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Search and Seizure: Expectation of Privacy and the Physical Intrusion Test

On Behalf of | Jul 4, 2013 | Advice, civil rights, Criminal Defense

We are often asked whether police officers have the right to approach a person’s home without a warrant and then use what they observe to search the home. Generally, in the absence of “no trespassing” signs or fences, officers have the right to engage in what is referred to a “knock and talk” of a home, that is they have the right to walk on the sidewalk of your home, knock on your front door and engage you in a “consensual encounter.” They do not have the right to conduct warrantless searches of your property. Nor do they have the right to enter into your backyard. In fact, the right to engage you is extremely limited. Law enforcement personnel often exceed the authority given to them under the walk and talk doctrine. This article discusses two cases which have limited the ability of police officers to conduct warrantless searches in the curtilage of your home and what you should do to protect yourself from unlawful searches and seizures on your property.

Most courts examining whether a search or seizure violates the Fourth Amendment to the United States Constitution have looked to see whether the search violates a person’s “expectation of privacy.” Katz v. United States, 389 U.S 347, 351 (1967). Two cases decided by the United States Supreme Court and our First District Court of Appeal, however, make clear that the Katz analysis is only part of the correct determination. In addition to the Katz analysis, a court reviewing the lawfulness of a search must also undertake an “intrusion or trespassory” analysis, namely whether the agents engaged in an “unauthorized physical penetration into a constitutionally protected area.” In other words, where agents intrude where they have no right to be in the first place, a search from that vantage point is unlawful and evidence obtained as the result of that search must be suppressed.

In Jardines v. Florida, 185 L:Ed 2d 495 (March 26, 2013), agents received a tip that Mr. Jardines was growing marijuana in his home. As the result of that tip, they approached his home with a drug-sniffing dog and used the dog to determine that marijuana was in the home. On the basis of the dog’s alert, a search warrant was obtained. Upon its execution, marijuana was found in the home and Mr. Jardines was charged with trafficking in cannabis.

In holding the dog-sniff unlawful, the Court first noted, “… when it comes to the Fourth Amendment, the home is first among equals.” It further concluded that the right to be free from intrusion would have little practical value if governmental agents could stand on a person’s from porch or side garden “… and trawl for evidence with impunity.” Thus, the area “immediately surrounding and associated with the home,” also known as the curtilage, is “part of the home itself for Fourth Amendment purposes.” Because the dog alert was accomplished through the unlicensed physical intrusion onto Mr. Jardines’ from porch, it was unlawful. The Court specifically rejected the State’s argument that because the agents could have lawfully approached the front door without a warrant, no warrant was necessary to utilize the drug-sniffing dog, finding “… the background social norms that invite a visitor to the front door do not invite him to conduct a search.” Since the initial dog search was unlawful, the subsequently obtained search warrant was invalid, because it was “tainted” by the prior warrantless search. Put simply, the issuance of a warrant could not cure the prior unlawful search.

Utilizing the physical intrusion analysis set forth in Jardines, the First District Court of Appeal, similarly concluded that looking in a window two feet away from a front door was an unlawful, warrantless search, which required the suppression of evidence of marijuana plants growing within the home. In a well-reasoned opinion authored by Judge Makar, the court held that the reasonable-expectation-of-privacy test is in addition to, not a substitution for, the common-law trespassory analysis for the determination of the legality of a warrantless search. Powell v. State 38 Fla. L. Wkly D 1140(a) (Fla. 1st DCA May 22, 2013). Under both approaches, the court held that a home as well as its curtilage (“the area closely surrounding the home”) are constitutionally protected. “Thus, police officers may use ordinary means from a public position outside the curtilage to view activities occurring within the curtilage,” they may not enter the curtilage to conduct a search without a warrant.

The Powell court also put to rest the argument that because police are entitled to engage in “knock and talk” encounters with homeowners, they are somehow permitted to enter other portions of a home’s curtilage. Instead, police like other members of the public, “… have a limited license 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.” (emphasis added). They do not have the right to physically trespass on other areas of the home’s curtilage. For instance, police officers cannot leave a walkway and cross grass to stand next to a window to listen. Olivera v. State, 315 So.2d 487, 488 (Fla. 2d DCA 1975). Nor can they encroach onto areas where they have no right to be.

The State’s argument that it was permissible to merely “step off the porch” to look into the front window, from where the marijuana was viewed, was soundly rejected by the Powell court: “We cannot agree, however, that stepping off a porch, even a few feet, onto portions of the curtilage where persons are uninvited and then looking into the home at a sharp angle from a hand’s length away from the windowpane is anything other than an impermissible intrusion into constitutionality protected space. Whether two feet or twenty, the distance between the door and window matters little given that the officers said they could not see the plants without leaving the front door step and positioning themselves at a spot where they had no right to be.”

What do these opinions mean for the average person? If “no trespassing” or “no soliciting” signs are posted, law enforcement agents are not permitted to enter your property under the guise of a “walk and talk.” If no such signs are posted, they may walk up to your home on designated walkways, approach your front door, knock on it and attempt to engage you. Items seen in plain view during that limited encounter may be used to obtain a warrant to search your home. (Plain view, however, cannot justify a warrantless search). If police officers physically enter other areas of the home, or leave a walkway or path to look into your home, their conduct is unlawful and any evidence obtained from that search, even if a search warrant is later obtained, is inadmissible as evidence. Nor may they enter your backyard to look into your home from that vantage point. Should you find the police at your door, decline to engage them in conversation, refuse to consent to any search of any areas of your home for any reason and contact an attorney. Often, efforts will be made to trick you into consenting to a search of your premises. By refusing to give such consent, you are protecting your rights to be free from an unlawful search.