       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 14, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D14-369
                          Lower Tribunal No. 12-5932
                             ________________


                            The State of Florida,
                                    Appellant,

                                        vs.

                                  Rafael Yee,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Milton Hirsch,
Judge.

     Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney
General, for appellant.

     Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public
Defender, for appellee.


Before WELLS, EMAS and SCALES, JJ.

      SCALES, J.
      The State of Florida appeals the trial court’s order granting the motion of

Rafael Yee, defendant below, to suppress all physical evidence discovered by the

police officers conducting a warrantless search of the home Yee was renting. In

light of the facts specific to this case, we reverse the trial court’s suppression order

because sufficient exigent circumstances justified the search.

I.    Facts

      On March 8, 2012, the police received a 7:00 a.m. phone call from a

concerned neighbor reporting a “busted open” rear window in a house located in

Miami (the “House”). The neighbor, who watched the House while its owners

were out of town, informed the responding officer, Carl James, that the window

was not broken the night before. Officer James called for a police canine, and a

second officer, Stephanie Collazo, arrived on the scene with the requested canine.

      At the hearing on Yee’s motion to suppress, Officer James testified that

nothing about the scene indicated imminent danger or emergency circumstances.

He testified that he observed, however, that both the window and the window

frame were pulled open and that there was broken glass on the ground on the inside

and outside of the window. These observations, Officer James testified, gave him

“the impression that someone had burglarized the house and that [the broken

window] was the entry into the house.”




                                           2
      Officer Collazo made similar observations, noticing a broken window, a

pried off or damaged window-frame, and broken glass on the ground. Based on

these circumstances, she testified that “[t]here is an assumption that there could

possibly be someone inside” the House. Under this assumption, and with the police

unable to locate either the owner or the occupant of the House, Officer Collazo and

her canine climbed through the broken window, and she immediately announced

her presence in the House.1

      Receiving no response, Office Collazo released the police canine, which was

trained to detect both human occupants and narcotics. At one point during Officer

Collazo’s clearing of rooms within the House, the canine sat in front of a closed,

unlocked bathroom door, consistent with its training to sit in order to indicate the

presence of narcotics. Officer Collazo opened the door to the bathroom and pulled

back shower curtains, revealing the presence of cannabis plants. After ensuring no


1 The dissent’s erudite analysis is well-founded: the law of search and seizure
protects the sanctity of the home. Exigent circumstances for the police to justify a
warrantless entry into a home are narrow and limited. Florida jurisprudence
recognizes, however, that an objective concern by the police for the welfare of the
occupants of the home can create an exigent circumstance. See Davis v. State, 834
So. 2d 322, 327 (Fla. 5th DCA 2003). Given that the window-breaking occurred
sometime overnight and the call to the police came at 7 a.m., it was reasonable for
the police officers to be concerned – as Officer Collazo testified – about the safety
of the occupants of the house, occupants who could not be contacted or found.
That no movement or activity appeared to be occurring inside the house did not
necessarily relieve the situation of portentousness. To an investigating police
officer, silence and stillness can have meaning and a suspiciously broken window
can give a view to the need for action.

                                         3
one was present in the House, she exited, and notified the dispatcher that the House

was clear of human occupants and was a possible “grow house.”

         Officer James and several other officers subsequently entered the House. A

short while later, a detective arrived and, being informed of a possible “grow

house,” the detective prepared a search warrant, which was executed and resulted

in the recovery of numerous cannabis plants.

         During the officers’ search of the House, Yee arrived at the scene, as he was

renting the House from its owners. After receiving Miranda warnings, Yee

indicated that he lived in the House and owned the cannabis plants. Consequently,

Yee was arrested.

         Yee was charged with one count of possession of cannabis pursuant to

section 893.135, Florida Statutes (2014). Prior to trial, Yee’s counsel moved to

suppress the physical evidence of the cannabis as well as Yee’s statements made to

the police. Yee argued that the police did not have a sufficient exigency to enter

the House without a warrant, and thus, that the initial entry into the House

constituted an illegal search.

         On February 5, 2014, after conducting an evidentiary hearing on Yee’s

motion, the trial court granted Yee’s motion to suppress. 2 The State appealed.

II.      Standard of Review


2   The trial judge did not reach the issue of Yee’s testimonial evidence.

                                            4
       In a case involving an order granting a motion to suppress, the standard of

review is mixed. While the trial court’s factual findings come clothed with a

presumption of correctness, we conduct a de novo review of “mixed questions of

law and fact that ultimately determine constitutional issues.” Riggs v. State, 918

So. 2d 274, 278 (Fla. 2005) (internal quotation marks omitted); see also Brown v.

State, 152 So. 3d 619, 622 (Fla. 3d DCA 2014).

III.   Analysis

       Both the Fourth Amendment to the U.S. Constitution and Article I, section

12 of the Florida Constitution guarantee the rights of Florida citizens to be secure

in their homes against unreasonable searches and seizures. As a general rule, “[a]

warrantless search of a home is per se unreasonable and thus unconstitutional.”

Seibert v. State, 923 So. 2d 460, 468 (Fla. 2006) (citing Coolidge v. New

Hampshire, 403 U.S. 443, 454–55 (1971)).

       An exception for exigent circumstances exists, where “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 police assistance for the protection of

life or substantial property interests.” Seibert, 923 So. 2d at 468 (citing Rolling v.

State, 695 So. 2d 278, 293–94 (Fla. 1997)).

