Aрpellant Christopher Markus appeals his conviction for possession of a firearm by a convicted felon by asserting that the trial court’s denial of his pre-trial motion to suppress the evidence found on his person was erroneous as a matter of law. We
When reviewing a denial of a motion to suppress evidence obtained from a warrantless search, the appellate court defers to the trial court’s findings of fact but conducts de novo review of the trial court’s aрplication of the law to the facts. Connor v. State,
According to the facts found by the trial court, a uniformed police officer patrolling on foot observed two or three males drinking beer near a pick-up truck on a public street. The officer also оbserved Appellant smoking a cigarette of some sort. As he came closer to Appellant, he saw Appellant “flick the cigarette while he’s exhaling the smoke.” The officer immediately “smelled marijuana,” and then asked Appellant to “step towards me so I could detain him at that timе” to investigate the suspected criminal activity — i.e., Appellant’s possession of marijuana. Appellant instead backed away, and the officer repeated his request that Appellant stop. At that point, Appellant ran from the officer and into the open garage of his nearby residence,
The trial court denied the motion to suppress because it found thе pursuit and arrest of Appellant was valid due to the officers’ observation of Appellant’s criminal activity of possession of marijuana and refusal to obey commands to stop. The court relied on section 901:15, Florida Statutes, and case law pertaining to war-rantless arrest in a publiс place, warrant-less entry into a home in hot pursuit of fleeing felons, warrantless entry in hot pursuit after a dangerous high-speed vehicle chase, and warrantless arrest of a suspected felon on an unenclosed porch. Had Appellant been arrested while outside the home, we аgree with the trial court that section 901.15 supported such warrantless arrest, even for a misdemeanor committed in the officer’s presence. However, once Appellant crossed the threshold of the garage of his home, the Fourth Amendment to the United States Constitution prohibiting unreasonable searches is implicated. Section 901.15 does not specifically address the legality of a warrantless arrest occurring in the home at the culmination of a “fresh pursuit” by police officers to arrest a suspect for a non-felony offense.
When police chase a persоn who flees into his or her home to effect a warrant-less arrest, the Fourth Amendment, and article I, section 12 of the Florida Consti
The United States Supreme Court has repeatedly identified “physical entry of the home [аs] the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York,445 U.S. 573 , 585,100 S.Ct. 1871 ,63 L.Ed.2d 639 (1980) ... Throughout the Supreme Court’s case law, “the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Id. at 590,100 S.Ct. 1371 .
This Court has recognized that “[war-rantless searches or arrests conducted in a constitutionally protected area ... are per se unreasonable unless they fall within one of the five established exceptions to the search warrant requirement.” Lee v. State,
The exigent circumstance of “hot pursuit” is ordinarily limited to the pursuit of fleeing felons, because the seriousness of the crime is more likely to support the emergency nature of “exigent circumstances.” For instance, in United States v. Santana,
Where the behavior observed in a public place is not a felony, the exigent circumstance of “hot pursuit” to supрort chasing the suspect into his or her home is not so easily shown by the state. The gravity of the observed offense is an important factor when the pursuit continues into a home. In Welsh v. Wisconsin,
Our hesitation in finding exigent circumstances, especially when warrant-less arrests in the home are at issue, is particularly aрpropriate when the underlying offense for which there is probable cause to arrest is relatively minor. Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unrеasonableness that attaches to all war-rantless home entries. See Payton v. New York, [445 U.S. 573 , 586,100 S.Ct. 1371 ,63 L.Ed.2d 639 (1980) ] ... When the government’s interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cаuse by a neutral and detached magistrate.
Welsh,
To rebut the presuméd illegality оf warrantless entry by police officers, the exigent circumstance must involve a threat to the safety of the public, property, or police, which required immediate action by officers with no time to obtain a warrant. The exigent circumstance exception was described in Riggs v. State,
When the government invokes this exception to support the warrantless entry of a home, it must rebut the presumption that such entries are unreasonable. See Welsh v. Wisconsin,466 U.S. 740 , 750,104 S.Ct. 2091 ,80 L.Ed.2d 732 (1984). To do so, it must demonstrate a “grave emergency” that “makes a war-rantless search imperative to the safety of the police and of the сommunity.” Illinois v. Rodriguez,497 U.S. 177 , 191,110 S.Ct. 2793 ,111 L.Ed.2d 148 (1990). An entry is considered “imperative” when the government can show a “compelling need for official action and no time to secure a warrant.” Michigan v. Tyler,436 U.S. 499 , 509,98 S.Ct. 1942 ,56 L.Ed.2d 486 (1978). As is often the case under the Fourth Amendment, “[t]he reasonableness of an entry by the police upon private property is measured by the totality of existing circumstances.” Zeigler v. State,402 So.2d 365 , 371 (Fla.1981).
In Gasset v. State,
Following Gasset, the suppression of evidence obtained in a warrantless arrest in the defendant’s home was reversed in State v. Williams,
Unlike the dangerous circumstances in the Third District Court of Appeal cases above, the crimes observed in the public place in this case were possession of a marijuana cigarette and flight on foot from an order to stop. The State presented no evidence here to suggest the safety and time concerns required for the exigent circumstance of a “hot pursuit” sufficient to excuse the warrant requirement for entry into the home. The (suspected) marijuana cigarette was discarded by Appellant while he was still in the public place, making it available for collection by the police without risk of destruction of this evidence. There was no evidence that any danger would result if the officers had stopped at the threshold of the garage, statiоned themselves there and observed Appellant from outside the garage while they waited to obtain a warrant. Other officers were already present on the scene and could have watched other entrances of the residence to detect any exit by Appellant during the time it would take to obtain a warrant.
While the law has developed over time regarding application of the Fourth Amendment to various scenarios, the “exigent circumstances” exception to the rule against warrantless entry into the home remains an exception to the constitutional rule. We cannot accept the State’s position that officers mdy freely pursue every misdemeanor or traffic suspect into his or her home without a warrant so long as the offense is punishable by any jail time. Government officers’ pursuit into a suspect’s home without a warrant, under the exigent circumstance exception of “hot pursuit,” must not be applied so as to negate entirely the constitutional rule requiring a warrant for entry. Such a broad reading of exigency in every situation where officers chase a suspect of any offense into the suspect’s home renders the Fourth Amendmеnt, and article I, section 12 of the Florida Constitution, meaningless.
We reject the proposition that a pursuit which continues into the suspect’s home to effect an arrest for a minor offense or infraction with no evidence to indicate any danger to the public, police, or property and no indication that critical evidence will be destroyed, constitutes the exigent circumstance of a hot pursuit such that the warrant requirement for entry into the home is excused. The “exigent
Under the facts of this case, the motion to suppress the firearm should have been granted because the hot pursuit to effect an arrest for possession of marijuana and resisting arrest without violence did not constitute an exigent circumstance sufficient to overcome the warrant requirement to cross the threshold of Appellant’s home. The denial of the motion to suppress, and the subsequent conviction and sentence for possession of a firearm by a convicted felon, are reversed.
Notes
. The trial court found that the townhome, including the garage area, was Appellant’s residence. Because the record сontains competent, substantial evidence to support this finding of fact, we defer to the trial court’s finding.
. Likewise, section 901.19, Florida Statutes— the "knock and announce” statute — has no bearing on the issue on appeal because that statute does not contemplate a chase or pursuit, and the entry into the residence in this case did not involve any "necessary and reasonable force” to cross the threshold of the home.