Powell v. State, 38 Fla. L. Weekly D1140a (Fla. 1st DCA May 22, 2013): Cops got tip from a partygoer that there was marijuana growing in a house. They went to the house, knocked on door, go no answer. They then moved to a close-by window, and looked in. They saw marijuana plants, called a prosecutor, who told them to go in and secure the house. REVERSED. Motion to suppress should have been granted as looking in the window after getting no answer at the door was a violation of both the privacy and intrusion tests for determining a 4th Amendment violation. The court held, in pertinent part:
Fourth Amendment analysis has evolved into two seemingly different, but somewhat interrelated, methods of identifying protectable interests. The more recently adopted formulation, also known at the Katz test, focuses on a person’s expectation of privacy. Katz v. United States, 389 U.S. 347, 351 (1967).
A method of older lineage, known as the intrusion or trespassory test, focuses on whether government agents engaged in an “unauthorized physical penetration” into a constitutionally protected area. Silverman v. United States, 365 U.S. 505, 509 (1961);see also Olmstead v. United States, 277 U.S. 438, 466 (1928), overruled in part by Katz, 398 U.S. 347 (1967).
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Under the privacy and intrusion approaches, the home and its curtilage — the area closely surrounding the home — are constitutionally protected. Because it is appurtenant to the home, the curtilage is entitled to the same Fourth Amendment protection as the area within the home. See California v. Ciraolo, 476 U.S. 207, 212 (1986); see also Pinyan v. State, 523 So. 2d 718, 720 (Fla. 1st DCA 1988) (“It is well settled that the Fourth Amendment protection of the home extends to the curtilage of a residence.”). This is so because the curtilage is “an area intimately linked to the home, both physically and psychologically,” thereby entitling it to protection from unreasonable searches. Ciraolo, 476 U.S. at 212-13. Under the privacy approach, the Supreme Court has noted that “society accepts as reasonable citizens’ expectations of privacy in the area immediately surrounding their homes.” Ciraolo, 476 U.S. 207 at 221. Under the intrusion approach, the constitutional protection of the curtilage pre-datesKatz, as mentioned in Olmstead. 277 U.S. at 466 (“an actual physical invasion of his house ‘or curtilage’ for the purpose of making a seizure” violates Fourth Amendment).
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The question then becomes whether the officers looking into the window violated either the privacy or intrusion tests. We apply the latter first, it being the more straightforward. Under the intrusion approach, we query whether the police officers physically “occupied private property for the purpose of obtaining information” without express or implied permission to do so, thereby intruding into an area protected by the Fourth Amendment. Jones, 132 S. Ct. at 949. Here, the deputies initially followed established norms: they approached the front door via the pathway, took one step up, and knocked. Receiving no response, a private citizen would have had no choice but to depart immediately via the pathway. Indeed, Deputy Tysall acknowledged that if someone inside the home had told the officers to go away, they would have done so after asking if the occupants were okay.
The deputies, however, deviated from established norms by entering upon that portion of the property directly in front of the window. Nothing in their testimony or the record establishes any license to do that. The officers had to step off the front door step, move two feet to the left, and position themselves directly in front of the window, their faces no more than a foot away. At that point they were virtually within the home without breaking its close. Because they physically entered a part of the curtilage where they had no right to be for the purpose of gaining information, the intrusion test is met.
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[W]e conclude that the officers’ intrusion into the curtilage of the mobile home, on a part of the property on which they had no legal right to be, and peering through a window a hand’s length away at a sharp angle into an otherwise private part of the home, constituted a search in violation of the Fourth Amendment under both the expectation of privacy test and the intrusion test. Either way, this entry into the protected private space of the home was an improper attempt to verify an anonymous tip. Morsman, 394 So. 2d at 410 (“The shortcut taken by skipping the application for a warrant was unjustified and violated defendant’s Fourth Amendment right to be free from an unreasonable search and seizure.”). Under the exclusionary rule, we are compelled to reverse the convictions, which were based entirely on evidence obtained due to the unlawful search. Art. I, § 12, Fla. Const. (“Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.”); see also Wong Sun v. United States, 371 U.S. 471, 484-85, 487-88 (1963) (evidence obtained by Fourth Amendment violation excluded as “fruit of the poisonous tree”).
Excellent opinion for protection of personal rights.