           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
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                         No. 1D16-4537
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THOMAS A. SOSNOWSKI,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Santa Rosa County.
Ross M. Goodman, Judge.

                         April 17, 2018


ROWE, J.

     Thomas Sosnowski appeals his convictions and sentences for
battery on a law enforcement officer and resisting an officer with
violence, contending that the trial court erred by denying his
motion for judgment of acquittal. He argues that at the time of
their encounter with him, the police officers were not engaged in
the lawful performance of a legal duty and that there was neither
probable cause nor exigent circumstances to support the officers’
warrantless entry into his backyard. We disagree and affirm. 1



    1 Sosnowski raises three additional arguments on appeal,
which we affirm without further comment.
                               Facts

     The confrontation that ended in Sosnowski’s arrest began
when his wife Gina Garza called the Department of Children and
Families (DCF) because she feared for her safety and the safety of
their five-year old son. Ordinarily, a DCF employee would respond
to the call and perform a welfare check. However, this was not
DCF’s first encounter with Sosnowski. Sosnowski had previously
threatened DCF employees, and during this particular call, Garza
reported that Sosnowski threatened to dismember DCF employees
and to throw their body parts into a neighbor’s yard if DCF entered
his home. Garza was concerned that if a DCF employee responded
without backup, Sosnowski would become violent and lock the
employee and Garza inside the home. Based on Garza’s reports,
DCF requested assistance from the police to perform the welfare
check.

     When the DCF employee and the police arrived at the home,
they were unable to approach the front door. The home was a
fortress. Sosnowski had erected a number of barriers, including a
sharp, padlocked, picket-style fence around the front yard. He had
equipped the home with customized locking doors and opaque,
inoperable windows. The police officers called Sosnowski on the
phone, and he emerged from the home with his son on his
shoulders. The DCF employee and the officers were unable to talk
to the child or physically assess the child for injuries because
Sosnowski remained on the opposite side of the fence. When the
police officers informed Sosnowski they were conducting a welfare
check on Garza and his son, Sosnowski reentered the home with
his son, ordered Garza to go outside, and then locked the doors
behind him.

     As Garza exited the home and slowly approached the fence
where the officers were standing, she appeared to be terrified. The
officers observed fresh bruises on her face, chest, and neck. Garza
told them that the injuries were inflicted by Sosnowski. As Garza
spoke to the DCF employee, the officers heard a loud noise, and
Garza exclaimed, “He just locked me out of the house. He just put
the bar across the door.” Garza was concerned for her child’s safety
because Sosnowski told her that she would never see her son again.


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     The officers attempted to reestablish contact with Sosnowski.
But because Sosnowski had customized the windows with double-
ply plexiglass to prevent outsiders from seeing in, the officers were
unable to see inside the home to ascertain the child’s whereabouts.

     When it was clear to the officers that they could not safely
enter the home, they commanded Sosnowski to come outside.
Sosnowski refused. He also declined to answer multiple telephone
calls. Based on Garza’s initial report, their observations of her
injuries, their interaction with Sosnowski, Sosnowski’s retreat into
the home, their knowledge of the home’s many fortifications, and
Garza’s fear that she would never see her son again, the officers
requested backup assistance from the SWAT team. When the
team arrived, the officers briefed them on Sosnowski’s prior violent
threats to DCF. The team learned of the domestic violence
allegations, the home’s fortifications, Sosnowski’s access to
weapons, and the existence of a possible hostage situation. Their
primary objective was to ensure the five-year-old child’s safety.

     The SWAT team quickly established a perimeter around
Sosnowski’s backyard, which was enclosed by a six-foot privacy
fence. At this point, Sosnowski reemerged and was walking back
and forth from inside the home to the backyard. The SWAT team
announced their presence and commanded Sosnowski to get on the
ground. Sosnowski refused to comply and retreated towards the
home. After several unheeded commands to halt, one of the
officers deployed a foam baton, striking Sosnowski. Sosnowski
started low-crawling back towards the home to avoid the shots.
The officers again commanded Sosnowski to stop, but to no avail.
The officers then scaled the fence to prevent Sosnowski from
reentering the home. Sosnowski physically fought with the officers
before they were able to detain him. As two officers secured
Sosnowski, another officer rushed inside the home and brought the
child out to safety. After a jury trial, Sosnowski was convicted of
battery on a law enforcement officer 2 and resisting an officer with
violence.

