BENTON, J.
James L. Thomas appeals convictions and sentences for sexual battery and petit theft, contending that evidence obtained in violation of the Fourth Amendment, and article I, section 12 of the Florida Constitution, was introduced against him at trial.1 We reverse and remand for a new trial.
In the early morning hours of Saturday, September 13, 2008, a young woman reported that she had been raped and that her purse, containing a cellular telephone, had been stolen. Approximately 24 hours later, police were able to track her cell phone2 to the apartment Mr. Thomas shared with his girlfriend.3 The investigators settled on a specific apartment "shortly after midnight" or "approximately 1:00 to 2:00 a.m." on September 14, 2008. For the next few hours, six or seven police officers milled around outside the apartment, but made no effort to obtain a search warrant.
They did not want to obtain a search warrant because they did not want to reveal information about the technology they used to track the cell phone signal. "[T]he Tallahassee Police Department is not the owner of the equipment." The prosecutor told the court that a law enforcement officer "would tell you that there is a nondisclosure agreement that they've agreed with the company." An investigator with the technical operations unit of the Tallahassee Police Department testified: "[W]e prefer that alternate legal methods be used, so that we do not have to rely upon the equipment to establish probable cause, just for not wanting to reveal the nature and methods." He also testified: "We have not obtained a search warrant [in any case], based solely on the equipment."
The police eventually decided to knock on the door and ask for permission to enter,4 and, at about five o'clock in the morning, three Tallahassee police officers knocked on the door of the apartment, and identified themselves as policemen. After about a minute, Mr. Thomas's girlfriend, Ms. Simmons, answered the door in her night clothes. Learning they did not have a warrant, she told them to come back when they had one, and attempted to close the door, but a police officer placed his foot inside the doorway to prevent her closing the door,5,6 removed her from the apartment, commanded anyone else inside the apartment to come outside, and entered the apartment with other officers.
Only after Mr. Thomas and the cell phone had been taken to the police station, Ms. Simmons testified, did she allow the police to search for and seize some of his other possessions.7 But the trial court found that she had consented earlier — at a time when several officers remained inside the apartment and she was not permitted to reenter — to the search of the apartment and the seizure of its contents. The cell phone and a purse were seized, and Mr. Thomas was arrested and taken to jail. After further interrogation there, he was formally arrested on charges of kidnapping to facilitate a felony, sexual battery involving serious physical force, and robbery.
Trial counsel filed a motion to suppress all evidence obtained as a result of the warrantless search of the apartment, and as a result of interrogation at the apartment and at the police station. After an evidentiary hearing, the trial court orally denied the motion, determining the forcible entry and "protective sweep" were not illegal on grounds the police had a reasonable concern that other people were in the apartment who might have posed a threat to police officers' safety, and that consent by Ms. Simmons could not have been tainted by an illegal entry because the entry was not illegal. Even if it were, the trial court said, there was a break in the chain of events leading to consent.
The cell phone, other physical evidence seized at the apartment, and statements Mr. Thomas made in the course of interrogations at the apartment and at the police station all came in evidence against him at trial.8 While acquitting him of the kidnapping charge, the jury found him guilty on the lesser-included offenses of sexual battery and theft, despite the victim's inability to identify him as the perpetrator.
The trial court's conclusion that the police entry into the apartment was lawful was error. Our "analysis begins, as it should in every case addressing the reasonableness of a warrantless search, with the basic rule that `searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.' Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnote omitted)." Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). The warrant requirement is among the "fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law." Johnson v. United States, 333 U.S. 10, 17, 68 S.Ct. 367, 92 L.Ed. 436 (1948).
The home is at the "very core" of the interests the Fourth Amendment protects, and enjoys the maximum protection it provides. See Florida v. Jardines, ___ U.S. ___, ___, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013). While the home Mr. Thomas and Ms. Simmons shared might not fit some definitions of a traditional home, overnight houseguests have a legitimate expectation of privacy even in temporary quarters. See Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). The Fourth Amendment9 guarantees to the people "[t]he right ... to be secure in their ... houses... against unreasonable searches and seizures." Unwarranted "searches and seizures inside a home" require special scrutiny. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Government agents' warrantless entry into a home is presumptively, constitutionally unreasonable.
