                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

STATE OF FLORIDA,                     NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D15-1232

STACEY RENEE MCRAE,

      Appellee.

_____________________________/

Opinion filed June 21, 2016.

An appeal from the Circuit Court for Washington County.
Christopher N. Patterson, Judge.

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Assistant Attorney
General, Tallahassee, and Shalla P. Jefcoat, Assistant State Attorney, Chipley, for
Appellant.

Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public
Defender, Tallahassee, for Appellee.




WINOKUR, J.

      The State appeals the lower court’s order granting Stacey Renee McRae’s

motion to suppress her statements to police and all physical items seized from her

motel room and vehicle. The State argues the court erred in suppressing her post-
Miranda statements because the totality of the circumstances justified a protective

sweep of the motel room and further questioning of McRae. 1 We agree and

reverse.

                                          I.

      The parties do not dispute the court’s factual findings leading to McRae’s

arrest for armed robbery. On December 30, 2013, a convenience store was robbed

in Vernon. A surveillance camera captured an image of two women. One woman’s

face was uncovered as she pointed a firearm at the clerk. A surveillance video also

captured images of a vehicle arriving and leaving, indicating there was a third

person driving the vehicle. On January 3, 2014, a second robbery occurred at a

convenience store in DeFuniak Springs. The perpetrator was a lone male with a

firearm, and the victim reported a female driver. A surveillance video indicated the

robbers were driving a similar vehicle to the one used in the Vernon robbery.

      The police issued a BOLO generated from evidence collected in both

robberies. The BOLO included the following evidence: a still-frame from an in-

store surveillance video, showing the face of a woman holding a firearm pointed at

the clerk; a possible tag number of the vehicle; and a picture of a maroon Ford

Taurus, similar to the vehicle used in both robberies.


      1
        Because the State does not challenge the suppression of the firearm or
items seized from McRae’s vehicle, we do not address those portions of the order
below.
                                      2
      On January 6, a sergeant with the Bay County Sheriff’s Office discovered a

vehicle at a motel closely matching the description of the vehicle in the BOLO.

Lieutenant Daffin of the Bay County Sheriff’s Office and approximately ten other

officers assembled at the motel. The car was parked directly in front of a motel

room. Two officers knocked on the motel room door. McRae answered the door

and Lt. Daffin recognized her as the suspect in the Vernon robbery holding the

firearm. Officers grabbed McRae and removed her from the room. Officers next

conducted a protective sweep of the room for other occupants, as they were unable

to see behind the bed or the bathroom area.

      After the protective sweep, officers brought McRae back into the room and

gave her Miranda warnings. McRae gave a post-Miranda statement to police in

which she admitted involvement in the armed robbery. When asked if there were

any weapons in the room, McRae responded that there was a revolver in the

nightstand, which an officer retrieved. Police later took McRae to the police station

for questioning. The vehicle was towed and later searched pursuant to a warrant.

                                         II.

      McRae filed a motion to suppress the statements made to police and all

evidence collected from her room and vehicle, “after the illegal entry of her motel

room.” McRae argued the police acted illegally as they did not have a search

warrant, nor was there consent or exigent circumstances justifying the search. In

                                         3
response, the State argued the police acted legally when officers knocked on

McRae’s door. Once the officers recognized McRae as the suspect in the

surveillance photo, they were justified in detaining her and conducting a protective

sweep in the interest of officer safety. At the time law enforcement knocked on

McRae’s door, police knew there were at least two other perpetrators and a

possible firearm used in the armed robbery.

      The order granting the motion to suppress, provided that:

                    This Court determines that law enforcement had
            neither a warrant nor Defendant’s consent to enter the
            motel room. There is no evidence that law enforcement
            sought to assist someone who was injured or to render
            first aid. Based upon the evidence as presented there was
            no evidence of any exigent circumstance, other than an
            exigency created by law enforcement. This Court is
            bound by the principles announced in Higginbotham v.
            State, 17 So. 3d 828 (Fla. 1st DCA 2009); Lee v. State,
            856 So. 2d 1133 (Fla. 1st DCA 2003) and Vasquez v.
            State, 870 So. 2d 26 (Fla. 2d DCA 2003). The evidence
            seized in the motel room, any Defendant statement and
            any subsequent search of the vehicle using that
            information is not legally justified and is hereby
            suppressed.

