FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF
Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief,
and Michael Layton Schaub, Assistant Attorney General,
Tallahassee, Florida, for Petitioner
William J. Sheppard, Elizabeth Louise White, Matthew R.
Kachergus, Jesse Barron Wilkison, and Bryan Everett DeMaggio
of Sheppard, White, Kachergus & DeMaggio, P.A.,
Jacksonville, Florida, for Respondent
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.
AND PROCEDURAL BACKGROUND
factual events of the incident began in the early evening of
Saturday, April 17, 2010, at the home of Justin McCumbers,
Brandon Junk, and Eric Blair. At the time, Christopher Markus
had an agreement under which he would live in the home for
two to four nights per week in a spare bedroom and pay $400
rent per month. McCumbers testified that Markus was staying
overnight on the evening of the incident, as Markus normally
stayed overnight during weekends.
night, Markus, McCumbers, Junk, and Blair invited Joseph
Winters, Cassie Gurley, and Julia Martin to their
garage/recreation room to socialize. The interior of this
space was initially designed as a garage under the home which
had been transformed into a common multi-purpose living or
recreational room. The inside of the room contained two
couches, one against the back wall and another against the
right-side wall. A pool table was located in the center of
the room. Located between the pool table and the back-wall
couch was a small coffee table. The room also housed a small
motorcycle and two grills.
the chain of events leading to the home entry, detention, and
arrest of Markus were in dispute during trial, the
officer's recollection of the facts are presented first,
followed by the testimony of the witnesses who were present
in the recreation room gathering that night. Our analysis
must consider the totality of the facts, not simply aspects
that may tend toward a predetermined result.
12:20 a.m. on April 18, 2010, Officer Roger David Prendergast
and Officer R. Edu were dispatched to respond to a noise
disturbance at a residence in Jacksonville Beach. The
reported disturbance had already dissipated by the time the
officers arrived. Prendergast noticed Markus and two other
males standing outside a nearby residence, near a pickup
truck parked along a public road. After observing that the
two other males with Markus appeared to be drinking beer,
Prendergast approached the men with the intent to instruct
them to pour out their beverages. Prendergast testified that
as he walked closer to Markus, he smelled marijuana. Markus
then purportedly exhaled away from Prendergast and flicked
his cigarette he was smoking onto the ground outside the home
behind the truck on the street. The dissent calls on factors
not supported by or part of this record. Although Prendergast
conceded that the smell of marijuana is not uncommon in
Jacksonville Beach, and the only light available came from
the street lights and the light emanating from the recreation
room, Prendergast believed that Markus' cigarette
contained marijuana. The exaggerated circumstances suggested
by the dissent are not found in the record before us. As
Prendergast approached Markus, he identified himself as law
enforcement and asked Markus to stop to detain him and
confiscate the marijuana. At this point, Prendergast was ten
feet away from Markus. In response, Markus raised both hands
and began to walk backward. Prendergast repeatedly instructed
Markus to stop, but Markus allegedly turned around and ran
into the opening to the garage/recreation room. Rather than
stopping to collect the allegedly illegal marijuana
cigarette, both officers followed Markus into the home. There
is no suggestion in this record to support the speculation of
the dissent for any other probable cause factors.
further testified that once inside the home, Markus had
situated himself on the right-side couch and began to resist
the officers as they attempted to "take him down."
Three additional officers arrived at the scene, including
Officer T. Hawes. The officers pulled Markus off of the couch
and onto the ground, face- down. Prendergast straddled Markus
to apply the handcuffs, turned Markus on his side, and was
alerted by Hawes that there was a black semiautomatic pistol
in Markus' waistband. Hawes retrieved the pistol and
removed the ammunition. Prendergast proceeded to handcuff
Markus and had him patted down. Edu and Hawes then escorted
Markus to the police vehicle. It was not until after
the officers entered the home without a warrant, physically
handled Markus, and arrested Markus that Prendergast returned
to the area near the pick-up truck to collect the marijuana
testified that neither he nor Edu had a warrant to enter the
home, and they did not seek consent. In addition, Prendergast
and Hawes stated that they did not observe or participate in
any search of the residence beyond the garage/recreation
Prendergast admitted that his arrest report totally failed to
mention that Markus had turned around and fled into the home,
but instead stated: "The defendant immediately began to
walk backwards in attempt to move away from
me." (Emphasis supplied.)
McCumbers, who was in the home, testified that earlier that
evening, he handed Markus a tobacco cigarette and lit it for
him while in the recreation room. Markus then walked outside
to talk to two young men who were standing along the road,
very close to their vehicles which were parked in the
driveway. McCumbers then observed two law enforcement
officers with a flashlight approach Markus and the two other
men. Markus raised his hands and asked, "What did I do?
