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


                                         IN THE DISTRICT COURT OF APPEAL

                                         OF FLORIDA

                                         SECOND DISTRICT

MICHAEL FRANK LAPACE,                         )
                                              )
        Appellant,                            )
                                              )
v.                                            )        Case No. 2D17-1493
                                              )
STATE OF FLORIDA,                             )
                                              )
        Appellee.                             )
                                              )

Opinion filed October 17, 2018.

Appeal from the Circuit Court for Sarasota
County; Deno Economou, Judge.

Howard L. Dimmig, II, Public Defender, and
Karen M. Kinney, Assistant Public Defender,
Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee; and David Campbell,
Assistant Attorney General, Tampa, for
Appellee.



CRENSHAW, Judge.

             Michael Lapace appeals his convictions and sentences after pleading nolo

contendere to a number of drug related charges. Mr. Lapace entered his pleas after the

trial court denied his motion to suppress evidence obtained as a result of a warrantless

search of a residence, reserving the right to appeal the adverse ruling. We reverse the
trial court's denial of Mr. Lapace's motion to suppress because the evidence presented

did not support the trial court's finding that the deputies reasonably believed that exigent

circumstances existed that justified immediate entry into the residence without a

warrant.

             The testimony at the suppression hearing revealed that on September 4,

2016, two Manatee County Sheriff's deputies were responding to an unknown law

enforcement problem call. The person who called 911 did not know her exact address

and was giving the dispatcher landmarks around her location. At some point, the caller

hung up but answered when the dispatcher called back and continued to try and relay

the address, which was eventually determined by the cell phone satellite ping. No

testimony was elicited at the hearing regarding who had called 911 or what crime or

problem the caller had been reporting.

             When the deputies arrived at the address provided by dispatch, they saw a

woman parked in a car in an empty lot across from the address provided. The deputies

approached the woman and asked if she knew why they had been dispatched to that

location. The woman responded that she had no idea. As the deputies continued

toward the house, and as the woman was pulling away to leave, she yelled out the

window that her ex-boyfriend was inside the house and that he had a warrant out for his

arrest and she stated his first name. At the hearing, the deputy testified that he could

not remember what name she had given but remembered that it started with an "M" and

thought it was either Michael or Matthew. The deputies did not know the name of this

woman until after they had Mr. Lapace in custody.




                                            -2-
             The deputies proceeded to knock on the door of the house. Heather

Lawson answered the deputies' knock but refused to open the door, stating that she had

just been beaten up by an unknown woman. The deputies advised Ms. Lawson that the

other woman was no longer there and that it was safe to come out. Ms. Lawson

opened the door and appeared to be nervous and hesitant to speak to the deputies.

She told them that a woman she did not know had knocked on her door and that they

got into a physical altercation. Ms. Lawson had a cut on her foot and a red mark on her

leg, where Ms. Lawson indicated that the unknown woman had bitten her.

             The deputies asked Ms. Lawson if anyone else was inside the house. Ms.

Lawson hesitated, looked back into the house, and stated, "No, and you can't come

inside." The deputy testifying stated that he did not believe Ms. Lawson because the

woman in the car had told them that there was a male inside and because Ms. Lawson

seemed reluctant to answer any questions. At that point, the deputy testified that he

believed there was a possible domestic dispute of some sort and believed that he

needed to check on the welfare of anyone who may have been inside the house. The

deputy acknowledged that based on the injuries observed on Ms. Lawson, any domestic

battery would have been a first-degree misdemeanor.

             Ms. Lawson was instructed to get her identification, and when she turned

to go into the house, the deputies followed her inside. When Ms. Lawson realized they

were trying to follow her inside, she again told them that they could not come in and

continued to protest while the deputies proceeded to search the house.

             Only one of the deputies testified at the hearing. The deputy testified that

prior to knocking on the door, he did not hear any yelling or anything else coming from



                                          -3-
inside the house. There were no trails of blood or anything that would lead one to

believe that someone was injured inside. Ms. Lawson had explained that her injuries

were the result of a physical altercation with another woman. Once they entered the

house, the deputy did not hear anyone crying, did not observe any blood, and did not

hear anyone asking for assistance.

             The deputy found Mr. Lapace hiding behind the door to a bedroom. Mr.

Lapace was not in distress, he did not appear to need any medical attention, and the

deputy did not observe any injuries on Mr. Lapace. Upon finding Mr. Lapace, the

deputy physically grabbed Mr. Lapace's arms, put him belly down onto the bed, and put

him in handcuffs. While Mr. Lapace was belly down on the bed, the deputy took his ID

from his back pocket, ran his identification through dispatch, and learned that Mr.

