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

                                          IN THE DISTRICT COURT OF APPEAL
                                          OF FLORIDA
                                          SECOND DISTRICT

JUAN FALCON,                              )
                                          )
              Appellant,                  )
                                          )
v.                                        )      Case No. 2D15-4134
                                          )
STATE OF FLORIDA,                         )
                                          )
              Appellee.                   )
                                          )

Opinion filed October 27, 2017.

Appeal from the Circuit Court for
Collier County; Lauren L. Brodie,
Judge.

Christopher H. Brown of Brown,
Suarez, Rios & Weinberg, P.A.,
Naples, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and C. Todd Chapman,
Assistant Attorney General, Tampa,
for Appellee.


ROTHSTEIN-YOUAKIM, Judge.

              Juan Falcon pleaded no contest to charges of maintaining a marijuana

"grow house" and possessing drug paraphernalia based on the seizure of twenty-six

marijuana plants from a shed in his back yard. As part of his plea, Falcon preserved his

right to appeal the trial court's denial of his dispositive motion to suppress evidence on

the grounds that (1) the deputies had violated Florida's "knock-and-announce" statute,
section 933.09, Florida Statutes (2013), and (2) the search warrant had issued on

insufficient probable cause. We hold that Falcon's first ground is meritorious, decline to

reach the second ground, and reverse.

                                       Background

              In denying Falcon's suppression motion, the trial court made no explicit

findings of fact. Consequently, we must construe the factual record in the light most

favorable to the denial of the motion, see In re Doe, 932 So. 2d 278, 283-84 (Fla. 2d DCA

2005) (observing that "traditional appellate presumption of correctness . . . require[s] us

to view the record in the light most favorable to sustaining the order under review"), which

we do as follows:

              After learning that Falcon was engaged in a marijuana-growing operation

out of his residence and/or a shed in his back yard, the Collier County Sheriff's Office

independently confirmed the presence of items consistent with a grow operation near and

connected to the shed. Thus, at just past 6:45 a.m. on April 9, 2014, a SWAT unit of at

least six heavily armed deputies appeared on the front doorstep of Falcon's residence to

execute a search warrant.

              Less than an hour earlier, the deputies had all been briefed on the fact that

Falcon lived in the residence with his family, which included an adolescent son and a

teenage daughter. Notwithstanding the nature of the suspected offense,1 the deputies

had no reason to believe that there were any weapons in the residence or that Falcon




              1
               At the suppression hearing, one SWAT member testified that, in situations
involving a suspected marijuana-growing operation: "We always have to assume that
there are weapons in the house. We can't go on the mentality that there's no weapons
because we don't know."


                                            -2-
was armed and dangerous; his criminal history consisted of one arrest for driving under

the influence. The deputies also had no reason to believe that Falcon knew that they

were coming, that anyone inside the residence was at risk of harm, or that Falcon or his

family might try to escape or destroy evidence.

              Over a public address system, the deputies thrice announced "Sheriff's

Department" and demanded that those inside the residence open the door. The deputies

observed no activity inside the residence. Their demand unmet, the deputies breached

the door with a battering ram and another tool and then set off two pyrotechnic "noise

flash diversion devices" at the front and side of the residence.

              Falcon and his family had been sleeping when the deputies had arrived on

their doorstep, and Falcon and his daughter were walking toward the front door when it

was forced open. Numerous deputies entered the residence and secured Falcon, his

wife, and his daughter by zip-tying their hands behind their backs. Although Falcon's son

was not zip-tied, the record establishes that the deputies' entry terrified him.

              Approximately twenty seconds elapsed between the moment that the

deputies began the knock-and-announce procedure and their breach of the front door. At

the suppression hearing, one deputy "estimate[d]" that "more than fifteen seconds" had

elapsed between the first knock-and-announce and the breach. Accordingly, we must

assume that, after duly notifying Falcon and his family of their authority to enter, deputies

waited more than fifteen seconds but less than twenty seconds before breaching their

front door.




                                             -3-
                                         Analysis

              Falcon argues that the SWAT deputies violated the knock-and-announce

statute when they forcibly breached the front door of his residence to execute the search

warrant. That statute provides:

                      The officer may break open any outer door, inner door
              or window of a house, or any part of a house or anything
              therein, to execute the warrant, if after due notice of the
              officer's authority and purpose he or she is refused admittance
              to said house or access to anything therein.

§ 933.09.

              The policy underlying section 933.09 derives from the sentiment that

"[t]here is nothing more terrifying to the occupants than to be suddenly confronted in the

privacy of their home by a police officer decorated with guns and the insignia of his office.

This is why the law protects its entrance so rigidly." State v. Bamber, 630 So. 2d 1048,

1052 (Fla. 1994) (quoting Benefield v. State, 160 So. 2d 706, 709 (Fla. 1964)). Where

officers knock, announce their authority and purpose, and then enter with such haste that

the occupant does not have a reasonable opportunity to respond, the search violates

section 933.09. Holloway v. State, 718 So. 2d 1281, 1282 (Fla. 2d DCA 1998). And

absent certain exigencies, a violation of section 933.09 warrants suppression. See

generally State v. Cable, 51 So. 3d 434, 444 (Fla. 2010) (reaffirming suppression as

remedy for violation of parallel knock-and-announce provision of § 901.19(1)); see also

Benefield, 160 So. 2d at 710 (identifying exigencies that justify unannounced intrusion

that would otherwise violate section 933.09).

