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State v. Markus

Supreme Court of Florida

January 31, 2017



          Pamela 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

          LEWIS, J.

         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 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.

         That 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.

         Because 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.

         Officer Testimony

         At 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.

         Prendergast 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 cigarette.

         Prendergast 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 room.

         Finally, 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.)

         Witness Testimony

         Justin 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.

         The 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 problems.[1]

         The 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.

         At one 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.

         Meanwhile, 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.

         McCumbers 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.

         After Markus was detained, McCumbers observed an officer return from the direction of the street holding the remainder of an alleged marijuana cigarette.

         Trial Court Proceedings

         Markus 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.

         Following 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.

         The 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 followed.

         During 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."

         After hearing the testimony of Officers Prendergast and Hawes, two expert witnesses, [2] and witnesses to the incident, [3] the jury found Markus guilty of possession of a firearm by a convicted felon.

         District Court Proceedings

         Markus 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.

         The 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.' " Id.

         Relying 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 So.2d 274).

         The 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.

         This review follows.


         Conflict Jurisdiction

         This 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.

         In 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. Id.

         In 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).[4] 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).

         After 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 ...

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