial court abused its discretion when it denied appellant‘s motion to sever the second count, possession of a firearm by a convicted felon, from the first count, attempted first degree murder with a firearm. He urges that the trial judge was required to grant the severance under
Appellant‘s second argument is that a handgun should have been suppressed because of an unlawful search in violation of the
The evidence before the trial judge on the motion to suppress included the following. On the morning following the shooting, Officer Estraviz received a call from the headquarters dispatcher that an informant had called and said that the appellant had been involved in a shooting on the north side of town the previous day and that he was staying at a particular house. The officer was given Dedmon‘s full name, a description of what had occurred at the shooting, and that Dedmon was probably armed and dangerous. Estraviz and several other officers went to the house where Estraviz knocked on the door loudly for about five minutes calling appellant‘s name. Estraviz heard noises but no voices. After he used the megaphone to call for Dedmon to come out, he was surprised to see two crouched shadows through the window. Dedmon and the second person thereafter came out of the house and were arrested. Two other police officers then immediately
Although the Payton holding was limited to a determination of the validity of an entry into the home to effect a routine arrest, the rationale requiring exigent circumstances in the absence of a warrant would apply equally to any warrantless entry into the home. Such a requirement does not spring from the Payton case alone. Even before Payton, both Florida and federal courts have held that the post-arrest search of a house cannot be justified as a standard “protective sweep” in order to determine if other persons or weapons are present. According to Newton v. State, 378 So.2d 297 (4th DCA 1980), police officers must have reasonable grounds to believe their security may be jeopardized by others on the premises. In Newton, the police officers testified that the search was “standard procedure;” they could offer no “articulable facts” on which to base a conclusion that there might be other persons present in the house. Because of that the court held the search to be invalid. However, in McNair v. State, 354 So.2d 473 (Fla.3d DCA 1978), because the officer saw the defendant‘s wife toss a gun inside, the search of an apartment after an arrest was made outside the residence was upheld. The possibility that someone inside could have access to the pistol “... constituted sufficient evidence of exigent circumstances.” See also Grant v. State, 374 So.2d 630 (Fla.3d DCA 1979).
Both Newton and McNair cited United States v. Bowdach, 414 F. Supp. 1346 (S.D. Fla. 1976) affirmed 561 F.2d 1160 (5th Cir.1977). In Bowdach as in the case before us, the defendant was arrested outside a house. Nonetheless, the court held that the police had a right “to conduct a quick and cursory check of a residence when they have reasonable grounds to believe that there are other persons present inside the residence who might present a security risk.” The officers believed that they were in jeopardy because of information that the defendant was a member of a “gang” which was under investigation. The reasonableness of the officers’ belief should be measured by their perceptions prior to entry, and the scope of the search should be limited to what is minimally necessary to protect the officers from the perceived dangers. The seizure of evidence seen in plain view after entering the premises was held valid in Bowdach. Other federal cases upholding a “protective sweep” search and seizure of criminal evidence in plain view on the basis of exigent circumstances include United States v. Baker, 577 F.2d 1147, 1152 (4th Cir.1978) and McGeehan v. Wainwright, 526 F.2d 397 (5th Cir.1976).
At the hearing on the motion to suppress, the trial judge heard argument concerning the applicability of the exigency standard espoused in Newton and Bowdach. After hearing the evidence, the judge concluded that under the circumstances the officers had “reasonable grounds” to enter the house. Giving deference to the trial judge‘s interpretation of the facts, we agree. The officers were told only of the presence of the appellant. They were informed that he was probably armed and dangerous and that he had been involved in a shooting incident. Aware of the possibly dangerous situation, the several officers met a block away from the house before surrounding the home and spent fifteen minutes in talking appellant into coming outside. When one officer saw two shadowy figures inside, he relayed the information. The testimony consistently shows the officers’ surprise in learning that more than one person occupied the house. Considering the gravity of the crime, the probability of weapons inside the house, and the surprise on learning that at least two people were
Appellant‘s third argument is that he was denied a speedy trial within the meaning of
In his order extending the time for trial the trial judge specifically found that a witness’ testimony was uniquely necessary to the State and that her absence was unforeseeable and not due to any lack of diligence by the State. The granting of an extension of speedy trial for exceptional circumstances is a matter for the discretion of the trial judge. See, e.g., Talton v. State, 362 So.2d 686 (4th DCA 1978). Appellant has not shown an abuse of discretion in this case. The record reflects that the witness in question was under subpoena and in regular contact with the State Attorney but did not make her intended absence known until the night before trial. The record supports a determination that the State made diligent efforts to secure her presence. Further, the finding of the uniqueness of her testimony was appropriate in that her expected testimony included a statement that appellant had made an admission to her shortly after the alleged crime and she could place appellant in the same room where the weapon was located. Based upon the circumstances, the trial judge could extend the time for trial for a reasonable period of time.
Appellant‘s final argument is an attack upon the constitutionality of
Accordingly, the convictions and sentences of the trial court are AFFIRMED.
ROBERT P. SMITH, C.J., and LARRY G. SMITH, J., concur.