Osorio v. State, 4D17–0654

• Decision Date: 09 May 2018
• Docket Number: No. 4D17–0654,4D17–0654
• Citation: Osorio v. State, 244 So.3d 1115 (Fla. App. 2018)
• Parties: Jonathan OSORIO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

244 So.3d 1115

Jonathan OSORIO, Appellant,

v.STATE of Florida, Appellee.

No. 4D17–0654

District Court of Appeal of Florida, Fourth District.

[May 9, 2018]

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.¹Appellant 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.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 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 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, 88 S.Ct. 507, 19 L.Ed.2d 576(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.SeeSmith v. Maryland , 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220(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 DCA1996).

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.

People v. Shelton , 110 Ill.App.3d 625, 66 Ill.Dec. 367, 442 N.E.2d 928, 932(1982);see alsoPeople v. Chism , 32 Mich.App. 610, 189 N.W.2d 435, 445(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....