Lapace had a felony warrant. After Mr. Lapace had been detained, the deputy saw a

laundry basket next to the bed, and on top of the clothes was a pipe commonly used for

smoking methamphetamine. The deputy also noticed an open dresser drawer

approximately two feet from the bed with narcotics inside. The deputy then searched

through a bag and found a plethora of other narcotics. The deputy seized the property

and took Mr. Lapace outside.

             Mr. Lapace moved to suppress the physical evidence obtained as a result

of the search, contending that contrary to the State's position, exigent circumstances did

not justify a warrantless entry into the residence. The trial court denied the motion to

suppress, finding that the deputies were entitled to enter the house without a warrant

under the emergency aid exception to the warrant requirement. The trial court noted

that a 911 call is a cry to authorities for help and found that the deputies would have



                                           -4-
been remiss in not entering the residence of an abandoned 911 call. The trial court

reasoned that after seeing Ms. Lawson come outside with injuries to her body and

noting her nervousness and her hesitance to speak to law enforcement, a common

reasonable assumption would be that there was someone in the house that either may

have injured this woman or that there may be other injured people inside the home.

              The trial court's conclusion that the deputies' entry into the residence was

lawful was error. In Brigham City v. Stuart, 547 U.S. 398 (2006), the Supreme Court set

forth the principles of Fourth Amendment law:

                      It is a " 'basic principle of Fourth Amendment law that
               searches and seizures inside a home without a warrant are
               presumptively unreasonable.' " Nevertheless, because the
               ultimate touchstone of the Fourth Amendment is
               "reasonableness," the warrant requirement is subject to
               certain exceptions. . . . "[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."
                       One exigency obviating the requirement of a warrant
               is the need to assist persons who are seriously injured or
               threatened with such injury. " 'The need to protect or
               preserve life or avoid serious injury is justification for what
               would be otherwise illegal absent an exigency or
               emergency.' " Accordingly, law enforcement officers may
               enter a home without a warrant to render emergency
               assistance to an injured occupant or to protect an occupant
               from imminent injury.
Id. at 403 (alteration in original) (citations omitted).

              Whether a warrantless search is justified by such an emergency is

determined by the totality of the circumstances. See Zeigler v. State, 402 So. 2d 365,

371 (Fla. 1981). The "police may enter a residence without a warrant if an objectively

reasonable basis exists for the officer to believe that there is an immediate need for


                                              -5-
police assistance for the protection of life or substantial property interests." Seibert v.

State, 923 So. 2d 460, 468 (Fla. 2006) (citing Rolling v. State, 695 So. 2d 278, 293-94

(Fla. 1997)). "[T]he burden is on the government to demonstrate exigent circumstances

that overcome the presumption of unreasonableness that attaches to all warrantless

home entries." Welsh v. Wisconsin, 466 U.S. 740, 750 (1984). In addition, "an entry

based on an exigency must be limited in scope to its purpose. Thus, an officer may not

continue her search once she has determined that no exigency exists." Rolling, 695 So.

2d at 293.

              The dispositive question in this case is whether the State met its burden of

showing that the deputies reasonably believed that exigent circumstances existed that

justified an immediate entry into the home without a warrant. See Dixon v. State, 36 So.

3d 920, 924 (Fla. 4th DCA 2010); see also Wheeler v. State, 956 So. 2d 517, 521 (Fla.

2d DCA 2007) ("Our analysis turns on whether the State was able to demonstrate that

the deputies faced a grave emergency that made entry into Wheeler's home

imperative."). If the State meets this burden, ordinarily the court must then determine

whether the subsequent search of the house exceeded the parameters allowed if the

entry was warranted. Seibert, 923 So. 2d at 468. However, neither of the parties here

have raised any argument related to the scope of the search that was conducted after

the deputies entered the house, and as such, any argument related to the scope of the

search has been waived and will not be addressed by this court.

              Here, the State contends that the deputies were justified in entering the

residence because, under the totality of the circumstances, the deputies' suspicion of a

medical emergency was based upon reasonable inferences drawn from the available



                                            -6-
evidence. However, the cases relied upon by the State are distinguishable from the

facts of this case because in each of the cited cases, the officers' belief that there was

an immediate need for their entry into the residence to address a medical emergency

was based on more than just a suspicion of a "possible domestic dispute of some sort."

