Nieminski v. State

• Decision Date: 29 April 2011
• Docket Number: No. 2D10–1087.,2D10–1087.
• Citation: 60 So.3d 521
• Parties: Michael NIEMINSKI, Appellant,v.STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

60 So.3d 521

Michael NIEMINSKI, Appellant,

v.STATE of Florida, Appellee.

No. 2D10–1087.

District Court of Appeal of Florida, Second District.

April 29, 2011.

Lee Hollander of Law Offices of Hollander and Hanuka, Naples, for Appellant.Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellee.ALTENBERND, Judge.

Michael Nieminski appeals his judgment and sentence for trafficking in cannabis in excess of twenty-five pounds. He pleaded no contest to this charge and reserved the right to challenge the denial of the dispositive motion to suppress evidence obtained after law enforcement officers executed a search warrant on a marijuana grow house. The critical issue in this case is whether, without a warrant, deputies may enter a suburban or rural acreage completely surrounded by a six-foot chain-link fence in order to conduct a knock and talk at the front door of a residence. The only entrance to the property was a driveway that had a closed, but unlocked, gate that could be readily opened. The property was not posted with “no trespassing” signs, and a horse and three friendly dogs were inside the fencing.

Although not specifically argued by Mr. Nieminski, we recognize that the two deputies who initially entered the property for a knock and talk might have been trespassing. Even if the entry onto the property could be characterized as a trespass, that possibility by itself would not be enough to constitute a violation of the Fourth Amendment justifying a remedy under the exclusionary rule. The deputies entered this property through the unlocked gate for the purposes of a knock and talk, which is a form of citizen's encounter. Mr. Nieminski had the initial burden in this case to establish that he had a reasonable expectation of privacy that included an expectation that citizens would not enter the property through the unlocked gate to knock on his door for the ordinary purposes for which people knock on doors under similar circumstances. He failed to establish that his expectation of privacy at this property included protection for such a limited intrusion. Because the evidence gathered to support the search warrant arose from that brief intrusion into the curtilage, we affirm the judgment and sentence on appeal.

I. The Facts

In early May 2009, Mr. Nieminski and his girlfriend moved into a single-family, three-bedroom house in Collier County. Although the address of the house was a street number on 56th Avenue Northeast in Naples, Florida, this “neighborhood” in Naples is actually a sparsely populated area with platted acreages. This particular property was approximately two or three acres. It included the house and a modest stable capable of housing a few horses. A standard, six-foot chain-link fence surrounded the property along its borders. The house was set back at least 100 feet, and only a driveway led to the house. There was no pedestrian gate in the fence. The gate for the driveway had once been operated electronically, but it is undisputed that the gate opened by hand in 2009. The property was not posted and did not have any other signs that might discourage a person from entering for the purpose of knocking on the front door.

Mr. Nieminski and his girlfriend were living in the house in order to tend a sizable marijuana crop that was being grown under lights in some of the rooms in the house. It is undisputed that Mr. Nieminski was not only working in this house but also was eating and sleeping there.

In June 2009, the Collier County Sheriff's Office received an anonymous tip that marijuana was being cultivated at this house. Several deputies went to the house to check out the tip. When they arrived, they could see a pickup truck parked next to the house. They decided to perform a knock and talk if the gate to the property was unlocked. One of the deputies checked the gate and determined that it was not locked and that he could readily slide the gate open.

Two of the deputies entered the property through the gate. Inside the fence, they encountered Mr. Nieminski's horse and his three dogs. The deputies then walked to the front porch of the house, which faced the road. They knocked on the front door, but no one answered. Standing at the front door, both officers smelled the odor of marijuana through a partially opened window on the front porch.

The two officers left to obtain a search warrant while the other officers remained behind at the roadside. The affidavit the officers prepared in support of a warrant included all of the important facts except for the existence of the fence and the unlocked gate.

A magistrate issued the search warrant, and the officers returned to the home that same afternoon. The search of the home revealed forty-one marijuana plants weighing approximately sixty-nine pounds, a grow room, and various machinery. The officers arrested Mr. Nieminski and his girlfriend on the property, and the State charged them with trafficking in cannabis in excess of twenty-five pounds.

