MICHAEL FRANK LAPACE v. STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MICHAEL FRANK LAPACE, )
)
Appellant, )
)
v. ) Case No. 2D17-1493
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed October 17, 2018.
Appeal from the Circuit Court for Sarasota
County; Deno Economou, Judge.
Howard L. Dimmig, II, Public Defender, and
Karen M. Kinney, Assistant Public Defender,
Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee; and David Campbell,
Assistant Attorney General, Tampa, for
Appellee.
CRENSHAW, Judge.
Michael Lapace appeals his convictions and sentences after pleading nolo
contendere to a number of drug related charges. Mr. Lapace entered his pleas after the
trial court denied his motion to suppress evidence obtained as a result of a warrantless
search of a residence, reserving the right to appeal the adverse ruling. We reverse the
trial court's denial of Mr. Lapace's motion to suppress because the evidence presented
did not support the trial court's finding that the deputies reasonably believed that exigent
circumstances existed that justified immediate entry into the residence without a
warrant.
The testimony at the suppression hearing revealed that on September 4,
2016, two Manatee County Sheriff's deputies were responding to an unknown law
enforcement problem call. The person who called 911 did not know her exact address
and was giving the dispatcher landmarks around her location. At some point, the caller
hung up but answered when the dispatcher called back and continued to try and relay
the address, which was eventually determined by the cell phone satellite ping. No
testimony was elicited at the hearing regarding who had called 911 or what crime or
problem the caller had been reporting.
When the deputies arrived at the address provided by dispatch, they saw a
woman parked in a car in an empty lot across from the address provided. The deputies
approached the woman and asked if she knew why they had been dispatched to that
location. The woman responded that she had no idea. As the deputies continued
toward the house, and as the woman was pulling away to leave, she yelled out the
window that her ex-boyfriend was inside the house and that he had a warrant out for his
arrest and she stated his first name. At the hearing, the deputy testified that he could
not remember what name she had given but remembered that it started with an "M" and
thought it was either Michael or Matthew. The deputies did not know the name of this
woman until after they had Mr. Lapace in custody.
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The deputies proceeded to knock on the door of the house. Heather
Lawson answered the deputies' knock but refused to open the door, stating that she had
just been beaten up by an unknown woman. The deputies advised Ms. Lawson that the
other woman was no longer there and that it was safe to come out. Ms. Lawson
opened the door and appeared to be nervous and hesitant to speak to the deputies.
She told them that a woman she did not know had knocked on her door and that they
got into a physical altercation. Ms. Lawson had a cut on her foot and a red mark on her
leg, where Ms. Lawson indicated that the unknown woman had bitten her.
The deputies asked Ms. Lawson if anyone else was inside the house. Ms.
Lawson hesitated, looked back into the house, and stated, "No, and you can't come
inside." The deputy testifying stated that he did not believe Ms. Lawson because the
woman in the car had told them that there was a male inside and because Ms. Lawson
seemed reluctant to answer any questions. At that point, the deputy testified that he
believed there was a possible domestic dispute of some sort and believed that he
needed to check on the welfare of anyone who may have been inside the house. The
deputy acknowledged that based on the injuries observed on Ms. Lawson, any domestic
battery would have been a first-degree misdemeanor.
Ms. Lawson was instructed to get her identification, and when she turned
to go into the house, the deputies followed her inside. When Ms. Lawson realized they
were trying to follow her inside, she again told them that they could not come in and
continued to protest while the deputies proceeded to search the house.
Only one of the deputies testified at the hearing. The deputy testified that
prior to knocking on the door, he did not hear any yelling or anything else coming from
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inside the house. There were no trails of blood or anything that would lead one to
believe that someone was injured inside. Ms. Lawson had explained that her injuries
were the result of a physical altercation with another woman. Once they entered the
house, the deputy did not hear anyone crying, did not observe any blood, and did not
hear anyone asking for assistance.
The deputy found Mr. Lapace hiding behind the door to a bedroom. Mr.
Lapace was not in distress, he did not appear to need any medical attention, and the
deputy did not observe any injuries on Mr. Lapace. Upon finding Mr. Lapace, the
deputy physically grabbed Mr. Lapace's arms, put him belly down onto the bed, and put
him in handcuffs. While Mr. Lapace was belly down on the bed, the deputy took his ID
from his back pocket, ran his identification through dispatch, and learned that Mr.
Lapace had a felony warrant. After Mr. Lapace had been detained, the deputy saw a
laundry basket next to the bed, and on top of the clothes was a pipe commonly used for
smoking methamphetamine. The deputy also noticed an open dresser drawer
approximately two feet from the bed with narcotics inside. The deputy then searched
through a bag and found a plethora of other narcotics. The deputy seized the property
and took Mr. Lapace outside.