See, e.g., Michigan v. Fisher, 558 U.S. 45, 45-56 (2009) (holding that exigent

circumstances existed when officers responded to a disturbance complaint; observed a

pickup truck with its front smashed, damaged fence posts, broken house windows with

glass still on the ground, blood on the hood of the pickup and on clothes inside the

pickup, and blood on one of the doors to the house; and could see the defendant inside

the home, with a cut on his hand, screaming and throwing things, and arming himself

with a gun); State v. Shillingford, 136 So. 3d 1242, 1244 (Fla. 5th DCA 2014) (holding

that exigent circumstances existed when officers were summoned to investigate a

domestic battery and observed a blood trail leading to the defendant's apartment and

heard moaning coming from within the apartment); C.L.L. v. State, 115 So. 3d 1114,

1116 (Fla. 1st DCA 2013) (holding that exigent circumstances existed when officers

responded to a 911 hang-up where a disturbance could be heard in the background and

upon arrival observed a man with blood on his hands but no injury and admitted to

being in a fight but claimed that the other participants had left); United Sates v. Barone,

330 F.2d 543, 544 (2d Cir. 1964) (holding that exigent circumstances existed where

officers heard screams coming from apartment).

              In the instant case, the State does not argue that the deputies

encountered any screaming, suspicious sounds, blood, or other readily apparent

disturbance when they arrived at the residence. The State argues that based on the



                                            -7-
totality of the circumstances, the deputies could reasonably believe that there was an

ongoing domestic dispute based on the 911 call, the information from the unidentified

woman, and Ms. Lawson's suspicious behavior and injuries. We consider each of these

circumstances in turn.

The 911 call

               The deputies were dispatched to the residence in response to an unknown

law enforcement problem call. When they arrived, the deputies were armed only with

the information that a person had called 911, was unable to give her exact address, and

was providing landmarks to assist in locating the residence.

               "Exigent circumstances have been determined to exist when 911 calls

were received, even in cases when the callers did not identify a life-threatening

emergency, when the officers arrived at the source of the 911 call to find suspicious

circumstances at the residence." Seibert, 923 So. 2d at 469. The focus of the inquiry is

on the reasonableness of the officers' belief that an emergency existed at the time of

entry. Id. at 468.

               In In re J.B., 621 So. 2d 489, 489 (Fla. 4th DCA 1993), the officers were

responding to a home that was the source of a 911 call where the caller hung up without

speaking or requesting assistance. In finding that the officers acted lawfully in trying to

enter the home, the court analogized a 911 call to screams for help. Id. at 490. The

court also discussed the fact that the 911 system is used to report crimes and injuries

requiring immediate assistance and that a disconnect could happen for a myriad of

reasons and did not mean the emergency was over. Id. at 490-91. Given that "[a] 911

call is a cry to the authorities for help" and that the officers observed a window with a



                                            -8-
broken screen and trash all over the front room, taken together with the defendant's

unusual behavior, the court in J.B. concluded that the investigating officer had a duty to

investigate until he was satisfied that no emergency existed. Id. at 491.

             Similarly, in Dixon, the court held that the officers had a duty to investigate

a 911 call; however, in order to justify a warrantless entry and search of the apartment,

the State was required to prove that exigent circumstances existed that required entry

into the apartment immediately without a warrant. Dixon, 36 So. 3d at 924. When the

officers first arrived at the apartment, before they entered, the defendant and his

girlfriend informed them that the robbers had already left the apartment. Id. The

testifying officer did not observe evidence of an ongoing burglary, which may have

required immediate entry without a warrant. Id. Furthermore, the officer did not testify

that he was concerned that there could be victims inside the apartment who needed

immediate assistance. Id. Based on those facts, the court held that the observations by

the officer did not support the warrantless entry into the apartment. Id.

             Here, the deputies certainly had a duty to investigate the 911 call until they

were reasonably satisfied that no emergency existed or that a once-urgent situation was

no longer urgent. However, the deputies were not entitled to enter the home once they

determined that any emergency had dissipated. In the instant case, Ms. Lawson came

to the door and gave a plausible explanation for the injuries on her foot and leg, which

the deputies were able to corroborate because they saw a woman drive away from the

house upon their arrival. The deputies did not hear anything within the residence that

would lead them to reasonably conclude that someone in the residence was in distress.

They did not observe any evidence of an ongoing domestic dispute, which might have



                                           -9-
required immediate entry without a warrant. Accordingly, any exigency that may have

existed and prompted the 911 call had dissipated by the time the deputies arrived and

received the initial explanation from Ms. Lawson that she was battered by an unknown

woman, whom the detectives had seen fleeing the scene.

The information from the unidentified woman in the car

              After they arrived, the deputies saw an unidentified woman parked in a car

across from the residence. When they approached the woman, she stated that she did

not know why they were called, but as the deputies began approaching the residence

and the woman was driving away, the unidentified woman rolled her window down and

shouted to the deputies that her ex-boyfriend was in the house and there was a warrant

out for his arrest. The deputy testified that she also stated her ex-boyfriend's name but

that he could not recall whether she said Michael or Matthew. He thought the name

started with an "M."

