IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
STATE OF FLORIDA, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-1232
STACEY RENEE MCRAE,
Appellee.
_____________________________/
Opinion filed June 21, 2016.
An appeal from the Circuit Court for Washington County.
Christopher N. Patterson, Judge.
Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Assistant Attorney
General, Tallahassee, and Shalla P. Jefcoat, Assistant State Attorney, Chipley, for
Appellant.
Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public
Defender, Tallahassee, for Appellee.
WINOKUR, J.
The State appeals the lower court’s order granting Stacey Renee McRae’s
motion to suppress her statements to police and all physical items seized from her
motel room and vehicle. The State argues the court erred in suppressing her post-
Miranda statements because the totality of the circumstances justified a protective
sweep of the motel room and further questioning of McRae. 1 We agree and
reverse.
I.
The parties do not dispute the court’s factual findings leading to McRae’s
arrest for armed robbery. On December 30, 2013, a convenience store was robbed
in Vernon. A surveillance camera captured an image of two women. One woman’s
face was uncovered as she pointed a firearm at the clerk. A surveillance video also
captured images of a vehicle arriving and leaving, indicating there was a third
person driving the vehicle. On January 3, 2014, a second robbery occurred at a
convenience store in DeFuniak Springs. The perpetrator was a lone male with a
firearm, and the victim reported a female driver. A surveillance video indicated the
robbers were driving a similar vehicle to the one used in the Vernon robbery.
The police issued a BOLO generated from evidence collected in both
robberies. The BOLO included the following evidence: a still-frame from an in-
store surveillance video, showing the face of a woman holding a firearm pointed at
the clerk; a possible tag number of the vehicle; and a picture of a maroon Ford
Taurus, similar to the vehicle used in both robberies.
1
Because the State does not challenge the suppression of the firearm or
items seized from McRae’s vehicle, we do not address those portions of the order
below.
2
On January 6, a sergeant with the Bay County Sheriff’s Office discovered a
vehicle at a motel closely matching the description of the vehicle in the BOLO.
Lieutenant Daffin of the Bay County Sheriff’s Office and approximately ten other
officers assembled at the motel. The car was parked directly in front of a motel
room. Two officers knocked on the motel room door. McRae answered the door
and Lt. Daffin recognized her as the suspect in the Vernon robbery holding the
firearm. Officers grabbed McRae and removed her from the room. Officers next
conducted a protective sweep of the room for other occupants, as they were unable
to see behind the bed or the bathroom area.
After the protective sweep, officers brought McRae back into the room and
gave her Miranda warnings. McRae gave a post-Miranda statement to police in
which she admitted involvement in the armed robbery. When asked if there were
any weapons in the room, McRae responded that there was a revolver in the
nightstand, which an officer retrieved. Police later took McRae to the police station
for questioning. The vehicle was towed and later searched pursuant to a warrant.
II.
McRae filed a motion to suppress the statements made to police and all
evidence collected from her room and vehicle, “after the illegal entry of her motel
room.” McRae argued the police acted illegally as they did not have a search
warrant, nor was there consent or exigent circumstances justifying the search. In
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response, the State argued the police acted legally when officers knocked on
McRae’s door. Once the officers recognized McRae as the suspect in the
surveillance photo, they were justified in detaining her and conducting a protective
sweep in the interest of officer safety. At the time law enforcement knocked on
McRae’s door, police knew there were at least two other perpetrators and a
possible firearm used in the armed robbery.
The order granting the motion to suppress, provided that:
This Court determines that law enforcement had
neither a warrant nor Defendant’s consent to enter the
motel room. There is no evidence that law enforcement
sought to assist someone who was injured or to render
first aid. Based upon the evidence as presented there was
no evidence of any exigent circumstance, other than an
exigency created by law enforcement. This Court is
bound by the principles announced in Higginbotham v.
State, 17 So. 3d 828 (Fla. 1st DCA 2009); Lee v. State,
856 So. 2d 1133 (Fla. 1st DCA 2003) and Vasquez v.
State, 870 So. 2d 26 (Fla. 2d DCA 2003). The evidence
seized in the motel room, any Defendant statement and
any subsequent search of the vehicle using that
information is not legally justified and is hereby
suppressed.
III.
A.
