“HOT PURSUIT” DOES NOT PERMIT THE WARRANTLESS ENTRY INTO A HOME TO ARREST FOR NON-VIOLENT MISDEMEANOR
One of the bedrocks of our democracy is the right to be free from unlawful searches and seizures by the State. Without the protections of the Fourth Amendment, police officers could enter a person’s home without justification or repercussions. Under our Constitution, however, a person’s home is their castle. “Whether an individual’s house be gilded with gold or held together by the humblest of bricks, the Florida and United States constitutions afforded the same rights to all.”
Warrantless entries are permitted under certain circumstances, however, including the exigent circumstance exception of hot pursuit. That exception arises when police begin a pursuit of an individual, which results in the person fleeing from the police. Under these circumstances, a warrantless entry into a person’s home is permissible. In order to justify such exception, police must show that, under the totality of the circumstances, “a compelling need for official action and no time to secure a warrant.” In Markus v. State, the Florida Supreme Court has held that this exception to the warrant requirement does not apply where underlying offense is a non-violent misdemeanor and the police already have evidence of the offense in their possession.
The facts of Mr. Markus’ case are not complex. On a Saturday evening, Mr. Markus and his friends were socializing in a rec room that had been converted from a garage. After responding to an unrelated noise ordinance, officers from the Jacksonville Beach Police Department saw Mr. Markus and his friends by a truck parked along a public home, near the residence he shared with friends. Two of Mr. Markus’ friends were drinking beers and the police walked toward them to tell them to pour them out. As they did so, the police claimed to smell marijuana and saw Mr. Markus flick a small (pot) roach on the ground, behind the truck. The cops identified themselves and told Markus to stop. Markus then raised his hands and began to walk backwards into the garage. Rather than attempt to gather the evidence or seek consent to enter the rec room, the officers decided to “take him down” in the following fashion:
The officers proceeded to physically remove Markus from the couch, causing Markus to hit the pool table, fall backward, and strike one of the grills. The officers then pushed Markus forward, and he landed on the floor in front of the back-wall couch. McCumbers testified that Markus spun around like a human top. McCumbers observed the officer with his knee in Markus’ lower back, holding both of his arms, and his foot on Markus’ ear. At that point, a gun was recovered from Markus’ area. As the officers attempted to handcuff Markus, Markus complained that he was experiencing intense pain in his wrist.
At one point during the scuffle, Eric Blair’s motorcycle was nearly knockedover, which prompted Blair to move toward the motorcycle to prevent it from falling. An officer shoved Blair against the wall and into Brandon Junk’s guitar. Junk reactively arose from the couch, but was met with an officer’s flashlight to his throat.
Meanwhile, Julia Martin had been upstairs in the restroom and heard a loud commotion. Martin testified that three officers ascended the stairs with their guns drawn and shouted, “Is anyone up there?” Martin made her presence known, and the officers pulled her out of the bathroom, threw her against the wall, and searched her. Martin further stated that the officers proceeded to search the upstairs bedrooms before escorting her downstairs to the recreation room, where she saw Markus on the ground with an officer standing over him.
McCumbers also confirmed that he saw an officer enter the interior of the residence while Markus was handcuffed. Upon reentering the home, McCumbers stated that he could see that the desk drawers, cabinets, and closet drawers had all been searched.
As the result of the discovery of the firearm, Mr. Markus was charged with possession of a firearm by a convicted felon. After his motion to suppress was denied by the trial court, he was convicted of that charge and sentenced to 48 months in prison.
An appeal to the First District Court of Appeal was successful, with the court agreeing that, under the circumstances presented, the warrantless entry into Mr. Markus’ home and subsequent search of him was unlawful. The State then sought review of this decision to the Florida Supreme Court which, in a 5 to 2 opinion, unequivocally held that this search was impermissible. In doing so, it specifically held that the often used doctrine of “hot pursuit” cannot justify the warrantless entry into a person’s home, where there is probable cause to believe a nonviolent misdemeanor has occurred, and the evidence related to it is within the control of the police.
The court’s opinion left little question about its view of the importance of both an individual’s right to privacy within the home and the need for an “objective magistrate” to determine whether police have sufficient reason to enter that home. Indeed, given the facts of Markus, it is unsurprising that the Court referenced the need to ensure that potentially “zealous” officers not be given carte blanche to decide whether there is legal cause to enter a person’s home.
After a lengthy recitation of the history of fourth amendment protections afforded a home as well as the underpinnings of the hot pursuit doctrine, the Court concluded, “In this particular case, the officer had no need to enter the home, not only because the suspected offense was minor, but also because the evidence was at hand with no imminent risk of destruction.” Examining the totality of the circumstances, including the fact that the police, “… could have simply secured the evidence without any problem,” the Court simply stated, “We cannot endorse a standard that would encourage such needless entries, and thus increase the potential for officer injuries or fatalities.”
The Court was unpersuaded by a vigorous dissent, in large part because the majority could see neither a compelling need for warrantless entry and search, or any danger or grave emergency, nor could it conclude that the “totality of the circumstances” justified the failure to obtain a warrant in this case. It concluded by noting:
Rather than retrieving the alleged illegal cigarette, the officers avoided the evidence. The officers in the area could have remained in the area of the house as they waited to obtain a warrant from a neutral magistrate, but failed to do so. Instead, they entered the home without a warrant and proceeded to manhandle Markus, his roommates, and their guests. One young woman testified that she was dragged out of a bathroom and thrust against a wall. Markus’ roommate testified that the drawers and closets inside of the home were in disarray following the incident, yet the officers say they never went beyond the garage. Fear, chaos, and violence erupted in Markus’ home that night – all for the sake of apprehending a man who allegedly had a marijuana cigarette.
The State asks us to plow open the homes of American citizens and permit this kind of police behavior, even though doing so would overstep hundreds of years of legal history. The sanctity of the home is paramount and we cannot do so. A statement attributed to William Pitt, Earl of Chatham, which was quoted by the United States Supreme Court, resonates with us:
The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!
Since his arrest, Mr. Markus has been represented by our partner, Matthew Kachergus. It is with great pride that we congratulate Mr. Kachergus for this hard fought victory. Nearly seven years ago, Mr. Markus walked into our office, charged with a mandatory minimum offense. He was, in fact, incarcerated during his initial appeal to the First District. We are honored that Mr. Markus entrusted his freedom to us and proud to have been a part of this seminal case. Congratulations to both Mr. Markus and Mr. Kachergus.
A copy of the entire opinion can be read here.
Markus v. State, 42 FLW S99 (Fla. Jan. 31, 2017)