JONATHAN OSORIO v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JONATHAN OSORIO,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D17-0654
[May 9, 2018]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes and Dina A. Keever-Agrama, Judges;
L.T. Case No. 2015CF006056AMB.
Grey Tesh, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
DAMOORGIAN, J.
Jonathan Osorio appeals his withhold of adjudication and sentence for
multiple drug-related offenses following a plea. 1 Appellant argues that the
trial court erred by denying his motion to suppress inculpatory evidence
which the police obtained during a warrantless search of his home. We
agree and reverse.
Appellant, along with his father and brother, was arrested and charged
with several drug-related offenses after two narcotics agents drove onto his
family’s rural property without a warrant and ultimately discovered
marijuana and marijuana grow supplies in a barn behind the main house.
Appellant moved to suppress the evidence supporting the charges against
him on the grounds that it was obtained as the result of an illegal search.
1 The specific charges were: one count of manufacture of a schedule I
substance, one count of unlawful possession of property for the purpose of
manufacturing a controlled substance, one count of possession of marijuana with
intent to sell, and one count of possession of paraphernalia.
The matter proceeded to a suppression hearing wherein the following
evidence was presented.
The State called the narcotics agents who arrested Appellant. The
agents testified that prior to the day in question, they had been to
Appellant’s property three to five times for the purpose of surveilling a
neighboring property. According to both agents, the prior owner of the
property (who neither could name) gave them permission to be on the
property but asked them to let him know they were there by knocking on
the main house side door or, if no one answered, by going to the barn
where the owner’s son or nephew lived. One of the agents initially
estimated that they had last been on the property within the last six
months. However, after being confronted with evidence establishing that
Appellant’s family purchased the property in 2012 (thirty-two months
prior to the date in question), both agents admitted that they had most
likely not been on the property in almost three years. They also admitted
that they did not check, or think to check, the property appraiser’s website
beforehand to ensure that the same person who gave prior consent still
lived on the property. Finally, the agents admitted that none of the
defendants in the case nor any members of their family gave them
permission to be on the property. Both agents testified that their trip to
the property on the day in question was “random.”
With respect to the physical characteristics of the property, there are
two structures on the property—a main home and a barn. The perimeter
of the property is surrounded by foliage and a fence. The property was a
rural tract located off of a very narrow road. On the day in question, the
gate to the fence was open. The agents drove onto the property in an
unmarked truck, parked near the main home, and knocked on the side
door. While at the side door, one of the agents detected a light odor of
marijuana in the air. However, the agent conceded that the “light odor”
was not enough probable cause to obtain a warrant or conduct a
warrantless search based on exigent circumstances. Shortly after the
agents approached the home and knocked on the side door, a pitbull ran
up to them, growling. The agents slowly walked back to their truck and
then drove to the barn. They did not go to the front door or ring the front
doorbell.
Upon arriving at the barn, the agents noticed that the main barn door
was propped open and noted the overwhelming smell of marijuana. One
of the agents walked through the open barn door and saw another partially
open interior door. He also observed a case of ammunition and marijuana
grow supplies, such as buckets and fertilizer. At this point, the agent
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became suspicious that the property owners were growing marijuana and
announced his presence inside the barn. When no one answered, the
agent went through the interior door and encountered Appellant and bags
of marijuana on the ground. Appellant was detained while one of the
agents made an electronic request for a search warrant. After obtaining
and executing the search warrant, agents found pounds of marijuana,
grow supplies, a honey oil extractor, ovens, cash, and two weapons.
Appellant’s brother testified that he and his family occupied the
property continuously since 2012 and had never met either of the agents
nor given them permission to come on their property. The brother
explained that the main house was located 170 feet from the road leading
to the property and that the barn was another 100 feet from the home.
Appellant and the brother lived in the barn. He also testified that there
were “No Trespassing” signs posted along the tree line surrounding the
property.
