Possession of cannabis with intent to sell

Florida Case Law

NOLIN v. STATE, 2D05-5819 (Fla.App. 2 Dist. 12-20-2006)
RALPH MARVIN NOLIN, Appellant, v. STATE OF FLORIDA,
Appellee. No. 2D05-5819. District Court of Appeal of
Florida, Second District. Opinion filed December 20, 2006.

Appeal from the Circuit Court for Pinellas County; R.
Timothy Peters, Judge.

James Marion Moorman, Public Defender, and Megan Olson,
Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and
Cerese Crawford Taylor, Assistant Attorney General, Tampa,
for Appellee.

NORTHCUTT and SALCINES, JJ., Concur.

VILLANTI, Judge.

Ralph Marvin Nolin appeals his judgment and sentence for
possession of cannabis with intent to sell, manufacture, or
deliver. Mr. Nolin entered a no contest plea, reserving the
right to appeal the trial court’s denial of his dispositive
motion to suppress the cannabis seized from a dresser in
his home by police during a warrantless search. At the
suppression hearing, the State failed to prove that the
search was a “precautionary sweep” of the space immediately
adjoining the place where Mr. Nolin was secured or that the
officers had an articulable basis for a broader “protective
sweep” as explained in Maryland v. Buie, 494 U.S. 325
(1990). Accordingly, we reverse the denial of the motion to
suppress and remand with instructions to discharge Mr.
Nolin on this charge.

At the hearing on the motion to suppress, Largo Police
Officer Rogers testified that he responded to the Nolins’
house based on a domestic disturbance dispatch, issued in
response to a neighbor’s telephone call. When Officer
Rogers got out of his police car, he heard the slamming
sound of either exterior or interior doors coming from the
area of the Nolins’ house. He went through the Nolins’ open
side gate and entered their backyard. There, the officer
did not see a person but did see a large amount of broken
glassware littered on the concrete walk; the glassware
appeared to have been broken that evening. From the
backyard, Officer Rogers looked into a screened porch where
“everything looked fine” and into the Nolins’ kitchen,
observing “that [a] microwave had been thrown on the
floor.”

A short time earlier, when two other officers, Kraft and
Iskra, first arrived, they heard incoherent screaming,
which they believed came from male and female voices;
however, when they knocked and announced their presence,
all sounds from within ceased. The officers found the
“sounds” of this silence disturbing. Because these other
officers had been unsuccessful in making contact with
anyone inside the home, all three officers decided to enter
the home and do a welfare check. They entered through an
unlocked screen door to the porch where Officer Rogers used
his “multipurpose tool” to unlock the back door. According
to Officer Rogers, “When we opened the door there was a
female that was in front of us and down the hall we saw a
male exit what appeared to be one room at the end of the
hall run towards the front, what would be the front door of
the residence.” A baseball bat was leaning on the wall next
to the front door.

During cross-examination, Officer Rogers agreed that when
he told the man, Mr. Nolin, to stop, he did so. Officer
Rogers agreed that Mr. Nolin came back, sat on the couch,
complied with the officers, and did not attempt to get the
baseball bat. Finally, Officer Rogers agreed that he had no
reason to expect there to be any firearms in the house.

Officer Kraft testified that she and her partner, Officer
Iskra, were dispatched to a domestic disturbance at the
Nolins’ house. While they were talking to the complainant,
she heard sounds of “yelling and screaming and crashing and
thuds” coming from the Nolins’ house. She and her partner
then knocked and banged on the Nolins’ front door. As soon
as the officers announced themselves, the noise stopped.
After they were unable to get any response from the home’s
occupants, the officers went into the backyard. Officer
Kraft also observed the broken glass in the yard and the
overturned microwave. Because she was still not able to get
a response from the home’s occupants, Officer Kraft became
concerned that someone inside was injured, and the officers
entered the home in the manner described by Officer Rogers.
According to Officer Kraft, the officers made contact with
Mrs. Nolin “[w]hen we walked into the home — when we
walked into the back lanai, we walked — there was a
door to the left. We walked in and there was a hallway and
her bedroom, I do believe is right there, and she came out
into the hallway when she heard that we were inside the
home.” Officer Kraft testified that Officers Rogers and
Iskra encountered the male, Mr. Nolin.

Subsequently, Officer Iskra performed a nonconsensual
protective sweep of the residence. Officer Kraft testified
that a protective sweep is done any time law enforcement
enters someone’s home. She explained, “We do a protective
sweep to make sure that nobody is going to jump out of any
closets at us, nobody is hiding behind the bed in a bedroom,
just so we — it’s for our safety and for the other
people’s safety in the home as well.” According to Officer
Kraft, a protective sweep is based on the assumption that
“[w]e always think that there is more than what we see in
front of us inside of a home.” Officer Kraft testified that
Officer Iskra found the cannabis on a dresser during the
protective sweep. Unfortunately, Officer Iskra did not
testify at the suppression hearing. Thus, our record review
is without the benefit of this key witness’s particularized
report of the home’s configuration.