              Significantly, however, section 933.09 does not provide how long "after due

notice" the officer must wait before forcibly entering the residence, and case law provides




                                            -4-
no bright-line rule, although "[t]his court has noted that '[t]ime periods less than five

seconds are rarely deemed adequate, and periods in excess of fifteen seconds are often

adequate.' " Spradley v. State, 933 So. 2d 51, 55 (Fla. 2d DCA 2006) (quoting State v.

Cassells, 835 So. 2d 397, 399 n.2 (Fla. 2d DCA 2003)) (second alteration in original).

"[T]he question is whether the officer has waited a sufficient period, under all of the

circumstances, so that the officer can reasonably infer or conclude that he or she has

been refused admittance by the occupants,"2 id., and "the only answer found in our case

law is that the occupant must have a 'reasonable opportunity' to respond," State v. Pruitt,

967 So. 2d 1021, 1023 (Fla. 2d DCA 2007) (quoting Richardson v. State, 787 So. 2d 906,

908 (Fla. 2d DCA 2001)). In determining whether the occupant has been afforded a

reasonable opportunity, "some factors the courts have considered include the nature of

the underlying offense, the time of day the warrant is executed, the size of the home,

whether any activity or movement is observed within the home at the time of execution,

and whether any exigencies exist." Mendez-Jorge v. State, 135 So. 3d 464, 467 (Fla. 5th

DCA 2014).

              Although failing to explicitly find how long the deputies had waited, the trial

court concluded that it had been "reasonable." Upon our de novo review of the pertinent

factors, however, see Daniels v. State, 208 So. 3d 1223, 1226 (Fla. 2d DCA 2017)

(explaining that we review de novo trial court's conclusions of law in ruling on

suppression motion), we conclude that the fifteen to twenty seconds that the deputies



              2
                An officer with a valid warrant may, of course, forcibly enter a residence
upon an affirmative refusal of entry. Nevertheless, "whether the ultimate refusal be
express or implied, the statute and case law interpreting it require that some quantity of
time, sufficient under the particular circumstances, be permitted for an occupant to
respond." Richardson v. State, 787 So. 2d 906, 908 (Fla. 2d DCA 2001).


                                              -5-
provided Falcon and his family was not reasonable. Apart from the bare nature of the

offense, no factor supported the urgency with which the deputies executed the warrant,

and the facts of this particular case undercut the assumptions that the deputies would

normally draw even from that factor: even allowing a general assumption that a

marijuana-grower will be armed and dangerous, the State stipulated at the suppression

hearing that the SWAT deputies had had no reason to believe that there were weapons

in the residence or that Falcon was armed and dangerous. To the contrary, the deputies

knew that the residence was Falcon's family residence, which he shared with his wife and

children, and that Falcon's criminal history consisted of one prior arrest for driving under

the influence. See Randall v. State, 793 So. 2d 59, 60 (Fla. 2d DCA 2001) (holding ten

seconds unreasonable when officers executed warrant between 6:00 and 7:00 a.m. and

had no information that firearms might be present or that residents posed any threat).

              Furthermore, in executing the warrant at 6:45 a.m., the deputies all but

ensured that the entire family would be home and, as turned out to be the case, might still

be asleep.3 See Spradley, 933 So. 2d at 55 (holding fifteen seconds unreasonable

because, among other things, at 9:41 p.m., the officers "could reasonably expect an

occupant to be awake but [it was also] late enough that the occupants might be preparing

for bed."); Richardson v. State, 787 So. 2d 906, 908 (Fla. 2d DCA 2001) (holding ten

seconds unreasonable at approximately 5:30 a.m. because it was "at a time of day when

it was reasonable that persons inside the house would be sleeping" (citing Griffin v.

United States, 618 A.2d 114 (D.C. 1992) (holding thirty seconds unreasonable at 1:40



              3
                The SWAT unit leader testified that the unit had executed the warrant at
that time for the safety of the unit. When asked what had prevented the unit from waiting
until, for example, noon, the unit leader replied, "daylight."


                                            -6-
a.m.))). None of the deputies observed any activity or movement inside the residence.

Cf. Braham v. State, 724 So. 2d 592, 594 (Fla. 2d DCA 1998) (considering officers' ability

to hear phone ringing inside trailer and someone moving around inside as factors

rendering five- to ten-second delay reasonable). And the deputies had no reason to

believe that Falcon knew that they were coming, that anyone inside the residence was at

risk of harm, or that Falcon or his family might try to escape or destroy evidence. Cf.

Benefield, 160 So. 2d at 710 (identifying exigencies justifying unannounced intrusion).

                                          Conclusion

                  Upon consideration of all of these factors, we hold that the deputies

violated section 933.03 by failing to afford Falcon a reasonable opportunity to respond

and that this violation warranted suppression.4 In so holding, we recognize that

determining what is reasonable is not an exact science and that, in the wrong situation,

waiting too long could have catastrophic results. Nonetheless, maintaining the balance

between the rightful force and authority of the State and the rights of its citizens can

come down literally to a matter of seconds. Precisely because there is so little margin for

error either way, we urge law enforcement agencies to use SWAT tactics to execute

search warrants sparingly and to take special care that their use does not simply become

par for the course.

              Reversed; remanded for discharge.


WALLACE and KHOUZAM, JJ., Concur.




              4
              Because we conclude that suppression is warranted on this basis, we
need not address Falcon's alternative challenge to the sufficiency of the probable cause
supporting the warrant.


                                              -7-