                                        III.

                                        A.

      “We review the suppression order to determine whether competent

substantial evidence supports the factual findings; we review de novo the trial

court's application of the law to the facts.” State v. DeLuca, 40 So. 3d 120, 123

                                         4
(Fla. 1st DCA 2010). The lower court’s ruling on a motion to suppress is presumed

correct on appeal; therefore, we view “the evidence and all reasonable inferences

in a light most favorable to sustaining the order.” Id. Because there is no dispute as

to the court’s factual findings, we review its conclusion as to the constitutionality

of law enforcement’s actions de novo.

      Each of the steps taken by law enforcement leading to McRae’s statements

was lawful. The knock at the door, the seizure of McRae, the sweep of the motel

room, and the questioning of McRae were all permissible. Each of these actions

will be discussed in turn.

  1. The officers’ knocking on the motel room door did not implicate the Fourth
                                   Amendment

      A private home (including a motel room) “is an area where a person enjoys

the highest reasonable expectation of privacy under the Fourth Amendment.”

Gonzalez v. State, 578 So. 2d 729, 734 (Fla. 3d DCA 1991); see also Payton v.

New York, 445 U.S. 573 (1980) (prohibiting warrantless entry into a home to

effect arrest and reiterating that “[t]he physical entry of the home is the chief evil

against which the wording of the Fourth Amendment is directed”); Turner v. State,

645 So. 2d 444, 447 (Fla. 1994) (stating that for purposes of Fourth Amendment

protections, “[a] motel room is considered a private dwelling if the occupant is

there legally, has paid or arranged to pay, and has not been asked to leave”). Even

so, police, like any other citizen, may approach a residence and knock, hoping that
                                          5
the occupant will open the door. See Powell v. State, 120 So. 3d 577, 584 (Fla. 1st

DCA 2013) (“Governmental actors, like private actors, have a limited license to

approach a dwelling on a defined path, knock on the front door, briefly await an

answer, and either engage in a consensual encounter with the resident or

immediately depart.”). This investigative technique—known as a “knock and

talk”—does not require reasonable suspicion or probable cause. Jardines v. State,

73 So. 3d 34, 46 (Fla. 2011), aff’d, 133 S. Ct. 1409 (2013) (noting that “police

generally may initiate a ‘knock and talk’ encounter at the front door of a private

residence without any prior showing of wrongdoing”); see also United States v.

Cruz–Mendez, 467 F.3d 1260, 1264 (10th Cir. 2006) (“[A] ‘knock and talk’ is a

consensual encounter and therefore does not contravene the Fourth Amendment,

even absent reasonable suspicion.”); State v. Morsman, 394 So. 2d 408, 409 (Fla.

1981) (“Under Florida law it is clear that one does not harbor an expectation of

privacy on a front porch where salesmen or visitors may appear at any time.”).

      The trial court order stated, “[a]ccording to LT. Jason Daffin, BCSO,

members of law enforcement knocked on the motel door, which was answered by

[McRae].” While officers certainly had reason to suspect that the robbers might be

in the motel room, they were permitted to knock on the motel room door without

any particular level of suspicion. See Jardines, 73 So. 3d at 46. Thus, police acted

lawfully in knocking on McRae’s motel room door.

                                         6
     2. Probable cause was established when police recognized McRae as the
                   perpetrator from the picture in the BOLO

      Once McRae answered the door and Lt. Daffin recognized her as the robber,

police had probable cause for her arrest without a warrant. See § 901.15(2), Fla.

Stat. (providing instances when an arrest without a warrant is lawful); see also

United States v. Tobin, 923 F.2d 1506 (11th Cir. 1991) (“Probable cause exists

when under the ‘totality-of-the-circumstances . . . there is a fair probability that

contraband or evidence of a crime will be found in a particular place.’”) (quoting

Illinois v. Gates, 462 U.S. 213, 238 (1983)); United States v. Watson, 423 U.S.