       Florida’s seminal case on the subject of exigent circumstances in the context

of a potential burglary is Guin v. City of Riviera Beach, 388 So. 2d 604 (Fla. 4th



                                          5
DCA 1980). In Guin, a police officer, during a burglary investigation, checked a

building with an open wooden latch and a door standing ajar. After calling his

supervisor, he entered the building without a warrant, “in the belief that . . . [a]

burglary had occurred or was taking place . . . .” Id. at 605. After a police inquiry

of a neighbor led the officer to the nearby residence of the building’s owner, the

officer knocked on the door of the residence and received no response. As the

officer approached another door, he saw an open window, a pushed-out screen, and

a slightly ajar door, leading him to believe a burglary was in progress. The police

again entered the premises without a warrant.       In both of these instances of

warrantless entry, the Fourth District held that “[t]he possibility that the burglary

was in progress and the thief within the premises constituted sufficient exigent

circumstances to excuse the requirement of a search warrant.” Id. at 606.

      Subsequent cases with similar factual situations have upheld warrantless

police searches. Davis v. State, 834 So. 2d 322 (Fla. 5th DCA 2003); State v.

Haines, 543 So. 2d 1278 (Fla. 5th DCA 1989); State v. Mann, 440 So. 2d 406 (Fla.

4th DCA 1983).

      In Davis, a concerned citizen reported to the police that the front door of his

neighbor’s residence was open and that the neighbor’s dog was wandering in the

street, indicating a possible burglary. Davis, 834 So. 2d at 325. Police officers




                                         6
found signs of forced entry and announced their presence without receiving a

response. Suspecting a burglary, the officers entered the home without a warrant.

      The court in Davis upheld the police officer’s initial entry as a legal search;

the court concluding that “the police may enter a home to investigate a suspected

burglary” and “the circumstances presented a compelling need for immediate

action.” Id. at 327–28.

      In Haines, a neighbor called the police to investigate a possible burglary

because the owner of the residence was out of town, “the front door . . . was

standing open approximately four to five inches[,] [i]t was 8:00 p.m.; and no lights

were on inside.” Haines, 543 So. 2d at 1279. After police officers arrived, they

opened the door, announced themselves and, receiving no response, entered the

residence.

      The court in Haines reversed the trial court’s suppression of incriminating

evidence in the residence, concluding that the search was legal and that the police

conducted the search for a possible burglar, not for contraband. Id.

      In Mann, an officer noticed a bent-out window screen during an “undercover

surveillance operation” at a resort complex that had experienced recent burglaries.

Mann, 440 So. 2d at 407. Upon closer inspection, the officer observed that the

front door’s lock had been tampered with and the door itself was unlocked. Id.




                                          7
      The court in Mann reversed the trial court’s determination that there was not

probable cause for the police to enter the house, holding that the officer’s need to

investigate the possible burglary was sufficient and “the officer’s immediate entry

without a warrant was justified under the exigent circumstances exception. . . .” Id.

at 408 (citing United States v. Estese, 479 F.2d 1273 (6th Cir. 1973)).

      The facts in the instant case mirror the facts in the cases cited above: in each

instance, physical indications of forced entry into a residence led a police officer to

a reasonable belief that a burglary either was in progress or had recently occurred.

      In the instant case, the neighbor noted that the House’s window was not

shattered the night before when the neighbor inspected the house. At the scene, the

police officers witnessed broken glass on both the inside and outside of the rear

window, as well as a damaged window frame. Although Officer James testified at

the suppression hearing that the scene did not indicate an emergency situation, he

had an impression that there had been a recent burglary. Officer Collazo assumed

that there was an ongoing burglary, or one had very recently occurred, and she

surmised that someone could be inside the House. 3 The police called the owner of

3 See State v. Boyd, 615 So. 2d 786, 789 (Fla. 2d DCA 1993) (“An emergency
need not, in fact, exist so long as the officer reasonably believes it to exist because
of objectively reasonable facts. The officer’s conclusion then may be based on a
combination of the ‘objective’ nature of the circumstances and the officer’s
‘subjective’ perception of those circumstances.”). Accordingly, Officer Collazo’s
observations of the scene and the subjective beliefs she derived from those
observations qualify her actions under the exigency rule.


                                          8
the House, received no answer, and were otherwise unable to locate the owner or

occupant. The officers’ clear intent in entering the House was not to seize

contraband, but to investigate a burglary.4

      We appraise the actions of the police for reasonableness. See Brigham City,

Utah v. Stuart, 547 U.S. 398, 398 (2006) (“Because the Fourth Amendment’s

ultimate touchstone is ‘reasonableness,’ the warrant requirement is subject to

certain exceptions.”). The police officers’ warrantless entry into the House was

reasonable, given the exigency of an apparent burglary.

      Based on our de novo review of the facts as found by the trial court, we

conclude that sufficient exigent circumstances existed to justify the warrantless

entry into the House.5 The trial court should have denied Yee’s motion to suppress.

