NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

JUAN FALCON, )

)

Appellant, )

)

v. ) Case No. 2D15-4134

)

STATE OF FLORIDA, )

)

Appellee. )

)

Opinion filed October 27, 2017. 

Appeal from the Circuit Court for 

Collier County; Lauren L. Brodie, 

Judge.

Christopher H. Brown of Brown, 

Suarez, Rios & Weinberg, P.A., 

Naples, for Appellant. 

Pamela Jo Bondi, Attorney General, 

Tallahassee, and C. Todd Chapman, 

Assistant Attorney General, Tampa, 

for Appellee. 

ROTHSTEIN-YOUAKIM, Judge.

Juan Falcon pleaded no contest to charges of maintaining a marijuana 

"grow house" and possessing drug paraphernalia based on the seizure of twenty-six 

marijuana plants from a shed in his back yard. As part of his plea, Falcon preserved his 

right to appeal the trial court's denial of his dispositive motion to suppress evidence on

the grounds that (1) the deputies had violated Florida's "knock-and-announce" statute,
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section 933.09, Florida Statutes (2013), and (2) the search warrant had issued on 

insufficient probable cause. We hold that Falcon's first ground is meritorious, decline to 

reach the second ground, and reverse.

Background

In denying Falcon's suppression motion, the trial court made no explicit 

findings of fact. Consequently, we must construe the factual record in the light most 

favorable to the denial of the motion, see In re Doe, 932 So. 2d 278, 283-84 (Fla. 2d DCA 

2005) (observing that "traditional appellate presumption of correctness . . . require[s] us 

to view the record in the light most favorable to sustaining the order under review"), which 

we do as follows:

After learning that Falcon was engaged in a marijuana-growing operation 

out of his residence and/or a shed in his back yard, the Collier County Sheriff's Office 

independently confirmed the presence of items consistent with a grow operation near and 

connected to the shed. Thus, at just past 6:45 a.m. on April 9, 2014, a SWAT unit of at 

least six heavily armed deputies appeared on the front doorstep of Falcon's residence to 

execute a search warrant.

Less than an hour earlier, the deputies had all been briefed on the fact that 

Falcon lived in the residence with his family, which included an adolescent son and a 

teenage daughter. Notwithstanding the nature of the suspected offense,1the deputies 

had no reason to believe that there were any weapons in the residence or that Falcon 

 

1At the suppression hearing, one SWAT member testified that, in situations 

involving a suspected marijuana-growing operation: "We always have to assume that 

there are weapons in the house. We can't go on the mentality that there's no weapons 

because we don't know."
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was armed and dangerous; his criminal history consisted of one arrest for driving under 

the influence. The deputies also had no reason to believe that Falcon knew that they 

were coming, that anyone inside the residence was at risk of harm, or that Falcon or his 

family might try to escape or destroy evidence.

Over a public address system, the deputies thrice announced "Sheriff's 

Department" and demanded that those inside the residence open the door. The deputies 

observed no activity inside the residence. Their demand unmet, the deputies breached 

the door with a battering ram and another tool and then set off two pyrotechnic "noise 

flash diversion devices" at the front and side of the residence.

Falcon and his family had been sleeping when the deputies had arrived on 

their doorstep, and Falcon and his daughter were walking toward the front door when it 

was forced open. Numerous deputies entered the residence and secured Falcon, his 

wife, and his daughter by zip-tying their hands behind their backs. Although Falcon's son 

was not zip-tied, the record establishes that the deputies' entry terrified him.

Approximately twenty seconds elapsed between the moment that the 

deputies began the knock-and-announce procedure and their breach of the front door. At 

the suppression hearing, one deputy "estimate[d]" that "more than fifteen seconds" had 

elapsed between the first knock-and-announce and the breach. Accordingly, we must 

assume that, after duly notifying Falcon and his family of their authority to enter, deputies 

waited more than fifteen seconds but less than twenty seconds before breaching their 

front door.
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Analysis

Falcon argues that the SWAT deputies violated the knock-and-announce 

statute when they forcibly breached the front door of his residence to execute the search 

warrant. That statute provides:

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.

§ 933.09.

The policy underlying section 933.09 derives from the sentiment that 

"[t]here is nothing more terrifying to the occupants than to be suddenly confronted in the 

privacy of their home by a police officer decorated with guns and the insignia of his office.

This is why the law protects its entrance so rigidly." State v. Bamber, 630 So. 2d 1048, 

1052 (Fla. 1994) (quoting Benefield v. State, 160 So. 2d 706, 709 (Fla. 1964)). Where 

officers knock, announce their authority and purpose, and then enter with such haste that 

the occupant does not have a reasonable opportunity to respond, the search violates 

section 933.09. Holloway v. State, 718 So. 2d 1281, 1282 (Fla. 2d DCA 1998). And 

absent certain exigencies, a violation of section 933.09 warrants suppression. See 

generally State v. Cable, 51 So. 3d 434, 444 (Fla. 2010) (reaffirming suppression as 

remedy for violation of parallel knock-and-announce provision of § 901.19(1)); see also

Benefield, 160 So. 2d at 710 (identifying exigencies that justify unannounced intrusion 

that would otherwise violate section 933.09).

