Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-1443 _____________________________ STATE OF FLORIDA, Appellant, v. JOASA ROY WARE, Appellee. _____________________________ On appeal from the Circuit Court for Dixie County. Wesley R. Douglas, Judge. March 20, 2020 WINOKUR, J. Florida law is relatively clear whether to suppress evidence discovered on a person’s property during an officer’s unlawful intrusion onto that property. Likewise, adequate case law addresses the suppression of evidence located on property protected under the Fourth Amendment that was observed from a vantage point that was not on the protected property. But this case presents the opposite scenario, for which little case law exists: an officer unlawfully intrudes onto protected property, and from there proceeds onto unprotected property and discovers evidence there. In a detailed order, the trial court below suppressed such evidence. Because we find that Ware had no reasonable expectation of privacy in the area where the evidence was located, and because the officer could not have seen the evidence until he left the protected property, we find that, in the circumstances presented here, the evidence was not subject to the suppression, irrespective of the unlawful intrusion that preceded it. We reverse the order granting suppression. I. During investigation into the homicide of Donna Williams and attempted homicide of Kenneth Sheppard, law enforcement learned that Ware had been seen in the victims’ yard shortly before the crimes were committed. Based on this information, members of the Sheriff’s office went to Ware’s mother’s home to conduct a “knock-and-talk” investigation. The mother lived in a mobile home on the property and Ware lived with his girlfriend in a shed behind the mobile home. As the court later found, “[t]he home was set off by woods, a fence that ran along the front-only of the property, and a gate that had a ‘No Trespassing’ sign posted.” The Sheriff and an investigator (Major Harden) went to the property and knocked on the door to the shed and the mobile home, but no one answered. When no one answered, Harden walked to the edge of the woods to urinate and discovered a hog pen. 1 After looking in the hog pen, Harden discovered a brown purse matching the description of the victim’s purse and a man’s wallet. The court found that these items “could have only been seen by a person standing immediately next to the abandoned hog pen.” Law enforcement then used this information to obtain a warrant to search the property and retrieve the items. The State indicted Ware for first-degree murder while armed, attempted first-degree murder while armed, and home invasion robbery while armed with a deadly weapon. The Indictment alleged that Ware killed Donna Williams, attempted to kill Kenneth Sheppard, and entered the deceased victim’s dwelling unlawfully and stole money from her. Ware moved to suppress “[a]ny and all evidence obtained as a result of the illegal seizure 1 In the affidavit submitted with the search warrant application, Harden did not mention that he needed to urinate, but claimed that he walked to the rear of the trailer to “ensure that no one ran out” and as he moved to the back of the trailer he “could see what looked like an old hog pen off to the south in some woods.” 2 and search of [Ware]’s home, including a purse found in the curtilage of his home” and “[a]ny statements made by Mr. Ware about such illegally obtained evidence.” The court granted Ware’s motion to suppress. The court found that the hog pen where the evidence was found could not be considered curtilage for Fourth Amendment purposes, but further found that “law enforcement traversed all over the curtilage, without lawful authority, until they spotted an item—the hog pen—that happened to exist outside the curtilage.” The court did not explicitly rule as to whether law enforcement was lawfully on the property when it knocked on the door to attempt a knock-and- talk, saying only that “law enforcement was likely prohibited from conducting a ‘knock and talk’ on this property.” However, the court did conclude that a Fourth Amendment violation occurred when “the officers then wandered around back and then all over the property, presumably looking for a place to urinate, [and] engaged in conduct that was not explicitly or implicitly permitted by [Ware] or the homeowner.” II. “The Fourth Amendment to the United States Constitution and Article I, section 12 of the Florida Constitution guarantee the right to be free from ‘unreasonable searches and seizures’” Armstrong v. State, 46 So. 3d 589, 593 (Fla. 1st DCA 2010). “For evidence to be excluded pursuant to the Fourth Amendment, the moving party must demonstrate the government has infringed upon his reasonable expectation of privacy.” Id. (footnote omitted) (citing State v. Butler, 1 So. 3d 242, 246–47 (Fla. 1st DCA 2008)). For an individual’s expectation of privacy to be reasonable and warrant Fourth Amendment protection, the individual must show both a subjective and objective expectation of privacy in the area searched. