EMILY ANDERSON AND LEON SKIPWITH, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1995-12-01
Nos. 94-1928, 94-1937
GOSHORN and THOMPSON, JJ., concur.
665 So. 2d 281 Florida District Court of Appeal, Fifth District (1995) Caution
Cited by 16 cases

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Synopsis

Emily Anderson and Leon Skipwith appealed the denial of their motion to suppress evidence seized during a warrantless search of their apartment. The court reversed, holding that the officer's initial warrantless entry was justified by exigent circumstances (suspected burglary), but once that exigency ended, further searching and seizure of documents was unconstitutional.


Holding

The court held that once Deputy Herron completed his search of the premises to locate a potential intruder and ascertain no one needed assistance, the exigency justifying the warrantless entry had ended. The subsequent search for information to locate the apartment owner and the seizure of documents did not fall within any valid exigent circumstance exception to the warrant requirement.


Headnotes

[1] A warrantless search of a home is presumptively unreasonable under the Fourth Amendment.

[2] Exigent circumstances justifying a warrantless entry into a home end once the initial exigency, such as the need to search for an intruder or render aid, has been resolve…

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Key Quotes

“We reverse the denial of the motion to suppress because we conclude that when Deputy Herron had completed his search of Skipwith's home to locate the intruder and to ascertain no one was in need of assistance inside the apartment, the exigency that allowed the warrantless search of the premises had ended.”

The core holding establishing that the exigent circumstance justifying entry terminated once the safety search was complete.

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Facts & Procedural History

On January 22, 1994, Deputy Herron responded to a report of a possible burglary at an apartment where Skipwith was the tenant and Anderson frequently …

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Opinion of the Court
GRIFFIN, Judge.

GRIFFIN, Judge.

This is an appeal by Emily Anderson and Leon Skipwith of an order denying their motions to suppress. Because we find that the warrantless search conducted was not justified by exigent circumstances, we reverse.

During the hearing on the motion to suppress, the following evidence was adduced: on January 22, 1994, at approximately 7:30 a.m., Deputy Larry Herron of the Seminole County Sheriffs Office had been on patrol when he received a dispatch concerning the possibility of a burglary of an apartment at the Regency Granda Apartments.1 Skipwith was the tenant; Anderson, his girlfriend, frequently resided there. When Herron arrived at the apartment, he found that the kitchen window was broken and raised, and saw the screen lying on the ground next to the building, but he was unable to see inside the apartment because of a curtain which was blocking his view. No one appeared to be home. Deputy Herron decided to treat the incident as a burglary in progress and asked an off-duty police officer named Jim Rick who worked at the apartments for a key. Rick was unable to produce a key; however, after the two men looked around, Deputy Herron discovered the front door was unlocked. He and Rick then entered the apartment and conducted a “room by room search for any possible burglar inside or anybody who had possibly lived in the apartment for their own safety.”

Deputy Herron admitted that he found no one in this search and that, after his search, he was unable to determine even whether a burglary had occurred. Nonetheless, he remained in the apartment, dusting the windowsill and the window area for fingerprints and attempting to locate the tenant. Rick provided Deputy Herron with the tenant contact number kept in the office. This number produced no response, so Deputy Herron began to look around the apartment “to see if I could find anything lying around, business cards, anything that would give me an idea where I could reach Mr. Skipwith.” In attempting to locate Mr. Skipwith, he searched a card table set up in the dining room and a desk in the master bedroom. His search produced a number of business cards, but he was unable to reach anyone at the numbers shown on the cards.

Deputy Herron testified that since he needed to get back on the road, he continued to look around the apartment for a clue to Skipwith’s whereabouts. He noticed a small plastic shopping bag in the kitchen close to the point where he thought entry had been made. He could see inside the bag since it was standing open on the floor and it was full of paper. According to Deputy Herron, the paper in the bag looked like business receipts or restaurant receipts which he examined because he thought they might contain a phone number or address concerning Skip-with’s place of business. He picked up some of the receipts and noticed names or initials, two digits numbers on the left side and dollar amounts on the right side. He thought that they may be codes for different dishes served by Skipwith, since one of the business cards indicated he was in the catering business. Deputy Herron did not find any information concerning Skipwith’s location, so he picked up still another batch of receipts lying under the first receipts and found more documents of the same kind. Then “right underneath” those receipts, he saw what appeared to be “tally sheets.” This made him suspicious because he had seen such tally sheets when he worked in drug enforcement. After examining the tally sheets, he thought they might be connected with a gambling operation and called his sergeant to get his opinion on how to proceed.

Sergeant Lohr came over to the apartment, and Deputy Herron showed him the receipts. Lohr also thought that the tally sheets were connected with a gambling operation and told him to call Sergeant Gibson at the City/County Investigative bureau and explain what he had found. Sergeant Gibson advised Herron to make a warrantless seizure of some of the receipts and tally sheets, but cautioned him not to take so many that the seizure would alert Skipwith that anything had been taken. Deputy Herron left the apartment shortly after seizing the receipts and tally sheets since a maintenance man had just come on duty and agreed to secure the window.

