What happens when you agree to “free consultations?” Well, you get lots of interesting questions. I should parley these free consultations into some sort of stand-up routine, but these consultations are confidential so I’ll go one more day without breaking any ethical rules. Actually, my criminal defense stories are no match for those in the medical profession (“he had a salt shaker stuck up where?”).
The best story tellers of all may be astronauts, they can one-up any story. For example, [SETTING: stuffy cocktail party, scarf wearing exotic car owner describes his world travels] “As I drove my Maserati thru the hills of India, the locals dropped their farm equipment in awe, they had never seen such a vehicle” – Astronaut response: “Yea, kind of reminds me of the first time I drove a rover on the moon, I believe it was the Sea of Tranquility”. You see? Astronaut trumps everything. But, to get even further off track here, I should note that Jim Gaffigan disagrees, he feels the job of Pope trumps everything: “Oh, your son’s a doctor, yea, our son is Pope. Oh, your doctor son has a nice house–our son has his own City, it’s in Europe.” (Comedy Central’s video of Jim Gaffigan can be found here, just saw him last night at the Hard Rock, great show)
As a criminal defense attorney, I get the occasional emergency question like, “the police are at my front door, should I open the door?” As a general rule, American citizens are not required to get up from the sofa, pause the football game, put on some pants, and answer the door. There is nothing in the Constitution that requires us to answer the door. But, if you DON’T answer the door–and the police happen to have a warrant–your front door may cease to exist. And with that caveat, we’re going to discuss law enforcement breaking down doors.
The police may break down a front door to a home under emergency circumstances, but that’s not the type of break down we’re talking about here. We’re talking about those times when the police have a warrant. Florida has a “knock and announce” rule, found in Section 933.09 of the Florida Statutes, and it reads as follows “The officer may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if after due notice of the officer’s authority and purpose he or she is refused admittance to said house or access to anything therein.”
So, to understand how this statute works, let’s look at the case of Richardson v. State, 787 So. 2d 906 (Fla. 2nd DCA 2001). Richardson’s home was broken into by the police pursuant to a warrant at 5:30 a.m. The warrant alleged that cocaine was being sold from the home. Eight officers bunched up at Richardson’s front door, knocked three times, and announced “Bradenton Police Department, search warrant”. No sounds were heard from within the home, so the police used a battering ram to bust down the front door. The total time from first knock to entry was ten seconds. Eventually, drugs were found and Richardson was convicted. As you have heard a million times by now, the United States Constitution has a Fourth Amendment that guarantees our right to be secure in our homes from unreasonable searches. (The Florida Constitution has the identical guarantee found in Article I, Section 12) Was the search of Richardson’s home unreasonable, if it was done pursuant to a valid search warrant?
Richardson’s criminal defense attorney filed a Motion to Suppress the drugs found within his home, claiming that the officers violated the rules found in Section 933.09. The appeals court described how the police must enter pursuant to a search warrant: “before law enforcement may forcibly enter a home to execute a search warrant, section 933.09 imposes two requirements. First, law enforcement must provide due notice of their authority and purpose. The detective’s announcement, in this instance, met this requirement. Second, the statute requires that law enforcement be refused admittance. Refusal can be express or implied, and lack of response is deemed a refusal.” Id. So, did Richardson have any time to actually refuse entry? Section 933.09 requires that law enforcement be refused entry so that they may break down the front door, but ten seconds between first knock and battering ram didn’t give Richardson enough time to respond, did it?
The appeals court overturned Richardson’s convictions, ruling that the lower court should have granted the Motion to Suprress because the police violated Section 933.09. The law requires “some quantity of time, sufficient under the particular circumstances, be permitted for an occupant to respond. In this case, especially because the search warrant was executed at a time of day when it was reasonable that persons inside the house would be sleeping, hardly any time was permitted for response, and thus the statute was violated”. Id. Case dismissed. As you can see, the entry of a person’s home is a very serious intrusion by the government, and one that must be executed within the constructs of the Constitution and Florida Statutes. “If the constitutional protection of this liberty is to be more than mere words, it must be adhered to and strictly enforced; otherwise, the constitution will by only words and not ‘words that we live by’.” Id. at 909.
Ten seconds in this case was too little time to respond to the police announcement, and the case was thrown out. But do not rely too heavily upon “ten seconds”, as the courts have not been willing to give any sort of bright line time rule. The courts want to consider the facts of each individual case. Recently, the Fifth DCA found that a twenty second wait between the initial knock and announcement and the forced entry was reasonable. Mendez-Jorge v. State, 135 So. 3d 464 (Fla. 5th DCA 2014). As a result of different factors (time of day, nature of charge, observed movements in home, etc), our courts have ruled differently on the same time frames. In Spradley v. State, a 15 second delay was considered unreasonable, 933 So. 2d 51 (Fla. 2d 2006), but “fifteen to twenty seconds” was reasonable in United States v. Banks, 540 U.S. 31 (2003).
Let’s face it: many home searches lead to Motions to Suppress, because there is so much that can go wrong. In this case, something as simple as the “wait time” at the front door can lead to dismissal. Other times, we defense attorneys find problems within the warrant itself that cause the evidence to be suppressed. Whatever the case may be, at least we have a few judges out there willing to follow the Constitution, so that the document is not “mere words”. It’s just a shame Richardson had to appeal his case to a higher court in order to get justice.