
    Henry Lee RILEY, Appellant, v. The STATE of Florida, Appellee.
    No. 81-396.
    District Court of Appeal of Florida, Third District.
    March 29, 1983.
    
      Bennett H. Brummer, Public Defender, and Sheryl Joyce Lowenthal, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and FERGUSON, JJ.
   HUBBART, Judge.

The central issue raised by this appeal is whether it is unlawful [under the federal or Florida constitution or Florida statutory law] for the police, in an otherwise lawful manner, to enter private premises which they are authorized to search pursuant to a valid and previously issued search warrant, when, as here, the entering officers do not physically have the search warrant in hand upon entry, but do receive the warrant some twenty (20) minutes later and duly execute it. We hold that no such constitutional or statutory violation is shown by the above stated police conduct, and, that, accordingly, the trial court was correct in denying the defendant’s motion to suppress the fruits of the ensuing search and seizure. We further reject the defendant’s sentencing point on appeal and affirm in all respects the final judgment of conviction and sentence under review.

I

The facts relating to the search and seizure in this case are virtually undisputed. On April 1, 1980, in the evening hours, Officer William Johnson of the Dade County Public Safety Department went to the home of a circuit judge in northeast Dade County, Florida, for the purpose of securing a search warrant. Officer Johnson was armed with a detailed affidavit in support of the search warrant which tended to show that certain illegal drug dealing was taking place in a particular motel room at a motel complex located near the Miami International Airport. The circuit judge examined the affidavit presented to him by Officer Johnson, made a determination that the affidavit stated probable cause for the search of the motel room in question, and issued a search warrant for Dade County Public Safety Department officers to search the said motel room for contraband drugs.

While this was transpiring, two other Dade County Public Safety Department officers were standing by in a room located across the hall from the motel room in question. Officer Johnson, upon receiving the search warrant, proceeded to the said motel room; en route, he radioed his dispatcher that the judge had signed the search warrant and directed the dispatcher to so notify the two officers who were standing by. These latter officers were immediately so notified and thereafter proceeded across the hall to the motel room in question. They encountered, at that time, a woman who was in the process of opening the door to the room with several bags in hand. The officers, in turn, displayed their police badges and announced: “Police officers, we have a search warrant for the room.” The woman tried to close the door, but the officers forced the door open, stood immediately inside the door, and announced that they were awaiting a search warrant for the search of the premises; the defendant Henry Lee Riley was inside the room alone and in bed. Everyone then waited for some twenty (20) minutes at which time Officer Johnson arrived with the search warrant in hand which was then duly executed. A search thereafter ensued in which a quantity of heroin was seized and the defendant Riley arrested.

The defendant Riley tVas subsequently charged by information with various drug offenses in the Circuit Court for the Eleventh Judicial Circuit of Florida in and for Dade County, Florida. The defendant Riley filed a motion which was subsequently supplemented, to suppress the fruits of the search of the above motel room which he apparently had rented. The trial court conducted a full evidentiary hearing on these motions at which time the above facts were established. At the conclusion of the hearing, the trial court denied these motions. The defendant thereafter pled nolo conten-dere to two counts in the information charging: (1) possession with intent to sell a controlled substance [§ 893.13(l)(a)l, Fla. Stat. (1981)], and (2) sale or delivery of a controlled substance [§ 893.13(l)(a)l, Fla. Stat. (1981) ], reserving for appeal the denial of the above motion to suppress. The trial court accepted the plea as' thus conditioned and sentenced the defendant to two (2) concurrent four (4) year prison terms, followed by two (2) concurrent three (3) year terms of probation. The defendant appeals; we have jurisdiction to entertain this appeal. Brown v. State, 376 So.2d 382 (Fla.1979); State v. Ashby, 245 So.2d 225 (Fla.1971).