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). It is well-settled that Fourth Amendment protection does not extend to open fields. “[T]he special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers and effects,’ is not extended to the open fields.” Hester v. United States, 265 U.S. 57, 59 (1924) (emphasis added). “[A]n individual may not legitimately demand privacy for activities conducted out 3 of doors in fields, except in the area immediately surrounding the home.” Oliver v. United States, 466 U.S. 170, 178 (1984). “[O]nly the curtilage, not the neighboring open fields, warrants the Fourth Amendment protections that attach to the home.” 2 Id. at 180 (emphasis added). Open fields, unlike the curtilage of the home, do not warrant a reasonable expectation of privacy. See id. at 179 (“[T]he asserted expectation of privacy in open fields is not an expectation that ‘society recognizes as reasonable.’”) (footnote omitted). III. The court below found that all of Harden’s findings occurred in an open field—outside the constitutionally protected area of the home. See Hester, 265 U.S. at 59 (stating that “open fields” do not warrant Fourth Amendment protection). Harden’s actions within the curtilage of the home is separate and distinct from his discovery of the incriminating evidence in an open field—outside of the curtilage of the home. See Oliver, 466 U.S. at 180 (“[O]nly the curtilage, not the neighboring open fields, warrants the Fourth Amendment protections that attach to the home.”); see also United States v. Dunn, 480 U.S. 294, 304 (1987) (finding that law enforcement did not violate defendant’s Fourth Amendment rights when law enforcement traversed into the non-curtilage portion of defendant’s property—which constituted an open field); United States v. Gerard, 362 F.3d 484, 487 (8th Cir. 2004) (“Officers are permitted to enter a resident’s property to observe buildings located outside the home’s curtilage.”) (citing United States v. Mooring, 137 F.3d 595, 596 (8th Cir. 1998)); United States v. Capps, 435 F.2d 637, 640 (9th Cir. 1970) (holding that information obtained by law enforcement after an initial illegal search of curtilage did not taint evidence obtained in search of open 2 “[T]he term ‘open fields’ may include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither ‘open’ nor a ‘field’ as those terms are used in common speech.” Oliver, 466 U.S. at 180 n.11. In contrast to open fields, the curtilage is the area “immediately surrounding and associated with the home.” Florida v. Jardines, 569 U.S. 1, 6 (2013) (quoting Oliver, 466 U.S. at 180). 4 field area of defendant’s property); Wilson v. State, 952 So. 2d 564 (Fla. 5th DCA 2007) (declining to suppress evidence obtained after officer’s warrantless intrusion onto defendant’s property and peering into greenhouse that was not within the curtilage). DeMontmorency v. State, 401 So. 2d 858, 859 (Fla. 1st DCA 1981) (holding that, even after law enforcement initially trespassed on curtilage of property, the subsequent search of area that was an open field was not a Fourth Amendment violation), approved, 464 So. 2d 1201 (Fla. 1985). The trial court found that, because law enforcement initially exceeded the scope of the knock-and-talk, the subsequent search of the open field was a Fourth Amendment violation. We disagree that any action that occurs subsequent to an illegal entry must also be suppressed. 3 The evidence was discovered in an open field, irrespective of the early improper intrusion. 4 See Oliver, 466 U.S. at 180 (“[O]nly the curtilage, not the neighboring open fields, warrants the Fourth Amendment protections that attach to the home.”); see also Capps, 435 F.2d at 640 (holding that information obtained by law enforcement after an initial illegal search of curtilage did not taint evidence obtained in search of open field area of defendant’s property). 3 For purposes of this opinion, we presume that the trial court was correct that the officers exceeded the scope of a proper “knock- and-talk.” For this reason, we need not determine whether the officers could conduct a “knock-and-talk” investigation at all in light of the “No Trespassing” sign. Either way, the subsequent open-field search was lawful. 4 Regardless of whether Harden could see the hog pen from inside the curtilage, the evidence shows that he did not leave the curtilage to investigate the hog pen; he left the curtilage to urinate. More importantly, the evidence shows that Harden could not have observed the incriminating evidence contained in the hog pen from within the curtilage. If Harden had observed the seized evidence from a vantage point within the property’s curtilage and left the curtilage in order to investigate it, this case might require a different result. Instead, an independent open-field search, rather than a curtilage intrusion, turned up the evidence. 