The trial court ruled in the present case, however, that exigent circumstances excused the lack of a warrant: "I think they had a reasonable basis to be concerned about other people being in the apartment and doing the sweep was not illegal." But there was absolutely no indication that any suspect would escape or that any evidence inside the apartment would be destroyed. Testimony that a cell phone could be flushed down the toilet does not meet the test. See Missouri v. McNeely, ___ U.S. ___, ___, 133 S.Ct. 1552, 1567, 185 L.Ed.2d 696 (2013) (rejecting argument "that the fact that alcohol is naturally metabolized by the human body creates an exigent circumstance in every [DWI] case" and requiring a warrant, absent proof of exigency). Nor was there any imminent risk of death or serious injury to any police officer that failing to get a search warrant ameliorated. See generally Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (defining exigent circumstances). "Accordingly, neither the officer protection nor the evidence preservation justification for the warrant exception applied." Smallwood v. State, 113 So.3d 724, 735 (Fla.2013). Until the police knocked, Mr. Thomas and Ms. Simmons, in fact the apartment's only two occupants, were apparently asleep.
For purposes of decision, we assume the police had probable cause to believe the missing cell phone was inside the apartment. But they needed a warrant, as well, absent any exception justifying their forced entry. See Coolidge v. New Hampshire, 403 U.S. 443, 449, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (requiring police to seek the authorization of a neutral magistrate before undertaking a search or seizure); Katz; 389 U.S. at 357, 88 S.Ct. 507.
Warrantless searches are disfavored and, with limited exceptions "per se unreasonable." Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). See also Groh v. Ramirez, 540 U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). "[T]he police bear a heavy burden," the cases teach, "when attempting to demonstrate an urgent need that might justify warrantless searches." Welsh v. Wisconsin, 466 U.S. 740, 749-750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); Seibert v. State, 923 So.2d 460, 468 (Fla. 2006). Exceptions to the warrant requirement are "few in number and carefully delineated." United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U.S. 297, 318, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). See also Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). No exception applied here.
As more than one officer testified, Ms. Simmons did not consent to their entering the apartment. Plainly the decision to prevent her from closing the apartment door was the beginning of a warrantless search. The trial court did not find otherwise. This was no mere "knock and talk." A
"knock and talk" is only justified as a consensual encounter during which officers are authorized to "approach a dwelling on a defined path, knock on the front door, briefly await an answer, and either engage in a consensual encounter with the resident or immediately depart." Powell v. State, 120 So.3d 577 (Fla. 1st DCA 2013) (citing Nieminski v. State, 60 So.3d 521, 526 (Fla. 2d DCA 2011); Waldo v. State, 975 So.2d 542, 543 (Fla. 1st DCA 2008)). Given the consensual nature of the contact, of course, a resident is supposed to have the option of refusing to open the door. Kentucky v. King, ___ U.S. ___, ___, 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865 (2011) (whether knock is by "police officer or a private citizen, the occupant has no obligation to open the door or to speak.").
Calloway v. State, 118 So.3d 277, 279-80 (Fla. 5th DCA 2013). The trial court's ruling "that the search was the result of a free and voluntary consent by Ms. Simmons" cannot be squared with basic, evidentiary, essentially undisputed, chronological facts. No evidence whatsoever supports any finding of consent before the police forced their way into the apartment.
In context, it is clear that the trial court ruled only that consent (albeit disputed10 by Ms. Simmons) was given after police officers were already inside the apartment (and she had been ordered to remain outside in her night clothes). Where police obtain consent only after an illegal entry has taken place, the presumption arises that the ostensible consent was involuntary, and the prosecution has the burden of rebutting the presumption of involuntariness by clear and convincing proof. See Norman v. State, 379 So.2d 643, 647 (Fla.1980).
The voluntariness vel non of the defendant's consent to search is to be determined from the totality of circumstances. But when consent is obtained after illegal police activity such as an illegal search or arrest, the unlawful police action presumptively taints and renders involuntary any consent to search. Bailey v. State [, 319 So.2d 22 (Fla. 1975)]; Earman v. State, 265 So.2d 695 (Fla.1972); Taylor v. State [, 355 So.2d 180 (Fla. 3d DCA 1978)]. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The consent will be held voluntary only if there is clear and convincing proof of an unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official illegal action. Bailey v. State, 319 So.2d at 28; Sheff v. State, 329 So.2d 270 (Fla. 1976).
