STEVEN ERIK KISTNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed a marijuana conviction because the sheriff executed a search warrant without announcing his identity and purpose, violating the knock-and-announce rule under Benefield v. State.
A sheriff executing a search warrant must announce his identity and purpose before entering, and cannot excuse this requirement merely because the occupant did not hear the initial knock and call.
[1] A sheriff executing a search warrant must announce his identity and purpose before entering the premises, and cannot excuse compliance with this requirement by claiming t…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We cannot subscribe to that erosion of Benefield v. State, 160 So. 2d 706 (Fla.1964).”
Court rejecting the state's argument that the announcement requirement should be excused when it appears futile or no one is home.
A sheriff executing a search warrant for appellant's home knocked and called out "Anybody home?" but received no reply because the occupant did not he…
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ROBERT P. SMITH, Jr., Acting Chief Judge.
An appeal from convictions on charges of possession of marijuana and paraphernalia. The sheriff found the contraband in appellant’s home when executing a warrant for searching the house. The sheriff knocked repeatedly and called out, “Anybody home?”, to which there was no reply because his knock and call were not heard by the occupant, appellant's wife. So the sheriff entered. The trial court denied a suppression motion reasoning that if the occupant did not hear the knock and “Anybody home?” call, she would not have heard the sheriff announce his identity and purpose. The state urges that the sheriff’s failure to announce his identity and purpose should be excused because that announcement was or seemed futile, and it reasonably appeared to him that no one was home to hear his call. We cannot subscribe to that erosion of Benefield v. State, 160 So. 2d 706 (Fla.1964). See Whisnant v. State, 303 So. 2d 397 (Fla. 3d DCA 1974), cert. den., 323 So. 2d 273; Berryman v. State, 368 So. 2d 893 (Fla. 4th DCA 1979); Moreno v. State, 277 So. 2d 81 (Fla. 3d DCA 1973); State v. Collier, 270 So. 2d 451 (Fla. 4th DCA 1972); Section 933.09, Florida Statutes (1977).
REVERSED.
ERVIN, J., concurs.
BOOTH, J., dissents.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Cable, 51 So. 3d 434 (Fla. 2010)…the knock-and-announce statutes. See Guerrie v. State, 691 So. 2d 1132, 1133 (Fla. 4th DCA 1997) (“Here, because the officers failed to announce their purpose as required by [section 901.19(1) ], the evidence must be suppressed.”); Kistner v. State, 379 So. 2d 128, 128 (Fla. 1st DCA 1979) (reversing trial court’s denial of a motion to suppress where sheriff failed to comply with knock- and-announce statute — section 933.09 (citing Benefield)); Moreno v. State, 277 So. 2d 81, 83 (Fla. 3d DCA 1973) (concluding…
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Hurt v. State, 388 So. 2d 281 (Fla. 1st DCA 1980)…rway, must first knock, announce their name and authority, and their purpose. See, e. g., Benefield v. State, 160 So. 2d 706 (Fla.1964); Earman v. State, 265 So. 2d 695 (Fla.1972); Moreno v. State, 277 So. 2d 81 (Fla. 3d DCA 1973); Kistner v. State, 379 So. 2d 128 (Fla.1st DCA 1979). As observed in Benefield v. State, supra, arresting officers must comply strictly with the requirements of Section 901.19(1). Here they did not. The contraband seized must be suppressed as evidence. Because of our decision, we d…
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van Allen v. State, 454 So. 2d 49 (Fla. 4th DCA 1984)…they would have heard me.” The officer is to be commended for his candor, but the fact remains this was a clear violation of the knock and announce requirement. The question is, does it matter that the premises were unoccupied. In Kistner v. State, 379 So. 2d 128 (Fla. 1st DCA 1979), the appellate court rejected a contention, similar to the one the state makes here, that it was futile to knock and announce where it reasonably appeared no one was home to hear the call. The difference between that case and thi…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Benefield v. State, 160 So. 2d 706 (Fla. 1964)
- State v. Collier, 270 So. 2d 451 (Fla. 4th DCA 1972)
- Moreno v. State, 277 So. 2d 81 (Fla. 3d DCA 1973)
- Berryman v. State, 368 So. 2d 893 (Fla. 4th DCA 1979)
- Whisnant v. State, 303 So. 2d 397 (Fla. 3d DCA 1974)
- Whisnant v. State, 323 So. 2d 273 (Fla. 1975)
- Bouchard v. State, 323 So. 2d 273 (Fla. 1975)