               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                            IN THE DISTRICT COURT OF APPEAL

                                            OF FLORIDA

                                            SECOND DISTRICT


ANTHONY V. NIEVES, DOC #T80602,             )
                                            )
             Appellant,                     )
                                            )
v.                                          )          Case No. 2D18-613
                                            )
STATE OF FLORIDA,                           )
                                            )
             Appellee.                      )
                                            )

Opinion filed August 2, 2019.

Appeal from the Circuit Court for
Hillsborough County; Ronald Ficarrotta,
Judge, and J. Rogers Padgett, Senior
Judge.

Howard L. Dimmig, II, Public Defender,
and Clark E. Green, Assistant Public
Defender, Bartow, for Appellant.

Ashley Moody, Attorney General,
Tallahassee, and Jonathan P. Hurley,
Assistant Attorney General, Tampa, for
Appellee.


SALARIO, Judge.

             Anthony Nieves was out on probation when he was arrested on new

domestic violence charges. The trial court revoked his probation after finding that he

committed a new law violation by resisting that arrest without violence. Mr. Nieves

appeals from the revocation order and resulting sentence. We reverse because the
police officers were not engaged in the lawful execution of a legal duty when they

arrested Mr. Nieves, which is an essential element of the resisting offense. We remand

for further proceedings, noting that the trial court did not pass on whether the alleged

domestic violence offense, which does not require proof that the police were in the

lawful execution of a legal duty, may establish a new law violation justifying the

revocation of probation.

                                              I.

              The legal questions in this case hinge on whether a warrantless entry by

the police into a motel room to arrest Mr. Nieves violated the Fourth Amendment,

thereby leaving the State unable to establish that the police were in the lawful execution

of a legal duty when they arrested him. The key facts are as follows.

              After pleading guilty to burglary of a dwelling and grand theft in 2013, Mr.

Nieves was sentenced to five years in prison (with credit for time served) and three

years of probation. In 2017, while he was serving the probationary portion of his

sentence, Mr. Nieves was arrested on domestic battery charges. The victim of the

alleged battery was the mother of his children. Mr. Nieves had a prior domestic

violence incident involving the same person and, as a result, was subject to a court

order prohibiting him from having contact with her. After the arrest, the State filed an

affidavit of violation of probation alleging that Mr. Nieves had violated condition five of

his probation, which required that he "live without violating any law," by committing

domestic battery and by resisting an officer without violence.

              At the hearing on the alleged probation violations, the arresting officer

testified that he and other officers were called to a motel to respond to a domestic




                                            -2-
violence incident.1 He spoke to the victim in the parking lot and, based on that

conversation, decided to arrest Mr. Nieves for domestic battery. The officers went to a

room in the motel that Mr. Nieves shared with the victim. Although the sequence of

events is not entirely clear from the testimony, there appears to have been an initial

conversation among the officers and Mr. Nieves through an open window, during which

the officers told him that he was going to be arrested for a domestic battery. Mr.

Nieves, however, refused to leave the motel room.

              Instead, upping the ante, he barricaded himself in the motel room by

placing one of the beds behind the already-locked door. The manager of the motel

gave the police a key to the room, but Mr. Nieves' ingenuity with the bed left them

unable to enter. One officer started to kick through the door. Some others removed the

screen from the open window, grabbed Mr. Nieves, and pulled him through the window

and out of the room. He struggled as the police attempted to put him in handcuffs, but

they ultimately got him into custody.

              After the evidence was in, Mr. Nieves argued that it was insufficient to

prove that he committed the new law violation of resisting arrest without violence

because the evidence showed that the police were not in the lawful execution of a legal

duty. He maintained that the police did not have an arrest warrant and that no exigent

circumstances justified a warrantless entry into the motel room and, as a result, that

their grabbing him through the motel-room window was in violation of the Fourth

Amendment. The trial court rejected that argument and found Mr. Nieves in violation of


              1Mr. Nieves also testified, and his account of the events differed in
material respects from that of the arresting officer. The trial court resolved those
disputes by finding the arresting officer's testimony more credible than Mr. Nieves'.


                                           -3-
condition five because he violated the law by resisting arrest without violence. The trial

court made no findings with respect to the allegation in the State's affidavit that Mr.

