textfiles/drugs/noknock.txt

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE
PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION
OR WITHDRAWAL.

                  STATE of Florida, Petitioner,
                               v.
                   Earl R. BAMBER, Respondent.
                           No. 79,263.
                    Supreme Court of Florida.
                         Jan. 20, 1994.

SHAW.

*1 We have for review State v. Bamber, 592 So.2d 1129 (Fla. 2d DCA
1991), based on conflict with cases from Florida's Third and Fifth
District Courts of Appeal. [FN1]  We have jurisdiction.  Art. V,
s 3(b)(3), Fla. Const. We approve Bamber.

I. FACTS

Detective Kennedy applied for a no-knock warrant on August 18,
1989, to search the residence of Earl R. Bamber.  The proposed
search was premised on the following facts as alleged in Kennedy's
affidavit: - Twice during the preceding two weeks a confidential
informant had bought cocaine from Bamber in his home. - According
to the informant, Bamber retrieved the drugs from an area near the
bathroom. - Detective Kennedy believes that Bamber has the ability
to dispose of the drugs through bathroom facilities. - Detective
Kennedy believes the operation would be "greatly enhanced" if the
warrant were executed in no-knock fashion. [FN2] The magistrate
issued a standard search warrant and attached the affidavit.
Detective Kennedy instructed the Hillsborough County Sheriff's SWAT
team to secure the residence.

At approximately 4:20 p.m., the SWAT team, dressed in military
fatigues and vests emblazoned with the word "SHERIFF," detonated
a bomb outside Bamber's home, a four-bedroom, fourbath, split-level
house in a residential neighborhood.  At the time of the raid,
Bamber, his wife, and minor child, and two commercial repairmen
were inside.  Mr. Wilson, one of the repairman, testified that when
he heard the "BOOM," he went to the front door: Q. Did you hear
anyone knock on the door? A. No, sir.  I was walking out the door?
Q. Okay. What did they do to you? A. Well, I opened the door.  I
had two buckets of water in my hands and they put a gun to my head
and threw me back in the house and slammed me on the ground, and
they wouldn't let me move my head, or nothing. Q. Did they have
something about them, when they came in the door, that indicated
they were Sheriff's Office;  they were law enforcement? A. They
didn't really give me no time to look or nothing.  They threw me
back in the house and my head on the floor. Tile-setter Randy
Rhodes, the second repairman, testified that he was standing on a
ladder in the dining area when he heard the "BOOM": Q. Did you hear
anybody say, "Sheriff's Office, police officers, search warrant"?
A. No. My first thing was to get out of that area.  I moved
directly into the kitchen area. Q. Okay. A. By that time that
individual had come into that area at gunpoint and was pointing a
gun at me.

At that time he did not say nothing, but forcing me to the floor.
Q. Did you know he was a policeman? A. No, I did not know. Q. Okay.
A. I was upset for the fact that someone was pointing a gun at me,
and I was using some, using some language myself and telling
him.... .... [A.] I moved to the back of the kitchen.  That's when
I looked outside and I seen another guy in fatigues, and then
another one, and it was like we were in Vietnam.  I had never seen
anything like that before.

*2 Bamber's wife testified that she too did not know that the men
entering her home were officers;  she believed her home was being
invaded by a gang of robbers.  And Bamber himself testified that
he was in the bedroom watching television when he heard the bomb:
A. It was a real loud explosion.  I stood up and opened the door
to see what was going on, and there was a man that ran through the
door and knocked me down;  hit me with a gun [on] my head. Q. What
was this man wearing? A. Fatigues. Q. Did he identify himself as
"sheriff"? A. No, sir. Q. Okay. Did he have on his person something
you could see that you saw and recognized to be a law enforcement
officer? A. No, sir. Q. Did you hear anyone announce, "police,
Sheriff's Office, law enforcement," anything that would indicate
who this man was coming in your door? A. No. .... A. As soon as he
knocked me down, I got up, and they knocked me down again and broke
my finger.

