Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-3098 _____________________________ FRANKIE L. JONES, SR., Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Stephen S. Everett, Judge. November 24, 2021 LEWIS, J. In this appeal, Appellant, Frankie L. Jones, Sr., challenges the denial of his motion to suppress. For the reasons that follow, we find no merit in Appellant’s arguments and affirm his judgment and sentences. Factual Background In August 2019, police responded to a domestic disturbance call at Appellant’s home. The deputy who arrived on scene could smell alcohol on Appellant’s breath. Appellant was leaning on walls and chairs for support, was slurring his speech, and was stumbling. Appellant was “angry and yelling and screaming at people that were allegedly going to hurt his mother . . . .” Appellant’s mother told the deputy that Appellant had been drinking heavily that day and was “becoming increasingly aggressive towards everybody and causing a disturbance.” Appellant, who admitted to the deputy that he had been drinking a great deal, threatened to “whoop [the deputy’s] ass.” After Appellant told the deputy that he would stay inside and away from his mother and granddaughter, the deputy went outside to talk to the females. Appellant then went outside with a bottle of liquor in his hand and was “yelling and screaming” and stated, “Betty, I ain’t going anywhere. B----, I’ll f--- anybody up.” The deputy explained below, “When I instructed [Appellant] to go back inside multiple times, he continued to yell and scream. I started to approach [him] to get him to go back inside, put the bottle down and go back inside, he guzzled the rest of the beverage down and then ran back inside before I could get to him.” When the deputy went back inside, Appellant was sitting down and said, “I’m done, Bro, I’ll quit. You don’t need to do anything to me.” When asked if he made any decision on taking Appellant into custody, the deputy replied, “Based off of his behavior, his level of intoxication, the fact that he continued to consume alcohol and wasn’t following directions and his aggressive behavior towards Betty, I made the decision to Marchman Act him.” The deputy proceeded to search Appellant “for officer safety and policy.” The deputy intended to take Appellant to the hospital until he found a crack pipe in his pocket. When asked “[a]nd before you take someone to TMH [a hospital], would it be important to make sure that they also don’t have any weapons for the safety of those individuals there, as well as the ones examining him and taking care of him,” the deputy replied, “Absolutely.” The deputy did not give Appellant the opportunity to consent to going to the hospital, and he did not ask Appellant his opinion on obtaining alcohol assistance. Appellant acknowledged below that the deputy mentioned the Marchman Act when he detained him. In his suppression motion, Appellant argued that his detention was not warranted under the Marchman Act, that the deputy did not follow all the requirements for a Marchman Act detention, and that entry into his home and the search of his person following his detention were unlawful. 2 The trial court denied Appellant’s motion to suppress, concluding that the deputy’s observations of Appellant created a reasonable safety concern and justified entry into Appellant’s home and that once Appellant was detained under the Marchman Act, a pat-down limited to the extent necessary to protect the deputy was permissible. Thereafter, Appellant pled nolo contendere to the charges. The trial court and attorneys agreed that the suppression ruling was preserved for appeal and dispositive. This appeal followed. Analysis A trial court’s ruling on a motion to suppress comes to an appellate court clothed with a presumption of correctness, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner that is most favorable to sustaining the trial court’s ruling. Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002). A trial court is vested with the authority to determine the credibility of the witnesses and the weight of the evidence. Lee v. State, 868 So. 2d 577, 579 (Fla. 4th DCA 2004). A reviewing court is bound by the trial court’s factual findings if they are supported by competent, substantial evidence. Pagan, 830 So. 2d at 806. However, a trial court’s determination of legal issues is subject to de novo review on appeal. Id. Law enforcement may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury without violating a defendant’s Fourth Amendment right against unreasonable searches and seizures. C.L.L. v. State, 115 So. 3d 1114, 1116 (Fla. 1st DCA 2013). To justify an emergency entry into a home by police officers, the State must demonstrate that an objectively reasonable basis existed for the officer to believe that there was an immediate need for police assistance for the protection of life. Id. at 1117. It is immaterial whether