IV.   Conclusion




4 Officer James requested a police canine be brought to the House to check for
occupants or intruders; nothing in the record suggests that Officer Collazo and her
canine were called to search for contraband or were called for any other reason.
5  Having determined that sufficient exigent circumstances justified Officer
Collazo’s warrantless entry into the House, we similarly conclude that Officer
Collazo’s opening of the closed bathroom door did not constitute an illegal search.
See State v. Riggs, 890 So. 2d 465 (Fla. 4th DCA 2004) (holding there were
exigent circumstances justifying a warrantless search where police opened a closed
door and discovered cannabis plants during the police’s investigation of a potential
burglary). Her search of the bathroom was within the circumscribed boundaries of
the justified warrantless search. See Seibert, 923 So. 2d at 468 (citing Mincey v.
Arizona, 437 U.S. 385, 393 (1978)).

                                          9
      Because we conclude that the trial judge erred in granting Yee’s motion to

suppress, we reverse the trial court’s order and remand for further proceedings.

      Reversed and remanded for proceedings consistent herewith.

      WELLS, J., concurs.




                                         10
                                                     State of Florida v. Rafael Yee
                                                                          3D14-369

EMAS, J., dissenting.

      INTRODUCTION

      Here is the question presented in this case:

      Does the Fourth Amendment permit police officers to enter and search
      a home without a warrant, when the officers have reason to believe
      that a burglary may have occurred within the past eight to twelve
      hours, but have no reason to believe that the burglary is in progress,
      have no reason to believe that anyone is presently inside the home,
      and have no reason to believe there is any imminent threat to persons
      or property within the home?

      A warrantless entry and search of the home is presumptively unreasonable

under the Fourth Amendment to the United States Constitution and under Article I,

section 12 of the Florida Constitution. To justify a warrantless entry and search of

the home, the State has the burden of establishing that:

      - Exigent circumstances existed;
      - Immediate action was necessary to address the exigency; and
      - There was no time to secure a warrant before taking immediate action
         and entering and searching the home to address the exigency.
      Quite simply, the result in this case is compelled by a failure of proof.

Because the State failed to meet its burden of establishing the existence of exigent

circumstances, the need for immediate entry, and the lack of time to secure a

warrant, the presumption of unreasonableness remains undisturbed, and therefore



                                         11
the warrantless entry and search of the home violated the Fourth Amendment and

Article I, section 12 of the Florida Constitution. I would affirm the trial court’s

order suppressing the evidence.

      FACTS

      The following factual circumstances, as found by the trial court and

supported by the record, are relevant in determining whether the State met its

requisite burden of establishing exigent circumstances to overcome the

presumptively unreasonable warrantless entry and search of the home:

      ● A neighbor called police just before 7 a.m. to report that a rear window
      was broken at his neighbor’s home. The call was made to a non-emergency
      police phone number and was not a 911 call.

      ● Police were dispatched to the home in non-emergency mode. The
      dispatch was not sent out as a “burglary in progress” and the responding
      officer did not engage his emergency lights or sirens when responding to the
      home.


      ● Upon arriving at the home, the officer spoke with the reporting neighbor,
      who told the officer that upon returning from work the previous evening, the
      window was not broken, but that when he woke up in the morning, he saw
      the broken window.6

6 The neighbor did not give police any more precise a timeframe. We therefore do
not know exactly how many hours passed between his return from work the prior
evening (when he observed the window was not broken) and 7 a.m. the next
morning (when he observed the broken window and called police). The neighbor
did not testify at the suppression hearing. However, I assume, for this discussion,
that the timeframe is eight to twelve hours (i.e., that the neighbor returned home
from work sometime between 7 p.m. and 11 p.m. the previous evening).

                                        12
● The neighbor did not observe any criminal activity, did not observe
anybody coming in or out of the window, and did not observe anyone taking
anything from the home.

● The officer went to the back of the home to view the window, and did not
see or hear anything to indicate the presence of a person in the home or any
imminent danger. The officer observed broken glass on the ground outside
the home and on the floor inside the home.

● The officer also saw that the window was surrounded by a metal frame
and that a portion of that frame appeared to have been pried open or pried
away from the window at some point in time. Significantly, however, no
evidence was presented as to when or how this had occurred. The neighbor
did not tell the dispatcher or advise the officer on the scene that the frame
had been pried open or was different in appearance from the evening before,
reporting only that the window had been broken. The officer did not testify
that he asked the neighbor about the condition of the frame.

● The officer testified that based upon his observations, it appeared that a
burglary had taken place. However, no evidence was presented that the
burglary was in progress, that anyone was in the home, or that there was any
emergency.

● By the time the police prepared to enter the home (through the window)
there were a total of five or six officers at the scene.

● However, no police officer entered the home at that time. Instead, the
officers contacted dispatch to request a K-9 unit respond to the home.

● Some amount of time passed before the K-9 unit arrived at the home. It is
unclear from the record just how much time passed between the call
requesting a K-9 unit and the eventual arrival of the K-9 unit.



                                  13
      ● Once the K-9 officer arrived at the home, she did not immediately enter
      the home. Instead, the K-9 officer verified a perimeter was set up around the
      property and that there was a visual break in the home. Thereafter, the K-9
      officer went back to her vehicle, suited up the dog and herself and gave two
      or three verbal warnings through the window, in three different languages.
      After hearing no response, the K-9 officer finally entered the home. It is not
      clear from the record just how much time passed between the arrival of the
      K-9 unit and the entry of the K-9 officer (together with the K-9) into the
      home.

      ● There was no evidence that the K-9 officer, or any of the other officers on
      the scene, observed anyone inside the home, saw any movement within the
      home, or heard any sounds coming from within the home.

