State v. RobinsonState v. Robinson
The state appeals an order suppressing two small bags containing approximately twelve rocks of crack cocaine. The trial court suppressed the evidence because the deputy sheriffs who executed the search warrant of the defendant‘s home did not provide prior “due notice of [their] authority and purpose” before forcibly entering the home.
I.
On February 16, 1989, several deputies of the Lee County Sheriff‘s Department executed a search warrant at a house owned by the defendant, Pamela D. Robinson. There is no dispute that the search warrant was properly issued on probable cause that the defendant‘s house contained illegal drugs. With the assistance of a confidential informant, the deputies had purchased illegal drugs at the house shortly before the warrant was obtained.
The search warrant was executed at 6:15 p.m. on a Thursday evening. The sheriff‘s department dispatched a number of deputies in police cars to execute the warrant. Some of the deputies were in uniform. Some of the cars were marked police cars. When the police cars stopped in front of the home, the deputies observed a man standing at the front doorway inside the house. The front door was open, but the screen door was closed. When the man saw the police, he left the doorway and disappeared from the deputies’ sight into
When this group of deputies reached the front door, they stopped for only a few seconds before entering. Although the record contains conflicting evidence, it supports the trial court‘s conclusion that the officers entered the home either before or as they announced their purpose. Once inside the home, they located two occupants, Ms. Robinson and the man who had been at the door. Shortly thereafter, a female lieutenant searched Ms. Robinson and found a small quantity of crack cocaine in Ms. Robinson‘s front pocket. Ms. Robinson was arrested and charged with possession of a controlled substance with intent to sell.
Although the trial court recognized that the police may need to act swiftly in such a case, it suppressed this evidence because it concluded that these officers had been “a little fast” in entering the home. The trial court found no exigent circumstances to except this search from the statutory requirements of due notice. The trial court‘s decision on the issue of due notice is a decision of fact which is binding on this court if it is supported by substantial competent evidence. Earman v. State, 265 So.2d 695 (Fla. 1972); State v. Dominguez, 367 So.2d 651 (Fla. 2d DCA), cert. denied, 373 So.2d 457 (Fla. 1979). In this case, the trial court‘s decision has the appropriate evidentiary support.
As a matter of law, the opening of an unlocked screen door is a breaking which invokes the due notice requirements of
Several exigent circumstances are recognized as conditions under which the police need not comply with the knock-and-announce requirements. Benefield v. State, 160 So.2d 706 (Fla. 1964); State v. Clarke, 242 So.2d 791 (Fla. 4th DCA 1970), cert. denied, 246 So.2d 112 (Fla. 1971). In this case, however, the state did not present evidence which established any exception.
Two possible exceptions warrant comment. First, the state did not present evidence that the deputies reasonably believed that this search involved substantially more peril to life, if they announced their purpose and waited for permission to enter. State v. Hills, 428 So.2d 715 (Fla. 4th DCA), review denied, 438 So.2d 833 (Fla. 1983). Although the testimony contained vague references to a possibility of guns in the home, the confidential informant‘s information and the other evidence did not establish a reasonable basis to fear that a gun would be used. Compare State v. Avendano, 540 So.2d 920 (Fla. 2d DCA 1989) with State v. Drowne, 436 So.2d 916 (Fla. 4th DCA), review denied, 441 So.2d 633 (Fla. 1983), and Moreno v. State, 277 So.2d 81 (Fla. 3d DCA 1973).
Second, the state did not present evidence that the deputies reasonably believed that the man at the screen door, who disappeared inside the house, would destroy evidence or become violent. Although this situation may have concerned the deputies, the evidence on this factor did not compel the trial court to find an exigent circumstance. Hunsucker v. State, 379 So.2d 1043 (Fla. 1st DCA 1980); see also Bouknight.
II.
Both the trial court and this court are required to use the exclusionary rule as the remedy for any violation of
We emphasize that the exception to the exclusionary rule which we propose is a narrow exception and should be applicable only under limited circumstances. We are not proposing any modification in cases involving warrantless searches or in cases of police misconduct resulting in significant violence or property damage. We are suggesting a modification for only those cases in which the police misconduct can be fairly categorized as a matter of negligence or good faith mistake, not for those cases in which the statutory violation is deliberate or willful. See
In suggesting this reconsideration, we point out several important developments since 1964. First, the state has waived sovereign immunity for the operational negligence of police officers.
From a jurisprudential perspective, Ms. Robinson‘s civil remedy seems superior to the suppression of this evidence and the dismissal of the criminal charges because the suppression does not seem to be a remedy for damages which are proximately related to the deputies’ wrong. The deputies had a valid warrant. They simply failed to wait a few seconds at the door while identifying themselves and announcing their purpose before entering the home.2 This wrong may be an invasion of privacy and a trespass for a few seconds, but it did not result in the discovery of evidence which the deputies had no right to gather. At most, that evidence was gathered a few seconds early.
Second, the rule of inevitable discovery has significantly developed since 1964. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); 4 LaFave, Search and Seizure, § 11.4(a) (2d ed. 1987). If the rule of inevitable discovery were applied to all cases in which primary evidence was seized in violation of the knock-and-announce requirement, the rule would emasculate the requirement. This problem, however, should not exist if the exception is limited to cases in which the civil remedy is available and the circumstances otherwise fall within our limited proposal.
