Nolin v. State

946 So. 2d 52, 2006 WL 3733315
CourtDistrict Court of Appeal of Florida
DecidedDecember 20, 2006
Docket2D05-5819
StatusPublished
Cited by3 cases

This text of 946 So. 2d 52 (Nolin v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nolin v. State, 946 So. 2d 52, 2006 WL 3733315 (Fla. Ct. App. 2006).

Opinion

946 So.2d 52 (2006)

Ralph Marvin NOLIN, Appellant,
v.
STATE of Florida, Appellee.

No. 2D05-5819.

District Court of Appeal of Florida, Second District.

December 20, 2006.

*53 James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Ralph Marvin Nolin appeals his judgment and sentence for possession of cannabis with intent to sell, manufacture, or deliver. Mr. Nolin entered a no contest plea, reserving the right to appeal the trial court's denial of his dispositive motion to suppress the cannabis seized from a dresser in his home by police during a warrantless search. At the suppression hearing, the State failed to prove that the search was a "precautionary sweep" of the space immediately adjoining the place where Mr. Nolin was secured or that the officers had an articulable basis for a broader "protective sweep" as explained in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Accordingly, we reverse *54 the denial of the motion to suppress and remand with instructions to discharge Mr. Nolin on this charge.

At the hearing on the motion to suppress, Largo Police Officer Rogers testified that he responded to the Nolins' house based on a domestic disturbance dispatch, issued in response to a neighbor's telephone call. When Officer Rogers got out of his police car, he heard the slamming sound of either exterior or interior doors coming from the area of the Nolins' house. He went through the Nolins' open side gate and entered their backyard. There, the officer did not see a person but did see a large amount of broken glassware littered on the concrete walk; the glassware appeared to have been broken that evening. From the backyard, Officer Rogers looked into a screened porch where "everything looked fine" and into the Nolins' kitchen, observing "that [a] microwave had been thrown on the floor."

A short time earlier, when two other officers, Kraft and Iskra, first arrived, they heard incoherent screaming, which they believed came from male and female voices; however, when they knocked and announced their presence, all sounds from within ceased. The officers found the "sounds" of this silence disturbing. Because these other officers had been unsuccessful in making contact with anyone inside the home, all three officers decided to enter the home and do a welfare check. They entered through an unlocked screen door to the porch where Officer Rogers used his "multipurpose tool" to unlock the back door. According to Officer Rogers, "When we opened the door there was a female that was in front of us and down the hall we saw a male exit what appeared to be one room at the end of the hall run towards the front, what would be the front door of the residence." A baseball bat was leaning on the wall next to the front door.

During cross-examination, Officer Rogers agreed that when he told the man, Mr. Nolin, to stop, he did so. Officer Rogers agreed that Mr. Nolin came back, sat on the couch, complied with the officers, and did not attempt to get the baseball bat. Finally, Officer Rogers agreed that he had no reason to expect there to be any firearms in the house.

Officer Kraft testified that she and her partner, Officer Iskra, were dispatched to a domestic disturbance at the Nolins' house. While they were talking to the complainant, she heard sounds of "yelling and screaming and crashing and thuds" coming from the Nolins' house. She and her partner then knocked and banged on the Nolins' front door. As soon as the officers announced themselves, the noise stopped. After they were unable to get any response from the home's occupants, the officers went into the backyard. Officer Kraft also observed the broken glass in the yard and the overturned microwave. Because she was still not able to get a response from the home's occupants, Officer Kraft became concerned that someone inside was injured, and the officers entered the home in the manner described by Officer Rogers. According to Officer Kraft, the officers made contact with Mrs. Nolin "[w]hen we walked into the home—when we walked into the back lanai, we walked—there was a door to the left. We walked in and there was a hallway and her bedroom, I do believe is right there, and she came out into the hallway when she heard that we were inside the home." Officer Kraft testified that Officers Rogers and Iskra encountered the male, Mr. Nolin.

Subsequently, Officer Iskra performed a nonconsensual protective sweep of the residence. Officer Kraft testified that a protective sweep is done any time law enforcement enters someone's home. She *55 explained, "We do a protective sweep to make sure that nobody is going to jump out of any closets at us, nobody is hiding behind the bed in a bedroom, just so we— it's for our safety and for the other people's safety in the home as well." According to Officer Kraft, a protective sweep is based on the assumption that "[w]e always think that there is more than what we see in front of us inside of a home." Officer Kraft testified that Officer Iskra found the cannabis on a dresser during the protective sweep. Unfortunately, Officer Iskra did not testify at the suppression hearing. Thus, our record review is without the benefit of this key witness's particularized report of the home's configuration.

On cross-examination, Officer Kraft agreed that Mrs. Nolin was shocked to see the officers and appeared frazzled. Mrs. Nolin told Officer Kraft that she was happy that the officers were there. Mrs. Nolin did not appear to be in any physical distress. Officer Kraft's testimony regarding Mrs. Nolin's condition was consistent with Officer Rogers' testimony; he testified that Mrs. Nolin "looked okay."

Mrs. Nolin also testified at the suppression hearing. She testified that she had "a disease that makes me kind of weird. But [Mr. Nolin] had brought home some dishes that night and I get in weird moods and, you know, he was just—he brings home stuff all the time, which I usually like, and he brought home some dishes and I was just, you know. . . . I didn't want to wash the dishes. I didn't like the dishes." Mrs. Nolin explained that in apparent response to her displeasure, her husband then went into the backyard and smashed the dishes. While Mr. Nolin was smashing the dishes, Mrs. Nolin went into their den, watched television, and went into a Xanax-assisted sleep.[1] Mrs. Nolin testified that she "went in the other room and I gave him the silent treatment." Mrs. Nolin was awakened when an uninvited person, Officer Kraft, entered her room and searched it. Mrs. Nolin testified that she was scared and told the officer that her husband was also in the home. She denied hearing the officers knocking, and she did not give the officers permission to search her home. In response to questioning from the court, Mrs. Nolin explained that her husband had been yelling when he was breaking the dishes.

The trial court denied the motion to suppress the cannabis found on the dresser. The trial court, as was its prerogative, disbelieved Mrs. Nolin's testimony and determined that the officers had a reasonable basis to be concerned about the safety of the persons inside the home.

We begin our discussion by noting that we give deference to the trial court's factual findings but review its legal conclusions de novo. Riggs v. State, 918 So.2d 274 (Fla.2005).

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Related

Rogers v. State
82 So. 3d 840 (District Court of Appeal of Florida, 2011)
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46 So. 3d 1224 (District Court of Appeal of Florida, 2010)
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14 So. 3d 1055 (District Court of Appeal of Florida, 2009)

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Bluebook (online)
946 So. 2d 52, 2006 WL 3733315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nolin-v-state-fladistctapp-2006.