In Florida, unless some Constitutionally permissible reason exists to forego this rule, law enforcement must obtain a search warrant prior to entering a residence to look for evidence of a crime or perpetrators of a crime. Even after obtaining a warrant, Florida law requires that law enforcement knock, announce their presence, and give the occupants of the residence sufficient time to either allow or disallow their entry. Only after this process and a denial of entry may law enforcement forcibly enter the residence (Florida’s Knock and Announce Rule)
Fla. Stat. 933.09, Florida’s Knock-and-Announce Statute
The process by which a search warrant on a residence must be executed is detailed in Fla. Stat. 933.09. It states:
The officer may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if after due notice of the officer’s authority and purpose he or she is refused admittance to said house or access to anything therein.
Prior to the proliferation of body cameras on law enforcement, ensuring that they complied with this requirement was oftentimes difficult, at best. In hearings, you would end up in a he-said, she-said with law enforcement. As one can surmise, having a credibility contest with law enforcement rarely goes a defendant’s way. However, now that most jurisdictions require their officers and deputies to wear the cameras, we have hard evidence should law enforcement violate this statute. If the statute is violated, Florida law still requires the suppression of any evidence found during the execution of the warrant.
How Long Must Law Enforcement Wait Prior to Entry?
This question is the most often litigated question when knock-and-announce is in play. Whether law enforcement announced their presence is almost always a given. They are well aware of their requirement to do so. How long they should wait after the announcement of their presence is not so clear.
As an initial matter, if they wait at least 15 seconds for a person to respond to their knock-and-announce, courts will almost always find that this is enough time and that any forced entry after this period of time will be deemed legal.
On the flip side, any wait under 5 seconds is almost always not going to pass Constitutional muster and a court is likely to find that this short a period violates the statute and that the evidence must be suppressed.
Anything between 5 and 10 seconds is a gray area. In other words, sometimes a wait in this period will be sufficient and at others it will not. Courts will judge the sufficiency of the wait based upon a totality of the evidence. Some of the things it will consider are the size of the residence, the time of day of the search, whether movement can be observed inside the residence, whether the occupants are known to possess weapons, whether the occupants are known to be violent, and the nature of the underlying offense. Falcon v. State, 230 So.3d 168 (Fla. 2d DCA 2017) (court found a period of 15-20 seconds was unreasonable where the warrant was executed while the family was likely sleeping, there was no movement observed in the residence, and suspect was not known for violence).
Florida’s Knock and Announce Rule: When Does Law Enforcement Not Have to Knock?
The statute does not apply when the residence is already open or the resident is tricked into letting law enforcement enter. The purpose of the statute is to avoid the situation where the resident does not know who is entering their residence and, therefore, they may act violently towards law enforcement before they have time to realize it is law enforcement. As such, if the door is already open and the don’t have to break it open, knock and announce does not apply. Likewise, if the resident simply lets them into the residence but they don’t learn of their status of law enforcement until after entry, knock-and-announce does not apply.
Is Opening an Unlocked Door Forcible Entry?
Lastly, courts have held that when any force is used to open a door or window, no matter how slight, the knock-and-announce statute applies. In State v. Roman, 29 Fla. L. Weekly Supp. 242a (Fla. 14th Cir. Ct. 2021), the Court held that a knock, a wait of 4 seconds, and then entry by and through and unlocked door was illegal. The Court stated:
It is clear from a review of the video in the present cases that officers did not wait a sufficient amount of time prior to making entry into the Defendant’s residence. After knocking and announcing their presence, law enforcement waited only four seconds prior to entering the residence through the unlocked door. Such a short amount of time was insufficient to allow them to conclude that entry had been refused.