    2  Sosnowski was charged by information with two counts of
battery on a law enforcement officer, but the jury found him guilty
of only one count.

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                              Analysis

     We review a trial court's denial of a motion for judgment of
acquittal de novo to determine if the evidence is legally sufficient
to sustain a conviction. Jones v. State, 790 So. 2d 1194, 1196 (Fla.
1st DCA 2001). “If, after viewing the evidence in a light most
favorable to the State, a rational trier of fact could find the
existence of the elements of the crime beyond a reasonable doubt,
sufficient evidence exists to sustain a conviction.” Pagan v. State,
830 So. 2d 792, 803 (Fla. 2002). There must be competent,
substantial evidence to support the elements of the crime and to
support the verdict and judgment. Tibbs v. State, 397 So. 2d 1120,
1123 (Fla. 1981).

     A conviction for battery on a law enforcement officer and
resisting an officer with violence requires proof that the officers
were engaged in the lawful performance of a legal duty at the time
of the charged conduct. §§ 784.07(2)(b) & 843.01, Fla. Stat. (2015);
see also Espiet v. State, 797 So. 2d 598, 602 (Fla. 5th DCA 2001).
Sosnowski argues that the charges against him should have been
dismissed because the police officers had no authority to enter his
backyard and home without a warrant and thus were not engaged
in the lawful performance of their duties at the time of the charged
offenses. The State argues that the officers were engaged in the
performance of a lawful duty at the time of their encounter with
Sosnowski because the officers had probable cause to arrest
Sosnowski for domestic violence. The State also contends that
exigent circumstances existed to allow them to enter the backyard
and home without a warrant in order to secure the child’s safety.

     Probable cause sufficient to justify an arrest exists “where the
facts and circumstances, as analyzed from the officer's knowledge,
special training and practical experience, and of which he has
reasonably trustworthy information, are sufficient in themselves
for a reasonable man to reach the conclusion that an offense has
been committed.” Dep't of Highway Safety & Motor Vehicles v.
Favino, 667 So. 2d 305, 309 (Fla. 1st DCA 1995). A law
enforcement officer may arrest a person without a warrant when
there is probable cause to believe that the person has committed
an act of domestic violence. See § 901.15(7), Fla. Stat. (2015). The
officers in this case were informed that Garza called DCF because

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she feared Sosnowski. When the officers arrived, they observed
fresh bruises on Garza’s face, chest, and neck. Garza indicated
that the bruises were inflicted by Sosnowski. Viewed in the light
most favorable to the State, the facts support the trial court’s
findings that the officers had probable cause to arrest Sosnowski.

     But, while the evidence of Garza’s abuse provided the officers
sufficient probable cause to arrest Sosnowski without a warrant,
the evidence of abuse alone is not enough to support a warrantless
entry into his backyard. See State v. Markus, 211 So. 3d 894, 909
(Fla. 2017) (“Florida courts have [] found probable cause for minor
offenses insufficient to justify warrantless home searches and
arrests.”); Espiet, 797 So. 2d at 602 (“The courts generally agree
that a law enforcement officer may not make a warrantless entry
into a person's home to arrest the person for a misdemeanor
offense.”). However, where exigent circumstances for the entry are
present, a police officer may enter a private home without a
warrant. See Payton v. New York, 445 U.S. 573, 576 (1980).
Exigent circumstances were present here. At the time the officers
entered Sosnowski’s backyard and home, they had an objectively
reasonable belief that a five-year-old child was in danger.

