Denied February 17, 2020.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Bay County. Michael C.
Moody, Attorney General, and Benjamin Louis Hoffman,
Assistant Attorney General, Tallahassee, and Beverly
McAllister-Brown, Assistant State Attorney, Panama City, for
V. Murray, Dallas, Law Offices of Mark V. Murray,
Tallahassee, and James Heath, St Petersburg, Heath Law Firm,
P.A., Destin, for Appellee.
Fourth Amendment case, the State says the trial court erred
in concluding that officers performing a weekend morning
check on two people slumbering in a legally parked car with
its engine running went too far by ordering that the
car's engine be turned off and the driver's door and
window be opened, at which point the odor of marijuana
emerged and searches of the car and occupants subsequently
undertaken. The issue to be resolved is whether the initial
officer on the scene, by ordering that the driver turn off
the car and open the driver's door and window, engaged in
an improper investigatory detention as to the driver, or,
alternatively, that the overall circumstances, which included
a non-responsive person in the passenger seat whom
fire-rescue had to access by opening the passenger car's
door, made the discovery of the marijuana smell and the
resulting search inevitable.
checks fall under the so-called "community caretaking
doctrine," which is a judicial creation that carves out
an exception to the Fourth Amendment's warrant
requirement by allowing police officers to engage in a
seizure or search of a person or property solely for safety
reasons. See generally Tracy Bateman Farrell, et.
al., Exigent or emergency circumstances exception for
warrantless search, generally, 14A Fla. Jur 2d Criminal
Law— Procedure § 771 (2019) ("The community
caretaker exception to the warrant requirement, arising from
the duty of police officers to ensure the safety and welfare
of the citizenry at large, functions focus on concern for the
safety of the general public; thus, a warrantless search may
be justified by exigent circumstances, which are those
characterized by grave emergency, imperativeness for safety,
and compelling need for action, as judged by the totality of
the circumstances.); see, e.g., State v. Johnson,
208 So.3d 843 (Fla. 1st DCA 2017) (applying community
caretaking doctrine to uphold seizure of cash in automobile
as safeguarding property rather than as a search for
and seizures conducted under the community caretaker doctrine
are solely for safety reasons and must be "totally
divorced from the detection, investigation, or acquisition of
evidence relating to the violation of a criminal
statute." Cady v. Dombrowski, 413 U.S. 433,
441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); State v.
Johnson, 208 So.3d 843, 844 (Fla. 1st DCA 2017) (citing
Dombrowski ). For this reason, the scope of an
encounter is a limited one so that welfare checks don't
become investigative tools that circumvent the constitutional
protection against unreasonable searches and seizures.
See, e.g., State v. Fultz, 189 So.3d 155, 160 (Fla.
2d DCA 2016) (holding that police department "policy of
entering a home when they observe an open door and the
residents fail to answer their hail is constitutionally
troubling," noting that "[g]iven Central
Florida's temperate weather in November, an open door at
8:00 in the morning, without more, cannot justify a
warrantless entry based on a feared medical emergency or the
community caretaker function.").
issue in this case is whether officers exceeded the scope of
a permissible welfare check. Responding to a 911 dispatch,
the first officer arrived at the bank parking lot around
10:20 a.m. on a Saturday morning, observing a male in the
driver's seat and a female in the passenger
seat of a running car, both apparently sleeping, the former
in a reclining position. After the officer knocked on the
driver's side window a few times, the male, Michael Jason
Brumelow, was roused (he "kind of opened his eyes and
looked at me") and began talking with the officer who
tried to get him to wake up the female in the passenger seat,
which Brumelow was unable to do. At that point, the officer
asked Brumelow to open the window and door and turn off the
car, which he did. When the door opened, the officer smelled
a marijuana odor, but did not act on it until after both
passengers were removed from the car and a search was then
conducted that led to the discovery of illegal drugs in
Brumelow's pockets and in the car.
trial court concluded that the officer's actions in
demanding that Brumelow turn off the car and open its window
and door violated the limited scope of a welfare check as to
Brumelow. The trial court reasoned that after the officer
succeeded in awakening Brumelow the "need for a welfare
check had been eliminated." It stated that "[n]o
evidence was presented to suggest that at the time of her
directive" to Brumelow that the officer "had a
reasonable belief that [Brumelow] or his passenger were
either intoxicated or experiencing medical problems."
Indeed, the officer testified that she saw no suspicious or
criminal activity. The trial court thereby concluded that the
officer's directive to Brumelow to turn off the car and
open its window and door "elevated the encounter to an
investigatory stop without any suspicion that criminal
activity had been committed, was being committed, or was
about to be committed." For that reason, Brumelow's
motion to suppress the evidence found in the subsequent
searches was granted. See, e.g., Greider v. State,977 So.2d 789, 794 (Fla. 2d DCA ...