5 The trial court, and Ware, cited case law that involved a Fourth Amendment violation based solely on a curtilage violation; they did not rely on case law whereupon the curtilage violation was followed by an open field search. See Jardines, 569 U.S. at 9 (stating that law enforcement bringing a trained police dog to the porch of defendant’s home violated the expected curtilage protection of a homeowner); State v. Morsman, 394 So. 2d 408, 409 (Fla. 1981) (holding that law enforcement was entitled to enter the front yard of defendant’s home, but not the back yard of defendant’s home); State v. Crowley, 232 So. 3d 473, 476 (Fla. 1st DCA 2017) (“[K]nock-and-talk activity by law enforcement that diverts from the customary path to a home’s front door, or that exceeds other objectively reasonable bounds, can present Fourth Amendment problems requiring the suppression of evidence.”). These cases do not involve curtilage violations and subsequent open fields searches, so they do not require suppression. See Dunn, 480 U.S. at 304 (finding that law enforcement did not violate defendant’s Fourth Amendment rights when law enforcement traversed into the non-curtilage portion of defendant’s property— which constituted an open field); DeMontmorency, 401 So. 2d at 859 (holding that, even after law enforcement initially trespassed on curtilage of property, the subsequent search of area that was an open field was not a Fourth Amendment violation). 5 Accordingly, because the hog pen adjacent to Ware’s property was not a constitutionally protected area and the search did not intrude on Ware’s Fourth Amendment rights, we reverse the order granting suppression. REVERSED. ROWE, J., concurs; BILBREY, J., dissents with opinion. 5 The dissent notes that “it is unclear whether a trespass on the curtilage occurred [in DeMontmorency],” but then adds, “but even if it did, the officers were well past the curtilage when the marijuana was spotted.” Dissenting op. at 12-13. The same applies here. Because Harden was past the curtilage when the evidence was spotted, it is likewise not subject to suppression, irrespective of an earlier trespass. 6 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ BILBREY, J., dissenting. I believe the trial judge correctly analyzed the issue in his twelve-page order which ultimately granted the motion to suppress. I agree with the trial judge that the incriminating evidence would not have been located without a violation of Joasa Ware’s rights, and therefore, the evidence obtained should be suppressed. Since the majority reverses the well-reasoned decision of the trial judge, I respectfully dissent for the reasons discussed below. “[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). Unconstitutional searches can include both physical intrusions onto protected property and violations of reasonable expectations of privacy. Katz, 389 U.S. at 360-61 (Harlan, J., concurring). Because the search here was a warrantless search, the State has the burden to prove an exception to the warrant requirement. See United States v. Karo, 468 U.S. 705, 717 (1984); State v. Smith, 172 So. 3d 993, 997 (Fla. 1st DCA 2015). Ware was a resident on his mother’s property where the evidence was located and as such had standing to raise the legality of the search. See Minnesota v. Olson, 495 U.S. 91, 95-96 (1990); Thomas v. State, 127 So. 3d 658, 662 (Fla. 1st DCA 2013). Knock and Talk Not Allowed Here Law enforcement officers are generally allowed to initiate a voluntary police-citizen encounter without a warrant, probable cause, or even reasonable suspicion of criminal activity. See Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). A “knock and talk” is a permissible type of voluntary police-citizen encounter because of 7 the implied invitation by the occupant of a residence to receive visitors. See Florida v. Jardines, 569 U.S. 1, 8 (2013); Powell v. State, 120 So. 3d 577, 584 (Fla. 1st DCA 2013). But it is only because of an implied invitation that law enforcement officers may enter the property for a knock and talk. Powell, 120 So. 3d at 584. Here, there was a fence at the front of the property along with a gate with a no trespassing sign posted, showing that the implied license to enter had been revoked. In Powell, we stated, “Governmental actors, like private actors, 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.” Id. Although not dispositive in Powell, we further stated, “homeowners who post ‘No Trespassing’ or ‘No Soliciting’ signs effectively negate a license to enter the posted property.” Id. (citing § 810.09, Fla. Stat. (Florida’s trespass statute)). In State v. Crowley, 232 So. 3d 473, 477 (Fla. 1st DCA 2017), we allowed a knock and talk on a property with a “no soliciting” sign, recognizing that law enforcement officers did not fall into the specific class of potential visitors excluded by such a sign. But in Crowley, we also recognized that a “no trespassing” sign would have been “obviously intended to keep visitors away” and would have “negate[d] the implied license of non-soliciting visitors to knock at Mr. Crowley’s front door.” Id. at 477-78. The “no trespassing” sign here, along with the fence, meant the officers were not licensed to enter the property for a knock and talk. Because of the officers’ trespass on the property, the evidence located as a result of the trespass should be excluded. See Robinson v. State, 164 So. 3d 742, 743 (Fla. 2d DCA 2015) (holding that marijuana located by officers should have been suppressed when the officers entered the property despite a fence and a “no trespassing” sign). In declining to address whether the “reasonable expectation of privacy” protection from Katz applied, Justice Scalia writing for the Court in Jardines stated, “One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines’ property to gather 8 evidence is enough to establish that a search occurred.” 