Nieves also committed the new law violation of domestic battery. This is Mr. Nieves'

timely appeal.

                                             II.

              On appeal, Mr. Nieves argues that the trial court erred in revoking his

probation because the evidence failed to prove one element of the resisting offense—

that the police were acting in "the lawful execution of any legal duty." See § 843.02,

Fla. Stat. (2017). To revoke a defendant's probation, the trial court must find, by a

preponderance of the evidence, a willful and substantial violation of one of the

conditions of his probation. Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013).

Where the alleged violation is of a condition prohibiting new law violations, the question

is whether a preponderance of the evidence establishes that the probationer committed

any alleged offense. Hernandez v. State, 33 So. 3d 143, 144 (Fla. 2d DCA 2010).2

              Whether the evidence in this case established the lawful execution of a

legal duty—a necessary element of the new law violation of resisting an officer without

violence that Mr. Nieves was found by the trial court to have committed—depends on

the answers to two questions: (1) whether the warrantless arrest of Mr. Nieves was

lawful under the Fourth Amendment and, if not, (2) whether that defect renders the

State's proof that the police were in the lawful execution of a legal duty legally



              2The   second step of the analysis in a revocation of probation
proceeding—which is not at issue in this case—requires that a trial court use its
discretion to determine whether or not to revoke the defendant's probation once it finds
that a willful and substantial violation of a condition of that probation has occurred. See
Savage, 120 So. 3d at 623.

                                            -4-
insufficient. The first question involves the application of Fourth Amendment law to the

facts, and the second is one of pure law; our review of these issues is de novo. See

Lawson v. State, 969 So. 2d 222, 229 (Fla. 2007) (holding that where the probation

revocation decision hinges on legal questions, the de novo standard applies); Jones v.

State, 117 So. 3d 818, 820 (Fla. 4th DCA 2013) (evaluating sufficiency of the evidence

to establish a new law violation as a basis to revoke probation under the de novo

standard); Cote v. State, 14 So. 3d 1137, 1139 (Fla. 4th DCA 2009) (holding that

whether the exigent circumstances exception to the Fourth Amendment's warrant

requirement applied to the facts of the case was reviewed under the de novo standard).

              Turning first to whether the warrantless arrest of Mr. Nieves was lawful, it

is settled that it is unlawful for the police to make a warrantless entry into a place

protected by the Fourth Amendment for the purpose of arresting a suspect unless an

exception to the warrant requirement applies. Payton v. New York, 445 U.S. 573, 576

(1980). This is true even where the police otherwise have probable cause to arrest the

suspect and could make the arrest without a warrant were he, for example, just out on

the street. See, e.g., Bennett v. State, 46 So. 3d 1181, 1185 (Fla. 2d DCA 2010); Burt

v. State, 821 So. 2d 437, 439 (Fla. 2d DCA 2002). Thus, the fact that the police had

probable cause to arrest Mr. Nieves for the offense of domestic battery does not, by

itself, excuse the police from getting a warrant before entering a space protected by the

Fourth Amendment to arrest him for that offense.3


              3The   State argues otherwise, relying on section 901.15(7), Florida
Statutes (2017), which permits a warrantless arrest when the police have "probable
cause to believe that [a] person has committed an act of domestic violence." It is
possible that the warrantless entry to effect Mr. Nieves's arrest would be authorized as a
statutory matter. See § 901.19 (authorizing warrantless entry to effect an arrest "[i]f a
peace officer fails to gain admittance after she or he has announced her or his authority

                                            -5-
             No one in this case has disputed that under the facts adduced at the

hearing on the affidavit of violation, the motel room in which Mr. Nieves barricaded

himself was a place protected by the Fourth Amendment. See Holloman v. State, 959

So. 2d 403, 406 (Fla. 2d DCA 2007) ("The constitutional rights and privileges that apply

to those who occupy private permanent dwellings also apply to those who occupy a

motel room when the 'occupant is there legally, has paid or arranged to pay, and has

not been asked to leave.' " (quoting Turner v. State, 645 So. 2d 444, 447 (Fla. 1994))).

