STATE OF FLORIDA, APPELLANT,
v.
JULIO AVENDANO, APPELLEE
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Florida appeals a trial court's suppression of cocaine evidence, arguing that officers executing a search warrant lawfully dispensed with the knock-and-announce requirements of section 933.09 based on credible information that the defendant and others inside would be armed. The appellate court reverses, finding the facts fall within the officer peril exception to the knock-and-announce rule.
The officers were not required to comply with section 933.09's knock-and-announce requirements because the facts fall within the Benefield exception for officer peril. Where law enforcement officers possess reliable information that a suspect and others inside are armed and dangerous, and delay would risk violence, they may execute the search warrant without the statutory announcement and waiting period.
[1] Law enforcement officers are not required to announce their purpose and authority and give the occupant time to open the door before forcibly entering if their peril woul…
[2] Information from a reliable confidential informant that a suspect and others in the residence would be armed justifies an exception to the requirement of announcing purpo…
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Join FLexlaw to unlock all legal intelligence“the officer's peril would have been increased had he demanded entrance and stated the purpose”
Establishes the Benefield exception to section 933.09 knock-and-announce requirements when officer safety is at stake.
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Join FLexlaw to unlock all legal intelligenceJulio Avendano was charged with trafficking in cocaine in excess of 400 grams. During execution of a search warrant, a Pasco County deputy sheriff all…
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PATTERSON, Judge.
Appellee Julio Avendano was charged with trafficking in cocaine in excess of 400 grams on September 18, 1987. Asserting that a Pasco County deputy sheriff failed to comply with the requirements of section 933.09, Florida Statutes (1987), Avendano moved to suppress evidence obtained from an allegedly unlawful search and seizure. After an evidentiary hearing on July 7, 1988, the trial court entered an order suppressing the cocaine and any inculpatory statements pertaining to it. We reverse.
Section 933.09 requires a police officer, in the execution of a search warrant, to announce his purpose and authority and to give the occupant enough time to voluntarily open the door before the officer may enter forcibly. Although the testimony of the officers conflicted, it is clear that they failed to allow enough time after their announcement to permit anyone inside to open the door voluntarily. Unless the facts of this case fall within an exception to the requirements of section 933.09, the trial court’s ruling should be upheld.
It is not necessary for law enforcement officers to meet the section 933.09 requirements when “the officer’s peril would have been increased had he demanded entrance and stated the purpose.” Benefield v. State, 160 So. 2d 706, 710 (Fla.1964). Sergeant Bach testified that on the morning of the execution of the warrant a confidential informant told him that Avendano stated that he and two others in the house would be armed. Sergeant Bach was aware that Avendano’s two teenage daughters would probably be inside the residence, and he believed that a delay in the execution of the warrant would result in a shooting. Detective Gardner testified that the confidential informant had provided accurate information about Avendano in the past and informed him that Avendano had stated he would be carrying a weapon. In consideration of the violence which surrounds illegal drug trafficking, it is not reasonable to expect law enforcement officers to risk their lives and the lives of others when possessed of information as was present in this case. We determine that the facts of this case fall within the Benefield exception and that the officers acted within their lawful authority.
Appellee relies on several cases wherein it was held that information of firearms likely to be present on the premises did not justify the officer peril exception to section 933.09. Each of these cases is distinguishable on its facts. In Rodriguez v. State, 484 So. 2d 1297 (Fla. 3d DCA 1986), the court determined that the officer’s testimony was too vague to support the Benefield exception. Here, a reliable confidential informant provided information that Avenda-no and two others would be armed on the morning of the execution of the search warrant in case something went wrong with the planned drug deal. In State v. Drowne, 436 So. 2d 916, 920 (Fla. 4th DCA), rev. denied, 441 So. 2d 633 (Fla.1983), the court found that although there was information as to firearms being present, there was nothing in the record to indicate “that a modem day Dillinger-type character was inside ready to use them.” The facts of this case do not fall into that category.
Accordingly, we reverse the order granting the motion to suppress and remand for further proceedings.
THREADGILL, A.C.J., and ALTENBERND, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Power v. State, 605 So. 2d 856 (Fla. 1992)…abuse its discretion in concluding from this evidence that the peril faced by the police would have been increased had they first demanded entrance and stated their purpose. See Benefield v. State, 160 So. 2d 706, 710 (Fla.1964); State v. Avendano, 540 So. 2d 920, 921 (Fla. 2d DCA 1989). Finally, we reject Power’s claim that the search warrant was invalid because it incorrectly named the owner of the house as “Donald McNeal.” The evidence shows that Power’s mother, Donna McNeal, rented the residence. This t…
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State v. Robinson, 565 So. 2d 730 (Fla. 2d DCA 1990)…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…
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Craft v. State, 638 So. 2d 1011 (Fla. 2d DCA 1994)…. It is significant to note that none of the officers provided any case specific explanation that reasonably caused them to believe that Craft may harm them. This case is distinguishable on its facts from our previous decision in State v. Avendano, 540 So. 2d 920 (Fla. 2d DCA 1989), where a reliable Cl provided information that the defendant and two others would be armed on the morning of the execution of the search warrant in case something went wrong with the planned drug deal. In the present case, the evi…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Benefield v. State, 160 So. 2d 706 (Fla. 1964)
- State v. Drowne, 436 So. 2d 916 (Fla. 4th DCA 1983)
- Rodriguez v. State, 484 So. 2d 1297 (Fla. 3d DCA 1986)