At the conclusion of the presentation of the evidence, the court denied
the motion based on the following legal conclusions:
The burden in this case is on Defendants to establish by the
preponderance of the evidence that they had a reasonable
expectation of privacy on their premises to include an
expectation that persons would not occasionally enter
through the gate and approach their residence to talk to them.
Because the law enforcement agents acted in good faith by
driving onto the property through an open and unlocked gate
and knocking on the side door of the residence, which due to
the layout of the property and based on the previous owners’
instructions was the preferred method of contacting the
residents, they were legally on the property. The agents were
on the premises to conduct a legitimate “knock and talk” with
the residents who they believed still resided on the property.
A “knock and talk” citizen’s encounter does not constitute a
search and seizure, as long as it does not violate a reasonable
expectation of privacy. By driving onto the property through
the unlocked gate and knocking on the side door, the agents
did nothing different than any member of the public, including
an “occasional deliveryman, salesperson, other solicitor, or
neighbor,” might do to contact the occupants of the premises,
therefore the agents did not violate any reasonable
expectation of privacy. Because the agents were legitimately
on the property and knew from previous encounters with the
residents that a member of the family lived in the barn and
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owned a pit bull, the “knock and talk” encounter was still
reasonable and legal when, after no one answered their knock
on the side door of the residence, the agents approached the
barn to speak with the owner of the dog.
After the court denied his motion to suppress, Appellant entered a
guilty plea, reserving his right to appeal the court’s suppression ruling.
This appeal follows.
The Fourth Amendment of the United States Constitution guarantees
“[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” U.S. Const. amend
IV. As the United States Supreme Court held in Katz v. United States, 389
U.S. 347, 353 (1967), a “search” occurs within the meaning of the Fourth
Amendment when government action invades an individual’s justifiable or
reasonable expectation of privacy. Under Katz and its progeny, a
reasonable expectation of privacy exists if the individual has exhibited an
actual, subjective expectation of privacy which society is prepared to
recognize as reasonable. See Smith v. Maryland, 442 U.S. 735, 740 (1979).
When a citizen has a reasonable expectation of privacy, “police officers may
not enter a [property] without a warrant, absent consent or exigent
circumstances.” Levine v. State, 684 So. 2d 903, 904 (Fla. 4th DCA 1996).
In the instant case, the court’s denial of Appellant’s motion to suppress
was based on a hybrid finding that the agents had the prior owner’s
consent to enter the property and that Appellant had no reasonable
expectation of privacy as to the side door of the main house or the barn.
We first address whether the agents’ previous encounters with the former
owner gave the agents the authority to enter the property and proceed to
the side door of the main house and then the barn. The question for our
resolution is one of duration. Although the duration of continuing consent
has not yet been specifically addressed by a Florida court, cases from other
jurisdictions establish that in the context of the Fourth Amendment:
[T]he proper rule is that a consent to search which is
unlimited as to time or number of searches must be judged
under a rule of reason. . . . [In this context,] what is reasonable
is a factual determination to be made after considering all the
circumstances under which the consent has been executed. .
. . In judging what is reasonable deference should be given to
the general rule that a consent is ordinarily given upon the
understanding that the search will be conducted forthwith
and that only a single search will be made.
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People v. Shelton, 442 N.E.2d 928, 932 (Ill. App. Ct. 1982); see also People
v. Chism, 189 N.W.2d 435, 445 (Mich. Ct. App. 1971) (“When consent is
given to search an area, it does not mean the constitutional protection
against unreasonable searches and seizures has been waived forever.”).
The facts in this case are compelling. The consent upon which the
agents relied was given by the previous owner approximately three years
prior to the date of the search. There was no evidence that established the
duration of the consent or the number of authorized encounters. Further,
it is undisputed that Appellant and his family owned and occupied the
property since 2012 and never spoke with or gave the agents their consent
to enter the property. Against this backdrop, it is unreasonable to
conclude that the prior owner’s consent inured to the date of the search.