an actual emergency existed in the residence. Id. It is only the reasonableness of the officer’s belief at the time of entry that is considered on review. Id. The inquiry must be done in light of the totality of the circumstances confronting the officers, including, in many cases, a need for an on-the-spot judgment based on incomplete information and sometimes 3 ambiguous facts bearing upon the potential for serious consequences. Id. In this case, the deputy entered Appellant’s home in order to take him into protective custody pursuant to what is referred to as the Marchman Act. As such, we must consider if Appellant’s involuntary custody under the Marchman Act was warranted. Section 397.675, Florida Statutes (2019), provides: A person meets the criteria for involuntary admission if there is good faith reason to believe that the person is substance abuse impaired or has a co-occurring mental health disorder and, because of such impairment or disorder: (1) Has lost the power of self-control with respect to substance abuse; and (2)(a) Is in need of substance abuse services and, by reason of substance abuse impairment, his or her judgment has been so impaired that he or she is incapable of appreciating his or her need for such services and of making a rational decision in that regard, although mere refusal to receive such services does not constitute evidence of lack of judgment with respect to his or her need for such services; or (b) Without care or treatment, is likely to suffer from neglect or refuse to care for himself or herself; that such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; and that it is not apparent that such harm may be avoided through the help of willing family members or friends or the provision of other services, or there is substantial likelihood that the person has inflicted, or threatened to or attempted to inflict, or, unless admitted, is likely to inflict, physical harm on himself, herself, or another. A law enforcement officer is permitted to implement protective custody measures under the Marchman Act when a minor or adult who appears to meet the involuntary admission criteria is brought 4 to the officer’s attention or is in a public place. § 397.677(1)-(2), Fla. Stat. (2019). Appellant contends that the deputy’s observations did not meet the criteria for protective custody under the foregoing provisions. We disagree. The deputy testified that Appellant was noticeably intoxicated, his breath smelled like alcohol, he was leaning on walls and chairs for support, and he was slurring his speech. He was “angry and yelling and screaming at people that were allegedly going to hurt his mother,” and he threatened the deputy. Appellant’s mother told the deputy that Appellant had been drinking heavily and was becoming “increasingly aggressive towards everybody and causing a disturbance.” While the deputy was outside talking to Appellant’s family members, Appellant went back outside while drinking a bottle of liquor and began “yelling and screaming.” In response to the deputy’s order to put the bottle down and go back inside, Appellant “guzzled the rest of the beverage.” These facts support the deputy’s decision to take Appellant into protective custody and the trial court’s determination that the custody was permissible under the Marchman Act. See White v. State, 170 So. 3d 77, 78 (Fla. 2d DCA 2015) (holding that the trial court properly denied the appellant’s motion to suppress because the officer was authorized to take the appellant into protective custody for his own safety where the “officer’s testimony supports a good faith belief that Mr. White had lost the power of self-control with respect to alcohol use and that he posed a danger to himself unless taken into protective custody”). The State argues on appeal that the United States Supreme Court’s recent decision in Caniglia v. Strom, 141 S.Ct. 1596 (2021), does not affect this case. We agree. There, the police, who were responding to a wellness check initiated by the petitioner’s wife, seized two handguns from the couple’s home after the petitioner went to the hospital for a psychiatric evaluation. Id. at 1598. The Court held that its acknowledgement in Cady v. Dombrowski, 413 U.S. 433 (1973), of police officers’ “caretaking” duties did not create a standalone doctrine that justifies warrantless searches and seizures in the home. Id. As the State points out in this case, Justice Kavanaugh recognized in his concurring opinion that the Court’s decision “does not prevent police officers from taking reasonable steps to assist those who are inside a home and in need 5 of aid.” Id. at 1602. Here, unlike the situation in Caniglia, the deputy did not enter Appellant’s home to search and seize evidence after Appellant left the premises. Instead, the deputy followed Appellant inside after deciding that detention was warranted under the Marchman Act. He reasonably did so based