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

JOHNNY JAMES TIMS,                            NOT FINAL UNTIL TIME EXPIRES TO
                                              FILE MOTION FOR REHEARING AND
      Appellant,                              DISPOSITION THEREOF IF FILED

v.                                            CASE NO. 1D15-2346

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed October 4, 2016.

An appeal from the Circuit Court for Escambia County.
Gary L. Bergosh, Judge.

Nancy A. Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender,
and William Pafford, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Assistant Attorney
General, and Jillian H. Redding, Assistant Attorney General, Tallahassee, for
Appellee.



WINSOR, J.

      Johnny James Tims responded violently when law enforcement officers

sought to question him about domestic violence allegations. He pleaded no contest

to three charges relating to that violent response, but he reserved the right to appeal

the order denying his motion to suppress. In Tims’s view, the officers had no right
to be where they were, so any evidence that Tims battered them, resisted with

violence, or knocked equipment from an officer’s hand must be suppressed as fruit

of the poisonous tree. We reject that view and affirm.

                                           I.

       Dispatched to address reports of domestic violence, two law enforcement

officers headed to Tims’s trailer home. As they arrived, Tims’s girlfriend flagged

them down and reported that Tims “had jumped on her.” Carrying flashlights, the

officers set off to investigate. One went to the trailer door; the other initially waited

in the yard. 1

       Tims opened and shut his door several times, all while yelling things like

“come back with a warrant,” “no trespassing,” and “private property.” One officer

instructed Tims to come outside to speak with them, but Tims continually refused.

Although the record does not establish the precise timing, at some point one of the

officers approached the door, flashlight still in hand. From the door’s threshold,

Tims reached out and slapped the officer’s hand, knocking the flashlight to the

ground. Tims then made a quick move towards one of the officers before trying to

move back into his trailer. The officers stepped into the trailer to place Tims under

arrest—not for the domestic violence, but for his striking at the officer. Just inside

the threshold, Tims began resisting, shrugging his arms, and pushing himself off

1
  Because the State prevailed below, we interpret the evidence in a light most
favorable to it. See Brandin v. State, 669 So. 2d 280, 282 (Fla. 1st DCA 1996).
                                           2
the wall. Before the officers could handcuff him, Tims tried to bite one officer and

tried to hit both with a closed fist. Ultimately, the officers placed Tims under

arrest.

                                            II.

          That night’s events led to four criminal charges: Count I alleged resisting an

officer with violence, in violation of section 843.01, Florida Statutes; Count II

alleged battery upon an officer, in violation of sections 784.03 and 784.07(2)(b);

Count III alleged depriving an officer of a means of protection (the flashlight), in

violation of section 843.025; and Count IV alleged battery—for the underlying

domestic violence that led the officers to Tims’s home in the first place. The State

dropped Count IV, meaning the three counts now at issue all stem from the

altercation that began when Tims slapped at the officer’s flashlight and ended with

Tims handcuffed inside his home.

          Tims moved to suppress all evidence supporting any of the remaining

charges. He argued that the officers were not lawfully inside his home because (i)

the officers had no warrant to enter, (ii) the reported domestic violence that led the

officers to Tims’s home was a misdemeanor, and (iii) the victim was outside the

home (so not in danger). In fact, Tims argued, the officers had no right even to

remain outside his door—at least not once he made clear that he wanted them to

leave.

                                             3
      The trial court denied the motion. After noting agreement with Tims that the

misdemeanor domestic violence allegation did not allow warrantless entry into

Tims’s home, the judge found that everything changed the moment Tims struck the

deputy’s hand. After that, the judge concluded, the officers “had the right to go get

him and they did.”

                                          III.

      On appeal, the State maintains that the officers were lawfully present, both

at the door and inside the home. According to the State, “there is no indication the

officers knocked for an excessive period of time.” And, the State argues, the

officers lawfully entered the home because they had probable cause to arrest Tims

for the felony assault. Tims, for his part, insists the officers’ presence was

unlawful, meaning everything they observed should be suppressed. 2

      Ultimately, we find it unnecessary to decide whether the officers were

lawfully present. Either way, the trial court properly denied the motion. The

exclusionary rule does not command suppression of evidence that Tims violently

resisted arrest and accosted officers, lawfully present or not.


2
  Tims pleaded no contest to crimes that included as elements lawful action by
officers. See § 843.01, Fla. Stat. (criminalizing resisting officers “in the lawful
execution of any legal duty”); § 784.07(2), Fla. Stat. (classifying battery as a
felony when committed against an officer “engaged in the lawful performance of
his or her duties”). Because the State has not presented the argument, and because
it would not affect the outcome here, we do not decide whether those pleas
foreclose Tims’s arguments that the officers acted unlawfully.
                                         4
                                        A.