Id. at 646-47. We are aware of only one instance where a Florida court upheld a finding of a break in the chain of illegality, absent proof of specific knowledge of the right to refuse consent to search. See DuBoise v. State, 520 So.2d 260, 262-63 (Fla.1988) (holding break in the chain of illegality occurred despite lack of police advice that suspect could refuse consent because suspect repeatedly requested police to conduct a search). On the present record, there is no evidence that Ms. Simmons had any reason to believe that she had the right to refuse the officers, once they ignored her earlier effort to deny them entry into the apartment.
Even where a citizen does know of the right to refuse consent, and has reason to believe the right can actually be exercised, the presumption that consent is involuntary often carries the day. See, e.g., Reynolds v. State, 592 So.2d 1082, 1086 (Fla.1992) (ruling consent was invalid despite trial judge's ruling otherwise based on express advisement that consent could be withheld). We have repeatedly ruled consent less than voluntary where it was obtained shortly after illegal police action occurred. See Davis v. State, 946 So.2d 575, 578 (Fla. 1st DCA 2006) (consent "occurred immediately after the claimed seizure"); Phuagnong v. State, 714 So.2d 527, 533 (Fla. 1st DCA 1998) (consent obtained "only minutes later" than illegal search and arrest).11
In the present case, the trial court found that the police obtained consent after they detained Ms. Simmons and occupied the apartment. Illegal police activity was ongoing at the time, with police inside the apartment while Ms. Simmons was still being held outside the apartment. The state had the burden to prove that any consent was independent of these circumstances. On this record, the state did not meet its burden to prove a clear break in the chain of illegality sufficient to overcome the presumption that any "consent" the trial court found Ms. Simmons gave before Mr. Thomas was taken to jail was not a voluntary act. The state proved no more than acquiescence to apparent authority, and "failed to meet its heavy burden of showing that petitioner's consent to search was not fatally infected by the illegal intrusion." Norman, 379 So.2d at 646.
In the present case, as in Reynolds, Norman, Calloway, Davis, Phuagnong, Turner v. State, 674 So.2d 896, 898 (Fla. 5th DCA 1996) and Cooper v. State, 654 So.2d 229, 231 (Fla. 1st DCA 1995), the state failed to overcome the presumption of involuntariness that arose from the unlawful search and seizure of the apartment. The trial court's conclusion to the contrary was clearly erroneous.
Because police violated the Fourth Amendment and article I, section 12 of the Florida Constitution by entering the apartment without a warrant, and because neither subsequent consent nor the inevitable discovery doctrine12 excuse the constitutional violation in the present case, the trial court erred in failing to suppress the evidence obtained as a result of the violation.
Reversed and remanded.
RAY, J., concurs; MAKAR, J., dissents with opinion.
MAKAR, J., dissenting.
Barging into an apartment, over the tenant's objection with neither a warrant nor an exigency for doing so, culminated the police's intense overnight quest to locate the victim's cellphone whose power was diminishing. No matter how well-intentioned,13 doing so was inconsistent with constitutional principles. But once the girlfriend-tenant fully understood the gravity of the violent sex crime being investigated, and that her boyfriend could well be the perpetrator, she changed her tune so markedly that the trial court — who heard both her testimony and that of the officers — concluded that an unequivocal break in the initial chain of illegality was shown by clear and convincing evidence. Norman v. State, 379 So.2d 643, 646 (Fla. 1980). The trial court's conclusion that her consent was freely and voluntarily given, thereby overcoming the presumption that the initial illegal search was tainted and rendered a subsequent consent involuntary, is supported by the testimony he heard. Bolstering his conclusion was the fact that the girlfriend-tenant continued voluntarily to give consent to the officers to search the apartment and then her car (which the boyfriend had used to cruise for women and drugs the prior evening when the brutal attack occurred) thereafter; she also opened up and became even more cooperative after her boyfriend had left the premises, suggesting that his presence may have initially contributed to any reluctance on her part to consent. The ruling the trial court faced was a close one on this record, particularly because of the closeness in time between the initial search and the girlfriend-tenant's consent. The trial judge, who clearly understood the applicable law, made a supportable conclusion under the totality of the circumstances that the girlfriend-tenant had a clear change of heart, saying that "as soon as [she] understood the gravity of the circumstances she began to cooperate." Thus, although I concur that the initial entry into the apartment was unconstitutional and that the inevitable discovery doctrine does not apply, I would affirm the trial court's ruling and the challenged conviction based on the girlfriend-tenant's consent.
