FL: Hot pursuit for misd possession of MJ and nonviolent fleeing does not permit warrantless entry into the home

Hot pursuit for misdemeanor possession of marijuana and nonviolent fleeing does not permit a warrantless entry into the home. State v. Markus, 2017 Fla. LEXIS 233 (Jan. 31, 2017), aff’g Markus v. State, 160 So. 3d 488 (Fla. 1st DCA 2015):

This case is before the Court to review the decision of the First District Court of Appeal in Markus v. State, 160 So. 3d 488 (Fla. 1st DCA 2015). This case concerns a warrantless home entry along with a search and seizure and a motion to suppress material seized by law enforcement. The issue we must address today is whether the exigent circumstance exception of hot pursuit justifies a warrantless home entry, search, and arrest when the underlying conduct for which there is probable cause is only a nonviolent misdemeanor and the evidence of the alleged misdemeanor is outside the home. The dissent prefers to distort the facts to support the government invasion into the home, but our analysis must rely on the actual facts, not a predetermined outcome. The State asserts that the decision of the First District Court of Appeal expressly and directly conflicts with Ulysse v. State, 899 So. 2d 1233 (Fla. 3d DCA 2005). We conclude that conflict exists between these decisions. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The totality of the circumstances must be taken into account in evaluating Fourth Amendment cases, and we hold that a warrantless home entry, accompanied by a search, seizure, and arrest is not justified by hot pursuit when the underlying conduct for which there is alleged probable cause is a nonviolent misdemeanor and the evidence related thereto is outside the home. There is no destruction of evidence issue involved here as the dissent would use to divert a proper analysis of the law.

. . .

The State further petitions us to hold that we need not look to anything other than the laws to perfect arrest, without regard to how miniscule the violation may be. This is not a holding that the Fourth Amendment can support. The Fourth Amendment has never been interpreted this broadly in the past, and we will not do so today. To better grasp the importance of adhering to the boundaries set forth by the Fourth Amendment, it is helpful to examine the state of history that led to creation of this constitutional right. The United States Supreme Court painted a picture of the turbulent times which led to our nation’s founding—a time wrought with frustration over England’s unrestricted authority over the colonists—in Stanford v. Texas, 379 U.S. 476 (1965):

The[] … words [of the Fourth Amendment] are precise and clear. They reflect the determination of those who wrote the Bill of Rights that the people of this new Nation should forever ‘be secure in their persons, houses, papers, and effects’ from intrusion and seizure by officers acting under the unbridled authority of a general warrant. Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws. They were denounced by James Otis as “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book,” because they placed “the liberty of every man in the hands of every petty officer.” The historic occasion of that denunciation, in 1761 at Boston, has been characterized as “perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. ‘Then and there,’ said John Adams, ‘then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.’” Boyd v. United States, 116 U.S. 616, 625 [(1886)].

379 U.S. at 481-82. The Court in Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294 (1967), also recognized, “[The Fourth Amendment] was a reaction to the evils of the use of the general warrant in England and the writs of assistance in the Colonies, and was intended to protect against invasions of ‘the sanctity of a man’s home and the privacies of life,’ from searches under indiscriminate, general authority.” 387 U.S. at 301 (citation omitted) (quoting Boyd, 116 U.S. at 630).

Years later, in Payton v. New York, 445 U.S. 573 (1980), the United States Supreme Court recalled the history of the drafting of the Fourth Amendment itself, and discussed the fact that Congress’ specific concern with the sanctity of the home shaped the Fourth Amendment that we know today:

[A]s originally proposed in the House of Representatives, the draft contained only one clause, which directly imposed limitations on the issuance of warrants, but imposed no express restrictions on warrantless searches or seizures. …

It is thus perfectly clear that the evil the Amendment was designed to prevent was broader than the abuse of a general warrant. Unreasonable searches or seizures conducted without any warrant at all are condemned by the plain language of the first clause of the Amendment. Almost a century ago the Court stated in resounding terms that the principles reflected in the Amendment “reached farther than the concrete form” of the specific cases that gave it birth, and “apply to all invasions on the part of the government and its employés of the sanctity of a man’s home and the privacies of life.”
445 U.S. at 583-85 (footnote omitted) (quoting Boyd, 116 U.S. at 630).

With this rich history in mind, the United States Supreme Court has consistently hailed the sanctity of one’s home as a right to be fervently guarded, and has notably used strong language in doing so. In Florida v. Jardines, 133 S. Ct. 1409 (2013), the Court explained, “At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’” Id. at 1414 (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)). Similarly, the Court in Randolph reasoned, “Since we hold to the ‘centuries-old principle of respect for the privacy of the home,’ ‘it is beyond dispute that the home is entitled to special protection as the center of the private lives of our people.’” Randolph, 547 U.S. at 115 (citation omitted) (quoting Wilson v. Layne, 526 U.S. 603, 610 (1999), and Minnesota v. Carter, 525 U.S. 83, 99 (1998) (Kennedy, J., concurring)). In fact, the Court has repeatedly referred to the invasion of the privacy of the home as the “chief evil” that the Fourth Amendment was created to protect. See, e.g., Payton v. New York, 445 U.S. 573, 585-86 (1980) (“As the Court reiterated just a few years ago, the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ And we have long adhered to the view that the warrant procedure minimizes the danger of needless intrusions of that sort.” (quoting United States v. U.S. Dist. Court, 407 U.S. 297, 313 (1972))); see also New York v. Harris, 495 U.S. 14, 18 (1990) (“Payton nevertheless drew a line at the entrance to the home. This special solicitude was necessary because ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’” (quoting Payton, 445 U.S. at 585)); Welsh, 466 U.S. at 748 (“It is axiomatic that the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’” (quoting U.S. Dist. Court, 407 U.S. at 313)); Michigan v. Summers, 452 U.S. 692, 702 n.13 (1981) (quoting U.S. Dist. Court, 407 U.S. at 313, and Payton, 445 U.S. at 585-86).

Of course, the Court has acknowledged that with this unfettered protection of the rights of the American citizen comes certain necessary sacrifices. …

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