      ● The State presented no evidence at the hearing as to why the police could
      not obtain a warrant before entering the home. The State presented no
      evidence regarding the total amount of time that elapsed between the initial
      officer’s arrival on the scene and the entry of the K-9 unit into the home.

      ● The State presented no evidence upon which to base a belief that anyone
      was in the home; that anyone in the home was in danger or in need of
      immediate assistance; or that there was any immediate threat to property
      within the home.

      The trial court determined that the State failed to establish a reasonable basis

to believe a burglary was in progress or had even occurred, and that the State

further failed to establish the existence of exigent circumstances to justify a

warrantless entry into and search of the home. The trial court granted the motion

and suppressed the evidence seized inside the home. The trial court was correct.

      ANALYSIS
      The Fourth Amendment to the United States Constitution provides:


                                         14
      The right of the people to be secure in their persons, houses, papers,
      and effects, against unreasonable searches and seizures, shall not be
      violated, and no Warrants shall issue, but upon probable cause,
      supported by Oath or affirmation, and particularly describing the place
      to be searched, and the persons or things to be seized.
      Article I, section 12 of the Florida Constitution provides:

      The right of the people to be secure in their persons, houses, papers
      and effects against unreasonable searches and seizures, and against the
      unreasonable interception of private communications by any means,
      shall not be violated. No warrant shall be issued except upon probable
      cause, supported by affidavit, particularly describing the place or
      places to be searched, the person or persons, thing or things to be
      seized, the communication to be intercepted, and the nature of
      evidence to be obtained. This right shall be construed in conformity
      with the 4th Amendment to the United States Constitution, as
      interpreted by the United States Supreme Court. Articles or
      information obtained in violation of this right shall not be admissible
      in evidence if such articles or information would be inadmissible
      under decisions of the United States Supreme Court construing the 4th
      Amendment to the United States Constitution.

      The sanctity of the home, and the privacy interests represented by that

sanctuary, stands as one of the most important rights protected by the United States

Constitution. Its legal and historical significance cannot be overstated.


      1. The Special Protection and Scrutiny Accorded Warrantless Searches
      of the Home

      The United States Supreme Court, in construing the Fourth Amendment and

delineating its requirements, have imposed greater scrutiny upon, and afforded

heightened protection to, searches and seizures that involve an intrusion into the

home. In Payton v. New York, 445 U.S. 573 (1980), the Court observed:


                                         15
      “A greater burden is placed ... on officials who enter a home or
      dwelling without consent. Freedom from intrusion into the home or
      dwelling is the archetype of the privacy protection secured by the
      Fourth Amendment.”
Id. at 587 (quoting with approval Dorman v. U.S., 435 F.2d 385, 389 (D.C. Cir.
1970)).

      The Payton Court expressly approved the Dorman analysis and further

explained:

      [The] analysis [in Dorman]. . . focused on the long-settled premise
      that, absent exigent circumstances, a warrantless entry to search for
      weapons or contraband is unconstitutional even when a felony has
      been committed and there is probable cause to believe that
      incriminating evidence will be found within. [The opinion] reasoned
      that the constitutional protection afforded to the individual's interest in
      the privacy of his own home is equally applicable to a warrantless
      entry for the purpose of arresting a resident of the house; for it is
      inherent in such an entry that a search for the suspect may be required
      before he can be apprehended. [Dorman] concluded that an entry to
      arrest and an entry to search for and to seize property implicate the
      same interest in preserving the privacy and the sanctity of the home,
      and justify the same level of constitutional protection.
      This reasoning has been followed in other Circuits. Thus, the Second
      Circuit recently summarized its position:
      “To be arrested in the home involves not only the invasion attendant
      to all arrests but also an invasion of the sanctity of the home. This is
      simply too substantial an invasion to allow without a warrant, at least
      in the absence of exigent circumstances, even when it is accomplished
      under statutory authority and when probable cause is clearly present.”
      United States v. Reed, 572 F.2d 412, 423 (1978), cert. denied, sub
      nom. Goldsmith v. United States, 439 U.S. 913, 99 S.Ct. 283, 58
      L.Ed.2d 259.
      We find this reasoning to be persuasive and in accord with this Court's
      Fourth Amendment decisions.
Payton, 445 U.S. at 587-89.

                                          16
      The Payton Court concluded that “the Fourth Amendment has drawn a firm

line at the entrance to the house. Absent exigent circumstances, that threshold may

not reasonably be crossed without a warrant.” Id. at 590.

      The sanctity of the home against warrantless searches stands not only as a

foundational concept in Fourth Amendment jurisprudence, but finds its roots in

English jurisprudence as well. In Boyd v. United States, 116 U.S. 616 (1886), the

Supreme Court offered a historical perspective on the origins of the Fourth

Amendment and the scope of its protection:

      In order to ascertain the nature of the proceedings intended by the
      fourth amendment to the constitution under the terms ‘unreasonable
      searches and seizures,’ it is only necessary to recall the contemporary
      or then recent history of the controversies on the subject, both in this
      country and in England. The practice had obtained in the colonies of
      issuing writs of assistance to the revenue officers, empowering them,
      in their discretion, to search suspected places for smuggled goods,
      which James Otis pronounced ‘the worst instrument of arbitrary
      power, the most destructive of English liberty and the fundamental
      principles of law, that ever was found in an English law book;’ since
      they placed ‘the liberty of every man in the hands of every petty
      officer.' This was in February, 1761, in Boston, and the famous
      debate in which it occurred was perhaps the most prominent event
      which inaugurated the resistance of the colonies to the oppressions of
      the mother country.
      ‘Then and there,’ said John Adams, ‘then and there was the first scene
      of the first act of opposition to the arbitrary claims of Great Britain.
      Then and there the child Independence was born.’
      Id. at 624-25.
      Boyd then recalled Lord Camden’s historic decision in Entick v.