411, 423-24 (1976) (holding a warrantless arrest of an individual in a public place

is lawful as long as the arrest is supported by probable cause). Once probable cause

was established, officers could remove McRae from the room’s threshold. See

United States v. Crasper, 472 F.3d 1141, 1148 (9th Cir. 2007) (holding that “when

a suspect voluntarily opens the door of his residence in response to a non-coercive

‘knock and talk’ request, the police may temporarily seize the suspect outside the

home (or at the threshold) provided that they have reasonable suspicion of criminal

activity”); see also Byrd v. State, 481 So. 2d 468, 472 (Fla. 1985) (recognizing that

several federal circuit courts have held that the threshold area of a residence is a

public place “wherein a warrant is not required to effectuate a valid arrest”); see

generally States v. Vaneaton, 49 F.3d 1423, 1426-27 (9th Cir. 1995) (holding that

police may make a warrantless arrest of a suspect who voluntarily opens the door
                                         7
to his residence in response to a knock by the police). Even if police were not

justified in reaching into the motel room and removing McRae from the room’s

threshold, the seizure is still legal as exigent circumstances permitted the intrusion.

See Mercier v. State, 579 So. 2d 308, 309 (Fla. 2d DCA 1991) (“A warrantless

entry must be justified by probable cause and exigent circumstances.”). Whether

exigent circumstances existed is addressed below.

       3. The warrantless entry and protective sweep were based on exigent
                                  circumstances

      “[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.” Mincey v. Arizona, 437 U.S. 385, 393-94 (1978). The need for a

legitimate protective sweep constitutes an exigent circumstance permitting entry

into an area protected by the Fourth Amendment. Maryland v. Buie, 494 U.S. 325

(1990). “The Fourth Amendment permits a properly limited protective sweep in

conjunction with an in-home arrest when the searching officer possesses a

reasonable belief based on specific and articulable facts that the area to be swept

harbors an individual posing a danger to those on the arrest scene.” Id. at 337.

Likewise, it follows that “[i]f, during the course of a legitimate knock and talk, a

suspect’s actions create exigent circumstances, officers may abandon their knock

and talk and perform a warrantless entry and a protective sweep.” United States v.
                                          8
Willis, 711 F. Supp. 2d 683, 694 (E.D. Texas 2010); see also United States v.

Jones, 239 F.3d 716, 721–22 (5th Cir. 2001) (finding that the suspect’s conduct,

rather than the officers’ decision to conduct a “knock and talk,” created the

exigency where the officer knocked on a screen door, saw a firearm on the table in

plain view, and entered the residence to secure the firearm); State v. Ojeda, 147 So.

3d 53, 67 (Fla. 3d DCA 2014) (Rothenberg, J., dissenting).

      The exigent circumstances exception to the warrant requirement requires

that the warrantless entry by police on to private property be reasonable given the

totality of the circumstances. See Lee v. State, 856 So. 2d 1133, 1136 (Fla. 1st

DCA 2003) (“There is no exhaustive list of what constitutes exigent circumstances

to permit a warrantless entry of a constitutionally protected space.”). A set of facts

must exist that precludes taking the time to secure a warrant. See Davis v. State,

834 So. 2d 322, 327 (Fla. 5th DCA 2003) (“The sine qua non of the exigent

circumstances exception is a compelling need for official action and no time to

secure a warrant.”) (quotations omitted). Officer safety has long been recognized

as an exigent circumstance justifying warrantless entry of a residence. See 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”); see also Bethel v.

                                          9
State, 93 So. 3d 410, 414 (Fla. 4th DCA 2012) (finding exigent circumstances—

“to protect officers’ safety” existed to justify a warrantless entry into the curtilage

of the defendant’s house where the officer recognized the butt of a handgun

sticking out of the defendant’s pocket); 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.”) (quoting Rolling v. State, 695 So. 2d 278, 293 (Fla. 1997)).

      The circumstances here justified a protective sweep of the room. Officers

did not know who was in the room until McRae answered; believed that McRae

was accompanied by at least one, if not two, accomplices; and knew that the

perpetrators were armed. Police were already visible to McRae and whoever might

have been in the room when she opened the door; therefore, turning away and

leaving to seek an arrest or search warrant would have been unreasonable in light

of the officers’ knowledge that the perpetrators were armed. Given these

circumstances, the officers’ fear for their safety was reasonable. Because police

had probable cause that McRae had committed an armed robbery and because

exigent circumstances (i.e. officer safety) existed, police acted lawfully in

removing McRae from the threshold of her motel room and conducting a

protective sweep.




