Kistner v. State

379 So. 2d 128

• Court: District Court of Appeal of Florida
• Decided: December 6, 1979
• Docket: NN-8
• Status: Published

Opinion

379 So.2d 128 (1979)

Steven Erik KISTNER, Appellant,
v.
STATE of Florida, Appellee.

No. NN-8.

District Court of Appeal of Florida, First District.

December 6, 1979.

Charles G. Brackins, of Meldon & Brackins, Gainesville, for appellant.

Jim Smith, Atty. Gen., and A.S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.

ROBERT P. SMITH, Jr., Acting Chief Judge.

An appeal from convictions on charges of possession of marijuana and paraphernalia. The sheriff found the contraband in appellant's home when executing a warrant for searching the house. The sheriff knocked repeatedly and called out, "Anybody home?", to which there was no reply because his knock and call were not heard by the occupant, appellant's wife. So the sheriff entered. The trial court denied a suppression motion reasoning that if the occupant did not hear the knock and "Anybody home?" call, she would not have heard the sheriff announce his identity and purpose. The state urges that the sheriff's failure to announce his identity and purpose should be excused because that announcement was or seemed futile, and it reasonably appeared to him that no one was home to hear his call. We cannot subscribe to that erosion of Benefield v. State, 160 So.2d 706 (Fla. 1964). See Whisnant v. State, 303 So.2d 397 (Fla. 3d DCA 1974), cert. den., 323 So.2d 273; Berryman v. State, 368 So.2d 893 (Fla. 4th DCA 1979); Moreno v. State, 277 So.2d 81 (Fla. 3d DCA 1973); State v. Collier, 270 So.2d 451 (Fla. 4th DCA 1972); Section 933.09, Florida Statutes (1977).

REVERSED.

ERVIN, J., concurs.

BOOTH, J., dissents.