upon the circumstances before him. With that said, however, we agree with Appellant’s argument that the deputy failed to obtain his consent or his opinion on getting alcohol assistance. Section 397.6771, Florida Statutes (2019), which is entitled “Protective custody with consent,” provides: A person in circumstances which justify protective custody, as described in s. 397.677, may consent to be assisted by a law enforcement officer to his or her home, to a hospital, or to a licensed detoxification or addictions receiving facility, whichever the officer determines is most appropriate. (Emphasis added). Section 397.6772, Florida Statutes (2019), which is entitled “Protective custody without consent” provides: (1) If a person in circumstances which justify protective custody as described in s. 397.677 fails or refuses to consent to assistance and a law enforcement officer has determined that a hospital or a licensed detoxification or addictions receiving facility is the most appropriate place for the person, the officer may, after giving due consideration to the expressed wishes of the person: (a) Take the person to a hospital or to a licensed detoxification or addictions receiving facility against the person's will but without using unreasonable force. . .; or (b) In the case of an adult, detain the person for his or her own protection in any municipal or county jail or other appropriate detention facility. 6 Such detention is not to be considered an arrest for any purpose, and no entry or other record may be made to indicate that the person has been detained or charged with any crime. . . . (Emphasis added). The foregoing provisions make clear that the Marchman Act permits protective custody by a law enforcement officer either with or without consent of an individual after considering the individual’s wishes. In order to give consent under section 397.6771, a person would need to be informed by the law enforcement officer about protective custody and his or her options. Indeed, section 397.6772 expressly contemplates such by speaking of the “due consideration” of a person’s wishes that an officer should take into account before taking him or her into protective custody. Here, the deputy testified that after he followed Appellant back inside, Appellant said, “I’m done, Bro. I’ll quit. You don’t need to do anything to me.” The deputy did not provide Appellant with the opportunity to consent to going to the hospital. Nor did he ask Appellant his opinion on getting alcohol assistance. Without doing these things, the deputy could not give “due consideration” to any “expressed wishes” that Appellant may have had. Thus, while we conclude that the circumstances present in the case supported involuntary custody under the Marchman Act, we agree with Appellant that the deputy should have attempted to obtain his consent for alcohol assistance or his opinion on the issue, if any. The question becomes what effect the deputy’s failure should have on Appellant’s case and the evidence that was found as a result of the involuntary custody. We find the Florida Supreme Court’s decision in Lukehart v. State, 70 So. 3d 503 (Fla. 2011), instructive on this issue. There, the appellant argued in his rule 3.850 motion that the postconviction court erred in denying his claim that his trial counsel was ineffective for failing to include an additional argument in his motion to suppress. Id. at 517. The appellant argued that counsel should have asserted that law enforcement officers took him into custody under the Florida 7 Mental Health Act, which is commonly known as the Baker Act, as a pretext to an arrest in violation of his Fourth and Fifth Amendment rights. Id. After noting that it was not clear whether a local law enforcement policy existed with regard to the Baker Act “or, if there was a local policy, whether there was a violation of the local policy,” the supreme court set forth in part: In Jenkins v. State, 978 So.2d 116 (Fla. 2008), [which addressed a violation of the “strip-search” statute] this Court specifically addressed the applicability of the exclusionary rule as a remedy for a violation of a statutory provision. Id. at 120–21. There, this Court recognized federal caselaw recognizing that whether evidence discovered in violation of a statute is subject to suppression depends on the legislative intent. Id. at 128. This Court also acknowledged Florida caselaw permitting suppression of evidence where the legislature clearly and unequivocally announced its intention to suppress the evidence for a violation of the statute. Id. at 129. Finally, this Court examined the specific statute and determined that the legislature did not express a clear and unequivocal intent to permit suppression of evidence for a violation of that specific statute. Id. at 130. Thus, this Court concluded that the exclusionary rule was inapplicable to remedy violations of the statute. Id. Even