Mr. Nieminski moved to suppress the evidence obtained during the search. The trial court, after conducting an evidentiary hearing, denied the motion in a written order. The trial court concluded that Mr. Nieminski could not challenge the search because he did not have a reasonable expectation of privacy at the house. The court reasoned that he was not an owner or tenant of the home and that the premises were being used as a commercial enterprise. Despite this determination that Mr. Nieminski could not challenge the search, the court continued its Fourth Amendment analysis and concluded that the smells the officers perceived from the front porch provided sufficient probable cause to issue the warrant. After the denial of the motion, Mr. Nieminski negotiated a plea in this case, reserving the right to appeal the denial of the dispositive motion to suppress.

We conclude that the trial court erred in determining that Mr. Nieminski could not challenge the search because he did not have a reasonable expectation of privacy in the residence. Nevertheless, like the trial court, we conclude that officers seized the evidence pursuant to a valid search warrant. The fact that the officers developed the evidence essential for the issuance of the search warrant during an attempt to conduct a knock and talk, after walking through an unlocked gate to approach the front door, does not invalidate the warrant under these facts. Because the knock and talk was not itself an act that violated Mr. Nieminski's reasonable expectation of privacy, it was not a violation of the Fourth Amendment. Accordingly, the omission of the facts about the fence and the gate in the affidavit does not invalidate the warrant or require the suppression of the evidence seized during the search pursuant to the warrant.

II. Mr. Nieminski had a reasonable expectation of privacy in the residence that allowed him to challenge the search warrant.

There was a time when the courts of Florida addressed Fourth Amendment issues involving searches of real property by determining whether the defendant had a right to raise the issue as a victimized “owner, lessee or tenant, or the lawful occupant of the premises searched.” Tribue v. State, 106 So.2d 630, 633 (Fla. 2d DCA 1958). The courts often described this as an issue of “standing,” and there is still a tendency to frame this threshold issue as such. State v. Washington, 884 So.2d 97, 98 (Fla. 2d DCA 2004).

Nevertheless, it is now well established that most Fourth Amendment issues are not addressed by any typical preliminary analysis of “standing.” Hicks v.State, 929 So.2d 13, 16 n. 3 (Fla. 2d DCA 2006).¹ Instead, before the trial court considers the merits of a Fourth Amendment motion to suppress, the defendant must first establish a factual basis justifying his or her claim to have possessed a Fourth Amendment right at the time of the alleged invasion. This analysis is actually the first part of the substantive legal analysis of a Fourth Amendment claim. As we explained in Hicks:

The United States Supreme Court has held that Fourth Amendment rights are personal and a defendant has the burden to establish that his own Fourth Amendment rights have been infringed. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); see also Dean v. State, 478 So.2d 38, 40 (Fla.1985). Whether a defendant has a reasonable expectation of privacy is a threshold inquiry. Rakas, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387. A search violates a defendant's Fourth Amendment rights only if (1) a defendant demonstrates that he or she had an actual, subjective expectation of privacy in the property searched and (2) a defendant establishes that society would recognize that subjective expectation as objectively reasonable. Minnesota v. Olson, 495 U.S. 91, 95, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); Smith v. Maryland, 442 U.S. 735, 740–41, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).Id. (footnotes and parallel citations omitted).

This two-fold analysis used to determine whether a person has the type of interest protected by the Fourth Amendment emanates from Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and specifically from Justice Harlan's concurring opinion. Scholars question whether the first subjective prong of this analysis is appropriate. 1 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 2.1(c) (4th ed. 2004). In Mr. Nieminski's case, as will be seen, the critical privacy issues concern only the second prong of the analysis.

In this case, the trial court received evidence that Mr. Nieminski had not changed the address on his driver's license to the address of the grow house. It also considered the fact that Mr. Nieminski provided another address as his residence when he was booked into the county jail. While this evidence might be relevant to determine residency or domicile, we are not convinced...