     Public safety has long been recognized as an exigent
circumstance permitting warrantless entry into a residence. See
Riggs v. State, 918 So. 2d 274, 279 (Fla. 2005) (“The kinds of
exigencies or emergencies that may support a warrantless entry
include those related to the safety of persons or property, as well
as the safety of police.”) (citing Rolling v. State, 695 So. 2d 278, 293
(Fla. 1997)); Markus v. State, 160 So. 3d 488, 492 (Fla. 1st DCA
2015) (stating “[t]o rebut the presumed illegality of warrantless
entry by police officers, the exigent circumstance must involve a
threat to the safety of the public, property, or police which required
immediate action by officers with no time to obtain a warrant”).
“To justify an emergency entry into a home by police officers, the
State must demonstrate that ‘an objectively reasonable basis
exist[ed] for the officer to believe that there is an immediate need
for police assistance for the protection of life . . . .” Durham v. State,
174 So. 3d 1074, 1075-76 (quoting Seibert v. State, 923 So. 2d 460,
468 (Fla. 2006)).



                                    5
     Immediate entry into Sosnowski’s backyard and home was
necessary for the officers to ensure the safety of a five-year-old
child. The sole purpose of the officers’ presence at the home was
to conduct a welfare check of Garza and the child and to determine
whether they were in danger. See § 39.301, Fla. Stat. (2015)
(outlining the procedure for initiating protective investigations).
Upon arriving, Garza presented with “fresh” bruises and identified
Sosnowski as her abuser. Moments later, Garza heard Sosnowski
lock a bar across the front door, her son still inside. Garza
indicated to the officers that Sosnowski told her she would not see
her son again. The officers also learned about the unique layout of
the home, including the custom locks, windows, and doors that
made the home nearly impenetrable. They knew Sosnowski had
several bladed weapons hidden around the home and purposely
placed in the yard. They had no way to ascertain the child’s
whereabouts inside the fortress.         The officers also knew
Sosnowski’s history of violent threats towards DCF’s employees,
one reported that very day. Sosnowski refused to exit the home
after the officers made several attempts to contact him. The
uncertainty of the child’s location coupled with Sosnowski’s
evasiveness provided an objectively reasonable basis for the
officers to believe that the child was in danger and to enter the
home without a warrant to secure the child’s safety.

     Notwithstanding these circumstances, Sosnowski argues that
because the officers had observed the child on Sosnowski’s
shoulders from across the fence early in the encounter, there was
no reason to believe the child continued to be in danger when
Sosnowski exited the home into the backyard, leaving the child
inside the house. However, as we observed in C.L.L. v. State,

    It is immaterial whether an actual emergency existed in
    the residence; only the reasonableness of the officer's
    belief at the time of entry is considered on review. The
    inquiry must be undertaken in light of the totality of the
    circumstances confronting the officers, including, in
    many cases, a need for an on-the-spot judgment based on
    incomplete information and sometimes ambiguous facts
    bearing upon the potential for serious consequences.



                                6
115 So. 3d 1114, 1117 (Fla. 1st DCA 2013) (internal citations and
quotations omitted).

     Although the officers had indeed observed the child earlier,
Sosnowski had taken the child back into the home, where the
officers could no longer observe him. At the time the officers
entered the backyard, they had no knowledge of whether the child
was safe.     The officers’ common-sense interpretation of an
increasingly dangerous situation prompted certain action and that
action fit squarely within the boundaries of the Fourth
Amendment. Allowing a five-year-old child to remain in a fortified
home with a hostile and potentially violent aggressor with access
to multiple weapons has “the potential for serious consequences”
prompting the “need for an on-the-spot judgment based on
incomplete information . . . .” Id. The officers in this case made
precisely such a judgment. “The resulting invasion of privacy is
one that prudent, law-abiding citizens can accept as the fair and
necessary price of having the police available as a safety net in
emergencies.” Ortiz v. State, 24 So. 3d 596, 602 (Fla. 5th DCA
2009) (citing Riggs, 918 So. 2d at 282-83).

     Because they had probable cause to arrest Sosnowski for
domestic violence and exigent circumstances existed, the officers
were lawfully executing a legal duty at the time of their encounter
with Sosnowski. Accordingly, we hold that the trial court properly
denied judgment of acquittal and affirm Sosnowski’s convictions
for battery on a law enforcement officer and resisting an officer
with violence.

ROBERTS and WETHERELL, JJ., concur.

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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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Andy Thomas, Public Defender, and Megan Long, Assistant Public
Defender, Tallahassee, for Appellant.

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Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg,
Assistant Attorney General, Tallahassee, for Appellee.




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