II

The central attack made by the defendant against the search and seizure in question is that the police initially entered his motel room unlawfully because they did not physically have the search warrant in hand upon the initial entry. It is said that this initial entry was, therefore, in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12 of the Florida Constitution and Chapter 933 of the Florida Statutes (1981), thereby invalidating the subsequent search and seizure. We cannot agree. A subsidiary attack is also made on the affidavit upon which the search warrant was issued; we reject this position as well.

A

First, there is no federal or state constitutional authority anywhere, and the defendant cites none, which holds or remotely suggests that it is a Fourth Amendment or state constitutional violation for police in an otherwise lawful manner to enter private premises pursuant to a valid and previously issued search warrant where, as here, the police do not physically have the search warrant in hand upon entering, although the warrant arrives shortly thereafter and is then properly executed. Indeed, the authorities are virtually unanimous that no constitutional violation is shown by this or similar police conduct in executing the search warrant. United States v. Marx, 635 F.2d 436 (5th Cir.1981); United States v. Woodring, 444 F.2d 749 (9th Cir.1971); United States v. Cooper, 421 F.Supp. 804 (W.D.Tenn.1976); State v. Gomez, 101 Idaho 802, 623 P.2d 110, 117 (1980), cert. denied, 454 U.S. 963, 102 S.Ct. 503, 70 L.Ed.2d 378 (1981); 2 W. LAFAVE, SEARCH AND SEIZURE § 4.12 (1978). See also Mayorga v. People, 178 Colo. 106, 496 P.2d 304 (1972); State v. Pointer, 135 N.J.Super. 472, 343 A.2d 762, pet. for cert. denied, 69 N.J. 79, 351 A.2d 7 (1975); State v. Johnson, 16 Ohio Mise. 278, 240 N.E.2d 574 (1968). We decline to be the first court in the country to strike down such police conduct as unconstitutional. Agreed, a liberal construction should be given to the individual’s constitutional rights in this area of law, Taylor v. State, 355 So.2d 180, 186 (Fla. 3d DCA), cert. denied, 361 So.2d 835 (Fla.1978), but this does not require us to abandon common sense and blindly adopt hypertechnical rules, as urged here, which do not remotely serve to protect the substance of the individual’s Fourth Amendment freedom in any way. State v. Nittolo, 317 So.2d 748, 750 (Fla.), cert. de nied, 423 U.S. 1036, 96 S.Ct. 572, 46 L.Ed.2d 411 (1975).

B

Second, we see no Florida statutory violation in the manner the police executed the search warrant in this case. In this connection, we must differ with our former colleague, Judge Gerald Mager, who concluded otherwise in his concurring opinion in Swinford v. State, 311 So.2d 727 (Fla. 4th DCA 1975). Like the trial judge in this case, we are unpersuaded by Judge Mager’s analysis.

Section 933.11, Florida Statutes (1981), provides that “[a]ll search warrants shall be issued in duplicate,” and that said duplicate “shall be delivered to the officer with the original warrant, and when the officer serves the warrant, he shall deliver a copy to the person named in the warrant, or in his absence to some person in charge of, or living on the premises.” Section 933.08, Florida Statutes (1981), further provides that a search warrant “shall in all cases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer requiring it, said officer being present and acting in its execution.” Neither of these statutes require that the officer executing the search warrant must physically have the warrant in hand at the moment he enters upon the premises which he is authorized by the search warrant to search. They require only that an officer mentioned in the direction of the search warrant must serve the warrant, and that when he does so, a duplicate copy of the warrant must be delivered to the person named in the warrant or to a person in charge of or living on the premises; no particular time is stipulated by these statutes as to when formal service of the search warrant and delivery of a copy thereof must take place — although, by implication, it would have to take place at some time prior to, during, or immediately subsequent to the ensuing search and seizure.

In the instant case, the above statutes were, in our view, fully complied with. All the police officers who entered and searched the defendant’s premises were authorized to do so by the subject search warrant. In addition, the search warrant was formally executed and a duplicate copy thereof duly delivered to the defendant upon the arrival of Officer Johnson within twenty (20) minutes after the initial police entry. Moreover, it is undisputed that the officers properly entered the premises after announcing tlieir authority and purpose in full compliance with Section 933.09, Florida Statutes (1981). Florida statutory law was, therefore, fully satisfied in this case as to the execution of the search warrant herein.