On March 9, the court entered an order denying defendants’ motion to suppress the items seized. In its order, the court found that sufficient exigent circumstances existed to justify Deputy Herron’s initial warrantless entry into the apartment to determine whether a burglary had occurred or was in progress and to determine if anyone inside was in danger. The court further found that Deputy Herron had a lawful right to examine the contents of the bag found in the kitchen as part of his attempt to locate information concerning the occupant’s whereabouts and to secure the apartment. In so holding, the court noted that Deputy Herron was acting in good faith and in accordance with his department’s policy of attempting to contact the resident of the apartment. The court thus concluded that the deputy had lawfully reviewed the contents of the bag and was entitled to seize certain of its contents once he realized it contained receipts from an illegal bolita operation.

After denial of the motion to suppress, Skipwith pled nolo contendere to one count of racketeering and twelve counts of operating an illegal lottery. Anderson pled nolo to one count of racketeering and two counts of conducting an illegal lottery.

We reverse the denial of the motion to suppress because we conclude that when Deputy Herron had completed his search of Skipwith’s home to locate the intruder and to ascertain no one was in need of assistance inside the apartment, the exigency that allowed the warrantless search of the premises had ended. Cf. State v. Haines, 543 So. 2d 1278 (Fla. 5th DCA 1989). The desire to contact the owner did not justify any further search of the apartment or its contents, including the documents in the plastic bag. Other courts also have rejected the notion that the need to secure a person’s property justifies a search once the exigencies which initially permitted entry onto the premises have ended. See, e.g., United States v. Parr, 716 F. 2d 796, 814 (11th Cir.1983).2 The officer was entitled to examine what was in plain view while on the premises.

It is a “basic principle of Fourth Amendment law” that searches and seizures inside a home without a warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). “[T]he Fourth Amendment has drawn a firm fine at the entrance to the house.” Id. Indeed, “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972); see also G.M. Leasing Corp. v. United States, 429 U.S. 338, 354, 97 S.Ct. 619, 629, 50 L.Ed.2d 530 (1977). No valid exigent circumstance warranted the search of the residence to find information concerning the tenant’s whereabouts. Because the lower court erred in denying the motion to suppress, we reverse and remand for further proceedings.3

REVERSED and REMANDED.

GOSHORN and THOMPSON, JJ., concur. . The call had apparently been made by an unidentified neighbor on his way to work.

. The case principally relied on by the state is People v. Parra, 30 Cal.App.3d 729, 106 Cal.Rptr. 531 (Cal.Ct.App.), cert. denied, 414 U.S. 1116, 94 S.Ct. 849, 38 L.Ed.2d 743 (1973). Parra was expressly disapproved in United States v. Bute, 43 F. 3d 531 (10th Cir.1994) and since Parra involved a commercial premises, we do not consider it to be persuasive.

. The question of the scope of evidence suppression has not been addressed in this appeal and we do not decide it.


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Citator

Cited By

  • Rolling v. State, 695 So. 2d 278 (Fla. 1997)
    …2); Graham v. State, 406 So. 2d 503 (Fla. 3d DCA 1981). Moreover, an entry based on an exigency must be limited in scope to its purpose. Thus, an officer may not continue her search once she has determined that no exigency exists. Anderson v. State, 665 So. 2d 281 (Fla. 5th DCA 1995). The record reflects that Rolling was living in a tent pitched in a fenced, wooded area owned by the University of Florida when Deputy Merrill saw Rolling and a black male companion enter the woods through the fence gate at 1 a.…
  • Seibert v. State, 923 So. 2d 460 (Fla. 2006)
    …ifferent from that in Mincey, where the search was found unwarranted because no emergency existed when the officers began their search and all persons in the apartment had been located. See 437 U.S. at 393, 98 S.Ct. 2408; see also Anderson v. State, 665 So. 2d 281, 283 (Fla. 5th DCA 1995) (although particular search exceeded limits of exigency because officer went through documents in plastic bag in apartment, “[t]he officer was entitled to examine what was in plain view while on the premises”). In the presen…
  • Davis v. State, 834 So. 2d 322 (Fla. 5th DCA 2003)
    …emain vigilant in its role as a guardian of the Constitution and its protections.”). The courts have consistently held that a warrantless search of a home is presumed illegal. M.J.R. v. State, 715 So. 2d 1103 (Fla. 5th DCA 1998); Anderson v. State, 665 So. 2d 281 (Fla. 5th DCA 1995); see also Espiet v. State, 797 So. 2d 598, 603 (Fla. 5th DCA 2001). This presumption may be overcome if the state demonstrates that exigent circumstances existed that allowed the police to invade the sanctity of the home without…

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