What did I do?" McCumbers observed Markus, who stands at
six feet five inches and weighs almost 300 pounds, walking
backward at a slow pace until he reached the couch inside the
recreation room. The officers followed.
officers had their Tasers drawn by the time they entered the
recreation room. Markus sat down on the couch, hands still in
the air. The officers instructed Markus to stand, but Markus
replied that he could not stand due to knee
officers proceeded to physically remove Markus from the
couch, causing Markus to hit the pool table, fall backward,
and strike one of the grills. The officers then pushed Markus
forward, and he landed on the floor in front of the back-wall
couch. McCumbers testified that Markus spun around like a
human top. McCumbers observed the officer with his knee in
Markus' lower back, holding both of his arms, and his
foot on Markus' ear. At that point, a gun was recovered
from Markus' area. As the officers attempted to handcuff
Markus, Markus complained that he was experiencing intense
pain in his wrist.
point during the scuffle, Eric Blair's motorcycle was
nearly knocked over, which prompted Blair to move toward the
motorcycle to prevent it from falling. An officer shoved
Blair against the wall and into Brandon Junk's guitar.
Junk reactively arose from the couch, but was met with an
officer's flashlight to his throat.
Julia Martin had been upstairs in the restroom and heard a
loud commotion. Martin testified that three officers ascended
the stairs with their guns drawn and shouted, "Is anyone
up there?" Martin made her presence known, and the
officers pulled her out of the bathroom, threw her against
the wall, and searched her. Martin further stated that the
officers proceeded to search the upstairs bedrooms before
escorting her downstairs to the recreation room, where she
saw Markus on the ground with an officer standing over him.
also confirmed that he saw an officer enter the interior of
the residence while Markus was handcuffed. Upon reentering
the home, McCumbers stated that he could see that the desk
drawers, cabinets, and closet drawers had all been searched.
Markus was detained, McCumbers observed an officer return
from the direction of the street holding the remainder of an
alleged marijuana cigarette.
was subsequently charged with possession of a firearm by a
convicted felon, possession of less than twenty grams of
cannabis, and resisting an officer without violence. Markus
pled not guilty, and later filed a motion to suppress the
evidence seized inside of the recreation room on the night of
the arrest. Specifically, Markus argued that the firearm
should not be admitted into evidence because it was obtained
by the officers in violation of the Fourth Amendment of the
United States Constitution and article I, section 12 of the
Florida Constitution. A hearing was subsequently held to
address the motion to suppress, where Officer Prendergast
testified on behalf of the State and Justin McCumbers
testified on behalf of Markus.
the hearing, the trial court issued an order denying
Markus' motion to suppress. In its order, the trial court
found that Prendergast's testimony that Markus turned
around and fled into the home was more credible than
McCumber's testimony that Markus walked backwards into
the recreation room. The trial court also found that
Prendergast observed Markus smoking a cigarette, and that
when Markus exhaled smoke, Prendergast detected a strong
smell of marijuana. Beyond that, the trial court did not make
any additional findings of historical facts.
trial court determined that Prendergast and Edu were
justified in pursuing Markus once he turned and ran. Further,
the court found that the pursuit qualified as a valid
exception, or exigent circumstance, to the Fourth
Amendment's prohibition of unreasonable warrantless
searches and seizures because it was a "hot"
pursuit (i.e., the pursuit was continuous and immediate). The
court relied on the district court cases State v.
Brown, 36 So.3d 770 (Fla. 3d DCA 2010), disapproved
on other grounds by State v. Cable, 51 So.3d 434 (Fla.
2010); Ulysse, 899 So.2d 1233; and Gasset v.
State, 490 So.2d 97 (Fla. 3d DCA 1986), to conclude that
hot pursuit of a fleeing misdemeanant is permissible when the
crime is punishable by a jail sentence. A multi-day trial
trial, the jury was instructed that the State needed to prove
two elements beyond a reasonable doubt to convict Markus: (1)
that Markus had been convicted of a felony, and (2) that
after the conviction, Markus "knowingly owned, had in
his care, custody, possession, or control a firearm."
hearing the testimony of Officers Prendergast and Hawes, two
expert witnesses,  and witnesses to the incident,
jury found Markus guilty of possession of a firearm by a
sought review of the trial court decision in the First
District Court of Appeal. The district court ultimately
reversed, concluding that the motion to suppress should have
been granted. Markus, 160 So.3d at 490.
district court determined that once Markus crossed the
threshold into the bottom floor room of his home, the Fourth
Amendment became implicated. Id. at 490. The
district court noted that the Florida Supreme Court has
expressed the view that absent exigent circumstances, the
threshold of a person's home may not be crossed.