Nor has anyone disputed that the police reaching through the motel-room window and

pulling Mr. Nieves out constituted a warrantless entry. See Espiet v. State, 797 So. 2d

598, 603 (Fla. 5th DCA 2001) (treating a deputy's reaching through a screen-covered

window to grab a domestic violence suspect who had barricaded himself inside as a

warrantless entry); cf. Johnson v. State, 395 So. 2d 594, 596 (Fla. 2d DCA 1981)

(holding that the act of opening an unlocked screen door was an "entry" for purposes of

section 901.19(1)). Thus, the warrantless arrest here could be lawful under the Fourth

Amendment only if an exception to the warrant requirement applies. See Sosnowski v.

State, 245 So. 3d 885, 888 (Fla. 1st DCA 2018) (stating that evidence of domestic




and purpose" and is "authorized to make an arrest for a felony without a warrant"). If
the Fourth Amendment was violated under the circumstances of the warrantless entry to
arrest Mr. Nieves, however, the entry was unlawful under the Constitution; the fact that
it may have been statutorily authorized would be beside the point. See Payton, 445
U.S. at 575 n.2, 578, 598, 612 n.6 (holding that the Fourth Amendment was violated by
a warrantless entry for an arrest, noting that many states—including Florida—have
statutes authorizing warrantless arrests in places protected by the Fourth Amendment,
and noting that the Florida Supreme Court reached the conclusion argued by the State
here in State v. Perez, 277 So. 2d 778 (Fla. 1973)); Bennett, 46 So. 3d at 1185-86 (Fla.
2d DCA 2010) (holding that a warrantless arrest was unconstitutional under Payton
even though authorized by sections 901.15 and 901.19); Johnson v. State, 395 So. 2d
594, 596 (Fla. 2d DCA 1981) (stating the same in dictum).


                                           -6-
abuse, standing alone, is not sufficient to justify a warrantless entry into a place

protected by the Fourth Amendment), review denied, No. SC18-2004, 2019WL1349271

(Fla. Mar. 26, 2019).

              The only exception that could possibly apply in this case is the exigent

circumstances exception.4 See Sturdivant v. State, 578 So. 2d 869, 870 (Fla. 2d DCA

1991) ("The [F]ourth [A]mendment prohibits a warrantless and nonconsensual entry of a

lawfully occupied motel room for the purposes of making a felony arrest absent exigent

circumstances."). The exception is generally triggered when the police have an urgent

need to address some sort of emergency, such as a threat to the safety of persons or

property, a reasonable concern that the suspect might flee, or a reasonable concern

that evidence may be destroyed. See Kentucky v. King, 563 U.S. 452, 460 (2011); see

also Hanifan v. State, 177 So. 3d 277, 279-80 (Fla. 2d DCA 2015) (destruction of

evidence); Barth v. State, 955 So. 2d 1115, 1117 (Fla. 2d DCA 2006) (threat to safety);

A.E.R. v. State, 464 So. 2d 152, 154 (Fla. 2d DCA 1985) (possibility of fleeing suspect).

To establish exigent circumstances, the State must show a "compelling need for official

action and no time to secure a warrant." Michigan v. Tyler, 436 U.S. 499, 509 (1978);

Holloman, 959 So. 2d at 406 (quoting Riggs v. State, 918 So. 2d 274, 279 (Fla. 2005)).



              4Consent    is also a theoretical possibility because the victim apparently told
the arresting officer that he had her permission to enter the motel room. See Cooper v.
State, 706 So. 2d 369, 370 (Fla. 2d DCA 1998) (holding, with respect to a jointly
occupied motel room, that "[c]onsent to enter premises occupied by a suspect may be
given either by the suspect himself or by a third party who possesses common authority
over the premises."). But Mr. Nieves objected to that testimony; the trial court sustained
the objection; and the State has not challenged that evidentiary ruling in this appeal.
See Fla. R. App. P. 9.140(c)(1)(K); see also Jennings v. Stephens, 135 S.Ct. 793, 799
(2015) ("[A]n appellee who does not cross-appeal may not 'attack the decree with a
view either to enlarging his own rights thereunder or of lessening the rights of his
adversary.' " (quoting United States v. Am. Ry. Express Co., 265 U.S. 425 (1924))).

