State v. Ware

292 So.3d 863

STATE of Florida, Appellant,

v.Joasa Roy WARE, Appellee.

No. 1D18-1443

District Court of Appeal of Florida, First District.

March 20, 2020

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.

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 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, 88 S.Ct. 507, 19 L.Ed.2d 576 (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, 44 S.Ct. 445, 68 L.Ed. 898 (1924) (emphasis added). "[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home." Oliver v. United States , 466 U.S. 170, 178, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). "[O]nly the curtilage , not the neighboring open fields , warrants the Fourth Amendment protections that attach to the home."² Id. at 180, 104 S.Ct. 1735 (emphasis added). Open fields, unlike the curtilage of the home, do not warrant a reasonable expectation of privacy. See id. at 179, 104 S.Ct. 1735 ("[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, 44 S.Ct. 445 (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, 104 S.Ct. 1735 ("[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, 107 S.Ct. 1134, 94 L.Ed.2d 326 (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 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, 104 S.Ct. 1735 ("[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).

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, 133 S.Ct. 1409 (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, 107 S.Ct. 1134 (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,...