Mr. Lapace moved to suppress the physical evidence obtained as a result
of the search, contending that contrary to the State's position, exigent circumstances did
not justify a warrantless entry into the residence. The trial court denied the motion to
suppress, finding that the deputies were entitled to enter the house without a warrant
under the emergency aid exception to the warrant requirement. The trial court noted
that a 911 call is a cry to authorities for help and found that the deputies would have
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been remiss in not entering the residence of an abandoned 911 call. The trial court
reasoned that after seeing Ms. Lawson come outside with injuries to her body and
noting her nervousness and her hesitance to speak to law enforcement, a common
reasonable assumption would be that there was someone in the house that either may
have injured this woman or that there may be other injured people inside the home.
The trial court's conclusion that the deputies' entry into the residence was
lawful was error. In Brigham City v. Stuart, 547 U.S. 398 (2006), the Supreme Court set
forth the principles of Fourth Amendment law:
It is a " 'basic principle of Fourth Amendment law that
searches and seizures inside a home without a warrant are
presumptively unreasonable.' " Nevertheless, because the
ultimate touchstone of the Fourth Amendment is
"reasonableness," the warrant requirement is subject to
certain exceptions. . . . "[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."
One exigency obviating the requirement of a warrant
is the need to assist persons who are seriously injured or
threatened with such injury. " 'The need to protect or
preserve life or avoid serious injury is justification for what
would be otherwise illegal absent an exigency or
emergency.' " Accordingly, law enforcement officers may
enter a home without a warrant to render emergency
assistance to an injured occupant or to protect an occupant
from imminent injury.
Id. at 403 (alteration in original) (citations omitted).
Whether a warrantless search is justified by such an emergency is
determined by the totality of the circumstances. See Zeigler v. State, 402 So. 2d 365,
371 (Fla. 1981). The "police may enter a residence without a warrant if an objectively
reasonable basis exists for the officer to believe that there is an immediate need for
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police assistance for the protection of life or substantial property interests." Seibert v.
State, 923 So. 2d 460, 468 (Fla. 2006) (citing Rolling v. State, 695 So. 2d 278, 293-94
(Fla. 1997)). "[T]he burden is on the government to demonstrate exigent circumstances
that overcome the presumption of unreasonableness that attaches to all warrantless
home entries." Welsh v. Wisconsin, 466 U.S. 740, 750 (1984). In addition, "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." Rolling, 695 So.
2d at 293.
The dispositive question in this case is whether the State met its burden of
showing that the deputies reasonably believed that exigent circumstances existed that
justified an immediate entry into the home without a warrant. See Dixon v. State, 36 So.
3d 920, 924 (Fla. 4th DCA 2010); see also Wheeler v. State, 956 So. 2d 517, 521 (Fla.
2d DCA 2007) ("Our analysis turns on whether the State was able to demonstrate that
the deputies faced a grave emergency that made entry into Wheeler's home
imperative."). If the State meets this burden, ordinarily the court must then determine
whether the subsequent search of the house exceeded the parameters allowed if the
entry was warranted. Seibert, 923 So. 2d at 468. However, neither of the parties here
have raised any argument related to the scope of the search that was conducted after
the deputies entered the house, and as such, any argument related to the scope of the
search has been waived and will not be addressed by this court.
Here, the State contends that the deputies were justified in entering the
residence because, under the totality of the circumstances, the deputies' suspicion of a
medical emergency was based upon reasonable inferences drawn from the available
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evidence. However, the cases relied upon by the State are distinguishable from the
facts of this case because in each of the cited cases, the officers' belief that there was
an immediate need for their entry into the residence to address a medical emergency
was based on more than just a suspicion of a "possible domestic dispute of some sort."
See, e.g., Michigan v. Fisher, 558 U.S. 45, 45-56 (2009) (holding that exigent
circumstances existed when officers responded to a disturbance complaint; observed a
pickup truck with its front smashed, damaged fence posts, broken house windows with
glass still on the ground, blood on the hood of the pickup and on clothes inside the
pickup, and blood on one of the doors to the house; and could see the defendant inside
the home, with a cut on his hand, screaming and throwing things, and arming himself
with a gun); State v. Shillingford, 136 So. 3d 1242, 1244 (Fla. 5th DCA 2014) (holding
that exigent circumstances existed when officers were summoned to investigate a
domestic battery and observed a blood trail leading to the defendant's apartment and
heard moaning coming from within the apartment); C.L.L. v. State, 115 So. 3d 1114,
1116 (Fla. 1st DCA 2013) (holding that exigent circumstances existed when officers
responded to a 911 hang-up where a disturbance could be heard in the background and
upon arrival observed a man with blood on his hands but no injury and admitted to
being in a fight but claimed that the other participants had left); United Sates v. Barone,
330 F.2d 543, 544 (2d Cir. 1964) (holding that exigent circumstances existed where
officers heard screams coming from apartment).