Carrington, 19 How. St. Tr. 1029 (C.P. 1765) which outlawed the use of


                                        17
general warrants. The decision of Lord Camden is described by the Boyd

Court as “a monument of English freedom,” and was hailed “by the lovers of

liberty in the colonies as well as in the mother country.” Boyd, 116 U.S. at

626. The Court further observed:

        As every American statesman, during our revolutionary and formative
        period as a nation, was undoubtedly familiar with this monument of
        English freedom, and considered it as the true and ultimate expression
        of constitutional law, it may be confidently asserted that its
        propositions were in the minds of those who framed the fourth
        amendment to the constitution, and were considered as sufficiently
        explanatory of what was meant by unreasonable searches and
        seizures.
        ...
        The principles laid down in this opinion affect the very essence of
        constitutional liberty and security. They reach further than the
        concrete form of the case then before the court, with its adventitious
        circumstances; they apply to all invasions on the part of the
        government and its employés of the sanctity of a man's home and the
        privacies of life. It is not the breaking of his doors, and the
        rummaging of his drawers, that constitutes the essence of the offense;
        but it is the invasion of his indefeasible right of personal security,
        personal liberty, and private property, where that right has never been
        forfeited by his conviction of some public offense,-it is the invasion of
        this sacred right which underlies and constitutes the essence of Lord
        CAMDEN's judgment.
        Id. at 626-27, 630.

        Four score and one year later, in Warden v. Hayden, 387 U.S. 294, 301

(1967), the Court reaffirmed the historical underpinnings of the Fourth

Amendment and the constitutional boundary represented by the threshold of one’s

home:


                                           18
      We have examined on many occasions the history and purposes of the
      Amendment. It was a reaction to the evils of the use of the general
      warrant in England and the writs of assistance in the Colonies, and
      was intended to protect against invasions of ‘the sanctity of a man's
      home and the privacies of life,’ Boyd v. United States, 116 U.S. 616,
      630, 6 S.Ct. 524, 532, 29 L.Ed. 746, from searches under
      indiscriminate, general authority. Protection of these interests was
      assured by prohibiting all ‘unreasonable’ searches and seizures, and
      by requiring the use of warrants, which particularly describe ‘the
      place to be searched, and the persons or things to be seized,’ thereby
      interposing ‘a magistrate between the citizen and the police,’
      McDonald v. United States, supra, 335 U.S., at 455, 69 S.Ct., at 193.
      The [use of general warrants] has been recognized from early days in
      Anglo-American law. Search warrants, for seizure of stolen property,
      though having an ancient lineage, were criticized even by Coke.
      Institutes Bk. 4, pp. 176—177.
      Id. at 301.
      The Supreme Court, on several occasions over the past two decades, has

reaffirmed this basic tenet:

      Principled respect for the sanctity of the home has long animated this
      Court's Fourth Amendment jurisprudence. See, e.g., Wilson v. Layne,
      526 U.S. 603, 610, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (“The
      Fourth Amendment embodies this centuries-old principle of respect
      for the privacy of the home”); Payton v. New York, 445 U.S. 573,
      601, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (emphasizing “the
      overriding respect for the sanctity of the home that has been
      embedded in our traditions since the origins of the Republic”);
      Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290
      (1978) (“[T]he Fourth Amendment reflects the view of those who
      wrote the Bill of Rights that the privacy of a person's home and
      property may not be totally sacrificed in the name of maximum
      simplicity in enforcement of the criminal law”).
Illinois v. McArthur, 531 U.S. 326, 340 n.3 (2001).




                                        19
      Because “‘the right of a man to retreat into his own home and there
      be free from unreasonable governmental intrusion’ ” stands “ ‘[a]t the
      very core’ of the Fourth Amendment,” Kyllo v. United States, 533
      U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (quoting
      Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5
      L.Ed.2d 734 (1961)), our cases have firmly established the “ ‘basic
      principle of Fourth Amendment law’ that searches and seizures inside
      a home without a warrant are presumptively unreasonable,” Payton v.
      New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)
      (footnote omitted). Thus, “absent exigent circumstances, a warrantless
      entry to search for weapons or contraband is unconstitutional even
      when a felony has been committed and there is probable cause to
      believe that incriminating evidence will be found within.” Id., at 587–
      588, 100 S.Ct. 1371 (footnote omitted). See Kyllo, 533 U.S., at 29,
      121 S.Ct. 2038; Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct.
      2793, 111 L.Ed.2d 148 (1990); Chimel v. California, 395 U.S. 752,
      761–763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); McDonald, 335 U.S.,
      at 454, 69 S.Ct. 191; Johnson v. United States, 333 U.S. 10, 68 S.Ct.
      367, 92 L.Ed. 436 (1948).
Groh v. Ramirez, 540 U.S. 551, 559 (2004).

