5 Fla. L. Weekly Supp. 700b
Criminal law — Search and seizure — Warrantless entry — Entry into private apartment was unlawful where officers, responding to a “loud party” call, failed to knock and announce their purpose, were responding to, at best, a misdemeanor complaint, and did not obtain proper consent prior to entering — Officers responding to misdemeanor complaint may not lawfully enter private premises without a warrant even if the crime was committed in their presence — Woman who motioned officer into apartment did not have common authority over the premises — Officer’s failure to make any inquiry as to woman’s ability to consent to his entry rendered belief that she had such authority, unreasonable — Where entry was unlawful, defendant’s act in turning over contraband is deemed the result of the unlawful entry — Defendant, when he turned over contraband to officer, was responding to show of authority, so that any consensual encounter ceased to exist — All evidence seized as a result suppressed
STATE OF FLORIDA, Plaintiff, vs. VANCE FRITZ, JR., Defendant. County Court in and for Broward County. Case No. 98-3882MM10B, Division MW. May 14, 1998. Robert W. Lee, Judge. Counsel: Sharon Berger, Ft. Lauderdale, for Defendant.
ORDER GRANTING DEFENDANT’S MOTION TO SUPPRESS
THIS CASE came before the Court on May 11, 1998 for hearing of the Defendant’s Motion to Suppress, and the Court having received evidence, heard argument, reviewed the relevant case law, and being otherwise advised in the premises, rules as follows:
FINDINGS OF FACT: On December 29, 1997, at about 11:30 pm, Officer Britton and Officer Seltzer, both of the Davie Police Department, were separately dispatched to a “loud party” call at an apartment building within the city. A city ordinance barred loud disturbances at this time of the night. Violation of the law was a misdemeanor. Both officers, dressed in standard police uniforms and driving marked patrol cars, arrived at about the same time. Numer- ous people were present outside the building. Officer Britton asked, “who’s having the patty?” One person responded by motioning to an upstairs apartment. The officers could hear talking and loud music. As they approached the apartment, they noticed the door was open, with a female standing next to the door. Officer Britton asked the woman if this was the party, and she responded by motioning inside. Neither officer ever asked her who she was or whether she lived there. They also failed to ask to speak with any person in charge. Before entering the apartment, they failed to announce who they were and why they were there. They did not have a warrant.
Upon entering the apartment, they noticed a strong odor commonly associated with cannabis. They also noticed, in plain view, some stripped cigars and a large bong.1 Based on Officer Britton’s experience, he concluded that the cigars had been stripped so that cannabis, rather than tobacco, could be smoked. He also noticed the Defendant starting to place a white plastic bag under the sofa. The bag was opaque; accordingly, Officer Britton could not see what was in it. He asked the Defendant what was in the bag, and further asked him to hand it over. In response to the officer’s authority, the Defendant acquiesced. Upon opening the bag, Officer Britton discovered a pipe, commonly associated with the smoking of cannabis. Officer Britton field tested the residue, and it tested positive for cannabis. The Defendant was then given a Notice to Appear for two misdemeanors: possession of drug paraphernalia and possession of cannabis.
After questioning, the officers learned that the woman who let them in did not in fact live there, and the actual resident of the apartment was not there at that time.
The State argues that the warrantless entry was legal because of the consent of the woman who let them in. The State does not challenge the Defendant’s standing. The Defendant argues that the officers had no consent to enter, and that they failed to “knock and announce.” The Defendant further argues that Officer Britton searched the Defendant’s plastic bag without consent.
CONCLUSIONS OF LAW: The Court finds that the officers’ warrantless entry into the apartment was unlawful on several grounds. First, the police officers failed to “knock and announce” their purpose as required by statute. Fla. Stat. §901.19(1). See Guerrie v. State, 691 So.2d 1132, 1133 (Fla. 4th DCA 1997). Second, because the officers were, at best, responding to a misdemeanor complaint, they could not lawfully enter private premises without a warrant even if the crime (i.e., noise violation) was committed in their presence. Id. And, third, the officers did not obtain proper consent prior to entering the private apartment.
“Warrantless searches are per se unreasonable unless conducted within an established exception such as personal consent, abandonment, or consent by a third party with common authority over the premises.” Morse v. State, 604 So.2d 496, 501 (Fla. 1st DCA 1992). The Court finds that the woman who directed the officers inside the apartment did not have “common authority over the premises.” This, however, does not end the inquiry. To determine the propriety of consent to enter premises, the facts are to be “judged by an objective standard: Would the facts available to [the officers] at the time of the search, warrant a person of reason- able caution to believe the consenting party … had the authority over the premises?” Id. at 503 (emphasis in original). In this case, the Court thinks not.
Prior to acting on a third party’s consent to search, an officer must first determine whether that party has the authority to enter. In unusual circumstances, such as a party atmosphere, an officer cannot necessarily assume that “an invitation to enter a room in necessarily authorized by the rightful occupant.” See id. at 501. The fact that a social party is occurring does not result in a conclusion that the public is permitted to come inside uninvited. Officer Britton’s failure to make any inquiry whatsoever as to the ability of the woman to consent to enter, under these circumstances, renders his belief unreasonable. Accordingly, the officers’ entry was unlawful.
The Court next considers whether the Defendant voluntarily turned over the contraband to the officers. Under law, if an entry is unlawful, a party’s act in turning over contraband is deemed the result of the unlawful entry. See Grant v. State, 596 So.2d 98, 99-100 (Fla. 2d DCA 1992). See also Hurt v. State, 388 So.2d 281, 283 (Fla. 1st DCA 1980), rev. denied, 399 So.2d 1146 (Fla. 1981); State v. Daniel, 319 So.2d 582, 583 (Fla. 4th DCA 1975); O’Neil v. State, 194 So.2d 40, 43 (Fla. 3d DCA 1967) (plain view doctrine presupposes the officer’s legal right to enter the premises to begin with). Therefore, in this case, it is irrelevant whether or not the Defendant voluntarily turned over the contraband. However, even if the voluntariness of the Defendant’s actions were an issue, the Court finds that no voluntary act occurred in this case. Clearly, when the Defendant turned over the contraband to Officer Britton, he was responding to the officer’s show of authority. As such, any consensual encounter ceased to exist. See State v. Boone, 613 So.2d 560, 561 (Fla. 2d DCA 1993). All evidence seized as a result should be and is hereby suppressed. Accordingly, it is hereby
ORDERED that Defendant’s Motion is granted.
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1The officers were never able to determine who owned the cigars or the bong. However, Defendant is not charged with possession of these items.
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