Third, given that the exclusion of evidence is intended to prevent police misconduct, we think it is significant to consider the steps which Florida has taken over the last twenty-six years to increase professionalism within law enforcement agencies. The Florida Legislature has established the
Fourth, the exclusion of evidence is intended to deter police misconduct. Deterrence is similar to prevention, except that it emphasizes prevention through punishment. The police departments’ exposure to monetary damages, coupled with the increased use of internal discipline within modern police departments, may provide an adequate alternative deterrent for cases of this type. If anything, experience over the last twenty-six years may suggest that the use of the exclusionary rule as a primary deterrent has resulted in an insufficient use of these more direct forms of deterrence. The state attorneys’ and the attorney general‘s desire to introduce evidence often makes these state officers advocates in favor of marginal police conduct which they would undoubtedly prefer to curb. The goals promoted by the knock-and-announce requirement would be better achieved if the state attorneys and the attorney general could help to enforce this requirement without always losing the evidence which is collected through a valid warrant.
Fifth, the knock-and-announce requirement is typically justified on grounds that it promotes at least three purposes. It prevents violence and physical injury to both the police and the occupants of the home. It protects the occupants’ private activities from unexpected exposure. It minimizes property damage resulting from forced entry. State v. Manning, 396 So.2d 219 (Fla. 4th DCA), review denied, 407 So.2d 1104 (Fla. 1981). In this case, those purposes are only modestly affected. There is no indication of physical injury, violence, or property damage in this case. If anything, despite the limited evidence in the record, one suspects that the police entered the home quickly because they feared possible violence after the man at the screen door had disappeared from view. The screen door created a condition in which activities inside could be viewed from the doorway. Indeed, if the screen door had been open, it appears that this entry would not have been forcible. State v. Brown, 564 So.2d 136 (Fla. 2d DCA 1990). Since the purposes of knock-and-announce are not strongly affected by this case, we question whether the extreme penalty of exclusion is necessary or appropriate. If the penalty is not proportionate with the wrong, we wonder whether it successfully promotes the goals of knock-and-announce.
Finally, Benefield explained the common law exclusionary rule in a case involving a warrantless arrest. Subsequent to Benefield, the supreme court and the district courts have used the same analysis in cases involving valid search warrants. See, e.g., State v. Kelly, 287 So.2d 13 (Fla. 1973); Nank. We perceive a significant difference between an illegal entry which was not authorized by a court in accordance with the safeguards of the warrant procedure, and an entry which is authorized by a court but ineptly performed by the police. We have no desire to taint the judicial system through the use of illegal or unconstitutional evidence. That taint certainly exists when the police lack probable cause. On the other hand, that taint is far from obvious when the court authorizes the police to collect the evidence and the police simply use an incorrect procedure. The
III.
In asking for a reconsideration of the Benefield exclusionary rule in cases involving warrants, we are not suggesting to the supreme court that it should create a procedure in which the courts abandon their obligation to carefully monitor police misconduct. While the supreme court should adopt the best possible procedure, the following proposal may be adequate.
If a trial court finds that a search has violated
This procedure would place stronger responsibility for the protection of citizens’ privacy interests on the police, the same level of government at which violations of privacy occur. It would encourage the police to continually develop methods to protect the privacy of citizens while also maximizing their own personal safety. In the long run, we believe that such a system would promote the citizens’ rights of privacy and deter police misconduct better than the use of the exclusionary rule in cases in which that rule seems too extreme.
IV.
We recognize that a modification of the common law exclusionary rule by the Florida Supreme Court does not fully dispose of this issue. Although Benefield does not expressly discuss the fourth amendment‘s prohibition of unreasonable search and seizure, the constitutional exclusionary rule was mandated for state use several years before Benefield. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Thus, the question is whether a statutory violation of
Unless the boundaries of
Even if this case does invoke the fourth amendment, the United States Supreme Court has stated that the exclusionary rule must be employed under a balancing test which considers the nature of the police conduct which is to be deterred, the strong interest in making all evidence available to the trier of fact, and the need to provide an effective sanction to a constitutional right. Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). In light of the changes in Florida law as well as the developments in the rule of inevitable discovery, the constitutional balance may now permit the introduction of this evidence. If any violation of
We would emphasize that we believe this proposal will strengthen the fourth amendment, rather than weaken it. It allows the courts, the attorney general and the state attorneys to promote the goals of the fourth amendment without always invoking the exclusionary rule. When the exclusionary rule is invoked as the primary remedy in a case such as this, we fear the public sometimes rejects the important, historic rights contained within the fourth amendment simply because they do not separate those vital constitutional rights from the occasional extreme and unreasonable use of the exclusionary remedy.
V.
We certify the following question as a question of great public importance:
WHEN THE POLICE NEGLIGENTLY EXECUTE A VALID SEARCH WARRANT WITHOUT SIGNIFICANT VIOLENCE OR PROPERTY DAMAGE, MAY A TRIAL COURT ADMIT THE RESULTING EVIDENCE IF THE STATE PROVES THAT THE POLICE MISCONDUCT INVOLVED IN THE INCIDENT IS BEING APPROPRIATELY INVESTIGATED AND THAT THE VICTIM HAS AN ADEQUATE CIVIL REMEDY?
Affirmed.
SCHOONOVER, A.C.J., concurs in result only.
PARKER, J., concurs specially.
PARKER, Judge, concurring specially.
I agree with the result reached in Judge Altenbernd‘s opinion because this court is bound by the decisions of State v. Kelly, 287 So.2d 13 (Fla. 1973) and Nank v. State, 406 So.2d 1282 (Fla. 2d DCA 1981). Both Kelly and Nank relied upon the case of Benefield v. State, 160 So.2d 706 (Fla. 1964) as authority for their holdings. Benefield, however, involved the warrantless arrest of the defendant inside his home after the officer opened a door without permission to enter from any resident. That factual situation is very different than the facts in Kelly, Nank, and the instant case. Like Judge Altenbernd, I would urge the supreme court to consider whether the exclusionary rule should apply when the facts are as those presented in this case.