                                            -7-
The assertion of a compelling need to act and the absence of time to obtain a warrant

must be supported by an articulable, objectively reasonable basis in the facts and

circumstances attending the warrantless entry. See State v. Fultz, 189 So. 3d 155, 158

(Fla. 2d DCA 2016).

              Here, the evidence at the hearing on the affidavit of violation did not

reasonably suggest that the exigent circumstances exception applies to the warrantless

entry into the motel room in which Mr. Nieves barricaded himself. The victim was out of

the room and safe from Mr. Nieves when the police nabbed him through the window.

There was no testimony that the police thought that Mr. Nieves was a danger to them or

to anyone or anything else. Nor was there any testimony that the police believed that

Mr. Nieves had the inclination to flee or the ability to do so (i.e., a back door or window

in the motel room) or that there existed any evidence related to the domestic battery

that Mr. Nieves could destroy. And the State offered no evidence below and makes no

argument here that there was any other compelling need that required the officers to

enter the motel room without waiting for a warrant.

               The State's argument on exigency thus boils down to the fact that Mr.

Nieves had barricaded himself in the motel room and refused to leave voluntarily. On

this record—which contains no indication that Mr. Nieves was a danger to anyone and

no other evidence of urgency—those facts by themselves do not establish a reasonable

basis to find the kind of compelling need for immediate action the exigent circumstances

exception requires. Compare Espiet, 797 So. 2d at 602-03 (holding that the exigent

circumstances exception did not apply to a warrantless arrest of a domestic violence

suspect where the suspect was barricaded in his home, the victim was safe, and no

other facts indicated a need for urgent action), with Sosnowski, 245 So. 3d at 888

                                            -8-
(finding exigent circumstances for a warrantless entry to arrest a domestic violence

suspect where the police "had an objectively reasonable belief that a five-year-old child

was in danger"). As a result, the warrantless entry by police into the motel room to

arrest Mr. Nieves was unlawful under the Fourth Amendment.5

               Thus, we must consider whether the constitutional defect in the

procedure the police employed in arresting Mr. Nieves renders the State's proof that the

police were engaged in the lawful execution of a legal duty legally insufficient. On that

score, it is settled that the State cannot prove that the police are in the lawful execution




              5The   affidavit of violation in this case stated only that Mr. Nieves had
committed "Battery Domestic Violence" and did not specify whether the misdemeanor or
felony form of battery was intended. See §§ 741.28(2), Fla. Stat. (2017) (defining
"domestic violence"), 784.03, Fla. Stat. (2017) (distinguishing between misdemeanor
and felony battery); see also § 784.041(a) (defining domestic battery by strangulation).
Nor did the testimony at the revocation hearing establish whether the arresting officer
believed he had probable cause or intended to arrest Mr. Nieves for a misdemeanor or
a felony. In another case, this might be significant because the law governing
warrantless entries for purposes of effecting arrests for misdemeanor or minor offenses
is more likely to invalidate a warrantless entry for purposes of making an arrest for a
misdemeanor or minor offense than it is to invalidate a warrantless entry for purposes of
making a felony arrest. See, e.g., State v. Markus, 211 So. 3d 894, 908 (Fla. 2017)
(considering the fact that the offense was minor in determining whether exigent
circumstances existed and stating that "when the offense is minor, [an] . . . arrest should
usually be accompanied by a warrant"); Espiet, 797 So. 2d at 602 n.2 (noting that
Florida statutes do not allow warrantless entries for misdemeanor offenses without an
exception to the warrant requirement but do allow such entries for felony arrests). We
need not consider any potential difference in treatment here, however, because the
State's proof of exigent circumstances in this case would fail even assuming that the
police intended to arrest Mr. Nieves for a felony. In Espiet, the case most factually
analogous to this one—involving a domestic violence suspect who had barricaded
himself in his home—the Fifth District reached essentially the same conclusion. See
797 So. 2d at 602-03 ("The State argues that despite Deputy Englebright's intent to
arrest Espiet for a misdemeanor, the facts of this case clearly show that probable cause
existed to arrest him for a felony. We conclude that this argument is without merit
because the State failed to present evidence of exigent circumstances excusing the
deputies' failure to obtain an arrest warrant.").