Next, we turn to the court’s conclusion that Appellant had no
reasonable expectation of privacy as to the side door of the main house or
the barn. Generally speaking, private citizens do not have a reasonable
expectation of privacy as to persons approaching the front door of their
residence. See Nieminski v. State, 60 So. 3d 521, 526 (Fla. 2d DCA 2011);
see also State v. Morsman, 394 So. 2d 408, 409 (Fla. 1981) (“[O]ne does
not harbor an expectation of privacy on a front porch where salesmen or
visitors may appear at any time.”). Accordingly, “knock and talk”
encounters, which occur when police officers “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,” do not violate the Fourth Amendment because a privacy right is
not implicated. Powell v. State, 120 So. 3d 577, 584 (Fla. 1st DCA 2013).
However, a homeowner may exhibit a subjective expectation of privacy as
to the front door of their residence by “[p]utting up fences, and
affirmatively taking express steps to exclude the public or other persons
from using the area, seeing into it, or gaining access to the area.” Ratcliff
v. State, 783 So. 2d 1099, 1101 (Fla. 5th DCA 2001). Additionally, “knock
and talk” licenses only apply to front doors, not rear or side door entrances.
Lollie v. State, 14 So. 3d 1078, 1079, 1080 (Fla. 1st DCA 2009) (rejecting
notion that in rural properties, officers may attempt to knock at side and
back doors pursuant to a “knock and talk”); Waldo v. State, 975 So. 2d
542, 544 (Fla. 1st DCA 2008).
In this case, Appellant’s brother testified that their property was posted
with “No Trespassing” signs. Neither agent refuted this testimony.
Instead, both agents testified that neither was looking out for a sign
because both felt that they had permission to be on the property regardless
of the presence of any “No Trespassing” sign. There was also an aggressive
pitbull roaming the property. These facts alone makes the validity of the
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agents’ initial entry onto the property questionable. Powell, 120 So. 3d at
584 (“homeowners who post ‘No Trespassing’ or ‘No Soliciting’ signs
effectively negate a license to enter the posted property” to conduct a
“knock and talk”). However, even if the agents did properly enter the
property, they approached the home’s side door instead of the front door.
This invalidated any “knock and talk” license and turned the agents’ entry
onto the property into a warrantless search. Waldo, 975 So. 2d at 543−44.
Although we conclude that the agents’ approach of the side door
exceeded the scope of a valid “knock and talk,” even if the agents had
approached the front door, suppression was still required. The facts of
this case establish that the barn was part of the main house’s curtilage as
it was within the same fenced-in area as the main house and was used as
an extension of the home’s living space. Moreover it was not readily
observable from outside the property. See A.E.R v. State, 464 So. 2d 152,
153 (Fla. 2d DCA 1985) (defining curtilage for purposes of the Fourth
Amendment as “the ground and buildings immediately surrounding a
dwelling and customarily used in connection with it”); State v.
Sarantopoulos, 604 So. 2d 551, 553 (Fla. 2d DCA 1992) (recognizing that
area within home’s fence is typically part of its curtilage); see also Pinyan
v. State, 523 So. 2d 718, 721 (Fla. 1st DCA 1998) (detached shed used as
greenhouse was part of main house’s curtilage when it was within the
same fence and was protected from outside observation).
Officers are not permitted to exit the front door area and physically
enter or look into other portions of the home or its curtilage pursuant to a
“knock and talk.” Friedson v. State, 207 So. 3d 961, 965 (Fla. 5th DCA
2016) (officers conducted a warrantless search when, after performing a
permissible “knock and talk” which went unanswered, they stepped off the
porch and shone a light in an adjacent window); Powell, 120 So. 3d at 584(“Even when governmental agents are engaging in otherwise lawful ‘knock-
and-talks,’ they can exceed the scope of a reasonable visit to a front door
or porch through physical actions that encroach into areas in which the
resident has a reasonable expectation of privacy.”); Lollie, 14 So. 3d at
1079 (officers conducted a warrantless search when, after knock at front
door went unanswered, they went around the back of the house to knock
at a different door and, in the process, saw incriminating evidence); Waldo,
975 So. 2d at 543−44 (officers conducted warrantless search when, after
knock at front door went unanswered, they went into side and back yard
and tried to get the occupants to respond at those locations); Maggard v.
