Officer asking for consent before handing back driver license turns consensual encounter into a “stop” and consent invalid

Joe Bodiford's Blog

Horne v. State, 38 Fla. L. Weekly D1155a (Fla. 2d DCA May 24, 2013):  Officer stopped Hornse while she was walking, ostensibly as a consensual encounter.  She gave him her driver’s license, and a computer search returned no active warrants. At some point during the encounter, the deputy asked to conduct a search of Horne that would include reaching into her pockets. Horne consented to the search.  He found controlled substances in her jacket pocket.

She filed a motion to suppress, arguing that the officer’s failure to return her driver’s license after completing the warrants check converted a consensual encounter into a detention and that therefore she could not have freely consented to the search of her person.

The FLorida criminal appeal court noted that there was competent, substantial evidence in the record to support the trial court’s determination that Horne voluntarily gave her license to the officer, and as…

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LEOs looking in window of home after getting no answer at door violates 4th Amendment

Powell v. State38 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).

. . .

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).

 .  .  .

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.

. . .

[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.

Officer’s instruction to “stand by” is a detention, consent to search given after that is tainted and involuntary

Neely v. State, 38 Fla. L. Weekly D1060a (Fla. 2d DCA May 15, 2013):  The undisputed facts appear as follows:

Officer Hilton was alerted to a man slumped over in a van in the driveway of a residence. He responded to the site and saw Mr. Neeley slumped behind the wheel with two doors wide open. He determined that Mr. Neeley was all right and not intoxicated. Officer Hilton directed Mr. Neeley to “stand by” and knocked on the front door of the residence, which belonged to Ms. Clancy, Mr. Neeley’s ex-wife. The van was hers. After speaking with Ms. Clancy, Officer Hilton returned to the driveway. He searched Mr. Neeley and discovered eight oxycodone pills. Ms. Clancy found the van keys in her purse before Officer Hilton removed Mr. Neeley from the scene.

The testimony of Officer Hilton and that of Ms. Clancy conflict as we delve further. Officer Hilton claimed that Ms. Clancy told him that Mr. Neeley did not have her permission to be in her van and that she was concerned about where her keys were. He said that when he searched Mr. Neeley, he believed he had probable cause to arrest him for trespass to a conveyance and that he was searching for the car keys. He claimed that he asked if he could search Mr. Neeley. Mr. Neeley only lifted his arms several inches, which Officer Hilton interpreted as consent.

Ms. Clancy testified that when she answered Officer Hilton’s knock on her door, she told him that the last time she saw Mr. Neeley he was on the couch, that it was fine with her that Mr. Neeley was sleeping in her van, and that she left the van unlocked. She testified that when she opened the door to Officer Hilton, she saw Mr. Neeley standing outside, handcuffed. She said that Officer Hilton told her he had found medication in Mr. Neeley’s pocket and asked her if she took medication and what type.

After a hearing, the trial court denied Mr. Neeley’s motion to suppress. The court found that at no time did Officer Hilton have probable cause to arrest him for trespass, but that the search was legal because there was no unlawful detention and Mr. Neeley consented to the search. The trial court concluded that Officer Hilton’s “asking” Mr. Neeley to “stand by” did not “put[ ] him in custody in any way” and that “he could have walked away if he wanted.” The court noted but discounted Ms. Clancy’s testimony that Mr. Neeley was handcuffed when she answered the door.

The Florida criminal appeals court held even if Mr. Neeley consented to the search, such consent was invalid because Officer Hilton illegally detained him before consent.  Consent given after illegal police activity is presumptively tainted and rendered involuntary. (citations omitted)  Officer Hilton’s instruction to Mr. Neeley to “stand by” was a detention because a reasonable person under the circumstances would not feel free to leave or to disregard the instruction. (citations omitted)  Additionally, Officer Hilton illegally detained Mr. Neeley after he returned to the van by instructing him to step out of the vehicle. (citations omitted) Therfore, the court held,  Mr. Neeley’s “consent” was tainted and involuntary.  Conviction reversed.