      The Fourth Amendment protects “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const. amend. IV. Although the federal constitution does not

expressly command suppression of evidence unlawfully obtained, the United

States Supreme Court established the exclusionary rule by decisional law. See

Herring v. United States, 555 U.S. 135, 139 (2009).3 By operating to exclude

evidence obtained unlawfully, the exclusionary rule encourages officers to act

within Fourth Amendment limits. That encouragement, in turn, protects the public

from unlawful intrusions. See Herring, 555 U.S. at 139-40; see also Utah v. Strieff,

136 S. Ct. 2056 (2016) (exclusionary rule protects Fourth Amendment rights

generally through deterrent effect); State v. Dodd, 419 So. 2d 333, 335 (Fla. 1982).

Indeed, the deterrent effect is the exclusionary rule’s sole justification; “the

exclusionary rule is not an individual right,” and it operates “only where it

‘result[s] in appreciable deterrence.’” Herring, 555 U.S. at 141 (alteration in

original) (quoting United States v. Leon, 468 U.S. 897, 909 (1984)); see also State


3
   Florida’s Fourth Amendment analogue—Article I, section 12, of the Florida
Constitution—likewise protects “[t]he right of the people to be secure in their
persons, houses, papers and effects against unreasonable searches and seizures.”
That provision does explicitly preclude admission of “[a]rticles or information
obtained in violation of this right,” but only if it “would be inadmissible under
decisions of the United States Supreme Court construing the 4th Amendment.” Art.
I, § 12, Fla. Const.; see also G.M. v. State, 19 So. 3d 973, 977 (Fla. 2009).
                                            5
v. Johnson, 814 So. 2d 390, 394 (Fla. 2002) (application of rule “must be balanced

against the desire to have fact-finders receive all relevant and probative evidence”).

      This court’s decision in Lee v. State, 856 So. 2d 1133 (Fla. 1st DCA 2003),

which Tims cites, illustrates the exclusionary rule’s typical application. In Lee,

officers entered a hotel room without a warrant, found drugs, and arrested the

occupant. This court held that because the entry violated the Fourth Amendment,

the evidence found inside the hotel room could not be used against the defendant.

Id. at 1140; see also Washington v. State, 889 So. 2d 170 (Fla. 1st DCA 2004)

(similar scenario). Application of the rule in cases like these would “deter illegal

police conduct by denying the state the benefit of improperly obtained evidence.”

Dodd, 419 So. 2d at 335.

      This case, however, is not the typical suppression case. The evidence at issue

here does not relate to some earlier crime discovered while officers allegedly

violated the Fourth Amendment; it relates to crimes Tims committed against

officers while they allegedly violated the Fourth Amendment. 4 In this

circumstance, suppressing evidence of these crimes would not serve the purposes

underlying the exclusionary rule. “[T]he limited objective of the exclusionary rule


4
  Although the motion did not identify specific evidence—instead seeking to
suppress “a) Evidence of any Resisting Officer with Violence,” “b) Evidence of
any Battery Upon a Leo,” and “c) Evidence of any Depriving an Officer of Means
of Protection or Communication”—the principal (if not sole) evidence presumably
would have been the officers’ testimony.
                                         6
is to deter unlawful police conduct—not to provide citizens with a shield so as to

afford an unfettered right to threaten or harm police officers in response to the

illegality.” State v. Brocuglio, 826 A.2d 145, 152 (Conn. 2003).

      It is not enough to say, as Tims does, that officers could not have discovered

evidence of his crimes without illegally entering his home. Obviously had the

officers not been in his home, Tims could not have assaulted or resisted them in his

home. And were they not by his door, Tims could not have swatted the flashlight

from the officer’s hand by his door. But it has never been the rule that courts must

exclude all evidence that would have escaped discovery absent a Fourth

Amendment violation. Herring, 555 U.S. at 141; see also Wong Sun v. United

States, 371 U.S. 471, 487-88 (1963) (rejecting “but for” test); State v. Frierson,

926 So. 2d 1139, 1143 (Fla. 2006). Quite the opposite: the exclusionary rule is a

“last resort”—not a “first impulse.” Herring, 555 U.S. at 140 (quoting Hudson v.

Michigan, 547 U.S. 586, 591 (2006)). It applies only when it will yield appreciable

deterrence—and only when the deterrence benefits outweigh the costs of

exclusion. Id. at 141; see also Strieff, 136 S. Ct. at 2056. It does not apply here,

where it would not appreciably deter illegal conduct, and where its costs would be

too great.