569 U.S. at 11. The officers here conducted a search without a warrant when they entered the property for a knock and talk without regard for the fence or no trespassing sign. But for the trespass here, followed by the intrusion into the constitutionally protected backyard, the officers would not have seen the hog pen. 1 Without sighting the hog pen from the backyard, the officers would not have found the incriminating evidence located in it which the trial judge thereafter correctly suppressed. Even If a Knock and Talk Was Allowed, the Permissible Scope Was Exceeded Furthermore, even if a knock and talk was allowed despite the presence of a no trespassing sign and fence, law enforcement officers cannot roam about the property as they did here. The implied license to engage in a knock and talk is not a license for 1 The record shows that the hog pen was sighted from the constitutionally protected curtilage of the backyard. In the application and affidavit for search warrant the officer stated, “Your Affiant moved to the back of the trailer to ensure that no one ran out of the trailer while the Sheriff knocked on the front door again. As Your Affiant moved to the back of the trailer, Your Affiant could see what looked like an old hog pen off to the south in some woods near the premises.” In the suppression order, the trial court found that the hog pen was only 111 feet from the back door of the home, and the trial court stated that it “must consider whether the law enforcement officers were lawfully within the curtilage at the time they passed through it and observed the hog pen.” I believe that the above unambiguously establishes that the hog pen was first seen from the curtilage, but if the above is somehow ambiguous, at a minimum we should remand for further factual findings by the trial court. See State v. Shaw, 784 So. 2d 529 (Fla. 1st DCA 2001) (remanding case for further factual findings where the record was unclear as to possible valid rationale for search). 9 visitors, even law enforcement officers, to trespass and poke around or relieve themselves behind someone’s home. In State v. Morsman, 394 So. 2d 408 (Fla. 1981), the officer received a tip that marijuana was growing in Morsman’s backyard and attempted to conduct a knock and talk. When the officer’s knock went unanswered, “he walked around the house and saw the marijuana plants growing in the backyard just as the neighbors had reported.” Id. at 408. The State claimed the plain view doctrine allowed the seizure of the marijuana, but the Court in Morsman held “this doctrine applies only when the officer has a legal right to be at his viewpoint.” Id. “The officer had no right to be in the respondent’s backyard, so he could not legally seize the marijuana plants.” Id. Here, the officers had no right to be in the backyard and therefore anything spotted as a consequence of the intrusion should be suppressed. Our court has applied Morsman on various occasions. In Waldo v. State, 975 So. 2d 542 (Fla. 1st DCA 2008), the officers observed incriminating evidence in the side and backyard of a home after their knocking on the front door went unanswered. In Waldo, we recognized that “the side and backyard areas are more private and are constitutionally protected.” Id. at 543. Relying on Morsman, we found the officers entry into these areas to be an unlawful search. “And because the officers’ observations during the unlawful search may not be used to obtain a warrant for a further search of the property and the house, see Morsman, the evidence resulting from the searches should have been suppressed.” Waldo, 975 So. 2d at 543. Here, like in Waldo, the officers’ observations during the unlawful search led to evidence which should be suppressed. See also Lollie v. State, 14 So. 3d 1078, 1080 (Fla. 1st DCA 2009) (“officer’s unlawful entry into the backyard” was a “constitutional violation [which] tainted the ensuing evidence, which should have been suppressed”). The recent case Osorio v. State, 244 So. 3d 1115 (Fla. 4th DCA 2018), is factually similar to what occurred here. The officers there attempted to conduct a knock and talk. Id. at 1117. The court cited Powell in questioning whether the officers could conduct a knock and talk given the presence of “no trespassing” signs. Osorio, 244 So. 3d at 1119-20. The Osorio court held that even if a 10 knock and talk was allowed, the officers were “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.’” Id. at 1120. The same thing happened here when the officers left the front door and walked around to the back curtilage of the home, regardless of whether the officers did so to investigate or to answer the call of nature. See State v. Shaw, 784 So. 2d 529, 533 (Fla. 1st DCA 2001) (holding that the subjective intent of the officers in conducting a search is immaterial). The officers’ unlawful presence in the curtilage led to sighting the hog pen which led to the discovery of the incriminating evidence. 