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Falcon v. State

Florida Court of Appeals, Second District

October 27, 2017

JUAN FALCON, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Collier County; Lauren L. Brodie, Judge.

          Christopher H. Brown of Brown, Suarez, Rios & Weinberg, P.A., Naples, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa, for Appellee.

          ROTHSTEIN-YOUAKIM, JUDGE.

         Juan Falcon pleaded no contest to charges of maintaining a marijuana "grow house" and possessing drug paraphernalia based on the seizure of twenty-six marijuana plants from a shed in his back yard. As part of his plea, Falcon preserved his right to appeal the trial court's denial of his dispositive motion to suppress evidence on the grounds that (1) the deputies had violated Florida's "knock-and-announce" statute, section 933.09, Florida Statutes (2013), and (2) the search warrant had issued on insufficient probable cause. We hold that Falcon's first ground is meritorious, decline to reach the second ground, and reverse.

         Background

         In denying Falcon's suppression motion, the trial court made no explicit findings of fact. Consequently, we must construe the factual record in the light most favorable to the denial of the motion, see In re Doe, 932 So.2d 278, 283-84 (Fla. 2d DCA 2005) (observing that "traditional appellate presumption of correctness . . . require[s] us to view the record in the light most favorable to sustaining the order under review"), which we do as follows:

         After learning that Falcon was engaged in a marijuana-growing operation out of his residence and/or a shed in his back yard, the Collier County Sheriff's Office independently confirmed the presence of items consistent with a grow operation near and connected to the shed. Thus, at just past 6:45 a.m. on April 9, 2014, a SWAT unit of at least six heavily armed deputies appeared on the front doorstep of Falcon's residence to execute a search warrant.

         Less than an hour earlier, the deputies had all been briefed on the fact that Falcon lived in the residence with his family, which included an adolescent son and a teenage daughter. Notwithstanding the nature of the suspected offense, [1] the deputies had no reason to believe that there were any weapons in the residence or that Falcon was armed and dangerous; his criminal history consisted of one arrest for driving under the influence. The deputies also had no reason to believe that Falcon knew that they were coming, that anyone inside the residence was at risk of harm, or that Falcon or his family might try to escape or destroy evidence.

         Over a public address system, the deputies thrice announced "Sheriff's Department" and demanded that those inside the residence open the door. The deputies observed no activity inside the residence. Their demand unmet, the deputies breached the door with a battering ram and another tool and then set off two pyrotechnic "noise flash diversion devices" at the front and side of the residence.

         Falcon and his family had been sleeping when the deputies had arrived on their doorstep, and Falcon and his daughter were walking toward the front door when it was forced open. Numerous deputies entered the residence and secured Falcon, his wife, and his daughter by zip-tying their hands behind their backs. Although Falcon's son was not zip-tied, the record establishes that the deputies' entry terrified him.

         Approximately twenty seconds elapsed between the moment that the deputies began the knock-and-announce procedure and their breach of the front door. At the suppression hearing, one deputy "estimate[d]" that "more than fifteen seconds" had elapsed between the first knock-and-announce and the breach. Accordingly, we must assume that, after duly notifying Falcon and his family of their authority to enter, deputies ...


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