                                          10
      It is noteworthy that the officers did not attempt to search the room under the

guise of a protective sweep. Instead, they simply confirmed that the room was

secure. Even if the protective sweep were impermissible, it does not appear that

any evidence was seized from the room as a result. 2

          4. The arrest of McRae and her statements to police were lawful

      After the protective sweep, officers brought McRae back into the room.

While officers could have questioned McRae outside of the motel room, it should

be noted that McRae testified she was wearing only underwear and a tank top. See

generally Illinois v. McArthur, 531 U.S. 326, 335 (2001) (holding that it is

reasonable for an officer to condition reentry on the condition that the officers

accompany the suspect); United States v. DeBuse, 289 F.3d 1072, 1073 (8th Cir.

2002) (holding officers were legally entitled to enter the defendant’s home

following his arrest outside his home where the defendant was barefoot and

requested permission to reenter to retrieve his shoes, keys, and wallet). After

Miranda warnings, McRae made incriminating statements and indicated that a




      2
         The motion to suppress sought the exclusion of several items besides the
revolver: clothing, computer, camo jacket, gloves, mace/pepper spray, scarf and
cap, and hoodies. Nothing in the evidence or arguments made any reference to
these items. It is not clear whether these items were seized from the motel room or
the auto, which officers procured a warrant to search. For instance, Lt. Daffin
testified he did not recall whether other items of evidence were removed from the
room.
                                          11
revolver was in the nightstand. Because all of the events leading to her arrest and

questioning were lawful, the court erred in suppressing her statements.

                                        IV.

      The trial court’s ruling was premised upon two grounds: first, the absence of

a warrant, noting that law enforcement had time to secure a warrant; and second,

the absence of exigent circumstances such as “someone who was injured.” Neither

of these grounds justifies suppression of the evidence.

                                         A.

      Lt. Daffin testified that he did not believe probable cause for a warrant

existed at the time the officers arrived at the motel. This assessment seems sound.

Without knowing who was in the motel room, it is difficult to conclude that the

officers had probable cause for an arrest warrant, much less a warrant to search the

room. The officers cannot be faulted for failing to secure a warrant they could

never have obtained. Because the officers’ “knock and talk” investigation was

lawful, we do not need to determine whether or not the officers had sufficient

evidence to acquire a search warrant prior to knocking on McRae’s door. Either

they had legal authority to support their actions, or they did not, regardless of

whether they had time to secure a warrant. As stated above, each of their actions

was legal. Accordingly, the lack of a warrant does not support the order below.

                                         B.

                                         12
      As for “exigent circumstances,” as stated above the officers were justified in

conducting a protective sweep of the motel room. The trial court, however,

concluded that any exigency was “created by law enforcement” so that officers

could not rely on the exigency to justify entry into the motel room. This ruling was

error for two reasons. First, the “police-created exigency” exception to the exigent-

circumstances rule has been significantly curtailed by the United States Supreme

Court in Kentucky v. King, 563 U.S. 452 (2011). Second, even if King did not

apply, the cases on which the trial court relied are clearly distinguishable.

       In King, the police loudly knocked on the door of a residence and

announced their presence, causing the occupants to attempt to destroy evidence,

which in turn caused the officer to forcibly enter the apartment to prevent the

destruction of evidence. 563 U.S. at 456. When police entered the apartment, they

discovered three people in the room, including a guest smoking marijuana. The

officers conducted a protective sweep of the apartment and discovered marijuana

and powdered cocaine in plain view. In a subsequent search, they discovered crack

cocaine, cash, and drug paraphernalia. Id. at 458.