On cross-examination, Officer Kraft agreed that Mrs. Nolin
was shocked to see the officers and appeared frazzled. Mrs.
Nolin told Officer Kraft that she was happy that the
officers were there. Mrs. Nolin did not appear to be in any
physical distress. Officer Kraft’s testimony regarding Mrs.
Nolin’s condition was consistent with Officer Rogers’
testimony; he testified that Mrs. Nolin “looked okay.”

Mrs. Nolin also testified at the suppression hearing. She
testified that she had “a disease that makes me kind of
weird. But [Mr. Nolin] had brought home some dishes that
night and I get in weird moods and, you know, he was just
— he brings home stuff all the time, which I usually
like, and he brought home some dishes and I was just, you
know . . . . I didn’t want to wash the dishes. I didn’t
like the dishes.” Mrs. Nolin explained that in apparent
response to her displeasure, her husband then went into the
backyard and smashed the dishes. While Mr. Nolin was
smashing the dishes, Mrs. Nolin went into their den, watched
television, and went into a Xanax-assisted sleep.[fn1] Mrs.
Nolin testified that she “went in the other room and I gave
him the silent treatment.” Mrs. Nolin was awakened when an
uninvited person, Officer Kraft, entered her room and
searched it. Mrs. Nolin testified that she was scared and
told the officer that her husband was also in the home. She
denied hearing the officers knocking, and she did not give
the officers permission to search her home. In response to
questioning from the court, Mrs. Nolin explained that her
husband had been yelling when he was breaking the dishes.

The trial court denied the motion to suppress the cannabis
found on the dresser. The trial court, as was its
prerogative, disbelieved Mrs. Nolin’s testimony and
determined that the officers had a reasonable basis to be
concerned about the safety of the persons inside the home.

We begin our discussion by noting that we give deference to
the trial court’s factual findings but review its legal
conclusions de novo. Riggs v. State, 918 So. 2d 274 (Fla.
2005). Here, we find no fault with the trial court’s
factual findings, but we find that these facts legally
require suppression. “It is a ‘basic principle of Fourth
Amendment law’ that searches and seizures inside a home
without a warrant are presumptively unreasonable.” Payton
v. New York, 445 U.S. 573, 586 (1980). Because there was a
compelling need to check on the welfare of the occupants,
the officers’ initial warrantless entry into the house was
lawful. See Seibert v. State, 923 So. 2d 460 (Fla. 2006)
(holding that police may enter a residence without a
warrant if there is an objectively reasonable basis to
believe that there is an immediate need for police
assistance for the protection of life or substantial
property interests). Here, the trial court concluded that
there was “ample justification for a limited protective
sweep” because there had been a “long, loud and destructive
disturbance at the residence”; no one from inside the
residence responded to the officers; and the officers had
no knowledge as to how many people were in the residence or
as to the “potential threat that those excited, angry and
destructive people might pose.” In other words, the silence
that followed the “destructive disturbance” planted a
vision of violence within the officers’ minds, and
therefore, exigencies required warrantless entry to
investigate. While this concern supported the initial entry
and a limited sweep for officer safety, once the seed of
concern planted by this silence was dispelled, there was no
justification to conduct the more intrusive search that
produced the cannabis. The law simply does not support the
trial court’s conclusion that the facts here were those
depicting a “justifi[ed]” limited protective sweep. Rather,
the undisputed facts demonstrate that the search that
revealed the cannabis was clearly outside the parameters
authorized by Buie.

In Buie, the Supreme Court recognized two types of
permissible sweeps of a residence following the arrest of a
subject in a home.[fn2] The first “precautionary sweep” may
be performed without probable cause or reasonable suspicion
and extends only to the immediately adjacent spaces to the
place of the arrest, including closets, “from which an
attack could be immediately launched.” Buie, 494 U.S. at
334. Notably, the second “protective sweep” requires
“articulable facts which, taken together with the rational
inferences from those facts, would warrant a reasonably
prudent officer in believing that the area to be swept
harbors an individual posing a danger to those on the arrest
scene.” Id. In either instance, the Supreme Court
emphasized that

such a protective sweep, aimed at protecting the
arresting officers, if justified by the circumstances, is
nevertheless not a full search of the premises, but may
extend only to a cursory inspection of those spaces where
a person may be found. The sweep lasts no longer than is
necessary to dispel the reasonable suspicion of danger and
in any event no longer than it takes to complete the
arrest and depart the premises.

Id. at 335-36 (footnote omitted). There is no bright line
test to determine when one type of permissible sweep ends
and another begins. The totality of facts of each case
drives this determination. Vanslyke v. State, 936 So. 2d
1218 (Fla. 2d DCA 2006).

