STATE OF FLORIDA

v.

KEITH ALEXANDER TIMES

Appellee Keith Times was charged with trafficking in amphetamines, possession of cocaine, and possession of a firearm by a convicted felon. These charges followed a search of his home pursuant to a warrant. Law enforcement executed the search warrant after forcibly entering his home with a battering ram. Prior to the entry, police officers knocked multiple times and twice announced that police were present. They demanded that someone was to come to the door. However, it was not until seconds before entry that an officer stated that the police were in possession of a search warrant.

Times moved to suppress the fruits of the search arguing the officers violated section 933.09, Florida Statutes (2020), the “knock-and-announce” statute.¹ After a hearing at which the senior police officer of the unit executing the warrant testified, the trial court concluded that the officers did not comply with section 933.09. As it has long been the law in Florida that a violation of a

There is a similar provision regarding arrest warrants, section 901.19, which provides in subsection (1) that

[i]f a peace officer fails to gain admittance after she or he has announced her or his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, the officer may use all necessary and reasonable force to enter any building or property where the person to be arrested is or is reasonably believed to be.

Because both sections 933.09 and 901.19 “impose the same salutary requirement of knock and announce, and both are grounded in the same policy considerations,” case law about one of these statutes is considered as persuasive authority for the other. Van Allen v. State, 454 So. 2d 49, 50 (Fla. 4th DCA 1984); see also Albritton v. State, 634 So. 2d 1114, 1117 (Fla. 1st DCA 1994) (recognizing that the two knock-and-announce statutes are “substantially similar” and looking at holdings regarding one statute in interpreting another).

knock-and-announce statute mandates exclusion of evidence seized because of the wrongful law enforcement conduct, the trial court suppressed the evidence. See Benefield v. State, 160 So. 2d 706, 710 (Fla. 1964) (applying the exclusionary rule to preclude the use of evidence seized when the knock-and-announce statute was violated while making an arrest).

The trial court concluded the knock-and-announce statute was violated following multiple views of a video made from a body camera of one of the participating officers. The trial court explained

Here, the [police body camera] video would bear out that the officers first knocked on the door and said nothing. Nobody’s required to answer their door just because somebody knocks on it. Then they, two different times, seconds apart, announce, police officers, or police department, come to the door. Again, there’s no requirement that you answer the door just because the police officers are at the door. . . .

And so then it’s not just, the police are here, open the door, it’s, the police are here and we have a warrant from a judge who has considered the evidence and has authorized those officers to then open the door by force, if necessary. But until that happens, until there’s that announcement, people are not required to open their doors just because somebody knocks on it, even if it’s the police. And so from the time that happens, that announcement of lawful authority, until the breach of the door, is five to six seconds.

The State claims that seven seconds elapsed between the declaration of a search warrant and the use of a battering ram. And the State adds, as the police had previously identified themselves in the seconds before the disclosure of their possession of a search warrant, Times and his family were on some sort of notice.² We choose not to parse the video in the manner suggested by the State.

“A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Rodriguez v. State, 187 So. 3d 841, 845 (Fla. 2015) (quoting Terry v. State, 668 So. 2d 954, 958 (Fla. 1996)). A trial court’s decision on the issue of due notice in a knock-and-announce case is a decision of fact that is binding on this court if it is supported by competent, substantial evidence. Kellom v. State, 849 So. 2d 391, 394 (Fla. 1st DCA 2003) (citing State v. Robinson, 565 So. 2d 730, 732 (Fla. 2d DCA 1990)).

In his final announcement before entry, an officer stated: “police department, search warrant, step away from the door to avoid injury.” Whether the phrase “police department” landed on the sixth or seventh second of time before the entry, or whether the phrase “search warrant” landed on the sixth or seventh second of time before the entry, the trial court’s conclusion that neither Times nor other occupants had time to respond to the door is supportable by the evidence. At the point that an officer stated law enforcement had a search warrant, the officer also instructed the residents to step away from the door. That is, by the time the officer stated his authority to enter, the decision had already been made to breach the door and not to wait for a response. “Where officers knock, announce their authority and purpose, and then enter with such haste that the occupant does not have a reasonable opportunity to respond, the search violates section 933.09.” Kellom, 849 So. 2d at 394 (citing Holloway v. State, 718 So. 2d 1281, 1282 (Fla. 2d DCA 1998)); see also Benefield, 160 So. 2d at 709 (requiring that the knock-and-announce statute “be strictly observed” when law enforcement attempts entry into a home).

