FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D2022-0887
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STATE OF FLORIDA,
Appellant,
v.
KEITH ALEXANDER TIMES,
Appellee.
_____________________________
On appeal from the Circuit Court for Leon County.
Francis Allman, Judge.
April 10, 2024
BILBREY, J.
The State of Florida challenges an order granting suppression
of evidence seized following the forced entry into a home to execute
a search warrant. We affirm.
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
1 Section 933.09 is one of two “knock-and-announce” statutes
in Florida. Section 933.09 pertains to searches and provides that
an
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 [search] 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.
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).
2
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
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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).
2 It is of no consequence in the case before us that Times’
residence had a video doorbell because the State offered no
evidence at the suppression hearing that the doorbell camera was
functional or that the residents had an opportunity to view that
video.
4
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)).
3 The Florida Supreme Court in Benefield noted that there are
exceptions to the knock-and-announce rule such as an “imminent
peril of bodily harm” to the officers or where “destruction of
evidence is being attempted.” 160 So. 2d at 710. Those exceptions
are inapplicable here.
5
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
4 In Rodriquez, the Court held inevitable discovery did not
apply since the law enforcement officers were not actively pursuing
a search warrant. Id. at 849–50. Otherwise, “application of the
inevitable discovery rule would effectively nullify the requirement
of a search warrant under the Fourth Amendment.” Id. at 850.
6
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.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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NORDBY, J., specially concurring.
I agree we must affirm. Officer testimony and police camera
footage support the trial court’s conclusion that law enforcement
did not comply with Florida’s “knock-and-announce” requirement
under section 933.09, Florida Statutes. In the same breath that the
police officer announced the search warrant, he directed the
home’s occupants to “step away from the door to avoid injury.”
There was simply no opportunity to discern whether the occupants
“refused admittance” following such “due notice of the officer’s
authority and purpose.” § 933.09, Fla. Stat. (2020).
The officer who provided the verbal commands at Times’ door
testified, in full candor, that he made a mistake in timing:
I erred. I made a mistake. Typically we do say search
warrant sooner, and after reviewing the video, I wish I
had, not because we wouldn’t be here, but because
consistent with my training, we do typically, upon
announcement, say, police, search warrant, come to the
door. And watching the video, that was not said.
Obviously, it’s in the video. . . . After reviewing my
training files and watching the video again, I do not think
it was proper.
Current Florida Supreme Court precedent exacts a high price
for this officer’s unintentional error—it compels the exclusion of
evidence seized under a valid search warrant. See State v. Cable,
51 So. 3d 434 (Fla. 2010) (declining to recede from Benefield v.
State, 160 So 2d 706 (Fla. 1964), which applied the exclusionary
rule to violations of a statutory knock-and-announce requirement).
The State makes compelling arguments highlighting why that
precedent should be revisited. Cf. Cable, 51 So. 3d at 444 (Polston,
J., dissenting, joined by Labarga, J.) (“By adding an exclusionary
rule to remedy a violation of Florida’s knock-and-announce
statutory requirement, the majority improperly applies a remedy
that is not present in the statute and that is contrary to both the
United States and Florida Constitutions.”); see also § 933.17, Fla.
Stat. (already providing a remedy for an officer who exceeds his or
her authority while executing a search warrant). And so, I join in
certifying a question of great public importance so that the Florida
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Supreme Court may have an opportunity, if it chooses, to
reexamine Cable and Benefield and consider anew whether the
exclusion of evidence remains an appropriate remedy for
unintentional violations of Florida’s statutory knock-and-
announce requirements.
I use the term “anew” because the Florida Supreme Court’s
refusal in Cable to recede from Benefield was grounded in
reasoning based on the multi-factor stare decisis framework set out
in North Florida Women’s Health & Counseling Services, Inc. v.