      The Kentucky Supreme Court held that exigent circumstances could not

justify the search because it was reasonably foreseeable that the occupants would

destroy evidence when the police knocked on the door and announced their

presence. The Supreme Court disagreed, holding that warrantless entry to prevent

                                          13
the destruction of evidence is permissible even if the destruction stemmed from the

police knocking, unless the police were “engaging or threatening to engage in

conduct that violates the Fourth Amendment.” Id. at 462. By example, the Court

noted that police “announcing that they would break down the door if the

occupants did not open the door voluntarily” would violate the Fourth

Amendment. Id. at 471. See e.g. United States v. Lucas, 462 Fed. Appx. 48, 50 (2d

Cir. 2012) (finding that officers did not threaten to engage in conduct violating the

Fourth Amendment and that exigent circumstances existed where “officers did not

know if there were other individuals in the apartment who might be armed and

pose a threat to their safety”). Thus, any Florida case holding that a warrantless

entry is illegal merely because the police “created the exigency” by knocking on

the door has been abrogated by King. See Art. I, § 12, Fla. Const. (The Florida

Constitution requires Florida courts to follow United States Supreme Court

decisions construing the Fourth Amendment to the United States Constitution).

      This is true of the cases the trial court cited in its order: Higginbotham v.

State, 17 So. 3d 828 (Fla. 1st DCA 2009); Lee v. State, 856 So. 2d 1133 (Fla. 1st

DCA 2003); Vasquez v. State, 870 So. 2d 26 (Fla. 2d DCA 2003). None of these

cases require suppression here.

      In Higginbotham, this Court held that the possible destruction of drugs was

not an exigent circumstance justifying a warrantless entry of the defendant’s motel

                                         14
room. 17 So. 3d at 828. This holding was in part based on its finding that “law

enforcement may not sit and wait [] (when they could be seeking a warrant) then

utilize their self-imposed delay to create exigent circumstances.” Id. at 829

(quoting Hornblower v. State, 351 So. 2d 716, 718-19 (Fla.1977)). This

observation is inconsistent with King. Moreover, officers in this case could not

have secured a warrant because they did not believe probable cause existed prior to

recognizing McRae.

      In Lee, police were monitoring a drug transaction using an informant when

the suspects involved moved to a different room in the hotel. 856 So. 2d at 1135.

Officers approached the motel room, knocked on the door, announced that law

enforcement was present, and then broke open the door with a battering ram. Once

inside, police saw cocaine and money in plain view. Id. They asked permission to

search the room and warned that if the individuals did not consent they would seek

a search warrant. The occupants consented to the search. Id. In justifying the

warrantless entry into the room, police argued exigent circumstances, including

officer safety, control over suspects and rooms, and the possible destruction of

evidence. Id. at 1137. This Court rejected the existence of exigent circumstances

and held that “the possibility that the drugs might be destroyed was not a valid

exigency, because the possibility did not actually exist until the officers knocked

on the door and announced their presence.” Id. at 1138. Again, this observation is

                                        15
inconsistent with King. In any event, this case is distinguishable from Lee, as the

present case involves a legitimate protective sweep.

      In Vasquez, officers approached a motel to investigate an armed robbery that

occurred across the street at a Subway restaurant. 870 So. 2d at 28. Police

encountered Vasquez as he was leaving the motel. The officers engaged in a

consensual encounter wherein Vasquez explained that he lived at the motel with

another man named Carlos. Vasquez told police that Carlos was asleep in the room

alone. Police had no reason to believe that Vasquez was carrying a weapon.

Eventually, Vasquez agreed to show the officers his motel room. Id. Upon arriving

at the room, the door opened and a second man stepped out. The man left the door

open. During a conversation with the man, one of the officers looked into the room

and saw drug paraphernalia and a single bullet in plain view. In turn, the officers

secured both men outside of the room. Id. One of the officers then decided to

conduct a protective sweep of the room. During the sweep, he found several items

related to the armed robbery. The officer went in a second time at the request of

one of the men and discovered the gun used in the armed robbery under a shirt. Id.

at 29. There was no reason in Vasquez for police to believe that there were more

people in the motel room. As a result, it is distinguishable from the present case

where police were searching for possibly two additional suspects who were armed.

                                        V.

                                        16
      The court below seems to have focused on actions officers could have taken,

such as waiting for the innkeeper or seeking a warrant. But we are not called upon

to grade or second-guess law enforcement. Our task is only to determine whether

the actions they chose were consistent with the State and Federal Constitutions. We

find that they were. For the foregoing reasons, we reverse that portion of the Order

suppressing McRae’s statements and remand for further proceedings consistent

with this opinion.

      REVERSED and REMANDED with instructions.

WOLF and BILBREY, JJ., CONCUR.




                                        17