2 Evidence Was the Fruit of an Unlawful Search The majority makes much of the fact that the hog pen was in an open field. See United States v. Dunn, 480 U.S. 294 (1987) (holding that barn was in an open field and therefore officers did not violate the Fourth Amendment when a drug lab was sighted in the barn). I agree that the trial judge correctly found that the hog pen here was not in the curtilage of the home. But, as the trial judge also found, the classification of the hog pen as either curtilage or open field is immaterial. What occurred was not an open field discovery. The hog pen was only sighted and investigated because of the officers’ disregard of the fence and no trespassing sign followed by their actions in entering the backyard, which exceeded the scope of any permissible knock and talk. 3 In Dunn, police saw the barn, which was subsequently found to contain a drug lab, from an open field, and therefore, no constitutional violation occurred. 480 U.S. at 304. Here, the police 2 Footnote 1 above discusses how the record supports that the hog pen was first spotted from the curtilage. 3 I agree with the majority that the incriminating evidence in the hog pen was not located until the officers were next to the hog pen in an open field. But as discussed below, I believe the hog pen was first spotted as a result of an unlawful search and therefore everything arising as a fruit of that unlawful search must be suppressed. 11 saw the hog pen when they entered the backyard — a constitutionally protected area. “The exclusionary prohibition extends as well to the indirect as the direct products of such invasions.” Wong Sun v. United States, 371 U.S. 471, 485-86 (1963) (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920)). “If the State fails to prove a search and seizure was reasonable under constitutional standards, any evidence obtained either directly or indirectly therefrom must be excluded from the defendant’s criminal trial.” State v. Young, 974 So. 2d 601, 610 (Fla. 1st DCA 2008) (citing Wong Sun, 371 U.S. at 484)). The discovery of the incriminating evidence in the hog pen flowed from the discovery of the hog pen which flowed from the trespass into the curtilage of the home. No other exception to the warrant requirement is argued or is present here. There is no claim of inevitable discovery. See, e.g., Rodriguez v. State, 187 So. 3d 841, 846 (Fla. 2015) (requiring a “‘reasonable probability’ that the evidence would have been discovered despite the improper police procedure”) (citation omitted). And there was no independent source or other attenuation to purge the taint of the illegal search. See Wong Sun, 371 U.S. at 488; Young, 974 So. 2d at 610. I respectfully submit that various cases cited by the majority are inapplicable because in those cases nothing was spotted by law enforcement while trespassing at a home or curtilage which then led to the seizure. In United States v. Gerard, 362 F.3d 484, 486 (8th Cir. 2004), the contraband was sighted by peering into a two- story garage located outside the curtilage. The garage was apparently visible from the road and front of the house, and there was no mention that it was necessary for officers to trespass in the curtilage to see the garage. Id. at 485 & 488. In United States v. Capps, 435 F.2d 637, 640 (9th Cir. 1970), the officers were on the property to serve a warrant to search an automobile. Since the officers were “lawfully on the property,” they “were entitled to proceed to the car and conduct a search of it.” Id. Furthermore, if there was a trespass in Capps, it was only a “trespass on an ‘open field’ area” and therefore the search was “not constitutionally tainted.” Id. In DeMontmorency v. State, 401 So. 2d 858, 859-60 (Fla. 1st DCA 1981), it is unclear whether a trespass on the curtilage occurred, but even if it did, the officers were well past the 12 curtilage when the marijuana was spotted. If there was any trespass to the curtilage, there was nothing seen from the curtilage that led the officers to the marijuana. Id. “[T]he exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes ‘so attenuated as to dissipate the taint.’” Murray v. United States, 487 U.S. 533, 536- 37 (1988) (citing Nardone v. United States, 308 U.S. 338, 341 (1939)). The unlawful intrusion into the backyard led to the officers’ sighting of the hog pen. The evidence seized from the hog pen should therefore be suppressed as “fruit” of the unlawful search. See Wong Sun, 371 U.S. at 484-88. Conclusion For the reasons set forth above, I would affirm the trial judge’s order suppressing the evidence seized from the unlawful search of the hog pen. Because the majority reverses the order and allows the evidence to be used against Ware at trial, I respectfully dissent. _____________________________ Ashley Moody, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellant. Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee. 13