In the instant case, the State does not argue that the deputies
encountered any screaming, suspicious sounds, blood, or other readily apparent
disturbance when they arrived at the residence. The State argues that based on the
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totality of the circumstances, the deputies could reasonably believe that there was an
ongoing domestic dispute based on the 911 call, the information from the unidentified
woman, and Ms. Lawson's suspicious behavior and injuries. We consider each of these
circumstances in turn.
The 911 call
The deputies were dispatched to the residence in response to an unknown
law enforcement problem call. When they arrived, the deputies were armed only with
the information that a person had called 911, was unable to give her exact address, and
was providing landmarks to assist in locating the residence.
"Exigent circumstances have been determined to exist when 911 calls
were received, even in cases when the callers did not identify a life-threatening
emergency, when the officers arrived at the source of the 911 call to find suspicious
circumstances at the residence." Seibert, 923 So. 2d at 469. The focus of the inquiry is
on the reasonableness of the officers' belief that an emergency existed at the time of
entry. Id. at 468.
In In re J.B., 621 So. 2d 489, 489 (Fla. 4th DCA 1993), the officers were
responding to a home that was the source of a 911 call where the caller hung up without
speaking or requesting assistance. In finding that the officers acted lawfully in trying to
enter the home, the court analogized a 911 call to screams for help. Id. at 490. The
court also discussed the fact that the 911 system is used to report crimes and injuries
requiring immediate assistance and that a disconnect could happen for a myriad of
reasons and did not mean the emergency was over. Id. at 490-91. Given that "[a] 911
call is a cry to the authorities for help" and that the officers observed a window with a
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broken screen and trash all over the front room, taken together with the defendant's
unusual behavior, the court in J.B. concluded that the investigating officer had a duty to
investigate until he was satisfied that no emergency existed. Id. at 491.
Similarly, in Dixon, the court held that the officers had a duty to investigate
a 911 call; however, in order to justify a warrantless entry and search of the apartment,
the State was required to prove that exigent circumstances existed that required entry
into the apartment immediately without a warrant. Dixon, 36 So. 3d at 924. When the
officers first arrived at the apartment, before they entered, the defendant and his
girlfriend informed them that the robbers had already left the apartment. Id. The
testifying officer did not observe evidence of an ongoing burglary, which may have
required immediate entry without a warrant. Id. Furthermore, the officer did not testify
that he was concerned that there could be victims inside the apartment who needed
immediate assistance. Id. Based on those facts, the court held that the observations by
the officer did not support the warrantless entry into the apartment. Id.Here, the deputies certainly had a duty to investigate the 911 call until they
were reasonably satisfied that no emergency existed or that a once-urgent situation was
no longer urgent. However, the deputies were not entitled to enter the home once they
determined that any emergency had dissipated. In the instant case, Ms. Lawson came
to the door and gave a plausible explanation for the injuries on her foot and leg, which
the deputies were able to corroborate because they saw a woman drive away from the
house upon their arrival. The deputies did not hear anything within the residence that
would lead them to reasonably conclude that someone in the residence was in distress.
They did not observe any evidence of an ongoing domestic dispute, which might have
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required immediate entry without a warrant. Accordingly, any exigency that may have
existed and prompted the 911 call had dissipated by the time the deputies arrived and
received the initial explanation from Ms. Lawson that she was battered by an unknown
woman, whom the detectives had seen fleeing the scene.
The information from the unidentified woman in the car
After they arrived, the deputies saw an unidentified woman parked in a car
across from the residence. When they approached the woman, she stated that she did
not know why they were called, but as the deputies began approaching the residence
and the woman was driving away, the unidentified woman rolled her window down and
shouted to the deputies that her ex-boyfriend was in the house and there was a warrant
out for his arrest. The deputy testified that she also stated her ex-boyfriend's name but
that he could not recall whether she said Michael or Matthew. He thought the name
started with an "M."
An anonymous tip may provide the basis for conducting a warrantless
entry to render emergency assistance or to protect someone from imminent injury. But
for an anonymous tip to justify a warrantless entry, the tip—considered in the context of
the totality of relevant circumstances—must provide an "objectively reasonable basis"
for the officer "to believe that there is an immediate need for police assistance."