                                            -9-
of a legal duty when they arrest a suspect if the arrest itself is executed unlawfully.

Johnson, 395 So. 2d at 596; see also D.L.S. v. State, 192 So. 3d 1273, 1274 (Fla. 2d

DCA 2016) (reversing adjudication of delinquency for resisting an officer without

violence where the police lacked reasonable suspicion for an investigatory stop

rendering the stop the minor allegedly resisted unlawful in itself).

              The Fifth District applied this principle to facts that were materially

indistinguishable from those of this case in Norton v. State, 691 So. 2d 616, 617 (Fla.

5th DCA 1997). There, the police entered the home of a probationer without a warrant

to arrest him for sexual assault. Id. at 616-17. The probationer resisted, and the State

sought to revoke his probation, alleging new law offenses of resisting arrest without

violence, resisting arrest with violence, and battery on a law enforcement officer. Id. at

617. The trial court found all three new law violations proved by a preponderance of the

evidence and revoked probation. Id.

              The Fifth District reversed the finding that the probationer committed the

new law offense of resisting arrest without violence, reasoning that the illegality of the

warrantless entry into the probationer's home left the State unable to prove the lawful

execution of a legal duty. Id. After explaining that the State had not shown that an

exception to the warrant requirement applied, the court held as follows:

              An essential element of the offense of resisting arrest
              without violence is that the arrest must be legal. The
              deputies should have had a warrant to arrest Norton
              in his home and without it, the arrest was illegal.
              Thus, the trial court's finding that Norton committed
              the offense of resisting arrest without violence was
              improper.

Id. (citation omitted) (citing Benjamin v. State, 462 So. 2d 110 (Fla. 5th DCA 1985)).

The court affirmed the revocation of probation, however, based on the trial court's

                                            - 10 -
findings that the probationer resisted arrest with violence and battered a law

enforcement officer, reasoning that the State was not required to prove the lawfulness

of the arrest to establish those new law violations. Id. at 617, 618.

              We agree with the Fifth District's analysis, and it points to the same result

here—namely that because the warrantless entry into Mr. Nieves' motel room for the

purposes of arresting him was unlawful, the trial court's finding of the new law violation

of resisting arrest without violence cannot stand. See also Johnson, 395 So. 2d at 596-

97 (holding that a conviction for resisting arrest without violence could not stand where

the police entered the defendant's home for the purposes of making the arrest without a

warrant and no exception to the warrant requirement applied). Because resisting

without violence was the only violation of the conditions of Mr. Nieves' probation the trial

court found, we reverse the order revoking his probation. Cf. Norton, 691 So. 2d at 617

(affirming the revocation of probation despite a similar failure in the burden of proof of

an element of the alleged resisting arrest without violence allegation because the trial

court also properly found that the defendant had committed two other new law violations

that did not require proof of the lawful execution of a duty).

              A question arises as to what, if anything, might or should happen on

remand. Recall that the State's affidavit of violation of probation also alleged a new law

violation of domestic battery, which does not have a lawful-execution element of proof,

and that the trial court did not pass on that allegation. It is possible that the State may

want to pursue this ground, and it is also possible that the State could be permitted to

present additional evidence to support it. See McRae v. State, 88 So. 3d 384, 386 (Fla.

2d DCA 2012) (holding that where the trial court revoked probation based on conduct

not alleged in the affidavit, the reversal would be "without prejudice to the State

                                            - 11 -
proceeding on the original affidavit or filing an appropriate affidavit"); Nadal v. State, 855

So. 2d 257, 258 (Fla. 3d DCA 2003) (holding that where the trial court revoked

probation based on a new law violation not alleged in the affidavit, its reversal was

"without prejudice to the State to renew this charge at a new revocation hearing and

present evidence on it"). Accordingly, we remand for further proceedings. We leave it

to the trial court to decide, in the first instance, whether and to what extent the State

should be permitted to introduce additional evidence on the domestic battery allegation

in the event the State decides to pursue it.

                                               III.

              For the foregoing reasons, we reverse the trial court's order revoking Mr.

Nieves' probation. We remand for further proceedings consistent with this opinion.

              Reversed and remanded.


SILBERMAN and ATKINSON, JJ., Concur.




                                            - 12 -