Id. at 491 (citing Riggs v. State, 918
So.2d 274 (Fla. 2005)). Further, the district court reasoned
that the exigent circumstance of hot pursuit is usually
limited to the pursuit of fleeing felons, "because the
seriousness of the crime is more likely to support the
emergency nature of 'exigent circumstances.' "
on the United States Supreme Court decision in Welsh v.
Wisconsin, 466 U.S. 740 (1984), the district court below
recognized that the gravity of the offense which has
generated police action is an important factor in determining
whether hot pursuit applies. Markus, 160 So.3d at
491. Specifically, the district court noted that the United
States Supreme Court stated in Welsh that there is a
presumption of unreasonableness that the State must rebut
when a search is conducted in a home without a warrant, and
that presumption is difficult to rebut when the offense is
minor. Id. (citing Welsh, 466 U.S. at 750).
Likewise, the district court noted that this Court in
Riggs stated that to rebut the presumption of
unreasonableness, the State must demonstrate that there is a
grave emergency that has made a warrantless search
necessary to preserve the safety of the police and the
community. Id. at 492 (citing Riggs, 918
district court distinguished Gasset, in which hot
pursuit was found applicable to an offense that did not rise
to the level of a felony, because that case involved a
dangerous high-speed chase. Id. at 493. Here, the
district court concluded that the State totally failed to
present evidence that the safety of the officers and the
community or the preservation of the evidence was at risk.
Id. The court reasoned that the police could have
retrieved the alleged marijuana cigarette from the ground
without entering the home. Id. Moreover, the court
below expressed concern that to hold that law enforcement may
pursue any misdemeanant suspect simply because the offense
imposes jail time would render the Fourth Amendment
meaningless. Id. Accordingly, the district court
reversed both the denial of the motion to suppress and the
conviction. Id. at 489-90.
question presents a pure question of law and is, therefore,
subject to de novo review. See Jackson-Shaw Co. v.
Jacksonville Aviation Auth., 8 So.3d 1076, 1084-85 (Fla.
2008). The conflict we must now resolve between the decision
below and Ulysse is the result of a misunderstanding
of United States Supreme Court and Florida precedent in the
arena of Fourth Amendment home searches and arrests. Contrary
to the understanding of the Third District in Ulysse
and the State, the Fourth Amendment does not permit a home
search and arrest by hot pursuit of a nonviolent misdemeanant
simply because the nonviolent offense for which there was
probable cause was jailable. The dissent formulates an
analysis beyond that of the parties in this proceeding below.
Ulysse, law enforcement engaged in the pursuit of a
stolen vehicle. 899 So.2d at 1234. Once the vehicle stopped,
the driver and passenger of the vehicle fled on foot.
Id. The passenger ran into the home of a stranger,
who turned out to be Ulysse. Id. The officers
followed the passenger into the house and discovered
narcotics and a firearm. Id. Ulysse was charged with
cocaine possession with intent to sell, resisting an officer
without violence, and possession of a firearm by a convicted
felon. Id. The trial court denied Ulysse's
motion to suppress, and the Third District affirmed.
addition to its reasoning that "a reasonable officer
would have probable cause to believe that the passenger had
participated in the theft of the car, or at the least,
trespass in a conveyance, " the court relied on
Gasset to support the conclusion that "[h]ot
pursuit of a fleeing misdemeanant is permissible where
the misdemeanor is punishable by a jail sentence."
Id. (emphasis supplied) (citation
omitted). This statement is in conflict with the
holding in the case below, where a jailable offense did not
rise to the exigency of hot pursuit, and directly conflicts
with the conclusion in the case below that "[the First
District] cannot accept the State's position that
officers may freely pursue every misdemeanor or traffic
suspect into his or her home without a warrant so long as
the offense is punishable by any jail time."
Markus, 160 So.3d at 493 (emphasis supplied).
reviewing the Third District's opinion in
Gasset, we conclude that Gasset does not
support the proposition that any jailable offense
authorizes the exigent circumstance of hot pursuit to justify
a warrantless entry. The Gasset court never
delineated nonjailable versus jailable offenses as a
bright-line boundary that justifies hot pursuit when crossed;
the Gasset court merely pointed out, among other
distinguishing factors, that the offense in Welsh
was nonjailable. Therefore, the Gasset court's
primary concern was directed to the violence of the offense,
as opposed to whether it was jailable. Indeed, in its holding
the Gasset court emphasized the danger that the
defendant's crime imposed:
Gasset's actions in this case were of sufficient gravity
to justify the de minimis intrusion involved here.
He jeopardized his own safety, the safety of others, and that
of the general public. By his own actions, he cast aside any
fourth amendment shield which ...