“We review the suppression order to determine whether competent
substantial evidence supports the factual findings; we review de novo the trial
court's application of the law to the facts.” State v. DeLuca, 40 So. 3d 120, 123
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(Fla. 1st DCA 2010). The lower court’s ruling on a motion to suppress is presumed
correct on appeal; therefore, we view “the evidence and all reasonable inferences
in a light most favorable to sustaining the order.” Id. Because there is no dispute as
to the court’s factual findings, we review its conclusion as to the constitutionality
of law enforcement’s actions de novo.
Each of the steps taken by law enforcement leading to McRae’s statements
was lawful. The knock at the door, the seizure of McRae, the sweep of the motel
room, and the questioning of McRae were all permissible. Each of these actions
will be discussed in turn.
1. The officers’ knocking on the motel room door did not implicate the Fourth
Amendment
A private home (including a motel room) “is an area where a person enjoys
the highest reasonable expectation of privacy under the Fourth Amendment.”
Gonzalez v. State, 578 So. 2d 729, 734 (Fla. 3d DCA 1991); see also Payton v.
New York, 445 U.S. 573 (1980) (prohibiting warrantless entry into a home to
effect arrest and reiterating that “[t]he physical entry of the home is the chief evil
against which the wording of the Fourth Amendment is directed”); Turner v. State,
645 So. 2d 444, 447 (Fla. 1994) (stating that for purposes of Fourth Amendment
protections, “[a] motel room is considered a private dwelling if the occupant is
there legally, has paid or arranged to pay, and has not been asked to leave”). Even
so, police, like any other citizen, may approach a residence and knock, hoping that
5
the occupant will open the door. See Powell v. State, 120 So. 3d 577, 584 (Fla. 1st
DCA 2013) (“Governmental actors, like private actors, have a limited license to
approach a dwelling on a defined path, knock on the front door, briefly await an
answer, and either engage in a consensual encounter with the resident or
immediately depart.”). This investigative technique—known as a “knock and
talk”—does not require reasonable suspicion or probable cause. Jardines v. State,
73 So. 3d 34, 46 (Fla. 2011), aff’d, 133 S. Ct. 1409 (2013) (noting that “police
generally may initiate a ‘knock and talk’ encounter at the front door of a private
residence without any prior showing of wrongdoing”); see also United States v.
Cruz–Mendez, 467 F.3d 1260, 1264 (10th Cir. 2006) (“[A] ‘knock and talk’ is a
consensual encounter and therefore does not contravene the Fourth Amendment,
even absent reasonable suspicion.”); State v. Morsman, 394 So. 2d 408, 409 (Fla.
1981) (“Under Florida law it is clear that one does not harbor an expectation of
privacy on a front porch where salesmen or visitors may appear at any time.”).
The trial court order stated, “[a]ccording to LT. Jason Daffin, BCSO,
members of law enforcement knocked on the motel door, which was answered by
[McRae].” While officers certainly had reason to suspect that the robbers might be
in the motel room, they were permitted to knock on the motel room door without
any particular level of suspicion. See Jardines, 73 So. 3d at 46. Thus, police acted
lawfully in knocking on McRae’s motel room door.
6
2. Probable cause was established when police recognized McRae as the
perpetrator from the picture in the BOLO
Once McRae answered the door and Lt. Daffin recognized her as the robber,
police had probable cause for her arrest without a warrant. See § 901.15(2), Fla.
Stat. (providing instances when an arrest without a warrant is lawful); see also
United States v. Tobin, 923 F.2d 1506 (11th Cir. 1991) (“Probable cause exists
when under the ‘totality-of-the-circumstances . . . there is a fair probability that
contraband or evidence of a crime will be found in a particular place.’”) (quoting
Illinois v. Gates, 462 U.S. 213, 238 (1983)); United States v. Watson, 423 U.S.
