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Sosnowski v. State

Florida Court of Appeals, First District

April 17, 2018

Thomas A. Sosnowski, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Santa Rosa County. Ross M. Goodman, Judge.

          Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.

          Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.

          ROWE, J.

         Thomas Sosnowski appeals his convictions and sentences for battery on a law enforcement officer and resisting an officer with violence, contending that the trial court erred by denying his motion for judgment of acquittal. He argues that at the time of their encounter with him, the police officers were not engaged in the lawful performance of a legal duty and that there was neither probable cause nor exigent circumstances to support the officers' warrantless entry into his backyard. We disagree and affirm. [1]

         Facts

         The confrontation that ended in Sosnowski's arrest began when his wife Gina Garza called the Department of Children and Families (DCF) because she feared for her safety and the safety of their five-year old son. Ordinarily, a DCF employee would respond to the call and perform a welfare check. However, this was not DCF's first encounter with Sosnowski. Sosnowski had previously threatened DCF employees, and during this particular call, Garza reported that Sosnowski threatened to dismember DCF employees and to throw their body parts into a neighbor's yard if DCF entered his home. Garza was concerned that if a DCF employee responded without backup, Sosnowski would become violent and lock the employee and Garza inside the home. Based on Garza's reports, DCF requested assistance from the police to perform the welfare check.

         When the DCF employee and the police arrived at the home, they were unable to approach the front door. The home was a fortress. Sosnowski had erected a number of barriers, including a sharp, padlocked, picket-style fence around the front yard. He had equipped the home with customized locking doors and opaque, inoperable windows. The police officers called Sosnowski on the phone, and he emerged from the home with his son on his shoulders. The DCF employee and the officers were unable to talk to the child or physically assess the child for injuries because Sosnowski remained on the opposite side of the fence. When the police officers informed Sosnowski they were conducting a welfare check on Garza and his son, Sosnowski reentered the home with his son, ordered Garza to go outside, and then locked the doors behind him.

         As Garza exited the home and slowly approached the fence where the officers were standing, she appeared to be terrified. The officers observed fresh bruises on her face, chest, and neck. Garza told them that the injuries were inflicted by Sosnowski. As Garza spoke to the DCF employee, the officers heard a loud noise, and Garza exclaimed, "He just locked me out of the house. He just put the bar across the door." Garza was concerned for her child's safety because Sosnowski told her that she would never see her son again.

         The officers attempted to reestablish contact with Sosnowski. But because Sosnowski had customized the windows with double-ply plexiglass to prevent outsiders from seeing in, the officers were unable to see inside the home to ascertain the child's whereabouts.

         When it was clear to the officers that they could not safely enter the home, they commanded Sosnowski to come outside. Sosnowski refused. He also declined to answer multiple telephone calls. Based on Garza's initial report, their observations of her injuries, their interaction with Sosnowski, Sosnowski's retreat into the home, their knowledge of the home's many fortifications, and Garza's fear that she would never see her son again, the officers requested backup assistance from the SWAT team. When the team arrived, the officers briefed them on Sosnowski's prior violent threats to DCF. The team learned of the domestic violence allegations, the home's fortifications, Sosnowski's access to weapons, and the existence of a possible hostage situation. Their primary objective was to ensure the five-year-old child's safety.

         The SWAT team quickly established a perimeter around Sosnowski's backyard, which was enclosed by a six-foot privacy fence. At this point, Sosnowski reemerged and was walking back and forth from inside the home to the backyard. The SWAT team announced their presence and commanded Sosnowski to get on the ground. Sosnowski refused to comply and retreated towards the home. After several unheeded commands to halt, one of the officers deployed a foam baton, striking Sosnowski. Sosnowski started low-crawling back towards the home to avoid the shots. The officers again commanded Sosnowski to stop, but to no avail. The officers then scaled the fence to prevent Sosnowski from reentering the home. Sosnowski physically fought with the officers before they were able to detain him. As two officers secured ...


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