STATE OF FLORIDA, APPELLANT,
v.
RICHARD MANN AND JULIA PANKEY, APPELLEES
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Florida appeals a trial court's suppression order in a case involving a warrantless search of an apartment during a series of burglaries at a tennis resort. The appellate court holds that the search was justified under the exigent circumstances exception and that marijuana discovered in plain view was properly seized, reversing the suppression order.
The warrantless entry was justified under the exigent circumstances exception because the officers had probable cause to believe a burglary was occurring based on the pickmarks, bent screen, unlocked door, and recent burglary history. The marijuana was properly seized under the plain view doctrine because the officer inadvertently discovered it while lawfully searching within the apartment for an intruder.
[1] Probable cause to believe a burglary has been or is being committed may be established by evidence of forced entry, tampering with a lock, and a history of recent burglar…
[2] Warrantless entry into an apartment is justified under the exigent circumstances exception to the warrant requirement when police have probable cause to believe a burglar…
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Join FLexlaw to unlock all legal intelligence“The pickmarks on the door jamb near the lock, the bent-out screen, the unlocked door and the recent history of burglaries in the apartment complex, all pointed to a forced entry. In our view, this was sufficient to constitute probable cause to believe that a burglary had been or was being committed.”
Establishes the court's finding of probable cause justifying warrantless entry under exigent circumstances
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Join FLexlaw to unlock all legal intelligenceA Delray Beach tennis resort experienced twelve burglaries over three months. Police conducted an undercover surveillance operation, and Officer Linco…
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HURLEY, Judge.
This is a search and seizure case in which the state appeals an order suppressing physical evidence. We hold that the warrantless apartment search was justified under the “exigent circumstances” exception. Furthermore, we conclude that the contraband (marijuana), found during the search, was in plain view and, therefore, was properly seized. Accordingly, we reverse.
A Delray Beach tennis resort experienced twelve apartment burglaries during a three month period. Most were “lock pick” intrusions, but some involved forced entry. In an effort to catch the culprits, the Delray Beach police department initiated an undercover surveillance operation. Dressed in tennis attire, Officer Richard Lincoln conducted a floor to floor security check by walking along the open-air walkway of the multi-story apartment buildings. He approached apartment 4404 and noticed that the window screen was bent-out at the bottom. Closer inspection revealed that the screen had been inserted “inside-out”; tabs which should have been on the inside were protruding outward. Also, he noted that the door jamb near the lock was scarred; it appeared as though the lock had been tampered with.
After contacting two back-up undercover policemen, Officer Lincoln approached the apartment door. It swung open freely when the officer applied minimal pressure. He entered and noticed that a chair had been placed less than two feet from the door, near enough to have been propped-up against the door to keep it shut. He then searched the living room, the kitchen and a laundry room adjacent to the kitchen. His partial search revealed no signs of a burglary in progress. At this point, the two backup officers arrived at the entrance to the apartment. One officer stated that a potential suspect had been seen running on the rooftop of the next building. Since Officer Lincoln had the only car, he agreed to conduct a mobile ground search for the suspect while the other two officers, Sylvester and Lewis, completed the search of the apartment.
Officer Sylvester entered the master bedroom and bath, opening the shower stall which he found to be unoccupied. Next, he saw a large walk-in closet with its door open. He entered, glanced about, and checked behind the door for an intruder. Within the closet, on a shelf, approximately at his eye level, he saw a clear plastic bag containing ten sandwich bags of marijuana. Sylvester testified that “[tjhere were boxes and stuff on either side of it [the marijuana] .... It was on the same shelf, but nothing was in front of it.” When faced with these facts, the trial court concluded that Officer Lincoln did not have probable cause to believe that a burglary had been or was in the process of being committed. We respectfully disagree. The pickmarks on the door jamb near the lock, the bent-out screen, the unlocked door and the recent history of burglaries in the apartment complex, all pointed to a forced entry. In our view, this was sufficient to constitute probable cause to believe that a burglary had been or was being committed. See, e.g., Guin v. City of Riviera Beach, 388 So. 2d 604 (Fla. 4th DCA 1980). Armed with probable cause, the officer’s immediate entry without a warrant was justified under the exigent circumstances exception to the warrant requirement of the state and federal constitutions.1 See United States v. Estese, 479 F. 2d 1273 (6th Cir.1973).
In Webster v. State, 201 So. 2d 789, 792 (Fla. 4th DCA 1967), this court observed:
The general rules governing searches and seizures are subject to the exception of emergency situations, sometimes called the ‘exigency rule.’ The reasonableness of an entry by the police upon private property is measured by the circumstances then existing. The right of police to enter and investigate in an emergency, without an accompanying intent either to seize or arrest, is inherent in the very nature of their duties as peace officers and derives from the common law. [citation omitted]
See also, Zeigler v. State, 402 So. 2d 365, 371 (Fla.1981), cert. denied, leave to proceed in forma pauperis granted, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982).