While the State implies that the words “search warrant” should not be imbued with any thaumaturgic quality, the controlling statute mandates that police officers announce the authority by which they seek entry. Indeed, section 933.09 plainly states that first, “due notice of the officer’s authority and purpose” has to be given. Second, there must be a refusal of admittance, which courts have held may be implied by an occupant’s delay in responding. See Falcon v. State, 230 So. 3d 168, 170 (Fla. 2d DCA 2017). Barring any exigencies, it is only after these two steps have occurred that law enforcement may enter.

This is not a new law, as the statute was enacted a century ago, and the principle which this statute codifies was acknowledged in the English common law of the seventeenth century. See Wilson v. State, 673 So. 2d 505, 508–09 (Fla. 1st DCA 1996). It is no little thing for the government to enter the home of a citizen by force and without consent. See Benefield, 160 So. 2d at 709 (explaining the knock-and-announce law is interpreted “rigidly” because “of the moral emphasis placed on liberty and the sanctity of the home in a free country”).³ Since Benefield, Florida courts have applied the exclusionary rule to knock-and-announce violations “to protect three underlying policies: (1) decreasing the risk of violence when executing a warrant, (2) protecting the privacy of the occupants of the home, and (3) preventing physical destruction of property.” State v. Cassells, 835 So. 2d 397, 400 (Fla. 2d DCA 2003) (citations omitted).

The State argues that given Hudson v. Michigan, 547 U.S. 586 (2006), the exclusionary rule is no longer an appropriate remedy for violating Florida’s knock-and-announce statutes. This is a pure question of law that we review de novo. See Bryant v. State, 265 So. 3d 726, 728 (Fla. 1st DCA 2019) (citing State v. Markus, 211 So. 3d 894, 902 (Fla. 2017)).

The Florida Supreme Court has rejected the argument that the United States Supreme Court in Hudson overruled Benefield’s holding that the exclusionary rule applies to violations of the knock-and-announce statute. State v. Cable, 51 So. 3d 434, 435 (Fla. 2010). In Cable, the Court noted that the holding in Hudson was based on a Fourth Amendment violation. 51 So. 3d at 441. But in Cable, as here, the issue was a violation of the Florida knock-and-announce statute. The Court in Cable recognized that a Florida statute can provide greater protection than the minimum required by the constitutional guarantee against unreasonable searches and seizures. Id. at 441–42 (quoting State v. Slaney, 653 So. 2d 422, 425 (Fla. 3d DCA 1995)).

As for the State’s invitation to apply an inevitable discovery type of exception to violations of the knock-and-announce statutes, this court has already rejected this exception. See Kellom, 849 So. 2d at 394. There, we stated, “We conclude that the inevitable discovery doctrine is not applicable in cases in which section 933.09 is violated, as the application of the doctrine to evidence seized in violation of the knock and announce rule would render section 933.09 and the policy behind the rule meaningless.” Kellom, 849 So. 2d at 396; see also State v. Robinson, 565 So. 2d 730, 733 (Fla. 2d DCA 1990) (noting that if inevitable discovery applied whenever the knock-and-announce statute was violated, its application would undo the statutory requirement).

The State points to language in Rodriguez, 187 So. 3d at 849, where the Florida Supreme Court said it would apply the inevitable discovery doctrine if officers illegally entered a home but were in the process of obtaining a warrant when entry was made.⁴ But Rodriguez, like Hudson, was a Fourth Amendment case. The State has not supplied us with a case in which inevitable discovery was applied to preclude the exclusionary rule where the officers

violated a statute providing greater protection against searches or seizures than the minimum required by the Fourth Amendment. Since Cable holds that suppression applies to violation of the statutory requirement of an officer to knock and announce, we are compelled to comply.

In sum, because there is competent and substantial evidence to support the trial court’s finding that the police officers violated section 933.09, and because the State offers no meritorious reason for not applying the exclusionary rule here, we AFFIRM. Nonetheless, as the State points out in its initial brief, the holding in Cable requiring suppression for a knock-and-announce violation appears be the minority position among the various states that have considered the issue in the eighteen years since the United States Supreme Court decision in Hudson. See, e.g., Lane v. State, 513 S.W. 3d 230, 235–36 (Ark. 2017) (denying suppression where a knock-and-announce violation occurred); State v. Bembry, 90 N.E. 3d 891, 900–01 (Ohio 2017) (same). We therefore certify the following question to the Florida Supreme Court as one of great public importance:

WHETHER EVIDENCE OBTAINED UNDER A VALID SEARCH WARRANT MUST BE SUPPRESSED TO REMEDY A VIOLATION OF THE KNOCK-AND-ANNOUNCE REQUIREMENT OF SECTION 933.09, FLORIDA STATUTES?

AFFIRMED; QUESTION CERTIFIED. ROBERTS, J., concurs; NORDBY, J., specially concurs with opinion.

_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.