      In its usual operation, the exclusionary rule will deter officers from illegal

searches and seizures because officers know that the products of those searches

                                         7
typically will be useless. Officers will not illegally stop a vehicle looking for

contraband, for example, knowing that contraband they find cannot support a

prosecution. But it would be unreasonable (at best) to suppose that rejecting Tims’s

claims here would encourage officers’ unlawful actions. We cannot imagine

circumstances in which officers would unlawfully enter homes hoping they would

themselves be accosted upon entry, leading to criminal charges against the

accoster. Cf. United States v. Pryor, 32 F.3d 1192, 1196 (7th Cir. 1994) (“Police do

not detain people hoping that they will commit new crimes in their presence; that is

not a promising investigative technique, when illegal detention exposes the police

to awards of damages.”). We find no deterrent value in accepting Tims’s claims.

      Even assuming some minimal deterrent value in excluding evidence under

these circumstances, the societal cost would far outweigh it. The problem with

Tims’s approach is obvious. “[E]xtending the fruits doctrine to immunize a

defendant from arrest for new crimes gives a defendant an intolerable carte blanche

to commit further criminal acts so long as they are sufficiently connected to the

chain of causation started by the police misconduct.” United States v. Bailey, 691

F.2d 1009, 1017 (11th Cir. 1982). By precluding evidence of battery on officers,

the rule would all but invite such battery—perhaps even encouraging some to bait

officers into unlawful entry. Cf. id. (“[S]ound policy reasons obviously argue that

the law should discourage and deter the incentive on the part of potential arrestees

                                         8
to forcibly resist arrest or to commit other new and separate crimes.”). To be sure,

Tims does not assert that he had the legal right to use violence against officers

unlawfully present. Cf. Morley v. State, 362 So. 2d 1013, 1014 (Fla. 1st DCA

1978) (noting common-law right to resist illegal arrest abrogated by statute). But

the practical difference between that and his suppression argument amounts to

little. See Pryor, 32 F.3d at 1196 (noting defense to the crime and suppression of

evidence of the crime “come to the same thing [because] to suppress the evidence

would be to say that the suspect is indeed free to commit the crime”). After all, if a

defendant batters officers inside a home, a conviction for that battery likely

depends on the officers’ testimony that they were battered. The societal costs of

excluding evidence in this circumstance would simply be too great.

                                         B.

      The result we reach here is consistent with decisions from other Districts. In

State v. Clavette, for example, the defendant was charged with trying to take a

firearm from an officer, resisting with violence, and battery on an officer. 969 So.

2d 463 (Fla. 5th DCA 2007). The defendant sought to suppress related evidence,

claiming the officers unlawfully entered his home. But the Fifth District found that

even if the officers violated the Fourth Amendment by entering the home,

suppression was not warranted because the defendant’s “use of force was an

independent act of misconduct.” Id. at 467. Similarly, the defendant in State v.

                                          9
Freeney sought to suppress evidence related to his charges for battery on an

officer. 613 So. 2d 523 (Fla. 2d DCA 1993). The trial court granted the motion,

finding the evidence “to be fruits of an illegal seizure,” id. at 524-25, but the

Second District reversed: “Even though the altercations between Mr. Freeney and

the police may never have occurred ‘but for’ the stop, the evidence concerning the

defendant’s battery on the police officer . . . is not legally derivative for purposes

of the exclusionary rule.” Id. at 525; see also State v. White, 642 So. 2d 842, 844

(Fla. 4th DCA 1994) (“The commission of an independent crime during or after

the execution of an illegal warrant may be charged, and if the evidence seized

relates to the commission of that crime as opposed to the objects of the search

warrant, suppression of such evidence should be denied.”).

                                         C.

      Finally, we have not overlooked Faith v. State, 45 So. 3d 932 (Fla. 1st DCA

2010), which Tims cited below. In Faith, an officer had arrested the defendant for

giving a false name and birthdate—obstruction by disguise. Id. at 933. The officer

then searched the defendant’s purse and found drugs. Id. And at some point, the

defendant resisted without violence after being handcuffed. Id. The trial court

found the arrest to be illegal (because the defendant was not under arrest or

lawfully detained when she provided false information), but it denied a motion to

suppress evidence of the drugs—“and the behavior that formed the basis of the

                                         10
resisting charge.” Id. The State sought a remand to further demonstrate why the

evidence should not be suppressed, noting that the earlier suppression hearing was

“problematic.” Id. at 934. This court rejected the State’s request, finding no

authority to allow the prosecution another opportunity to oppose suppression. Id.

      The court’s conclusion that the drugs should have been suppressed is

consistent with settled law and inapplicable here. And the court’s implicit

conclusion that evidence of resisting without violence should have been

suppressed—offered with no analysis—does not compel that result here. Even

assuming it was a binding holding otherwise, it would not bind us here because

these convictions are unquestionably more serious. Tims resisted with violence,

battered officers, and separated an officer from his equipment. The trial court

properly denied Tims’s request to suppress evidence of his crimes.

      AFFIRMED.

WINOKUR, J., CONCURS; WOLF, J., CONCURS IN RESULT.




                                        11
