final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; John S. Kastrenakes and Dina A.
Keever-Agrama, Judges; L.T. Case No. 2015CF006056AMB.
Tesh, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for
Osorio appeals his withhold of adjudication and sentence for
multiple drug-related offenses following a
plea. Appellant 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.
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.
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."
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.
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.
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.
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.
the court denied his motion to suppress, Appellant entered a
guilty plea, reserving his right to appeal the court's