County Criminal Court: CRIMINAL LAW – Search and Seizure – Warrant – Since person inside house opened door in response to police knock, there was no improper execution of the warrant. Denial of motion to suppress affirmed. Colaianni v. State, No. CRC 03-25 APANO (Fla. 6th Cir.App.Ct. July 27, 2004).

 

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

FRANK COLAIANNI

 

            Appellant,

 

v.

 

Appeal No. CRC 03-25 APANO

UCN522003AP000025XXXXCR

STATE OF FLORIDA

 

            Appellee.

____________________________/

 

 

Opinion filed ________________.

 

Appeal from a judgment and sentence

entered by the lower court in the Sixth

Judicial Circuit

Judge Phillip Federico

 

Jean Higham, Esq.

Assistant Public Defender

 

Cheryl Hoover, Esq.

Assistant State Attorney

 

ORDER AND OPINION

 

 

            THIS MATTER is before the Court on the defendant’s appeal from a judgment and sentence entered by the trial court. After reviewing the briefs and record, this Court affirms the decision of the trial court.1

            The defendant pleaded no contest to possession of marijuana charges, reserving his right to appeal the trial court’s decision to deny his motion to suppress. The defendant claims that the warrant was improperly executed, and that there was an insufficient basis for the warrant. The standard of review for the denial of the motion to suppress is de novo. Simpson v. State, 835 So.2d 394 (Fla. 2003); Pagan v. State, 830 So.2d 792 (Fla. 2002).

            The warrant was not improperly executed. In the case at bar the police knocked on the door and someone in the house opened the door. The police then entered the house, contemporaneously announcing that they were police officers with a warrant. This behavior did not violate the “knock and announce” rule that requires the police to knock and announce their purpose before they break into a house. Once the person inside the house opened the door, there was no breaking. See State v. Manning, 396 So.2d 219 (Fla. 4th DCA 1981).  See also, State v. Herstone, 633 So.2d 110 (Fla. 2d DCA 1994).

            Second, the defendant claims that the trial court erred in not allowing him to present evidence to challenge the information used to issue the warrant in the first place. As the State points out, however, the evidence proffered by the defendant did not really contradict the essential information used by the police to obtain the warrant. Instead, the defendant appeared to be arguing against the sufficiency of the evidence. The essential evidence --- three trash pulls within a one-week period all containing evidence of marijuana --- was sufficient to justify the issuance of the warrant. See State v. Jacobs, 437 So.2d 166 (Fla. 5th DCA 1983).

            IT IS THEREFORE ORDERED that the trial court was correct to deny the


defendant’s motion to suppress, and the judgment and sentence are affirmed.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of July, 2004.

 

                                                                                    ______________________

                                                                                                James R. Case

                                                                                                Circuit Judge

 

 

                                                                                   

                                                                                    _________________________                                                                                                          John A. Schaefer

                                                                                                Circuit Judge

 

 

cc:   State Attorney

 

        Public Defender

 

        Judge Federico

 

1 Judge Ley did not participate in the review of this appeal.