              An anonymous tip may provide the basis for conducting a warrantless

entry to render emergency assistance or to protect someone from imminent injury. But

for an anonymous tip to justify a warrantless entry, the tip—considered in the context of

the totality of relevant circumstances—must provide an "objectively reasonable basis"

for the officer "to believe that there is an immediate need for police assistance."

Seibert, 923 So. 2d at 468.

              Anonymous tips, which are more susceptible to abuse than a tip by a

known informant, may be less reliable than other investigative leads. See Florida v.

J.L., 529 U.S. 266, 270 (2000). The government's interest in conducting a search

based upon an anonymous tip, therefore, is usually measured by examining the tip's



                                           - 10 -
"indicia of reliability." Id. Generally, a search based upon an anonymous tip withstands

scrutiny under the Fourth Amendment only if the tip contains sufficient details and

information that can be independently corroborated by the police to establish a level of

reliability regarding the information in the tip. Id. at 270-71.

              Here, the woman did not give her name, did not give her ex-boyfriend's full

name, did not give a physical description of her ex-boyfriend, and gave no information

regarding the type of warrant allegedly outstanding. The record is devoid of any details

that would provide support for the conclusion that the anonymous tip was reliable. The

tip provided no basis for concluding either that anyone in the house had suffered any

injury or that anyone in the house was at risk of imminent injury. The vague statements

concerning an "ex-boyfriend" and a possible warrant are insufficient to establish that it

was necessary for the deputies to enter the house "to protect an occupant from

imminent injury." See Vanslyke v. State, 936 So. 2d 1218, 1224 (Fla. 2d DCA 2006)

(quoting Brigham City, 547 U.S. at 402) (holding that even a reliable report that children

were living in a house with drugs and guns would not show the existence of an exigency

justifying a warrantless search without an additional showing of a specific threat of

imminent harm to the children in the house). That the tip proved accurate and that the

officers acted with good intentions does not alter the legal conclusion that the search

was improper. See J.L., 529 U.S. at 271 ("The reasonableness of official suspicion

must be measured by what the officers knew before they conducted their search.").

Ms. Lawson's behavior

              In denying the motion to suppress, the trial court considered Ms. Lawson's

"demeanor, her behavior, her conduct" in finding that the deputies had an objectively



                                             - 11 -
reasonable basis for believing that there was an emergency that required immediate

police attention.

              Allowing police to use a resident's reaction to law enforcement's presence

at their home and the resident's contemporaneous clear expression of unwillingness to

engage with the officers "as the only extra information necessary to confirm whatever

suspicion brought [the officers] to the door in the first place . . . would . . . unjustifiably

erode 'the right of a man to retreat into his own home and there be free from

unreasonable governmental intrusion'—which stands '[a]t the very core' of our Fourth

Amendment protections." Calloway v. State, 118 So. 3d 277, 280 (Fla. 5th DCA 2013)

(second alteration in original) (quoting Kyllo v. United States, 533 U.S. 27, 31 (2001)).

Here, Ms. Lawson's reaction to the deputies' presence at her home, together with her

unwillingness to allow the deputies into the house, cannot satisfy the requisite showing

of an objective belief that there was an ongoing emergency that required the immediate

attention of the police. Even when Ms. Lawson's behavior is combined with the

information from the anonymous tip—that there was a man in the house, who had an

outstanding warrant—and the unknown law enforcement problem call, it was not

objectively reasonable for the deputies to believe that there was an ongoing or imminent

emergency that required their immediate attention.

               There was no objective basis for the deputies to fear for anyone's safety.

The deputies responded to the residence and came upon a quiet scene. The deputies

observed no noise that would indicate a disturbance, no screaming, no blood, nor

anything else that would indicate that there was a domestic disturbance taking place.

The only information the deputies had prior to entering the house was that they were



                                             - 12 -
responding to an unknown law enforcement problem call based upon a 911 call from a

person who did not know her exact address, that there may have been a man inside the

house who had a warrant out for his arrest, that Ms. Lawson had a cut on her foot and a

bite mark on her leg that she claimed was the result of an altercation with an unknown

woman, that an unknown woman had just driven away from the house, and that, based

on a hunch, there may have been a "possible domestic dispute of some sort." This was

not enough to form an objectively reasonable basis to believe that there was an

immediate need for police assistance for the protection of life.

              We conclude that the deputies lacked an objectively reasonable belief that

there was an ongoing or imminent emergency that required immediate police attention.

The entry into the house and subsequent search without a warrant were in violation of

the Fourth Amendment. All physical evidence derived from the initial unlawful search

should have been suppressed. Accordingly, we reverse Mr. Lapace's convictions and

sentences in case number 2016-CF-3094 and remand for further proceedings

consistent with this opinion.

              Reversed and remanded.



BLACK and SLEET, JJ., Concur.




                                           - 13 -
