††††††††††† Appellant,

v.                                          Appeal No. CRC 00-3086 CFANO


††††††††††† Appellee.


Opinion filed __________________.

Appeal from a decision of
the Pinellas County Court

County Judge Amy Williams

Maura Kiefer, Esq.
Attorney for appellant

Nancy Slack, Esq.
Assistant State Attorney


††††† THIS MATTER is before the Court on Charles Championís appeal from a decision of the Pinellas County Court denying his motion to suppress. The defendant pleaded no contest, specifically reserving his right to appeal this issue. After reviewing the briefs and record, this Court reverses the decision of the trial court.

†††††† Two officers responded to a traffic accident that had turned violent. The officers spoke with several witnesses. They told the officers that the driver of a van that had caused the accident had fled in the van to a nearby house. They also told the officers that they believed he was possibly under the influence of alcohol. The officers approached the house and told the group of men outside the house that they needed to talk to the driver of the van. The defendant, the driver of the van, appeared at the doorway and was identified by some of the witnesses. The inside door was open, but the screen door was closed. The defendant stood behind the closed screen door. The officers explained to the defendant that they were investigating a traffic accident. While the officers were talking with the defendant, they smelled alcohol on his breath. Instead of cooperating with the investigation, the defendant attempted to close the door and go back inside the residence. At that point the officers pushed the screen door open, went inside the house about a foot, grabbed the defendant by his arm and pulled him outside the house so they could conduct their investigation. The defendant was ultimately charged with DUI. In the trial court the defendant brought a motion to suppress, claiming that the officers had no right to cross the threshold of the house to apprehend him since they did not have a warrant. The trial court denied the motion to suppress, holding that the officers had not crossed the threshold, thus there was no violation of the Fourth Amendment. The defendant seeks review of that decision.

†††††† Appellate review of an order on a motion to suppress involves questions of both law and fact and an appellate court must make a de novo review of the trial courtís application of the law to the facts. Rosenquist v. State, 769 So.2d 1051 (Fla. 2d DCA 2000). Applying that standard to this case, this Court finds that the trial courtís determination that the officers did not cross the threshold is error. The testimony was that the defendant stayed behind the screen door in the doorway, and that the officers had to open the screen door and go about a foot across the threshold to apprehend the defendant.

†††††† Although there are no Florida cases directly on point, the case of Davis v. State, 744 So.2d 586 (Fla. 2d DCA 1999) is instructive. In Davis the court ruled that if an officer had encountered an individual on the street he could have detained her to question her; however, because the individual was standing just inside the door of her home, ď[a]bsent consent or exigent circumstances, law enforcement may not cross the threshold of a residence without a warrant.Ē Id. at 587. Similarly, in the case at bar the officers could not cross the threshold to question the defendant.

††††† The issue, however, in this case is whether or not the officers actually crossed the threshold. The existence of the screen door changes the analysis of this case. The testimony showed that at all times the defendant stayed behind the screen door. Under these circumstances, this Court concludes that reasonable people would assume that they were still within their homes. This is not a case where a defendant is in an open doorway or a porch. Again, no Florida cases have directly ruled on the issue; however, two out - of - state cases are helpful. In Cox v. State, 696 N.E.2d 853 (Ind. 1998), the court ruled that the police improperly crossed the threshold of a manís home by opening the screen door, forcibly preventing him from closing the front door, and reaching into the house to pull him out. And in Smith v. State, 72 Md. App. 450, 531 A.2d 302 (1987) the court acknowledged that even if a defendant opens his door in response to a knock, the barrier of a screen door may constitutionally prohibit entry into a home by the police without a warrant. It was, therefore, error for the trial court to find that the officers had not crossed the threshold to apprehend the defendant, and that ruling must be reversed.

††††† The State, however, also raised the argument that the officers were justified in entering the house based upon exigent circumstances. The State argued that the exigent circumstances in this case were the officersí need to obtain blood alcohol evidence for use in a DUI investigation and it would have been destroyed if they had waited to obtain a warrant. The order denying the motion to suppress reveals that the trial court never reached this issue because it found the officers never crossed the threshold.† Since this Court has ruled to the contrary on that point, the trial court should be permitted to rule on the Stateís exigent circumstances argument.

††††† IT IS THEREFORE ORDERED that the order denying suppression is reversed, and this matter is remanded to the trial court so that it can rule on the Stateís exigent circumstances argument.

††††† DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this _____ day of March, 2001.

cc:† State Attorney

†††††† Maura Kiefer, Esq.

†††††† Judge Williams†††††††††† ††††††††††††††††††††††† ††††††††††††††††††††††† ††††††††††† †††††††††† ††††††††††††††††††††††† ††††††††††††††††††††††† ††††††††††††††††††††††† ††††††††††††††††††††††† ††††††††††† †††††††††††


David A. Demers
Circuit Judge

John A. Schaefer
Circuit Judge

Irene H. Sullivan
Circuit Judge