Fernandez v. State

• Decision Date: 15 June 2011
• Docket Number: No. 3D10–567.,3D10–567.
• Citation: 63 So.3d 881
• Parties: Fidel FERNANDEZ, Appellant,v.The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

63 So.3d 881

Fidel FERNANDEZ, Appellant,

v.The STATE of Florida, Appellee.

No. 3D10–567.

District Court of Appeal of Florida, Third District.

June 15, 2011.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, and Nicholas A. Reed and Michael A. Vera, Certified Legal Interns, for appellant.Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.Before GERSTEN, ROTHENBERG, and SALTER, JJ.PER CURIAM.

Fidel Fernandez appeals a withheld adjudication and sentence of probation for possession of cannabis with intent to sell. The defendant maintains that the trial court erred in denying his motion to suppress the evidence and his statements based on the unauthorized entry onto his residential property by law enforcement officers. Because we find that the entry was unlawful, we reverse the order denying the suppression motion.

The police narcotics bureau received an anonymous tip that a home in southwest Miami–Dade County was being used as a marijuana hydroponics lab. The police decided to investigate the house. When the police arrived at the house, they set up surveillance around the perimeter of the property.

The one-acre lot was completely enclosed by tall fences, and it was hidden from view by a tall hedge. The house was set back into the lot and not visible from the street. Access to each end of the u-shaped driveway was obstructed by a closed metal gate that could be opened by a remote control device in the defendant's vehicle near the house and inside the fence. The mailbox was outside the fenced perimeter. As the law enforcement officers arrived, there was no opening into the property.

At some point during the surveillance, an officer with a view of the residence notified others that the defendant had left the house and was getting into the car in the driveway. When the defendant used the remote control device inside the car to open the driveway gate to leave, Sergeant Falcon slipped inside the property through the gate as it opened. Sergeant Falcon waived to Detective Murillo to enter the property. Murillo drove his car into the driveway, “a couple of feet” from the defendant's car, blocking the defendant's exit through the gate.

Sergeant Falcon walked up to the defendant's car and told the defendant that he needed to talk to him. Detective Murillo also walked up to the defendant's car and two other officers walked through the open gate into the property. The defendant got out of his car and Sergeant Falcon asked the defendant for consent to search the house. Two officers and the defendant walked back toward the house. Once on the porch, the defendant sat down and asked the Sergeant for clarification of what he was asking. The Sergeant said they just wanted consent. The defendant asked for a few moments to collect his thoughts. The defendant refused to sign a consent form but he opened the door for the police. Once inside, the police found 144 marijuana plants.

The state charged the defendant with possession of cannabis with intent to sell. The defendant filed a motion to suppress the evidence, arguing that the police had trespassed onto the defendant's property, that the police had no warrant, there was no valid consent, and there were no exigent circumstances to justify the entry. The defense asserted that this illegal entry tainted the remainder of the encounter, requiring suppression of the evidence seized in the house and all of the defendant's subsequent statements. The trial court denied the suppression motion. The defendant pled to the charge, reserving his right to appeal this denial.

We reverse the denial of the suppression motion. When Sergeant Falcon slipped into the gate that serendipitously opened while the police were surveilling the property, he committed a trespass onto the defendant's property. The consent arguably obtained from the defendant after the trespass did not cure the taint of the illegality.

Unlawful Entry

“One seeking the exclusion of evidence as the fruit of an unreasonable search must demonstrate, first, that the government perpetrated the intrusion that led to the discovery of incriminating information.” State v. Butler, 1 So.3d 242, 246 (Fla. 1st DCA 2008). In this case, it is undisputed that the police committed the intrusion in question. The next inquiry is whether the defendant had “a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action.” United States v. Dunn, 480 U.S. 294, 316, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987) (quoting Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)).

A yard adjacent to a residential dwelling, particularly one blocked from view from the street, “is clothed with a reasonable expectation of privacy from unreasonable governmental intrusion.” Potts v. Johnson, 654 So.2d 596, 599 (Fla. 3d DCA 1995) (citing Morsman v. State, 360 So.2d 137, 138 (Fla. 2d DCA 1978)). “A police officer may be held liable in trespass for entering upon the property of another....” Potts, (citing Guin v. City of Riviera Beach, 388 So.2d 604 (Fla. 4th DCA 1980)). There is unrebutted evidence that this defendant had a subjective expectation of privacy in the curtilage of his home. “Putting 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 ... are ways to establish such a subjective manifestation.” Ratcliff v. State, 783 So.2d 1099, 1101 (Fla. 5th DCA 2001); Ruiz v. State, 743 So.2d 581 (Fla. 4th DCA 1999). This defendant had taken great measures to ensure his privacy; the house was surrounded by barriers obstructing a view of the property. This enclosed area constitutes curtilage that falls under the same constitutional protections as the residence it surrounds.¹

Section 810.08(1), Florida Statutes (2008), specifies that an unauthorized entry into a “structure” is a trespass and a second-degree misdemeanor. Section 810.011(1), Florida Statutes (2008), defines “structure” to mean “a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof.” Webster's Third New International Dictionary defines “curtilage” as “a yard, courtyard, or other piece of ground included within a fence surrounding a dwelling house.” ²

The state argues, however, that Sergeant Falcon was free to enter the premises when the gate opened. That argument is not persuasive because the momentary opening of the gate for the defendant to leave was not an open invitation to the public, or by extension to the police, to enter. Certainly, a policeman may enter the curtilage surrounding a home in the same way as a salesman or visitor could. Potts, 654 So.2d at 599 (citing State v. Morsman, 394 So.2d 408, 409 (Fla.1981)). But those are not the facts here. No salesman or visitor could have entered the enclosed curtilage during the momentary opening. The momentary opening of the gate for the express purpose of leaving did not alter the Dunn expectation-of-privacy factors. This was not an opening...