C

The defendant has also attacked the affidavit upon which the subject search warrant was issued as stating no probable cause and as containing material misrepresentations. We find no merit in this position. In our view, the affidavit for the search warrant states abundant probable cause for the issuance of the search warrant; moreover, the inaccuracies in the affidavit, if any, were miniscule, unintentional, and in no way material to the establishment of probable cause. As such, the search warrant was properly issued based on a clear showing of probable cause. See e.g., Antone v. State, 382 So.2d 1205, 1211— 12 (Fla.), cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980); Findlay v. State, 316 So.2d 33 (Fla.1975); Mathes v. State, 375 So.2d 1084 (Fla. 1st DCA 1979).

Ill

Finally, we reject the defendant’s attack on the sentence imposed in this case as being in violation of Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1980), because the record plainly reflects that the defendant agreed to the sentence imposed in a plea negotiation agreement entered into below. We concur entirely with Judge Orfinger’s opinion for the Fifth District Court of Appeal, Peak v. State, 399 So.2d 1043 (Fla. 5th

DCA 1981), which rejects an identical contention as follows:

“Appellant also contends on appeal that the split sentence is improper under the principles of Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (1981) [1981 FLW 313]. However valid his contention might he had the sentence followed a trial and conviction, here it resulted from a plea bargain and we cannot give the appellant relief from his bargain without also offering the state the same relief. See Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981); Cleveland v. State, 394 So.2d 230 (Fla. 5th DCA 1981).
“Villery does not address negotiated split sentences which are otherwise within the limits prescribed by law. Because the sentence and the plea are intertwined, [footnote omitted] the appellant must seek his relief, if any, from the trial court upon proper application. If the appellant is not bound by the plea negotiation, then neither is the State, and relief is available in the trial court.” Id. at 1043-44.

The final judgment of conviction and sentence under review is, in all respects,

Affirmed.

FERGUSON, Judge

(concurring).

Though I share Judge Hendry’s concerns that inherent in this decision is a potential for violent confrontation between homeowners and law enforcement officers — especially so when the officers are not in uniform — I am reluctantly convinced that the weight of authority compels the result. I understand that what we sanction today is a “securing of the premises” after a warrant has been signed by a magistrate, with no actual search to be conducted until receipt of the warrant describing the items to be seized. Suarez v. State, 400 So.2d 1048 (Fla. 3d DCA 1981). I further understand the police jargon “securing the premises” to mean a restraint on movement of persons and things within the place, and no more.

HENDRY, Judge,

dissenting.

The majority opinion today holds that the existence in being of a search warrant is the basis for securing premises prior to the search. I must respectfully dissent. In contrast to the majority’s conclusion that no constitutional or statutory violation occurred by virtue of the officers’ entry prior to arrival of the search warrant, I find that the very safeguards intrinsic to the warrant requirement are frustrated by this result. Display of a search warrant to the occupant of premises to be searched serves to delimit the scope and intensity of the search, put the party on notice of the authority and purported reasons for the search and enable him to prepare to contest it if he so desires, and apprise the party that there is color of authority for the search and that he is not entitled to oppose it by force. 2 W. LA-FAVE, SEARCH AND SEIZURE §§ 4.10, 4.12 (1978).

My primary concern with this decision is the inherent potential for violent confrontation. Illegal entry into a home by officers, whether in uniform or without, asserting authority on the verbal declaration of the existence of a warrant which may later arrive, might well result in their being killed under the mistaken impression that the home owner was protecting his family and his home against intruders. Existence of a duly issued search warrant “somewhere” is of small comfort to the citizen who must make an on-the-spot decision as to what action to take in response to a very serious intrusion on his privacy.