Detective Kennedy arrived after the occupants had been subdued and
read them the warrant.  During the subsequent search, police found
a small amount of cocaine in Bamber's pants pocket and a small
quantity of marijuana.  Bamber was charged with simple possession
of cocaine and marijuana.  The trial court granted Bamber's motion
to suppress the drugs and the district court affirmed, ruling that
section 933.09, Florida Statutes (1989), requires officers to knock
and announce their presence and purpose before forcibly entering
a residence. The State sought review based on conflict with cases
approving no-knock raids. [FN3]  The State argues that Detective
Kennedy's affidavit reasonably established that Bamber had the
immediate ability to destroy drugs through standard bathroom
facilities and the magistrate was thus justified in issuing a
no-knock search warrant.

The issue before us is twofold:  1) May a magistrate issue a
no-knock warrant for the search of a residence?  2) If not, may
police nevertheless engage in a no-knock search based on exigent
circumstances arising at the scene?

II. NO-KNOCK WARRANTS

No-knock warrants are disfavored under the law and limited largely
to those states that have enacted statutory provisions authorizing
their issuance.  In fact, "[t]he prevailing ... view is that a
magistrate may not issue a so-called no-knock search warrant in the
absence of such a statutory provision."  2 Wayne R. LaFave, Search
and Seizure s 4.8(g) (1987).  No statutory authority exists under
Florida law for issuing a no-knock search warrant.

The reasoning against no-knock warrants is convincing.
Circumstances that may seemingly justify issuance of a no-knock
search warrant may change drastically after issuance but before
execution of the warrant.  Conditions must be assessed at the scene
at the time of entry: While a search warrant must necessarily rest
upon previously obtained information....  Facts existing at the
time of obtaining a warrant may no longer exist at the time of
entry.  Such an emergency, therefore, can be judged only in light
of circumstances of which the officer is aware at the latter
moment. *3 Parsley v. Superior Court, 513 P.2d 611, 614 (Cal.1973).
As a matter of policy, no-knock warrants are disfavored because of
their staggering potential for violence to both occupants and
police, as Congress recently discovered [FN4] and as is apparent
in the present case.  We conclude that in the absence of express
statutory authorization no-knock search warrants are without legal
effect in Florida.

We must now determine whether a no-knock search of a residence may
be lawful based on exigent circumstances arising at the scene.

III. NO-KNOCK SEARCHES

A strong presumption existed against the validity of no-knock
searches at common law.  Benefield v. State, 160 So.2d 706
(Fla.1964).  In fact, it is generally recognized that police have
been required to knock and announce their authority and purpose
before breaking into a home since time immemorial. Id. at 709.

A. THE KNOCK-AND-ANNOUNCE RULE

This Court in Benefield explained the basis for the
knock-and-announce requirement that has governed residential
searches in our state: Entering one's home without legal authority
and neglect to give the occupants notice have been condemned by the
law and the common custom of this country and England from time
immemorial.  It was condemned by the yearbooks of Edward IV, before
the discovery of this country by Columbus.  Judge Prettyman for the
Court of Appeals in Accarino v. United States, discussed the
history and reasons for it.  William Pitt categorized a man's home
as his castle. Paraphrasing one of his speeches in which he
apostrophized the home, it was said in about this fashion:  The
poorest pioneer in his log cabin may bid defiance to the forces of
the crown.  It may be located so far in the backwoods that the sun
rises this side of it;  it may be unsteady;  the roof may leak; the
wind may blow through it;  the cold may penetrate it and his dog
may sleep beneath the front steps, but it is his castle that the
king may not enter and his men dare not cross the threshold without
his permission. This sentiment has moulded our concept of the home
as one's castle as well as the law to protect it.  The law forbids
the law enforcement officers of the state or the United States to
enter before knocking at the door, giving his name and the purpose
of his call.  There 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.  The law so
interpreted is nothing more than another expression of the moral
emphasis placed on liberty and the sanctity of the home in a free
country.  Liberty without virtue is much like a spirited horse, apt
to go berserk on slight provocation if not restrained by a severe
bit. Benefield v. State, 160 So.2d 706, 709 (Fla.1964) (citations
omitted).