Significantly, however, section 933.09 does not provide how long "after due 

notice" the officer must wait before forcibly entering the residence, and case law provides 
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no bright-line rule, although "[t]his court has noted that '[t]ime periods less than five 

seconds are rarely deemed adequate, and periods in excess of fifteen seconds are often 

adequate.' " Spradley v. State, 933 So. 2d 51, 55 (Fla. 2d DCA 2006) (quoting State v. 

Cassells, 835 So. 2d 397, 399 n.2 (Fla. 2d DCA 2003)) (second alteration in original). 

"[T]he question is whether the officer has waited a sufficient period, under all of the 

circumstances, so that the officer can reasonably infer or conclude that he or she has 

been refused admittance by the occupants,"

2

id., and "the only answer found in our case 

law is that the occupant must have a 'reasonable opportunity' to respond," State v. Pruitt, 

967 So. 2d 1021, 1023 (Fla. 2d DCA 2007) (quoting Richardson v. State, 787 So. 2d 906, 

908 (Fla. 2d DCA 2001)). In determining whether the occupant has been afforded a 

reasonable opportunity, "some factors the courts have considered include the nature of 

the underlying offense, the time of day the warrant is executed, the size of the home, 

whether any activity or movement is observed within the home at the time of execution, 

and whether any exigencies exist." Mendez-Jorge v. State, 135 So. 3d 464, 467 (Fla. 5th 

DCA 2014).

Although failing to explicitly find how long the deputies had waited, the trial 

court concluded that it had been "reasonable." Upon our de novo review of the pertinent 

factors, however, see Daniels v. State, 208 So. 3d 1223, 1226 (Fla. 2d DCA 2017) 

(explaining that we review de novo trial court's conclusions of law in ruling on 

suppression motion), we conclude that the fifteen to twenty seconds that the deputies 

 

2An officer with a valid warrant may, of course, forcibly enter a residence 

upon an affirmative refusal of entry. Nevertheless, "whether the ultimate refusal be 

express or implied, the statute and case law interpreting it require that some quantity of 

time, sufficient under the particular circumstances, be permitted for an occupant to 

respond." Richardson v. State, 787 So. 2d 906, 908 (Fla. 2d DCA 2001). 
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provided Falcon and his family was not reasonable. Apart from the bare nature of the 

offense, no factor supported the urgency with which the deputies executed the warrant, 

and the facts of this particular case undercut the assumptions that the deputies would 

normally draw even from that factor: even allowing a general assumption that a 

marijuana-grower will be armed and dangerous, the State stipulated at the suppression 

hearing that the SWAT deputies had had no reason to believe that there were weapons 

in the residence or that Falcon was armed and dangerous. To the contrary, the deputies 

knew that the residence was Falcon's family residence, which he shared with his wife and 

children, and that Falcon's criminal history consisted of one prior arrest for driving under 

the influence. See Randall v. State, 793 So. 2d 59, 60 (Fla. 2d DCA 2001) (holding ten 

seconds unreasonable when officers executed warrant between 6:00 and 7:00 a.m. and 

had no information that firearms might be present or that residents posed any threat).

Furthermore, in executing the warrant at 6:45 a.m., the deputies all but 

ensured that the entire family would be home and, as turned out to be the case, might still 

be asleep.3 See Spradley, 933 So. 2d at 55 (holding fifteen seconds unreasonable 

because, among other things, at 9:41 p.m., the officers "could reasonably expect an 

occupant to be awake but [it was also] late enough that the occupants might be preparing 

for bed."); Richardson v. State, 787 So. 2d 906, 908 (Fla. 2d DCA 2001) (holding ten 

seconds unreasonable at approximately 5:30 a.m. because it was "at a time of day when 

it was reasonable that persons inside the house would be sleeping" (citing Griffin v. 

United States, 618 A.2d 114 (D.C. 1992) (holding thirty seconds unreasonable at 1:40 

 

3The SWAT unit leader testified that the unit had executed the warrant at 

that time for the safety of the unit. When asked what had prevented the unit from waiting 

until, for example, noon, the unit leader replied, "daylight."
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a.m.))). None of the deputies observed any activity or movement inside the residence. 

Cf. Braham v. State, 724 So. 2d 592, 594 (Fla. 2d DCA 1998) (considering officers' ability 

to hear phone ringing inside trailer and someone moving around inside as factors

rendering five- to ten-second delay reasonable). And the deputies had no reason to 

believe that Falcon knew that they were coming, that anyone inside the residence was at 

risk of harm, or that Falcon or his family might try to escape or destroy evidence. Cf.

Benefield, 160 So. 2d at 710 (identifying exigencies justifying unannounced intrusion).

Conclusion

 Upon consideration of all of these factors, we hold that the deputies 

violated section 933.03 by failing to afford Falcon a reasonable opportunity to respond 

and that this violation warranted suppression.4 In so holding, we recognize that 

determining what is reasonable is not an exact science and that, in the wrong situation, 

waiting too long could have catastrophic results. Nonetheless, maintaining the balance 

between the rightful force and authority of the State and the rights of its citizens can 

come down literally to a matter of seconds. Precisely because there is so little margin for 

error either way, we urge law enforcement agencies to use SWAT tactics to execute 

search warrants sparingly and to take special care that their use does not simply become 

par for the course.

Reversed; remanded for discharge. 

WALLACE and KHOUZAM, JJ., Concur.

 

4Because we conclude that suppression is warranted on this basis, we 

need not address Falcon's alternative challenge to the sufficiency of the probable cause 

supporting the warrant.