Need for warrantless entry is based on objective evidence under Brigham City

Police received an uncorroborated anonymous tip about drugs and guns being kept in proximity to children. They went to defendant’s house to do a knock and talk, and she would not let them in. Back up arrived, and they knocked again and decided to arrest her based on the marijuana smell in her hair. Officers entered and searched for children, not finding any. One searched what he believed was a child’s backpack for a clue as to location of children and found marijuana. The search lacked justification and was suppressed. VanSlyke v. State, 936 So. 2d 1218 (Fla. App. 2d Dist. September 13, 2006):

Whether a warrantless search is justified by such an emergency does not turn on the “subjective motivation” of the police. [Brigham City, 126 S. Ct.] at 1948. “An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify [the] action.” Id. (some internal quotation marks omitted) (alteration in original). Accordingly, “[the] police may enter a residence without a warrant if an objectively reasonable basis exists for the [police] to believe that there is an immediate need for police assistance for the protection of life.” Seibert v. State, 923 So. 2d 460, 468 (Fla. 2006). “In other words, where safety is threatened and time is of the essence, . . . ‘the need to protect life and to prevent serious bodily injury provides justification for an otherwise invalid entry.'” Riggs v. State, 918 So. 2d 274, 279 (Fla. 2005) (quoting Arango v. State, 411 So. 2d 172, 174 (Fla. 1982)). “[A] key ingredient of the exigency requirement is that the police lack time to secure a search warrant.” Rolling v. State, 695 So. 2d 278, 293 (Fla. 1997). 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.” Id. “[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).

A phone call reporting child abuse may, of course, provide the basis for conducting a warrantless entry to render emergency assistance to an injured child or to protect a child from imminent injury. But for a report to justify a warrantless entry, the report–considered in the context of the totality of relevant circumstances–must provide “an objectively reasonable basis” for the police “to believe that there is an immediate need for police assistance,” Seibert, 923 So. 2d at 468, to “render emergency assistance” to an injured child or to protect a child from a threat of “imminent injury,” Brigham City, 126 S. Ct. at 1947.

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In the instant case–unlike Boggess–the record is devoid of any details that would provide support for the conclusion that the report of abuse was reliable. Even though the identity of the person making the report was known to DCF, there is no showing concerning the basis for the informant’s knowledge of the supposedly threatening circumstances. There is nothing in the record to show that the information provided by the citizen informant was based on the informant’s personal knowledge. Although information provided by a “‘citizen-informant'” is ordinarily considered to be “at the high end of the tip-reliability scale,” State v. Maynard, 783 So. 2d 226, 230 (Fla. 2001), a particular “informant’s ‘veracity’ or ‘reliability’ and his ‘basis of knowledge'” must always be “understood as relevant considerations in the totality-of-the-circumstances analysis” that guides the determination of the reasonableness of reliance by the police on the information provided by the informant, Gates, 462 U.S. at 233. Here, the record shows no basis in the abuse report itself or in the surrounding circumstances for crediting the report of abuse.