The logic in Buie is rooted in the analogous intrusion
allowed in Terry v. Ohio, 392 U.S. 1 (1968), where a
nonconsensual pat down for weapons was permitted because it
was “no more than necessary to protect the officer from
harm.” Buie, 494 U.S. at 333. Otherwise, the Fourth
Amendment’s prohibition against unreasonable searches
applies.

At the suppression hearing, the State failed to present
evidence to support the more intrusive protective type
sweep of the Nolins’ home. There was no specific testimony
regarding the size of the house, the furniture, the number
or sizes of the rooms and closets, or any configurations;
testimony even remotely regarding these concerns was
confusing at best. There were also no specific factual
findings on these matters. For example, there was no
evidence that Mr. Nolin’s bedroom was adjacent to or near
the living room where Mr. Nolin was secured and sitting on
a couch. While the limited precautionary search of the
immediate area around Mr. Nolin was permissible without
“articulable facts,” it is clear, even on this confusing
record, that the contraband was not discovered in this
area. Rather, it was discovered as part and parcel of the
“full-blown” protective sweep.

Contraband discovered in plain view during a permissible
protective sweep need not be suppressed; however, “[t]o
support such a search, the police officer must articulate
facts sufficient to warrant a reasonable belief that the
[house] harbored dangerous individuals.” Runge v. State,
701 So. 2d 1182, 1185 (Fla. 2d DCA 1997) (finding that State
did not justify warrantless search as a Buie sweep when
police conducted search just to make sure no one else was
in the apartment and without specific factual basis for
believing dangerous individuals were in the apartment).
Here, neither of the testifying officers identified any
objective fact that led them to believe that anyone other
than the Nolins, let alone an individual of dangerous
propensity, was inside the home. The male and female voices
heard upon arrival were consistent with the number of
individuals found immediately upon entry. The neighbor did
not identify, nor did the officers testify, that more than
two people were inside the home. Clearly, the Nolins
themselves posed no danger to the officers. However, even
if this were not the case, “[t]he facts on which officers
may justify a Buie protective sweep are those facts giving
rise to a suspicion of danger from attack by a third party
during the arrest, not the dangerousness of the arrested
individual.” United States v. Colbert, 76 F.3d 773, 777
(6th Cir. 1996). Moreover, under the facts of this case,
the silent response to the officers’ arrival was a “lack of
information [that] cannot justify the warrantless
[protective] sweep in this case.” Chaves, 169 F.3d at 692.

Thus, the trial court’s finding that the officers did not
know, even if technically true, how many people were
actually inside the home is focused on the wrong inquiry.
The relevant inquiry is whether articulable facts were
proven to support the trial court’s finding suggesting
there were more than the two occupants secured. The answer
is clearly no. Indeed, Officer Kraft testified in
conclusory fashion that the sweep was done because such “is
done anytime law enforcement enters somebody’s home.”
Police policy to routinely perform a protective sweep in
response to a domestic call simply does not pass
constitutional muster. “However, sensible as that may seem,
such a protective measure [as a routine procedure] is only
allowable when the officers have some reasonable grounds to
suspect additional persons may be present. It cannot be
justified routinely.” Newton v. State, 378 So. 2d 297, 299
(Fla. 4th DCA 1979). “This is exactly the kind of ‘mere
“inchoate and unparticularized suspicion or hunch” ‘ that
Buie indicates is insufficient to support a warrantless
sweep.” United States v. Chaves, 169 F.3d 687, 692 (11th
Cir. 1999) (quoting Buie, 494 U.S. at 332 (quoting Terry,
392 U.S. at 27)).

Once the compliant Nolins were safely accounted for and no
articulable facts presented to support the existence of
other individuals, firearms or other weapons, probable
cause, or reasonable suspicion of a crime, the officers had
no right to further search the residence. Therefore, the
protective sweep exceeded the permitted scope established
by Buie. Because the State failed to meet its burden to
demonstrate articulable facts to justify the necessity or
extent of the warrantless protective sweep of Mr. Nolin’s
home, we cannot uphold the search on that basis. [fn3] No
other exceptions to the warrant requirement apply in this
case. Accordingly, when “considered in the context of the
totality of relevant circumstances,” suppression of the
physical evidence seized is required. Vanslyke, 936 So. 2d
at 1222.

Reversed and remanded with directions to discharge Mr.
Nolin on this charge.

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

[fn1] Mrs. Nolin had a prescription for this medication
— which she explained was for her anxiety and panic
disorder.

[fn2] We point out that while Mr. Nolin was not arrested at
the time of the protective sweep, his detention on the
couch causes us to apply the same Buie-type analysis.

[fn3] As commented by Judge Altenbernd in Runge, we too note
that “[w]e are not unmindful of the dangers police face
daily while performing their duties. . . . Our paramount
duty in cases such as this, however, is to determine
whether the facts presented demonstrate that concern for
officer safety justifies an exception to the Fourth
Amendment right to be secure in one’s home against
unreasonable warrantless searches.” Runge, 701 So. 2d at
1186 (citation omitted).