Several practical reasons underlie this rule, as noted by Professor
LaFave: *4 Although it has been argued that the protections flowing
from the notice requirement are "somewhat tenuous," this is hardly
the case.  The constitutional requirement of announcement serves
a number of most worthwhile purposes:  (i) "decreasing the
potential for violence";  (ii) "protection of privacy";  and (iii)
"preventing the physical destruction of property."  As to the first
of these, it has been cogently noted that an "unannounced breaking
and entering into a home could quite easily lead an individual to
believe that his safety was in peril and cause him to take
defensive measures which he otherwise would not have taken had he
known that a warrant had been issued to search his home."  As to
the second, notice minimizes the chance of entry of the wrong
premises by mistake and the consequent subjecting of innocent
persons to "the shock, fright or embarrassment attendant upon an
unannounced police intrusion."  And even if there is no mistake as
to the place to be searched, it is still desirable that those
within "know who is entering, why he is entering, and have a few
seconds to prepare for his entry."  The third purpose is equally
valid, for quite obviously a person should ordinarily "be allowed
the opportunity to voluntarily admit the officer into his home"
instead of suffering damage to his property.

Our legislature has codified this knock-and-announce rule in
section 933.09, Florida Statutes (1989), which provides that an
officer may forcibly enter a home to execute a search warrant only
after announcing his or her authority and purpose and being refused
entry: 933.09 Officer may break open door, etc., to execute
warrant.--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 his authority and
purpose he is refused admittance to said house or access to
anything therein. s 933.09, Fla. Stat. (1989).  In addition to its
common law and statutory basis, the rule also has a constitutional
dimension, as explained below.

B. EXIGENT CIRCUMSTANCES

Although a strong presumption exists against the validity of a
no-knock search, such searches are lawful when circumstances at the
scene constitute an emergency that meets certain narrowly
prescribed conditions.  The United States Supreme Court addressed
this issue in Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10
L.Ed.2d 726 (1963).  There, the Court narrowly approved a no- knock
search where a drug suspect had deliberately evaded police
surveillance just prior to the officers' unannounced entry into the
suspect's home.  Four justices recognized an exigent circumstances
exception to the knock-and- announce rule and concluded that the
Fourth Amendment was not violated under the particular
circumstances of that case: Here justification for the officers'
failure to give notice is uniquely present.  In addition to the
officers' belief that Ker was in possession of narcotics, which
could be quickly and easily destroyed, Ker's furtive conduct in
eluding them shortly before the arrest was ground for the belief
that he might well have been expecting the police.  We therefore
hold that in the particular circumstances of this case the
officers' method of entry, sanctioned by the law of California, was
not unreasonable under the standards of the Fourth Amendment as
applied to the States through the Fourteenth Amendment. *5 Id. at
40-41 (footnote omitted).  A fifth justice, Justice Harlan, agreed
that the entry was lawful, but disagreed that the Fourth Amendment
was even implicated, opting instead for a fundamental fairness
analysis.  And the remaining four justices felt that the Fourth
Amendment had been violated.  The dissenters set forth the
definitive formulation of exigent circumstances: Even if probable
cause exists for the arrest of a person within, the Fourth
Amendment is violated by an unannounced police intrusion into a
private home, with or without an arrest warrant, except (1) where
the persons within already know of the officers' authority and
purpose, or (2) where the officers are justified in the belief that
persons within are in imminent peril of bodily harm, or (3) where
those within, made aware of the presence of someone outside
(because, for example, there has been a knock at the door), are
then engaged in activity which justifies the officers in the belief
that an escape or the destruction of evidence is being attempted.
Id. at 47 (Brennan, J., dissenting).