Seibert, 923 So. 2d at 468.
Anonymous tips, which are more susceptible to abuse than a tip by a
known informant, may be less reliable than other investigative leads. See Florida v.
J.L., 529 U.S. 266, 270 (2000). The government's interest in conducting a search
based upon an anonymous tip, therefore, is usually measured by examining the tip's
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"indicia of reliability." Id. Generally, a search based upon an anonymous tip withstands
scrutiny under the Fourth Amendment only if the tip contains sufficient details and
information that can be independently corroborated by the police to establish a level of
reliability regarding the information in the tip. Id. at 270-71.
Here, the woman did not give her name, did not give her ex-boyfriend's full
name, did not give a physical description of her ex-boyfriend, and gave no information
regarding the type of warrant allegedly outstanding. The record is devoid of any details
that would provide support for the conclusion that the anonymous tip was reliable. The
tip provided no basis for concluding either that anyone in the house had suffered any
injury or that anyone in the house was at risk of imminent injury. The vague statements
concerning an "ex-boyfriend" and a possible warrant are insufficient to establish that it
was necessary for the deputies to enter the house "to protect an occupant from
imminent injury." See Vanslyke v. State, 936 So. 2d 1218, 1224 (Fla. 2d DCA 2006)
(quoting Brigham City, 547 U.S. at 402) (holding that even a reliable report that children
were living in a house with drugs and guns would not show the existence of an exigency
justifying a warrantless search without an additional showing of a specific threat of
imminent harm to the children in the house). That the tip proved accurate and that the
officers acted with good intentions does not alter the legal conclusion that the search
was improper. See J.L., 529 U.S. at 271 ("The reasonableness of official suspicion
must be measured by what the officers knew before they conducted their search.").
Ms. Lawson's behavior
In denying the motion to suppress, the trial court considered Ms. Lawson's
"demeanor, her behavior, her conduct" in finding that the deputies had an objectively
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reasonable basis for believing that there was an emergency that required immediate
police attention.
Allowing police to use a resident's reaction to law enforcement's presence
at their home and the resident's contemporaneous clear expression of unwillingness to
engage with the officers "as the only extra information necessary to confirm whatever
suspicion brought [the officers] to the door in the first place . . . would . . . unjustifiably
erode 'the right of a man to retreat into his own home and there be free from
unreasonable governmental intrusion'—which stands '[a]t the very core' of our Fourth
Amendment protections." Calloway v. State, 118 So. 3d 277, 280 (Fla. 5th DCA 2013)
(second alteration in original) (quoting Kyllo v. United States, 533 U.S. 27, 31 (2001)).
Here, Ms. Lawson's reaction to the deputies' presence at her home, together with her
unwillingness to allow the deputies into the house, cannot satisfy the requisite showing
of an objective belief that there was an ongoing emergency that required the immediate
attention of the police. Even when Ms. Lawson's behavior is combined with the
information from the anonymous tip—that there was a man in the house, who had an
outstanding warrant—and the unknown law enforcement problem call, it was not
objectively reasonable for the deputies to believe that there was an ongoing or imminent
emergency that required their immediate attention.
There was no objective basis for the deputies to fear for anyone's safety.
The deputies responded to the residence and came upon a quiet scene. The deputies
observed no noise that would indicate a disturbance, no screaming, no blood, nor
anything else that would indicate that there was a domestic disturbance taking place.
The only information the deputies had prior to entering the house was that they were
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responding to an unknown law enforcement problem call based upon a 911 call from a
person who did not know her exact address, that there may have been a man inside the
house who had a warrant out for his arrest, that Ms. Lawson had a cut on her foot and a
bite mark on her leg that she claimed was the result of an altercation with an unknown
woman, that an unknown woman had just driven away from the house, and that, based
on a hunch, there may have been a "possible domestic dispute of some sort." This was
not enough to form an objectively reasonable basis to believe that there was an
immediate need for police assistance for the protection of life.
We conclude that the deputies lacked an objectively reasonable belief that
there was an ongoing or imminent emergency that required immediate police attention.
The entry into the house and subsequent search without a warrant were in violation of
the Fourth Amendment. All physical evidence derived from the initial unlawful search
should have been suppressed. Accordingly, we reverse Mr. Lapace's convictions and
sentences in case number 2016-CF-3094 and remand for further proceedings
consistent with this opinion.
Reversed and remanded.
BLACK and SLEET, JJ., Concur.
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