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Kistner v. State

District Court of Appeal of Florida, First District
Dec 6, 1979
379 So. 2d 128 (Fla. Dist. Ct. App. 1979)

Summary

reversing trial court's denial of a motion to suppress where sheriff failed to comply with knock-and-announce statute — section 933.09 (citing Benefield)

Summary of this case from State v. Cable

Opinion

No. NN-8.

December 6, 1979.

Appeal from the Circuit Court, Suwannee County, Wallace Joplin, J.

Charles G. Brackins, of Meldon Brackins, Gainesville, for appellant.

Jim Smith, Atty. Gen., and A.S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.


An appeal from convictions on charges of possession of marijuana and paraphernalia. The sheriff found the contraband in appellant's home when executing a warrant for searching the house. The sheriff knocked repeatedly and called out, "Anybody home?", to which there was no reply because his knock and call were not heard by the occupant, appellant's wife. So the sheriff entered. The trial court denied a suppression motion reasoning that if the occupant did not hear the knock and "Anybody home?" call, she would not have heard the sheriff announce his identity and purpose. The state urges that the sheriff's failure to announce his identity and purpose should be excused because that announcement was or seemed futile, and it reasonably appeared to him that no one was home to hear his call. We cannot subscribe to that erosion of Benefield v. State, 160 So.2d 706 (Fla. 1964). See Whisnant v. State, 303 So.2d 397 (Fla. 3d DCA 1974), cert. den., 323 So.2d 273; Berryman v. State, 368 So.2d 893 (Fla. 4th DCA 1979); Moreno v. State, 277 So.2d 81 (Fla. 3d DCA 1973); State v. Collier, 270 So.2d 451 (Fla. 4th DCA 1972); Section 933.09, Florida Statutes (1977).

REVERSED.

ERVIN, J., concurs.

BOOTH, J., dissents.


Summaries of

Kistner v. State

District Court of Appeal of Florida, First District
Dec 6, 1979
379 So. 2d 128 (Fla. Dist. Ct. App. 1979)

reversing trial court's denial of a motion to suppress where sheriff failed to comply with knock-and-announce statute — section 933.09 (citing Benefield)

Summary of this case from State v. Cable

In Kistner v. State, 379 So.2d 128 (Fla. 1st DCA 1979), the appellate court rejected a contention, similar to the one the state makes here, that it was futile to knock and announce where it reasonably appeared no one was home to hear the call.

Summary of this case from Van Allen v. State
Case details for

Kistner v. State

Case Details

Full title:STEVEN ERIK KISTNER, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, First District

Date published: Dec 6, 1979

Citations

379 So. 2d 128 (Fla. Dist. Ct. App. 1979)

Citing Cases

Van Allen v. State

The question is, does it matter that the premises were unoccupied. In Kistner v. State, 379 So.2d 128 (Fla.…

State v. Cable

Since Benefield, the district courts of appeal have applied the exclusionary rule to violations of the…