      As to the basic right in question, privacy and security in the home are
      central to the Fourth Amendment's guarantees as explained in our
      decisions and as understood since the beginnings of the Republic.
      This common understanding ensures respect for the law and
      allegiance to our institutions, and it is an instrument for transmitting
      our Constitution to later generations undiminished in meaning and
      force. It bears repeating that it is a serious matter if law enforcement
      officers violate the sanctity of the home by ignoring the requisites of
      lawful entry. Security must not be subject to erosion by indifference
      or contempt.
Hudson v. Michigan, 547 U.S. 586, 603 (2006).


      2. The Presumption of Unreasonableness and the Burden of Proof




                                        20
      It is with this well-entrenched backdrop in mind that we examine the

warrantless entry into, and search of, the home in the instant case. Importantly, we

must bear in mind the presumption and burden of proof applicable to this

warrantless entry and search of the home, as it largely dictates the outcome of the

analysis. In Riggs v. State, 918 So.2d 274 (Fla. 2005), the Florida Supreme Court

explained the presumption, the burden, and the requisite proof to justify a

warrantless entry and search of the home:

      When the government invokes this exception to support the
      warrantless entry of a home, it must rebut the presumption that such
      entries are unreasonable. See Welsh v. Wisconsin, 466 U.S. 740, 750,
      104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). To do so, it must demonstrate
      a “grave emergency” that “makes a warrantless search imperative to
      the safety of the police and of the community.” Illinois v. Rodriguez,
      497 U.S. 177, 191, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). An entry
      is considered “imperative” when the government can show a
      “compelling need for official action and no time to secure a warrant.”
      Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486
      (1978). As is often the case under the Fourth Amendment, “[t]he
      reasonableness of an entry by the police upon private property is
      measured by the totality of existing circumstances.” Zeigler v. State,
      402 So.2d 365, 371 (Fla.1981).

Riggs, 918 So. 2d at 278-79 (emphasis added.)

      As the Florida Supreme Court held in Rolling v. State, 695 So. 2d 278, 293

(Fla.1997), “a key ingredient of the exigency requirement is that the police lack

time to secure a search warrant.” (Emphasis added.)


      3. The “Carefully Defined Classes of Cases”
The United States Supreme Court has held that under the Fourth Amendment

                                        21
         one governing principle, justified by history and by current
         experience, has consistently been followed: except in certain
         carefully defined classes of cases, a search of private property without
         proper consent is “unreasonable” unless it has been authorized by a
         valid search warrant.
Michigan v. Tyler, 436 U.S. 499, 506 (1978) (quoting Camara v. Municipal Court,

387 U.S. 523, 528-29(1966)). These carefully defined classes of cases include hot

pursuit of a fleeing suspect (Warden, 387 U.S. at 294); the need to prevent

imminent destruction of evidence (Ker v. California, 374 U.S. 23 (1963));

emergency administrative inspection of commercial premises (Camara, 387 U.S. at

528-29); to fight a fire (Tyler, 436 U.S. at 499); upon observing an ongoing brawl

taking place inside the home, to render emergency assistance to an injured

occupant or to protect other occupants from imminent injury (Stuart, 547 U.S. at

398).

         This list demonstrates that the exigent circumstances exception to the search

warrant requirement is narrow and limited, and it self-evidently follows that the

present circumstances simply cannot be said to fall within this narrow class of

cases.

         The State posits that the officers had a difficult task before them, and a

difficult decision to make. This may well be. And a bright-line rule permitting a

warrantless entry for nothing more than a “recent” burglary (as the majority’s

opinion would necessarily imply) would surely simplify the task and the decision-



                                           22
making process for law enforcement. But as the United States Supreme Court has

recognized:



      [T]he mere fact that law enforcement may be made more efficient can
      never by itself justify disregard of the Fourth Amendment. The
      investigation of crime would always be simplified if warrants were
      unnecessary. But the Fourth Amendment reflects the view of those
      who wrote the Bill of Rights that the privacy of a person's home and
      property may not be totally sacrificed in the name of maximum
      simplicity in enforcement of the criminal law.

Mincey v. Arizona, 437 U.S. 385, 393 (1978) (internal citations omitted).

      4. The Failure to Prove the Existence of an Exigency

      Even if there was probable cause to believe a burglary had occurred

sometime in the recent past,7 there was no showing of exigent circumstances to

7 The trial court determined that the State failed to establish a reasonable basis to
believe a burglary had occurred at all. This was based in part on the conclusion
that the only relevant evidence the State offered was that a window had been
broken sometime in the previous twelve hours. Although the police officer did
testify that the window frame appeared to have been pulled open, there was no
testimony as to when or how this occurred. Even though the neighbor was on the
scene when the officer made this observation, the officer apparently did not ask
(and the neighbor apparently did not indicate) whether the condition or appearance
of the window frame was different from the night before. The trial court thus
discounted this testimony, given the absence of any evidence or testimony as to
when or how the frame came to be in this condition. We could affirm on this basis
alone, as the analysis is not dependent upon the subjective belief of the officer, but
rather on the objective reasonableness of that belief. Brigham City, 547 U.S. at
404; Mincey, 437 U.S. at 393-94. Nevertheless, even if this observation should
properly have been considered, there was at most a basis to believe a burglary had
occurred in the past eight to twelve hours. In the absence of any reasonable basis
to believe a burglary was ongoing, and in the absence of any other exigent
circumstance, the warrantless entry and search of the home remained