State, 736 So. 2d 763, 765 (Fla. 2d DCA 1999) (same). Accordingly, the
agents were not permitted to head towards the barn pursuant to a “knock
and talk.”
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Despite the plethora of binding Florida law on the subject, the State
urges a different conclusion, pointing to an unpublished decision from a
federal district court. U.S. v. Diaz, 2009 WL 3675006 (N.D. Fla. Oct. 30,
2009). There, federal agents went on to the defendant’s fifty acre property,
which contained two residences and two barns, for the purpose of
performing a “knock and talk.” Id. at *1. As the agents were driving onto
the property, they saw a truck move from one of the residences to one of
the barns. Id. Based on the truck’s movements, the agents went straight
to the barn where they encountered the defendant emerging from a hidden
hatch in the barn floor leading to a grow house. Id. After he was arrested,
the defendant moved to suppress the evidence against him, arguing that
the agents “exceeded the lawful purpose of their entry when they sought
him out at the barn instead of going to the residence.” Id. The district
court denied the defendant’s motion to suppress, ruling that an officer’s
“approach [pursuant to a knock and talk] is not restricted to the front door
. . . [i]f it appears that someone is in or around a house, officers may take
reasonable steps to initiate contact by going to other areas of the property.”
Id. at *2. 2
The State’s reliance on Diaz is contrary to established Florida law.
Glass v. State, 736 So. 2d 788, 788−89 (Fla. 2d DCA 1999) (officer was not
authorized to enter backyard of home during “knock and talk” because he
saw people in the back yard). Further, even if we were persuaded by Diaz,
we would not use it to affirm the agents’ actions because, unlike in that
case where the agents had visual confirmation of someone’s presence at
the barn, the agents in this case left the main house and went to the barn
without knowing whether anyone was actually at the barn at the time.
Having concluded that the agents did not have the property owner’s
consent to enter upon the land or any structure contained thereon and
that there were no exigent circumstances, the agents’ “knock and talk”
license was limited to, at most, entering the property and approaching the
front door. By approaching the side door and then going to the barn, the
agents exceeded the scope of a valid “knock and talk.” These actions
2 In support of this conclusion, the court cited to an Eleventh Circuit case, U.S.
v. Taylor, 458 F.3d 1201 (11th Cir. 2006), which the State likewise cites. In
Taylor, the court held that law enforcement did not exceed the lawful scope of a
“knock and talk” when, after knocking on the residence’s front door, they heard
and saw the defendant approaching them and moved towards the defendant. Id.at 1204−05. The court reasoned that, “[s]uch a minor departure from the front
door under these circumstances does not remove the initial entry from the ‘knock
and talk’ exception to the warrant requirement.” Id. at 1205. The agents’ actions
in this case were more than a “minor departure from the front door.” Accordingly,
we also reject the State’s application of Taylor to this case.
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violated the Fourth Amendment’s guarantee against unreasonable search
and seizures. Accordingly, the trial court erred in denying Appellant’s
motion to suppress all evidence confiscated at the barn and thereafter,
regardless of a later issued warrant. Lollie, 14 So. 3d at 1079−80
(suppressing all evidence found after officers converted “knock and talk”
into warrantless search by entering back yard even though a subsequent
warrant was obtained). Appellant’s “convictions are therefore reversed
and, because the suppression ruling was established as a dispositive
issue, the [A]ppellant is entitled to be discharged.” Id.Reversed.
GERBER, C.J., and KLINGENSMITH, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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