411, 423-24 (1976) (holding a warrantless arrest of an individual in a public place
is lawful as long as the arrest is supported by probable cause). Once probable cause
was established, officers could remove McRae from the room’s threshold. See
United States v. Crasper, 472 F.3d 1141, 1148 (9th Cir. 2007) (holding that “when
a suspect voluntarily opens the door of his residence in response to a non-coercive
‘knock and talk’ request, the police may temporarily seize the suspect outside the
home (or at the threshold) provided that they have reasonable suspicion of criminal
activity”); see also Byrd v. State, 481 So. 2d 468, 472 (Fla. 1985) (recognizing that
several federal circuit courts have held that the threshold area of a residence is a
public place “wherein a warrant is not required to effectuate a valid arrest”); see
generally States v. Vaneaton, 49 F.3d 1423, 1426-27 (9th Cir. 1995) (holding that
police may make a warrantless arrest of a suspect who voluntarily opens the door
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to his residence in response to a knock by the police). Even if police were not
justified in reaching into the motel room and removing McRae from the room’s
threshold, the seizure is still legal as exigent circumstances permitted the intrusion.
See Mercier v. State, 579 So. 2d 308, 309 (Fla. 2d DCA 1991) (“A warrantless
entry must be justified by probable cause and exigent circumstances.”). Whether
exigent circumstances existed is addressed below.
3. The warrantless entry and protective sweep were based on exigent
circumstances
“[W]arrants are generally required to search a person’s home or his person
unless ‘the exigencies of the situation’ make the needs of law enforcement so
compelling that the warrantless search is objectively reasonable under the Fourth
Amendment.” Mincey v. Arizona, 437 U.S. 385, 393-94 (1978). The need for a
legitimate protective sweep constitutes an exigent circumstance permitting entry
into an area protected by the Fourth Amendment. Maryland v. Buie, 494 U.S. 325
(1990). “The Fourth Amendment permits a properly limited protective sweep in
conjunction with an in-home arrest when the searching officer possesses a
reasonable belief based on specific and articulable facts that the area to be swept
harbors an individual posing a danger to those on the arrest scene.” Id. at 337.
Likewise, it follows that “[i]f, during the course of a legitimate knock and talk, a
suspect’s actions create exigent circumstances, officers may abandon their knock
and talk and perform a warrantless entry and a protective sweep.” United States v.
8
Willis, 711 F. Supp. 2d 683, 694 (E.D. Texas 2010); see also United States v.
Jones, 239 F.3d 716, 721–22 (5th Cir. 2001) (finding that the suspect’s conduct,
rather than the officers’ decision to conduct a “knock and talk,” created the
exigency where the officer knocked on a screen door, saw a firearm on the table in
plain view, and entered the residence to secure the firearm); State v. Ojeda, 147 So.
3d 53, 67 (Fla. 3d DCA 2014) (Rothenberg, J., dissenting).
The exigent circumstances exception to the warrant requirement requires
that the warrantless entry by police on to private property be reasonable given the
totality of the circumstances. See Lee v. State, 856 So. 2d 1133, 1136 (Fla. 1st
DCA 2003) (“There is no exhaustive list of what constitutes exigent circumstances
to permit a warrantless entry of a constitutionally protected space.”). A set of facts
must exist that precludes taking the time to secure a warrant. See Davis v. State,
834 So. 2d 322, 327 (Fla. 5th DCA 2003) (“The sine qua non of the exigent
circumstances exception is a compelling need for official action and no time to
secure a warrant.”) (quotations omitted). Officer safety has long been recognized
as an exigent circumstance justifying warrantless entry of a residence. See Markus
v. State, 160 So. 3d 488, 492 (Fla. 1st DCA 2015) (stating “[t]o rebut the presumed
illegality of warrantless entry by police officers, the exigent circumstance must
involve a threat to the safety of the public, property, or police which required
immediate action by officers with no time to obtain a warrant”); see also Bethel v.
9
State, 93 So. 3d 410, 414 (Fla. 4th DCA 2012) (finding exigent circumstances—
“to protect officers’ safety” existed to justify a warrantless entry into the curtilage
of the defendant’s house where the officer recognized the butt of a handgun
sticking out of the defendant’s pocket); Riggs v. State, 918 So. 2d 274, 279 (Fla.
2005) (“The kinds of exigencies or emergencies that may support a warrantless
entry include those related to the safety of persons or property, as well as the safety
of police.”) (quoting Rolling v. State, 695 So. 2d 278, 293 (Fla. 1997)).