One year after Ker was decided, this Court ruled that our state
knock-and- announce statute was violated where police conducted an
unannounced entry to make an arrest in connection with a bribery
scheme.  Benefield v. State, 160 So.2d 706 (Fla.1964).  We noted
that because our statute represents a codification of the common
law rule against no-knock searches the statute embraces the three
common law exceptions recognized by the dissenters in Ker, as well
as a fourth: As we interpret the common law ... we conclude that
even if probable cause exists for the arrest of a person, our
statute is violated by an unannounced intrusion in the form of a
breaking and entering any building, including a private home,
except (1) where the person within already knows of the officer's
authority and purpose;  (2) where the officers are justified in the
belief that the persons within are in imminent peril of bodily
harm;  (3) if the officer's peril would have been increased had he
demanded entrance and stated the purpose, or (4) where those within
made aware of the presence of someone outside are then engaged in
activities which justify the officers in the belief that an escape
or destruction of evidence is being attempted. Id. at 710.  Because
the police conduct failed to fit within any of the exceptions, we
held the intrusion unlawful.

C. THE PARTICULARITY APPROACH

As noted above, police generally are excused from following the
knock-and- announce rule where the destruction of evidence is
imminent--a circumstance arising often in drug cases.  The State
in the present case urges us to expand this exception to embrace
the "blanket approach" adopted by the district courts in Armenteros
v. State, 554 So.2d 574 (Fla. 3rd DCA 1989), and State v. Bell, 564
So.2d 1235 (Fla. 5th DCA 1990), which excuses forcible entry any
time a small quantity of drugs is believed to be present in a
residence with standard plumbing--regardless of immediacy of
destruction.  This approach, however, has been rejected by an
increasing number of courts in favor of the position articulated
by Chief Justice Traynor in People v. Gastelo, 432 P.2d 706
(Cal.1967): *6 The Attorney General contends that unannounced
forcible entry to execute a search warrant is always reasonable in
narcotics cases, on the ground that narcotics violators normally
are on the alert to destroy the easily disposable evidence quickly
at the first sign of an officer's presence. We do not agree with
this contention.  Neither this court nor the United States Supreme
Court has held that unannounced forcible entries may be authorized
by a blanket rule based on the type of crime or evidence
involved.... .... ... [W]e have excused compliance with the statute
in accordance with established common law exceptions to the notice
and demand requirements on the basis of the specific facts
involved.  No such basis exists for nullifying the statute in all
narcotics cases, and, by logical extension, in all other cases
involving easily disposable evidence.  The statute does not contain
the seeds of such far-reaching self-destruction. Under the Fourth
Amendment, a specific showing must always be made to justify any
kind of police action tending to disturb the security of the people
in their homes.  Unannounced forcible entry is in itself a serious
disturbance of that security and cannot be justified on a blanket
basis.  Otherwise the constitutional test of reasonableness would
turn only on practical expediency, and the amendment's primary
safeguard--the requirement of particularity--would be lost.  Just
as the police must have sufficiently particular reason to enter at
all, so must they have some particular reason to enter in the
manner chosen. Id. at 708.  See also Wayne R. LaFave, Search and
Seizure, s 4.8(c) (2d ed.1987).  This "particularity approach,"
which requires more than mere possession of drugs within a
residence, is consistent with both the plurality and dissenters in
Ker, wherein the Court ruled that the officers' unannounced entry
was justified under "the particular circumstances of this case."
Ker, 374 U.S. at 40.