While an exigent circumstance is often furnished by the need to determine whether emergency health care must be provided, State v. Hetzko, 283 So. 2d 49, 51 (Fla. 4th DCA 1973), this particular exception to the warrant requirement has been utilized where the immediate danger is to property rather than to people. United States v. Selberg, 630 F. 2d 1292 (8th Cir.1980); Guin v. City of Riviera Beach, supra; State v. Garcia, 374 So. 2d 601, 603 (Fla. 3d DCA 1979). The facts of the present case emphasize the reasonable need for prompt police action to deter a potential burglary. As one court noted in a similar case, “to allow this situation to go uninvestigated for the several hours it would have taken to obtain a warrant would have allowed a grave public danger to go uncorrected... . ” United States v. Moskow, 588 F. 2d 882, 892 (3d Cir.1978). Although the first officer to enter the premises in this case did not complete a search of the entire apartment, logic suggested the reasonable inference that a burglar could still be within the unsearched rooms. The fact that other officers — as opposed to the initial investigating officer— completed the search has no bearing on the exigent circumstances which justified the warrantless intrusion in the first instance.
Having determined that the officers were within the apartment under a constitutionally supported exception to the warrant requirement, the sole remaining question is whether the marijuana’s discovery can be upheld by the plain view doctrine. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). This doctrine was clarified by the Florida Supreme Court in Ensor v. State, 403 So. 2d 349 (Fla.1981). There the court noted that the doctrine is applied correctly when an officer inadvertently spots evidence or contraband in the course of a justifiable intrusion into a constitutionally protected area. The court went on to note that
[I]t is this situation for which the United States Supreme Court created the “plain view doctrine” in Coolidge and held that an officer could constitutionally seize the contraband in “plain view” from within this protected area. We emphasize that it is critical under this doctrine for the officer to be already within the constitutionally protected area when he inadvertently discovers the contraband.
Id. at 352.
Although the trial court did not reach the plain view issue, we believe that the record is sufficiently developed to permit us to resolve the matter at this time. While the evidence as to plain view was not uncontradicted, no witness at the suppression hearing testified that the marijuana was thoroughly hidden from view. In fact, one of the codefendants admitted that the contraband, resting on the closet shelf at eye-level, was only partially covered. The searching officers testified that the bag was fully, immediately visible. There is no indication in the record that the discovering officer’s investigation went beyond a search reasonably calculated to disclose the presence of an intruder. Therefore, we hold that the officer’s inadvertent discovery of marijuana while he searched behind the walk-in closet door did not go beyond the parameters of his constitutional license. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
DELL, J., and OWEN, WILLIAM C., Jr., Associate Judge, concur. . Art. I, § 12, Fla. Const.; U.S. Const. amend. IV as applied to the states by amend. XIV.
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Davis v. State, 834 So. 2d 322 (Fla. 5th DCA 2003)…nto a home. See Rolling; Arango v. State, 411 So. 2d 172 (Fla.), cert. denied, 457 U.S. 1140, 102 S.Ct. 2973, 73 L.Ed.2d 1360 (1982); Richardson v. State, 247 So. 2d 296 (Fla.1971); Walker v. State, 617 So. 2d 404 (Fla. 3rd DCA 1993); State v. Mann, 440 So. 2d 406 (Fla. 4th DCA 1983). Hence, the police may enter a home to investigate a suspected burglary or to check on the safety of its residents, as those situations are generally considered exigent circumstances. See State v. Craycraft, 704 So. 2d 593 (Fla.…
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P.B.P. v. State, 955 So. 2d 618 (Fla. 2d DCA 2007)…. See United States v. McCullough, 457 F. 3d 1150, 1164 (10th Cir.2006). Florida’s courts have reached the same conclusion. See, e.g., Zakrzewski v. State, 866 So. 2d 688 (Fla.2003); Davis v. State, 834 So. 2d 322 (Fla. 5th DCA 2003); State v. Mann, 440 So. 2d 406, 408 (Fla. 4th DCA 1983). The argument that the officers’ entry was justified as part of a burglary investigation is flawed in several respects, not the least of which is that it overlooks the fact that the officers’ initial entry into a constituti…
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State v. Dudley S. Haines, 543 So. 2d 1278 (Fla. 5th DCA 1989)…view, and the closet was sufficiently large to have provided a hiding place for a possible burglar. We think the police officers were justified under these circumstances in conducting a search of the residence for possible intruders. State v. Mann, 440 So. 2d 406 (Fla. 4th DCA 1983); Guin v. City of Riviera Beach, 388 So. 2d 604 (Fla. 4th DCA 1980); State v. Garcia, 374 So. 2d 601 (Fla. 3d DCA 1979). Sufficient exigent circumstances existed to excuse the obtaining of a search warrant. See Johnson v. State, 3…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Coolidge v. New Hampshire, 403 U.S. 443 (U.S. 1971)
- Elton E. Ensor v. State, 403 So. 2d 349 (Fla. 1981)
- Zeigler v. State, 402 So. 2d 365 (Fla. 1981)
- Greene v. Grievance Comm. for the Ninth Jud. Dist., 455 U.S. 1035 (U.S. 1982)
- Webster v. State, 201 So. 2d 789 (Fla. 4th DCA 1967)
- Fleetwood Guin v. City OF Riviera Beach, 388 So. 2d 604 (Fla. 4th DCA 1980)
- United States v. Moskow, 588 F.2d 882 (3d Cir. 1978)
- State v. Garcia, 374 So. 2d 601 (Fla. 3d DCA 1979)
- United States v. Minot Wayne Estese, 479 F.2d 1273 (6th Cir. 1973)
- United States v. Barlo Vernon Selberg, 630 F.2d 1292 (8th Cir. 1980)