The circumstances here justified a protective sweep of the room. Officers
did not know who was in the room until McRae answered; believed that McRae
was accompanied by at least one, if not two, accomplices; and knew that the
perpetrators were armed. Police were already visible to McRae and whoever might
have been in the room when she opened the door; therefore, turning away and
leaving to seek an arrest or search warrant would have been unreasonable in light
of the officers’ knowledge that the perpetrators were armed. Given these
circumstances, the officers’ fear for their safety was reasonable. Because police
had probable cause that McRae had committed an armed robbery and because
exigent circumstances (i.e. officer safety) existed, police acted lawfully in
removing McRae from the threshold of her motel room and conducting a
protective sweep.
10
It is noteworthy that the officers did not attempt to search the room under the
guise of a protective sweep. Instead, they simply confirmed that the room was
secure. Even if the protective sweep were impermissible, it does not appear that
any evidence was seized from the room as a result. 2
4. The arrest of McRae and her statements to police were lawful
After the protective sweep, officers brought McRae back into the room.
While officers could have questioned McRae outside of the motel room, it should
be noted that McRae testified she was wearing only underwear and a tank top. See
generally Illinois v. McArthur, 531 U.S. 326, 335 (2001) (holding that it is
reasonable for an officer to condition reentry on the condition that the officers
accompany the suspect); United States v. DeBuse, 289 F.3d 1072, 1073 (8th Cir.
2002) (holding officers were legally entitled to enter the defendant’s home
following his arrest outside his home where the defendant was barefoot and
requested permission to reenter to retrieve his shoes, keys, and wallet). After
Miranda warnings, McRae made incriminating statements and indicated that a
2
The motion to suppress sought the exclusion of several items besides the
revolver: clothing, computer, camo jacket, gloves, mace/pepper spray, scarf and
cap, and hoodies. Nothing in the evidence or arguments made any reference to
these items. It is not clear whether these items were seized from the motel room or
the auto, which officers procured a warrant to search. For instance, Lt. Daffin
testified he did not recall whether other items of evidence were removed from the
room.
11
revolver was in the nightstand. Because all of the events leading to her arrest and
questioning were lawful, the court erred in suppressing her statements.
IV.
The trial court’s ruling was premised upon two grounds: first, the absence of
a warrant, noting that law enforcement had time to secure a warrant; and second,
the absence of exigent circumstances such as “someone who was injured.” Neither
of these grounds justifies suppression of the evidence.
A.
Lt. Daffin testified that he did not believe probable cause for a warrant
existed at the time the officers arrived at the motel. This assessment seems sound.
Without knowing who was in the motel room, it is difficult to conclude that the
officers had probable cause for an arrest warrant, much less a warrant to search the
room. The officers cannot be faulted for failing to secure a warrant they could
never have obtained. Because the officers’ “knock and talk” investigation was
lawful, we do not need to determine whether or not the officers had sufficient
evidence to acquire a search warrant prior to knocking on McRae’s door. Either
they had legal authority to support their actions, or they did not, regardless of
whether they had time to secure a warrant. As stated above, each of their actions
was legal. Accordingly, the lack of a warrant does not support the order below.
B.
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As for “exigent circumstances,” as stated above the officers were justified in
conducting a protective sweep of the motel room. The trial court, however,
concluded that any exigency was “created by law enforcement” so that officers
could not rely on the exigency to justify entry into the motel room. This ruling was
error for two reasons. First, the “police-created exigency” exception to the exigent-
circumstances rule has been significantly curtailed by the United States Supreme
Court in Kentucky v. King, 563 U.S. 452 (2011). Second, even if King did not
apply, the cases on which the trial court relied are clearly distinguishable.
In King, the police loudly knocked on the door of a residence and
announced their presence, causing the occupants to attempt to destroy evidence,
which in turn caused the officer to forcibly enter the apartment to prevent the
destruction of evidence. 563 U.S. at 456. When police entered the apartment, they
discovered three people in the room, including a guest smoking marijuana. The
officers conducted a protective sweep of the apartment and discovered marijuana
and powdered cocaine in plain view. In a subsequent search, they discovered crack
cocaine, cash, and drug paraphernalia. Id. at 458.