if trial counsel had included the local policy to demonstrate that a violation occurred, the trial court still would have denied the motion to suppress, and its denial would have been affirmed on appeal. . . . A review of section 394.453, Florida Statutes (1995), reveals that the legislature did not express a clear and unequivocal intent to permit suppression of evidence for a violation of the Baker Act. . . . . The legislative intent has since been amended; however, it is still devoid of a clear, unequivocal intent that the exclusionary rule operate to suppress any evidence 8 obtained during a violation of the Baker Act. As a result, it appears that the postconviction court correctly found that the exclusionary rule is not a remedy for a violation of section 394.453 unless a constitutional violation has also occurred. Therefore, even if trial counsel had raised this argument in Lukehart’s motion to suppress, the motion still would have been denied and its denial affirmed on appeal on that basis. Accordingly, Lukehart cannot demonstrate prejudice. Id. at 518–19. Turning to the Marchman Act, section 397.305, Florida Statutes (2019), which is entitled “Legislative findings, intent, and purpose,” provides: (1) Substance abuse is a major health problem that affects multiple service systems and leads to such profoundly disturbing consequences as serious impairment, chronic addiction, criminal behavior, vehicular casualties, spiraling health care costs, AIDS, and business losses, and significantly affects the culture, socialization, and learning ability of children within our schools and educational systems. . . . Further, it is the intent of the Legislature to require the collaboration of state agencies, service systems, and program offices to achieve the goals of this chapter and address the needs of the public; to establish a comprehensive system of care for substance abuse; and to reduce duplicative requirements across state agencies. This chapter is designed to provide for substance abuse services. (2) It is the goal of the Legislature to discourage substance abuse by promoting healthy lifestyles; healthy families; and drug-free schools, workplaces, and communities. (3) It is the purpose of this chapter to provide for a comprehensive continuum of accessible and quality substance abuse prevention, intervention, clinical treatment, and recovery support services in the least 9 restrictive environment which promotes long-term recovery while protecting and respecting the rights of individuals, primarily through community-based private not-for-profit providers working with local governmental programs involving a wide range of agencies from both the public and private sectors. (4) It is the intent of the Legislature that licensed, qualified health professionals be authorized to practice to the full extent of their education and training in the performance of professional functions necessary to carry out the intent of this chapter. (5) It is the intent of the Legislature to establish expectations that services provided to persons in this state use the coordination-of-care principles characteristic of recovery-oriented services and include social support services, such as housing support, life skills and vocational training, and employment assistance necessary for persons who have substance use disorders or co-occurring substance use and mental health disorders to live successfully in their communities. (6) It is the intent of the Legislature to ensure within available resources a full system of care for substance abuse services based on identified needs, delivered without discrimination and with adequate provision for specialized needs. (7) It is the intent of the Legislature to establish services for individuals with co-occurring substance abuse and mental disorders. (8) It is the intent of the Legislature to provide an alternative to criminal imprisonment for substance abuse impaired adults and juvenile offenders by encouraging the referral of such offenders to service providers not generally available within the juvenile justice and correctional systems, instead of or in addition to criminal penalties. 10 (9) It is the intent of the Legislature to provide, within the limits of appropriations and safe management of the juvenile justice and correctional systems, substance abuse services to substance abuse impaired offenders who are placed by the Department of Juvenile Justice or who are incarcerated within the Department of Corrections, in order to better enable these offenders or inmates to adjust to the conditions of society presented to them when their terms of placement or incarceration end. (10) It is the intent of the Legislature to provide for assisting substance abuse impaired persons primarily through health and other rehabilitative services in order to relieve the police, courts, correctional institutions, and other criminal justice agencies of a