Florida's Fourth District Court of Appeal eschewed the
particularity approach in favor of the blanket approach in the key
case of State v. Clarke, 242 So.2d 791 (Fla. 4th DCA 1970), cert.
denied, 246 So.2d 112 (Fla.1971). There, the district court used
a two-step analysis.  First, it expanded the four Benefield
exceptions noted above to include a fifth, the so-called Clarke
exception:  The knock-and-announce rule may be dispensed with in
situations not just where evidence "is being" destroyed but where
officers reasonably believe it "would be" destroyed.  Second, the
court adopted the blanket approach for assessing the reasonableness
of the officers' belief: Time and experience have shown us that the
small amounts of drugs usually involved in drug law violations may
be easily flushed down a toilet or other drain, and that this is
frequently done....  Suspects have no constitutional right to
destroy or dispose of evidence, and no basic constitutional
guaranties are violated because an officer succeeds in getting to
a place where he is entitled to be more quickly than he would had
he complied with the statute. *7 Where, as here, the evidence
sought consists of relatively small amounts of contraband, and
where a nearby bathroom or kitchen provides for easy disposal, it
is not unreasonable for the officers to conclude that an attempt
will be made to dispose of the evidence if they announce their
presence to those inside the room and thus frustrate the purpose
of the arrest and seizure.  Unannounced entry under such
circumstances is lawful and does not violate the constitutional
rights of any person. Id. at 795.

The Florida Supreme Court recognized the Clarke exception, but
declined to apply the blanket approach, favoring instead a
particularity approach requiring a showing of "reasonable grounds"
for believing that evidence would be "immediately" destroyed: An
appellate court is not justified in concluding there was such an
exception as a matter of law when the record is devoid of any
testimony by police officers or other competent evidence showing
they had reason to fear at time of entry the destruction of
evidence....  Essential to such proof in this case is testimony by
the arresting officers or other competent evidence that they had
reasonable grounds to believe the marijuana within the house would
be immediately destroyed if they announced their presence.  Absent
such evidence, the fruits of any search conducted pursuant to such
arrest must be considered illegally obtained. Earman v. State, 265
So.2d 695, 697 (1972).  See also State v. Kelly, 287 So.2d 13, 17
(Fla.1973) (Clarke exception endorsed and case remanded so trial
court could make particularized finding as to whether there existed
"good reason to fear at time of entry the destruction of
evidence.").

We reaffirm our conclusion in Earman that police may engage in a
no-knock search of a residence where officers have "reasonable
grounds to believe the [contraband] within the house would be
immediately destroyed if they announced their presence."  Earman,
265 So.2d at 697.  We find the particularity approach applied by
this Court in Earman and Kelly and adopted by a majority of courts
preferable to Clarke 's blanket approach for assessing the
reasonableness of an officer's belief.  Accordingly, we hold that
an officer's belief in the immediate destruction of evidence must
be based on particular circumstances existing at the time of entry
and must be grounded on something more than his or her generalized
knowledge as a police officer and the presence of a small quantity
of disposable contraband in a home with standard plumbing. In
short, forcible entry is lawful only under exceptional
circumstances, where no reasonable alternative is available.

IV. CONCLUSION

The search in the present case is invalid under virtually any
standard. First, according to the warrant's plain language, it is
a standard, not a no- knock, warrant.  Even if it were a no-knock
warrant, such a warrant is without legal effect in Florida, as
explained above. [FN5]  Second, no exigent circumstances appear in
the record to excuse police from following section 933.09's
dictates:  Nothing shows that police had reason to fear at the time
of entry that Bamber was likely to destroy evidence, [FN6] or even
that a readily disposable quantity of drugs was involved. [FN7]
And third, the record contains no evidence whatever showing that
police considered any reasonable alternatives to the full-scale
SWAT team invasion of the home involving two innocent workmen and
a child.

*8 In sum, to rule as the State asks and create a blanket exception
to the knock-and-announce rule for all drug cases would be
tantamount to fashioning a judge-made exception that would swallow
the legislature's rule.

Accordingly, we approve Bamber. [FN8]

It is so ordered.

BARKETT, C.J., and OVERTON, McDONALD, GRIMES, KOGAN and HARDING,
JJ., concur.

2 Wayne R. LaFave, Search and Seizure s 4.8(a) (2d ed.1987)
(footnote omitted).

FN1. State v. Delasierra, 614 So.2d 564 (Fla. 3rd DCA 1993);
Armenteros v. State, 554 So.2d 574 (Fla. 3rd DCA 1989);  State v.
Thomas, 604 So.2d 1277 (Fla. 5th DCA 1992), review pending, No.
80,624 (Fla. Dec. 23, 1992);  State v. Bell, 564 So.2d 1235 (Fla.
5th DCA 1990).