I am also concerned about the extent to which this holding licenses the police to proceed in their quest for evidence. In this particular situation they simply secured the premises — a one room hotel lodging. Whether they may actually begin to search the premises so long as the warrant is on its way is left to speculation, since the court does not specifically limit its ruling to “securing of premises.”

While in agreement with the majority’s pronouncement that a liberal construction should be given to the individual’s constitutional rights in this area of law, I am unable to view these precious constitutional and statutory safeguards as mere “hyper-technical rules.” As the United States Supreme Court explained in Miller v. United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 1197-1198, 2 L.Ed.2d 1332, 1340 (1958):

However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of short-cut methods in law enforcement impairs its enduring effectiveness. The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application.

I must also take exception to the majority's conclusion that no statutory violation resulted from the manner in which the police executed the search warrant in this case. The language employed in both section 933.11, Florida Statutes (1981) that “when the officer serves the warrant, he shall deliver a copy to the person named in the warrant,” and section 933.08, that the warrant “shall in all cases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer requiring it, said officer being present and acting in its execution,” (emphasis added), in my opinion, contemplates that an officer mentioned in the direction of the search warrant physically have the warrant in hand when he enters upon the premises. I reach this conclusion on the basis that a securing of premises is an act “in execution of the search warrant,” which, by virtue of section 933.08, requires the presence of one of the named officers armed with a warrant. Accordingly, I agree with Judge Mager’s concurring opinion in Swinford v. State, 311 So.2d 727 (Fla. 4th DCA 1975), the only case on point in this state, that possession of the search warrant by the officers at the time the search is performed is essential to the validity of the seizure, and mere knowledge that a warrant has been issued fails to satisfy constitutional and statutory guarantees against unreasonable searches. In the instant case, with the defendant’s hotel room under surveillance for some time, and secure in the knowledge that he could not slip away undetected, why the police didn’t simply wait for arrival of the warrant defies logic. Any emergency in this instance was strictly of the do-it-yourself variety; that is, by breaking into the hotel room the officers themselves alerted the defendant to their presence.

Finally, my feelings on this matter have been most eloquently summed up by Justice Bistline’s dissent in State v. Gomez, 101 Idaho 802, 623 P.2d 110 (1980), cert. denied, 454 U.S. 963, 102 S.Ct. 503, 70 L.Ed.2d 378 (1981), a factually similar case cited by the majority opinion:

The only discernible difference between the intrusion of a “securing” from within as against a “search” is one of purpose; a search is to discover evidence to be taken for later use at trial, whereas in a mere “securing” the violated premises and occupants are seized and laid captive until the police officers arrive with the warrant which, by the doctrine espoused by the Court in today’s opinion, is said to legitimatize the dastardly prior conduct. In today’s sanctioning of “Securing the Premises” the police are given judicial license to at will invade any and all parts of a person’s home, while at the same time the occupants ... are eustodially restrained in their own living room. In fact and truth, “Securing the Premises” is by far the worst infringement on the Fourth Amendment which has yet been visited on the people. The police, without being able to show any authority for their intrusion, need only declare to the occupants of a house that they are “securing” it on the premise that such is sufficient justification for their entry. Such conduct is on a par and readily classified with the much hated General Warrant visited upon the colonists by the British, which abuse played a large part in fomenting the Revolution. Nor is it any defense to suggest that the people ought not to complain because, after all, somewhere, although the warrant proving that fact is not present, there has been a determination of probable cause made by a detached and neutral magistrate. Only the presentation of a warrant at the time of the intrusive entry can be said to meet with constitutional requirements.

Id. 623 P.2d at 132.

ON MOTION FOR REHEARING

HENDRY, Judge.

The motion for rehearing is granted. The original opinion in this case [filed November 16, 1982] is withdrawn and the dissenting opinion of Judge Hendry becomes the opinion of the court. We therefore reverse the appellant’s conviction and order him discharged. We also grant the suggestion for certification and certify to the Supreme Court of Florida, as provided for in Article V, Section 3(b)(4) of the Constitution of Florida, the following question of great public importance:

Whether it is unlawful [under the federal or Florida constitution or Florida statutory law] for the police, in an otherwise lawful manner, to enter private premises which they are authorized to search pursuant to a valid and previously issued search warrant, when the entering officers do not physically have the search warrant in hand upon entry, but do receive the warrant shortly thereafter and duly execute it.

