         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                               NOT FINAL UNTIL TIME EXPIRES TO
                                               FILE MOTION FOR REHEARING AND
                                               DISPOSITION THEREOF IF FILED


STATE OF FLORIDA,

             Appellant,

 v.                                                   Case No. 5D15-4446

MALCON LEE TAYLOR,

             Appellee.

________________________________/

Opinion filed October 21, 2016

Appeal from the Circuit Court
for Orange County,
Robert J. Egan, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Andrea K. Totten,
Assistant Attorney General, Daytona
Beach, for Appellant.

John P. Guidry, II, Orlando, for Appellee.


PER CURIAM.

      The issue in this appeal is whether the trial court erred in granting the revised

motion to suppress filed by Malcon Lee Taylor (“Defendant”) based on the failure of the

police to comply with Florida’s knock-and-announce statute found in section 901.19(1),
Florida Statutes (2015). 1 We note parenthetically that the trial court denied Defendant’s

initial motion to suppress, which prompted him to file his revised motion alleging the failure

of the police to comply with section 901.19(1) and the holding in State v. Cable, 51 So.

3d 434, 443-44 (Fla. 2010). In ruling on the revised motion, the trial court applied the

decision in Cable as strictly requiring suppression if the police do not comply with the

statute. However, the Florida Supreme Court in Benefield v. State, 160 So. 2d 706 (Fla.

1964), held that exceptions to the statute may apply. Specifically, the court in Cable

quoted the following part of the Benefield decision:

              As we interpret the common law authorities in relation to §
              901.19(1), Florida Statutes, F.S.A., we conclude that even if
              probable cause exists for the arrest of a person, our statute is
              violated by an unannounced intrusion in the form of a breaking
              and entering [of] any building, including a private home,
              except (1) where the person within already knows of the
              officer’s authority and purpose; (2) where the officers are
              justified in the belief that the persons within are in imminent
              peril of bodily harm; (3) if the officer’s peril would have been
              increased had he demanded entrance and stated the
              purpose, or (4) where those within made aware of the
              presence of someone outside are then engaged in activities
              which justify the officers in the belief that an escape or
              destruction of evidence is being attempted . . . .

              . . . Under the peculiar facts of this case, we are convinced
              that § 901.19(1), Florida Statutes, F.S.A., was violated and
              that its violation is not excused by any of the exceptions
              discussed herein and for this reason the fruits of the search
              being the product of an unlawful arrest and a search incident
              thereto, should have been excluded by the trial court upon
              proper motion.




       1Defendant was charged with trafficking in cocaine, trafficking in hydrocodone,
possession of a controlled substance, and possession of more than twenty grams of
cannabis. This contraband was seized from a house occupied by Defendant.


                                              2
51 So. 3d at 438 (quoting Benefield, 160 So. 2d at 710-11). The court in Cable refused

to recede from Benefield, thus leaving these exceptions applicable to instances where

violations of section 901.19(1) are alleged. Therefore, the trial court’s application of its

strict standard of allowing no exceptions to compliance with the statute was error.

       We conclude, based on the evidence and testimony presented, that the fourth

exception noted in Benefield applies. Specifically, noncompliance with the statute in this

particular case does not require suppression because the trial court concluded that the

motion would otherwise be denied based on the testimony of the officers that individuals

in the home engaged in activities which justified the officers’ belief that destruction of

evidence was being attempted. See State v. Bamber, 630 So. 2d 1048, 1053 (Fla. 1994)

(“[P]olice generally are excused from following the knock-and-announce rule where the

destruction of evidence is imminent—a circumstance arising often in drug cases.”).

Therefore, the trial court erred in granting Defendant’s revised motion to suppress. We

remand this case for further proceedings.



       REVERSED and REMANDED.

SAWAYA, PALMER and BERGER, JJ., concur.




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