                                         23
justify the warrantless entry into the home. As the Florida Supreme Court held, in

order to establish exigent circumstances, the State must prove that “an objectively

reasonable basis exists for the officer to believe that there is an immediate need for

police assistance for the protection of life or substantial property interests.” Seibert

v. State, 923 So. 2d 460, 468 (citing Rolling, 695 So. 2d at 293-94) (emphasis

added). In Riggs, 918 So.2d at 278-79, the Florida Supreme Court explained the

State “must demonstrate a grave emergency that makes a warrantless search

imperative to the safety of the police and of the community.              An entry is

considered imperative when the government can show a compelling need for

official action and no time to secure a warrant.” (Internal quotes and citations

omitted.) The concept of exigent circumstances is necessarily premised on the fact

that the circumstances are so urgent and the potential consequences so grave, that

“immediate action” by the police is required. Hornblower v. State, 351 So. 2d 716,

718 (Fla. 1977); Potts v. Johnson, 654 So. 2d 596, 600 (Fla. 3d DCA 1995);

Williams v. State, 403 So. 2d 430, 433 (Fla. 3d DCA 1981); P.B.P. v. State, 955

So. 2d 618, 629 (Fla. 2d DCA 2007).

      Any claim of a grave emergency requiring immediate action in this case is

either unsupported by the evidence, or is affirmatively rebutted by the evidence

presented at the hearing, including the following:


presumptively unreasonable under the Fourth Amendment.

                                          24
 The call made by neighbor was not a 911 call.

 The neighbor did not state that the burglary was ongoing or in progress.
  In fact, the only evidence was that the neighbor’s window had been
  broken sometime between the prior evening and 7 a.m. the next morning.

 The police responded in non-emergency mode, without emergency lights
  or sirens.

 The responding officers met with the neighbor and spoke at length. After
  observing the home and the window, the officer did not enter the home.

 The officers heard no noise within the home and saw no movement or
  other activity in the home. There was no indication that anyone was in
  the home, no indication of any imminent danger to anyone in the home
  (or to the officers standing outside the home) and no indication that any
  person or property was exposed to imminent damage or destruction.

 Instead of entering the home, the police called for a K-9 unit to come to
  the home to conduct a search.

 There is no evidence K-9 responded in emergency mode.

 There is no evidence as to how long it took to secure a K-9 unit and for
  the K-9 unit to arrive at the home.

 Upon arrival, the K-9 officer did not immediately enter the premises, but
  suited up herself and her K-9, spoke with officers on the scene, obtained
  background information, inspected the perimeter of the home, gave a
  warning of impending entry, and waited several minutes for a response
  before entering.

 The K-9 officer heard no sound within the home and saw no movement
  or other activity in the home. There was no evidence that anyone was in




                                 25
         the home, let alone that anyone was in the home and either injured or
         threatened with imminent injury.

      At best, the police had cause to believe that, at some time during the

previous eight to twelve hours, someone may have entered the home through the

broken window. That is the sum and substance of what an objectively reasonable

officer could believe. There were no articulable facts upon which to base a belief

that a burglary suspect (or anyone else) was inside the home. There was no basis

to suggest, much less to establish, the existence of any exigent circumstances to

permit a warrantless entry. How could the State demonstrate that there were

exigent circumstances demanding the responding officer take “immediate action,”

when the officer’s “immediate action” (after speaking with the neighbor) was not

entering into the home, but calling for a K-9 unit to come and conduct the entry

and search?8

      And how could the State demonstrate that there were exigent circumstances

when the K-9 officer arrived, where the K-9 officer’s “immediate action” upon

arrival was not entering the home? Instead the K-9 officer took the time to speak
8 The State presented evidence that departmental policy requires the use of a K-9 to
enter the home of a suspected burglary for officer safety. Officer safety is a
compelling concern and a valid reason for implementing such a policy. However,
departmental policy cannot supplant constitutional jurisprudence or serve as a
substitute for exigent circumstances. The fact that the police believed the
circumstances facing them did not require immediate action, and that there was
sufficient time to call for and await the arrival of a K-9 unit, objectively undercuts
the assertion that exigent circumstances existed.


                                         26
to officers on the scene, inspect the home and perimeter, peer through the window

to survey the interior of the home, call out in English, Spanish and Creole (to

announce her intent to enter with a dog) and thereafter waited several minutes for a

response or some movement indicating the presence of someone inside the home.

      Only after all of this was accomplished did she enter the home with her dog.

I do not suggest that these investigatory actions were unreasonable.        To the

contrary, I believe that the preliminary actions and conduct of the police officers

were reasonable, but only up to the point of entering the home without a warrant.

The totality of the circumstances, together with the actions and conduct of the

police officers do not establish exigent circumstances; rather, they affirmatively

demonstrate there were no exigent circumstances to justify entering the home

without a warrant.

      This case may well boil down to the difference between a suspected burglary

occurring at some imprecise time in the recent past (e.g., between last evening and

7 a.m. in the morning), and a suspected burglary in progress. I do not quarrel with

the implicit premise of the majority’s opinion that a suspected burglary in progress

generally presents an exigent circumstance justifying a warrantless entry into the

home. Obviously, if the facts warrant a reasonable person to believe that a suspect

is inside another person’s home, committing a burglary, this would generally




                                        27
present an exigent circumstance, requiring immediate action and vitiating the

requirement of (and ability to obtain) a warrant before entering the home.