The petition for rehearing is granted. Question certified.

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would deny the motion for rehearing on the search and seizure issue and adhere to the original opinion of the court as correctly stating and applying the established law herein. I would, however, grant the motion for rehearing on the sentencing issue and delete all references to said issue from the original opinion, including section III thereof; the defendant withdrew this issue from our consideration in his reply brief, after having previously raised it in his main brief, and we inadvertently overlooked that waiver. I also agree with the court’s decision to certify the search and seizure issue herein to the Florida Supreme Court. Beyond that, I would add only one additional point not heretofore discussed.

Judge Hendry’s dissent, now the court’s opinion herein, appears to rest its result, at least in part, on “the inherent potential for violent [police-citizen] confrontation” [p. 1033] if the contrary but prevailing law on this subject is adopted, as expressed in this court’s original opinion. Indeed, Judge Hendry identifies this perceived violent potential as his “primary concern” [p. 1033] in this case, a concern shared as well by Judge Ferguson in his original concurring opinion herein [p. 1033]. It is urged that the average homeowner would reject a police officer’s “verbal declaration of the existence of a warrant which may later arrive” as apparently not worthy of belief even after a proper display of police credentials [p. 1033]; it is further urged that the homeowner would, in all likelihood, kill the officer or use other means of violent self help “under the mistaken impression that the homeowner was protecting his family and his home against intruders.” [p. 1033], It is with some regret that I find myself unable to agree with these stated concerns of my distinguished colleagues.

First, I see no basis for believing that homeowners would react in the violent manner suggested by Judge Hendry. We are, after all, a law-abiding people who, by and large, respect the symbols of authority in our society, including police officers. I think, without question, that the average law-abiding person would without fuss admit such an officer, properly identified, to the citizen’s home [or at least not resort to violent self help] when, as here, the officer explains that a search warrant has been issued for the home and will arrive shortly thereafter. Indeed, the homeowner would have no basis for believing otherwise and utterly no grounds for concluding that the officer was a criminal intruder. True, as Judge Hendry contends, the homeowner has every right to a copy of the subject search warrant, but surely it is perfectly reasonable to supply that copy, as here, shortly after the initial police entry as the prevailing law authorizes. We engage in flights of fancy, I think, if we believe that this perfectly sensible procedure will ignite normal, law-abiding citizens to take up arms in defense of their respective dwellings.

Second, there is no evidence, to my knowledge, that such violent police-citizen confrontations have occurred in those jurisdictions which have adopted the prevailing law on this subject throughout the country. This is hardly surprising as the prevailing law here is both sensible and fair. There is every reason to believe, in my view, that our experience in Florida would be no different. Indeed, we in this state have long recognized, without dire consequences, the authority of police officers to make non-consensual entries onto private premises, without any warrant at all, in order to effect a felony arrest therein, see e.g., Benefield v. State, 160 So.2d 706 (Fla.1964); § 901.19(1), Fla.Stat. (1981); although that law has recently been changed, it still appears viable where exigent circumstances are shown. Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Payton v. New York, 445 U.S. 573,100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); see also Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Surely, we can expect a similar experience when, as here, a previously issued search warrant is in fact served upon the homeowner shortly after a non-conseqsual police entry.

Third, and more to the point, I see nothing to recommend a rule of law which seems to be based, even in part, on a fear of lawless violence if not accepted. We cannot, it seems to me, cave in to the few lawless individuals in our midst who might irrationally act in the manner suggested by Judge Hendry. Ours is a government of laws and not of men; our laws must be shaped by the principles of fairness and reason and not by fears, real or imagined, of irrational violence.

I think the established law on this subject is eminently sound; I would adhere to it as the law of this state.  