The Kentucky Supreme Court held that exigent circumstances could not
justify the search because it was reasonably foreseeable that the occupants would
destroy evidence when the police knocked on the door and announced their
presence. The Supreme Court disagreed, holding that warrantless entry to prevent
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the destruction of evidence is permissible even if the destruction stemmed from the
police knocking, unless the police were “engaging or threatening to engage in
conduct that violates the Fourth Amendment.” Id. at 462. By example, the Court
noted that police “announcing that they would break down the door if the
occupants did not open the door voluntarily” would violate the Fourth
Amendment. Id. at 471. See e.g. United States v. Lucas, 462 Fed. Appx. 48, 50 (2d
Cir. 2012) (finding that officers did not threaten to engage in conduct violating the
Fourth Amendment and that exigent circumstances existed where “officers did not
know if there were other individuals in the apartment who might be armed and
pose a threat to their safety”). Thus, any Florida case holding that a warrantless
entry is illegal merely because the police “created the exigency” by knocking on
the door has been abrogated by King. See Art. I, § 12, Fla. Const. (The Florida
Constitution requires Florida courts to follow United States Supreme Court
decisions construing the Fourth Amendment to the United States Constitution).
This is true of the cases the trial court cited in its order: Higginbotham v.
State, 17 So. 3d 828 (Fla. 1st DCA 2009); Lee v. State, 856 So. 2d 1133 (Fla. 1st
DCA 2003); Vasquez v. State, 870 So. 2d 26 (Fla. 2d DCA 2003). None of these
cases require suppression here.
In Higginbotham, this Court held that the possible destruction of drugs was
not an exigent circumstance justifying a warrantless entry of the defendant’s motel
14
room. 17 So. 3d at 828. This holding was in part based on its finding that “law
enforcement may not sit and wait [] (when they could be seeking a warrant) then
utilize their self-imposed delay to create exigent circumstances.” Id. at 829
(quoting Hornblower v. State, 351 So. 2d 716, 718-19 (Fla.1977)). This
observation is inconsistent with King. Moreover, officers in this case could not
have secured a warrant because they did not believe probable cause existed prior to
recognizing McRae.
In Lee, police were monitoring a drug transaction using an informant when
the suspects involved moved to a different room in the hotel. 856 So. 2d at 1135.
Officers approached the motel room, knocked on the door, announced that law
enforcement was present, and then broke open the door with a battering ram. Once
inside, police saw cocaine and money in plain view. Id. They asked permission to
search the room and warned that if the individuals did not consent they would seek
a search warrant. The occupants consented to the search. Id. In justifying the
warrantless entry into the room, police argued exigent circumstances, including
officer safety, control over suspects and rooms, and the possible destruction of
evidence. Id. at 1137. This Court rejected the existence of exigent circumstances
and held that “the possibility that the drugs might be destroyed was not a valid
exigency, because the possibility did not actually exist until the officers knocked
on the door and announced their presence.” Id. at 1138. Again, this observation is
15
inconsistent with King. In any event, this case is distinguishable from Lee, as the
present case involves a legitimate protective sweep.
In Vasquez, officers approached a motel to investigate an armed robbery that
occurred across the street at a Subway restaurant. 870 So. 2d at 28. Police
encountered Vasquez as he was leaving the motel. The officers engaged in a
consensual encounter wherein Vasquez explained that he lived at the motel with
another man named Carlos. Vasquez told police that Carlos was asleep in the room
alone. Police had no reason to believe that Vasquez was carrying a weapon.
Eventually, Vasquez agreed to show the officers his motel room. Id. Upon arriving
at the room, the door opened and a second man stepped out. The man left the door
open. During a conversation with the man, one of the officers looked into the room
and saw drug paraphernalia and a single bullet in plain view. In turn, the officers
secured both men outside of the room. Id. One of the officers then decided to
conduct a protective sweep of the room. During the sweep, he found several items
related to the armed robbery. The officer went in a second time at the request of
one of the men and discovered the gun used in the armed robbery under a shirt. Id.
at 29. There was no reason in Vasquez for police to believe that there were more
people in the motel room. As a result, it is distinguishable from the present case
where police were searching for possibly two additional suspects who were armed.
V.
16
The court below seems to have focused on actions officers could have taken,
such as waiting for the innkeeper or seeking a warrant. But we are not called upon
to grade or second-guess law enforcement. Our task is only to determine whether
the actions they chose were consistent with the State and Federal Constitutions. We
find that they were. For the foregoing reasons, we reverse that portion of the Order
suppressing McRae’s statements and remand for further proceedings consistent
with this opinion.
REVERSED and REMANDED with instructions.
WOLF and BILBREY, JJ., CONCUR.
17