burden that interferes with their ability to protect people, apprehend offenders, and maintain safe and orderly communities. (11) It is the intent of the Legislature that the freedom of religion of all citizens shall be inviolate. Nothing in this act shall give any governmental entity jurisdiction to regulate religious, spiritual, or ecclesiastical services. As was the case in Lukehart with respect to the Baker Act, there is no indication in the Marchman Act of a clear and unequivocal legislative intent to suppress any evidence obtained as a result of the Act. Therefore, we hold that the deputy’s failure to seek Appellant’s consent to obtaining assistance is not a basis for suppressing the evidence found on his person as a result of the detention. Whether the deputy violated Appellant’s constitutional rights is a separate question. If the deputy in this case had testified that he was going to take Appellant to jail as a result of his Marchman Act detention instead of to the hospital, we would agree with the reasoning of the Second District in White. There, the Second District held that the trial court correctly determined that the contraband found in the appellant’s backpack would have inevitably been discovered at the local jail. 170 So. 3d at 78–79. Here, in contrast, the only reason why the deputy decided to take Appellant to jail rather than to the hospital was because of what he discovered on Appellant’s person. 11 In assessing the legality of the deputy’s search of Appellant’s person for officer safety purposes, we again find instructive cases involving the Baker Act. In Collins v. State, 125 So. 3d 1046, 1047 (Fla. 4th DCA 2013), the appellant appealed a final judgment and sentence entered after he pled no contest to possession of cocaine and drug paraphernalia. The appellant moved to suppress the drug evidence, which was seized while the police were taking him into custody under the Baker Act. Id. The trial court found that the officer was going to Baker Act the appellant and pursuant to “Department policy, [the appellant] was searched for weapons and contraband” by another officer. Id. Two crack pipes and pieces of cocaine were found in the appellant’s pocket. Id. As a result, the officers decided to arrest the appellant instead of Baker Acting him. Id. The appellant argued that the non-consensual search of his person without a warrant, reasonable suspicion, or probable cause and without any articulable basis to believe he was carrying a weapon violated his rights under the Fourth Amendment and article 1, section 12 of the Florida Constitution. Id. at 1048. He further argued that a preliminary pat down should have been conducted before the search. Id. In affirming, the Fourth District set forth: Here, officers decided to take appellant into custody under the Baker Act after his family and neighbors expressed concern that he might be a threat because of his unwavering belief that his neighbors had kidnapped and murdered his child. Both officers testified that local policy requires them to conduct a search before transporting a person to a mental health receiving and treatment facility. Under the facts and circumstances of this case, where the officers were concerned for appellant’s safety and the safety of others, and acted pursuant to a reasonable local police policy, the trial court was entitled to conclude that the officers’ actions were reasonable and that the officers were acting in good faith. We therefore affirm the trial court's denial of the motion to suppress. Id. at 1049; see also Thomas v. State, 748 So. 2d 363, 364 (Fla. 5th DCA 2000) (affirming the denial of the motion to suppress where law enforcement detained the appellant pursuant to the Baker Act 12 and concluding that the subsequent search of his person was justified for the safety of the officers and of the appellant). As was the case in Collins and Thomas, the circumstances present in this case support the conclusion that the deputy acted reasonably in searching Appellant for the safety of both men and for those present at the hospital where the deputy intended to take him. Cf. Fields v. State, 105 So. 3d 1280, 1281–82 (Fla. 2d DCA 2013) (holding that the trial court erred in denying the appellant’s motion to suppress where the undisputed sequence of events established that the deputy was no longer concerned with any feared exigent emergency when he demanded that the appellant give him a pill bottle that he noticed on the appellant’s person). For the foregoing reasons, we find no error in the trial court’s denial of Appellant’s motion to suppress. Accordingly, we affirm Appellant’s judgment and sentences. AFFIRMED. B.L. THOMAS and BILBREY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jessica J. Yeary, Public Defender, and Maria Ines Suber, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Adam B. Wilson, Assistant Attorney General, Tallahassee, for Appellee. 13