      It is this very distinction that exposes the shortcoming of the majority

opinion. In the instant case, the facts as determined by the factfinder below do not

establish probable cause to believe a burglary was in progress. This case involves,

at most, a suspected burglary that occurred at some time in the past eight to twelve

hours. The evidence as presented (and the facts as determined by the trial court)

established that the officers had no objectively articulable or reasonable basis to

believe that a burglary was ongoing, no articulable or reasonable basis to believe

that anyone was inside the home, and no articulable or reasonable basis to believe

persons were injured or in imminent danger of injury, or that property was in

imminent danger of destruction. Given the evidence presented, and the findings of

the trial court, it is clear that the State failed to establish (and the majority fails to

adequately explain) what exigency existed to justify the officer’s warrantless entry

into and search of the home.

      5. The Failure to Prove an Inability to Secure a Warrant

      The State failed not only to demonstrate the existence of an exigency, but

failed to offer any evidence that the imperative nature of the claimed exigency

prevented the police from seeking or securing a warrant before entering the home.

As the Florida Supreme Court noted, “a key ingredient of the exigency requirement



                                           28
is that the police lack time to secure a search warrant.” Rolling, 695 So. 2d at 293;

Hornblower, 351 So. 2d at 718 (holding that “if time to get a warrant exists, the

enforcement agency must use that time to obtain the warrant.”)

      The burden was upon the State to establish that there was insufficient time to

obtain a warrant, and the State offered no proof in this regard. If police had

enough time to speak with the neighbor, inspect the window, conduct a perimeter

check, and call for a K-9 unit, why didn’t the police have enough time to secure a

warrant? The record fails to establish how much time elapsed from the time the

initial officer arrived at the home and the time he called for a K-9 unit.

      Even after the K-9 unit arrived on the scene, immediate action was not

taken. As described earlier, before entering the home the K-9 officer first: verified

that there was a perimeter set up around the property and that there was a visual

break in the home; went back to her vehicle, suited up the dog and herself; gave

two or three verbal warnings through the window, in three different languages; and

waited several minutes for a response. If the K-9 officer had enough time to take

these actions, why didn’t the police have enough time to secure a warrant? The

record fails to establish how much time elapsed between the arrival of the K-9 unit

and the entry of the K-9 officer (together with the K-9) into the home. The above

circumstances undercut any reasonable assertion that a grave emergency existed,




                                          29
that immediate action was required, and that there was insufficient time to secure a

warrant.9

      I agree that exigent circumstances may justify a warrantless entry and search

of a home where there is an objectively reasonable basis to believe there is a

burglary in progress. However, I find no principled basis to extend the narrow

concept of exigent circumstances to a “recent” burglary10 that may have occurred

9 It was only after entering the home, clearing the home by searching each of the
rooms, and finding marijuana plants inside, that the police finally decided to secure
a search warrant. The State presented no evidence regarding the length of time it
took to secure this post-entry, post-search warrant or why the police could not have
done the same prior to entering and searching the home.
10 Those cases holding that a “recent burglary” may qualify as exigent

circumstances appear to base the decision on the concept of a “community
caretaker” doctrine. See Cady v. Dombrowski, 413 U.S. 433 (1973). In
announcing the community caretaker doctrine as an exception to the warrant
requirement, the United States Supreme Court limited this exception to automobile
searches. Id. at 439, 447-48 (acknowledging the “constitutional difference”
between searches of a home and searches of an automobile, and holding that “the
expectation of privacy with respect to one’s automobile is significantly less than
that relating to one’s home or office”). The United States Supreme Court has never
squarely held that the community caretaker doctrine is applicable to warrantless
searches of a home. Ray v. Township of Warren, 626 F.3d 170 (3d Cir. 2010);
United States v. Bute, 43 F.3d 531 (10th Cir. 1994); United States v. Erickson, 991
F.2d 529 (9th Cir. 1993); United States v. Pichany, 687 F.2d 204 (7th Cir. 1982).
Nevertheless, it appears the United Supreme Court has at least recognized that
“emergency situations” may justify warrantless entries by officers acting in their
capacity as a community caretaker (rather than in their traditional role of
investigating criminal activity and apprehending suspects). In Mincey, 437 U.S. at
392, the Court observed:

      We do not question the right of the police to respond to emergency
      situations. Numerous state and federal cases have recognized that the
      Fourth Amendment does not bar police officers from making
      warrantless entries and searches when they reasonably believe that a

                                         30
eight to twelve hours earlier, without evidence of an exigency, a need for

immediate action, and a lack of time to secure a warrant.

      CONCLUSION

       The trial court considered the totality of the circumstances, made findings of

fact supported by the record, and properly concluded in a thorough order that there

were no exigent circumstances to justify the warrantless entry into, and search of,

the home.   I would affirm the trial court’s order granting the motion to suppress.

      For these reasons I respectfully dissent.




      person within is in need of immediate aid. (Footnotes omitted.)

The Florida Supreme Court has also recognized an “emergency medical aid”
exception that is akin to the concept of a police officer acting as a community
caretaker in this regard. See Riggs, 918 So. 2d at 279. See also Ortiz v. State, 24
So. 3d 596 (Fla. 5th DCA 2009) (en banc). However, even if some form of the
community caretaker doctrine is applicable to warrantless entries and searches of a
home, the mere fact that the officer is acting as a community caretaker cannot by
itself justify a warrantless entry into the home. There must still be an objectively
reasonable belief that there exists an exigency—some imminent danger to a
person— requiring the officer to take immediate action in her role as a community
caretaker. No such exigency exists in the instant case.


                                         31
