State v. Bamber

630 So. 2d 1048, 1994 WL 11608
CourtSupreme Court of Florida
DecidedJanuary 20, 1994
Docket79263
StatusPublished
Cited by52 cases

This text of 630 So. 2d 1048 (State v. Bamber) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bamber, 630 So. 2d 1048, 1994 WL 11608 (Fla. 1994).

Opinion

630 So.2d 1048 (1994)

STATE of Florida, Petitioner,
v.
Earl R. BAMBER, Respondent.

No. 79263.

Supreme Court of Florida.

January 20, 1994.

Robert A. Butterworth, Atty. Gen., and Brenda S. Taylor and Peggy A. Quince, Asst. Attys. Gen., Tampa, for petitioner.

*1049 Douglas L. Grose, Tampa, for respondent.

SHAW, Justice.

We have for review State v. Bamber, 592 So.2d 1129 (Fla. 2d DCA 1991), based on conflict with cases from Florida's Third and Fifth District Courts of Appeal.[1] We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve Bamber.

I. FACTS

Detective Kennedy applied for a no-knock warrant on August 18, 1989, to search the residence of Earl R. Bamber. The proposed search was premised on the following facts as alleged in Kennedy's affidavit:

— Twice during the preceding two weeks a confidential informant had bought cocaine from Bamber in his home.
— According to the informant, Bamber retrieved the drugs from an area near the bathroom.
— Detective Kennedy believes that Bamber has the ability to dispose of the drugs through bathroom facilities.
— Detective Kennedy believes the operation would be "greatly enhanced" if the warrant were executed in no-knock fashion.[2]

The magistrate issued a standard search warrant and attached the affidavit. Detective Kennedy instructed the Hillsborough County Sheriff's SWAT team to secure the residence.

At approximately 4:20 p.m., the SWAT team, dressed in military fatigues and vests emblazoned with the word "SHERIFF," detonated a bomb outside Bamber's home, a four-bedroom, four-bath, split-level house in a residential neighborhood. At the time of the raid, Bamber, his wife, and minor child, and two commercial repairmen were inside. Mr. Wilson, one of the repairman, testified that when he heard the "BOOM," he went to the front door:

Q. Did you hear anyone knock on the door?
A. No, sir. I was walking out the door?
Q. Okay. What did they do to you?
A. Well, I opened the door. I had two buckets of water in my hands and they put a gun to my head and threw me back in the house and slammed me on the ground, and they wouldn't let me move my head, or nothing.
Q. Did they have something about them, when they came in the door, that indicated they were Sheriff's Office; they were law enforcement?
A. They didn't really give me no time to look or nothing. They threw me back in the house and my head on the floor.

Tile-setter Randy Rhodes, the second repairman, testified that he was standing on a ladder in the dining area when he heard the "BOOM":

Q. Did you hear anybody say, "Sheriff's Office, police officers, search warrant"?
A. No. My first thing was to get out of that area. I moved directly into the kitchen area.
Q. Okay.
A. By that time that individual had come into that area at gunpoint and was pointing a gun at me.
At that time he did not say nothing, but forcing me to the floor.
Q. Did you know he was a policeman?
A. No, I did not know.
Q. Okay.
A. I was upset for the fact that someone was pointing a gun at me, and I was using some, using some language myself and telling him... .
*1050 ... .
[A.] I moved to the back of the kitchen. That's when I looked outside and I seen another guy in fatigues, and then another one, and it was like we were in Vietnam. I had never seen anything like that before.

Bamber's wife testified that she too did not know that the men entering her home were officers; she believed her home was being invaded by a gang of robbers. And Bamber himself testified that he was in the bedroom watching television when he heard the bomb:

A. It was a real loud explosion. I stood up and opened the door to see what was going on, and there was a man that ran through the door and knocked me down; hit me with a gun [on] my head.
Q. What was this man wearing?
A. Fatigues.
Q. Did he identify himself as "sheriff"?
A. No, sir.
Q. Okay. Did he have on his person something you could see that you saw and recognized to be a law enforcement officer?
A. No, sir.
Q. Did you hear anyone announce, "police, Sheriff's Office, law enforcement," anything that would indicate who this man was coming in your door?
A. No.
... .
A. As soon as he knocked me down, I got up, and they knocked me down again and broke my finger.

Detective Kennedy arrived after the occupants had been subdued and read them the warrant. During the subsequent search, police found a small amount of cocaine in Bamber's pants pocket and a small quantity of marijuana. Bamber was charged with simple possession of cocaine and marijuana. The trial court granted Bamber's motion to suppress the drugs and the district court affirmed, ruling that section 933.09, Florida Statutes (1989), requires officers to knock and announce their presence and purpose before forcibly entering a residence. The State sought review based on conflict with cases approving no-knock raids.[3] The State argues that Detective Kennedy's affidavit reasonably established that Bamber had the immediate ability to destroy drugs through standard bathroom facilities and the magistrate was thus justified in issuing a no-knock search warrant.

The issue before us is twofold: 1) May a magistrate issue a no-knock warrant for the search of a residence? 2) If not, may police nevertheless engage in a no-knock search based on exigent circumstances arising at the scene?

II. NO-KNOCK WARRANTS

No-knock warrants are disfavored under the law and limited largely to those states that have enacted statutory provisions authorizing their issuance. In fact, "[t]he prevailing ... view is that a magistrate may not issue a so-called no-knock search warrant in the absence of such a statutory provision." 2 Wayne R. LaFave, Search and Seizure § 4.8(g) (1987). No statutory authority exists under Florida law for issuing a no-knock search warrant.

The reasoning against no-knock warrants is convincing. Circumstances that may seemingly justify issuance of a no-knock search warrant may change drastically after issuance but before execution of the warrant. Conditions must be assessed at the scene at the time of entry:

While a search warrant must necessarily rest upon previously obtained information... . Facts existing at the time of obtaining a warrant may no longer exist at the time of entry. Such an emergency, therefore, can be judged only in light of circumstances of which the officer is aware at the latter moment.

Parsley v. Superior Court, 9 Cal.3d 934, 109 Cal. Rptr. 563, 566, 513 P.2d 611, 614 (1973). As a matter of policy, no-knock warrants are disfavored because of their staggering potential for violence to both occupants and police, as Congress recently discovered[4] and as is *1051 apparent in the present case.

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Cite This Page — Counsel Stack

Bluebook (online)
630 So. 2d 1048, 1994 WL 11608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bamber-fla-1994.