State, 866 So. 2d 612 (Fla. 2003). See Cable, 51 So. 3d at 441. The
Court has since disapproved the “malleable” and inconsistent
standard from North Florida Women’s Health in favor of a “more
straightforward” approach:
More fundamentally, we are wary of any invocation of
multi-factor stare decisis tests or frameworks like the one
set out in North Florida Women’s Health. They are
malleable and do not lend themselves to objective,
consistent, and predictable application. They can distract
us from the merits of a legal question and encourage us
to think more like a legislature than a court. And they
can lead us to decide cases on the basis of guesses about
the consequences of our decisions, which in turn can
make those decisions less principled.
We believe that the proper approach to stare decisis is
much more straightforward. In a case where we are
bound by a higher legal authority—whether it be a
constitutional provision, a statute, or a decision of the
Supreme Court—our job is to apply that law correctly to
the case before us. When we are convinced that a
precedent clearly conflicts with the law we are sworn to
uphold, precedent normally must yield.
State v. Poole, 297 So. 3d 487, 507 (Fla. 2020), as clarified on denial
of reh’g (Apr. 2, 2023). Cable is ripe for assessment under this
standard.
The State weaves into its arguments an attempt to
distinguish Cable and limit its holding to only knock-and-
9
announce violations involving arrest warrants. Yes, knock-and-
announce requirements for arrest warrants are set out in a
different statute than the search warrant statute here. But we
cannot set aside Cable on such a technical distinction. In
discussing the knock-and-announce requirement of section
901.19(1), Florida Statutes, the Court emphasized that section
933.09, Florida Statutes, “parallels this language for search
warrants.” Cable, 51 So. 3d at 438. And throughout its analysis,
the Court referred to “statutory knock-and-announce violations”
and “violations of the knock-and-announce statutes,” even citing a
series of district court decisions where the exclusionary rule had
been applied to violations not only of section 901.19 but also section
933.09. Id. at 437-44. Cable thus treated the exclusionary rule as
equally applicable to violations of either statute.
Noteworthy too is State v. Bamber, 630 So. 2d 1048 (Fla.
1994), which fell between Benefield and Cable. The Court in
Bamber addressed a no-knock search conducted under a search
warrant in violation of section 933.09 and refused to expand the
exclusionary rule exceptions recognized under Benefield to include
a blanket exception “any time a small quantity of drugs is believed
to be present in a residence with standard plumbing.” 630 So. 2d
at 1053. The Court thus recognized exclusion as the remedy for
violating the statute here. Given this, I cannot ignore or evade
Cable’s adherence to the remedy of exclusion for knock-and-
announce statutory violations.
Alternatively, the State argues that the evidence is admissible
under the inevitable discovery doctrine. It urges this court to
recede from our decision in Kellom v. State, which rejected the
inevitable discovery doctrine as an exclusionary exception for a
knock-and-announce violation. 849 So. 2d 391, 396 (Fla. 1st DCA
2003). But this case is a poor vehicle to revisit Kellom, as the record
does not reveal any basis for application of the inevitable discovery
doctrine to the search that occurred here.
In brief, the inevitable discovery doctrine allows evidence to
come in despite police misconduct if an ongoing independent
investigation would have unveiled that evidence regardless of the
misconduct. Nix v. Williams, 467 U.S. 431, 448 (1984) (finding that
evidence was admissible even when an officer improperly elicited
10
information from the defendant because a large-scale search team
was underway and would have discovered the victim’s body even
without the illegal elicitation). As the Florida Supreme Court has
recently cautioned, “[o]ur jurisprudence has been clear thus far
that the inevitable discovery doctrine does not apply when the
prosecution cannot demonstrate an active and independent
investigation.” Rodriguez v. State, 187 So. 3d 841, 848 (Fla. 2015)
(citations omitted).
The State makes no showing that an active and independent
investigation was underway. The State only vaguely suggests that
if the police had followed the proper procedure, they would have
obtained the evidence legally. Such does not warrant an
application of the inevitable discovery doctrine.
Given the current state of Florida Supreme Court directives
in this area, I agree that we must affirm.
_____________________________
Ashley Moody, Attorney General, and Adam B. Wilson, Assistant
Attorney General, Tallahassee, for Appellant.
Kevin Alvarez of Law Office of Kevin Alvarez P.A., Tallahassee, for
Appellee.
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