ALBERTO ALVAREZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Alberto Alvarez appeals his cocaine possession conviction, challenging the warrantless entry into his apartment by police officers. The court reversed, finding the search violated the Fourth Amendment because no exigent circumstances justified the warrantless intrusion.
The warrantless entry was unconstitutional because no exigent circumstances existed to justify the intrusion. The BOLO contained no mention of weapons, the suspect was cooperative, Alvarez did nothing to create safety concerns, and merely observing an unidentified metal object was insufficient to justify warrantless entry.
[1] Warrantless searches and seizures are per se unreasonable under the Fourth Amendment unless an exception to the warrant requirement applies.
[2] A warrantless entry into an apartment is unreasonable when police lack probable cause coupled with exigent circumstances.
Previewing 2 of 5 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“searches conducted without a warrant are per se unreasonable under the fourth and fourteenth amendments unless conducted within one of the recognized exceptions to the warrant requirement”
Establishes the foundational principle that warrantless searches are presumptively unconstitutional
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Join FLexlaw to unlock all legal intelligenceTwo police officers received a BOLO call about suspected drug activity at an apartment building. They encountered a man matching the BOLO description,…
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PER CURIAM.
Alberto Alvarez appeals his conviction and sentence for possession of cocaine. Because the warrantless search and seizure in this case violated the Fourth Amendment to the United States Constitution and Article I, section 12, of the Florida Constitution, we reverse.
Two police officers received a BOLO call regarding suspected, drug activity at a specified apartment building. The officers entered the building and found a man who fit the description of one of three men mentioned in the BOLO report. When questioned about his presence in the build ing, the individual explained that he was visiting friends in apartment 20.
The officers escorted the BOLO suspect to apartment 20. The suspect knocked on the door and the defendant, Alvarez, opened the door. One of the officers then noticed a second individual inside the apartment holding some sort of metal object in his hand. At that point, the officer barged into the apartment to seize what he believed to be a weapon. The object turned out to be an aluminum can. Once inside the apartment, one of the officers found cocaine.
Alvarez moved to suppress the evidence alleging unreasonable search and seizure. Following a hearing, the trial court denied the motion. The defendant entered a plea of no contest, reserving his right to appeal. The trial court adjudicated the defendant guilty of possession of cocaine.
It is well settled that searches conducted without a warrant are per se unreasonable under the fourth and fourteenth amendments unless conducted within one of the recognized exceptions to the warrant requirement.1 Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Williams v. State, 403 So. 2d 430 (Fla. 3d DCA 1981). In this case, the only possible exception to the warrant requirement would be the existence of probable cause with exigent circumstances. The State submits that the observations of one of the two officers gave rise to a reasonable concern that a person in the apartment was armed and dangerous, and, therefore, the officer was entitled to enter the apartment to secure the weapon. We disagree.
The State has failed to prove the existence of exigent circumstances as established by the seminal case of Benefield v. State, 160 So. 2d 706 (Fla.1964). First, the BOLO did not mention a specific apartment number or warn of the presence of weapons. Second, when the officers confronted the BOLO suspect, he was cooperative and answered the officers’ questions. Third, when the defendant answered the door, he did nothing to create concern for the officers’ safety. In fact, the officers never drew their service revolvers. Finally, the testimony that one of the officers saw some sort of metal object which could not be identified was insufficient to justify a warrantless entry. See Hornblower v. State, 351 So. 2d 716 (Fla.1977); McGibiany v. State, 399 So. 2d 125 (Fla. 1st DCA 1981); Taylor v. State, 381 So. 2d 255 (Fla. 5th DCA), cert. denied, 386 So. 2d 642 (Fla.1980). The lack of exigent or other exceptional circumstances rendered the warrant-less intrusion unreasonable. Hornblower, 351 So. 2d at 718.
Because the cocaine was the fruit of an unlawful entry,2 we reverse the trial court’s order denying Alvarez’s motion to suppress and remand with directions to enter a judgment of acquittal. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
Reversed and remanded with directions.
. The exceptions to the warrant requirement are: (1) consent; (2) search incident to a lawful arrest; (3) probable cause to search with exigent circumstances; (4) hot pursuit; and (5) stop and frisk. Engle v. State, 391 So. 2d 245 (Fla. 5th DCA 1980).
. Based on our conclusion that the officers’ entry was unlawful, the State's argument that the evidence was properly admitted under the plain view doctrine is without merit. See State v. Hughes, 375 So. 2d 615 (Fla. 3d DCA 1979) (if initial intrusion by police is lawful, seizure of incriminating evidence in plain view does not violate Fourth Amendment).
Cases With Similar Vibessemantic neighbors from the corpus
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Seibert v. State, 923 So. 2d 460 (Fla. 2006)…fficers, after responding to a be-on-the-look-out (BOLO) call, entered an apartment because the officers observed that one of the, individuals inside had a metal object in his hand, which the officers thought might be a weapon. See Alvarez v. State, 573 So. 2d 400, 401 (Fla. 3d DCA 1991) (court reasoned that the BOLO did not mention a weapon and that suspect was cooperative with officers, so they had no reason to think that anyone was in danger); see also Hornblower, 351 So. 2d at 718 (search not permitted be…
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State v. Brown, 36 So. 3d 770 (Fla. 3d DCA 2010)…324-25 (Fla. 3d DCA 1981); Adams v. State, 240 So. 2d 529 (Fla. 3d DCA 1970). One of these is the existence of “exigent circumstances,”1 which in turn include those which arise when police are conducting lawful “hot pursuits.” See Alvarez v. State, 573 So. 2d 400, 401 (Fla. 3d DCA [*772] 1991); see also Georgia v. Randolph, 547 U.S. 103, 117 n. 6, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) (listing “hot pursuit,” “protecting the safety of ... police officers,” “imminent destruction [of a] building,” “likelihood…
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State v. M. B. W. (Fla. 2d DCA 2019)
Authorities Cited
- Wong SUN v. United States, 371 U.S. 471 (U.S. 1963)
- Katz v. United States, 389 U.S. 347 (U.S. 1967)
- Benefield v. State, 160 So. 2d 706 (Fla. 1964)
- Hornblower v. State, 351 So. 2d 716 (Fla. 1977)
- Engle v. State, 391 So. 2d 245 (Fla. 5th DCA 1980)
- Williams v. State, 403 So. 2d 430 (Fla. 3d DCA 1981)
- State v. Hughes, 375 So. 2d 615 (Fla. 3d DCA 1979)
- McGIBIANY v. State, 399 So. 2d 125 (Fla. 1st DCA 1981)
- Rhett Miles Taylor v. State, 381 So. 2d 255 (Fla. 5th DCA 1980)