FN2. The affidavit alleged that Bamber kept a large dog in the
house and the safety of the occupants and officers would be
enhanced by no-knock execution of the warrant.  The record,
however, contains no indication whatsoever that Bamber's dog was
dangerous in any way or was anything other than a family pet.
Accordingly, we do not address the safety issue.

FN3. See supra note 1.

FN4. See Charles P. Garcia, The Knock and Announce Rule:  A New
Approach to the Destruction-of-Evidence Exception, 93 Colum.
L.Rev. 685, 703-05 (1993) (footnotes omitted), which contains the
following passage: In 1970, the Nixon administration declared a
"War on Drugs."  The Justice Department urged Congress to enact a
comprehensive anti-drug strategy and suggested that a general
"no-knock" provision could constitutionally be added to aid in
enforcement.  Strict police compliance with the "knock and
announce" rule allowed drug dealers to flush evidence down the
toilet, often frustrating meticulous police investigations, denying
police the tactical element of surprise, and increasing the peril
police officers face in executing search warrants in the often
violent drug trade.  The Ninety- first Congress concluded that
announced entries posed a great problem in narcotics cases and
passed a controversial "no-knock" warrant provision as part of the
Comprehensive Drug Abuse, Prevention, and Control Act of 1970. The
new legislation authorized federal "no-knock" warrants when the
issuing magistrate found probable cause to believe that notice
might allow suspects to destroy evidence.  Congress also enacted
a broader provision authorizing "no-knock" warrants for the
District of Columbia. .... The "no-knock" experience lasted four
years and demonstrated the inevitability of many of the dangers
foreseen in 1970.  During the four- year period when "no-knock"
warrants were issued, horror stories were legion.  Over one hundred
newspaper articles, reproduced in the Congressional Record,
described a repeated scenario:  terrified citizens, thinking
themselves targets of burglary or more frightening acts, discovered
that they were instead being searched by law enforcement officers
who had entered their homes without notice.  In an exhaustive
eight-week investigation by The New York Times, consisting of
interviews with victims of "no-knock" raids, reporters found that
"[i]nnocent Americans around the country have been subject to
dozens of mistaken, violent and often illegal police raids by
local, state and Federal narcotics agents in search of illicit
drugs and their dealers."  In Florida, complaints of police
harassment during drug searches were so overwhelming that Legal
Services of Greater Miami was unable to handle the caseload.  In
Virginia, a terror-stricken woman, a previous burglary victim, shot
and killed a young police officer executing a "no-knock" warrant
as he burst into her bedroom in the middle of the night.  In
California, one father was shot through the head as he sat in a
living room cradling his infant son.  Both the woman and the man
were totally innocent of any wrongdoing. The federal "no-knock"
warrants were so disruptive that Congress repealed them four years
later.  On July 11, 1974, the Senate voted by a two-to-one margin
to repeal the "no-knock" provision of the 1970 Act, once again
making "no-knock" searches illegal under the federal
"knock-and-announce" rule.

FN5. We find the State's "good faith" claim to be without merit in
light of section 933.09's clear language and the fact that nothing
in the warrant itself authorizes police to dispense with section
933.09's requirements.

FN6. Although the affidavit attached to the warrant says that
"Bamber has retrieved cocaine from an area near the bathroom,"
there is nothing in the affidavit to show that the proximity of
drugs to the bathroom is anything but happenstance.  The residence
was a conventional four-bedroom, four-bath home, and virtually any
room in the home would have been "near a bathroom."

FN7. The warrant and affidavit fail to mention the quantity of
drugs involved.

FN8. We disapprove Delasierra, Armenteros, Thomas, and Bell. See
supra note 1. To the extent it endorses the blanket approach for
no-knock searches, we also disapprove Clarke.

END OF DOCUMENT