Does a High Fence & Electronic Gate Mean You’re a Drug Dealer?

By: John Guidry

Just looking at someone’s house can tell you a lot about that person. So when law enforcement sees a house surrounded by a high fence and shrubs with an electronic gated entry, they often think only one thing: drugs are behind those walls.

But can that assumption alone justify a search? Heck no.

Just sit back and relax as we review the case of Fernandez v. State, 63 So. 3d 881 (Fla. 2d DCA 2011), a case that proves your privacy barriers actually mean something in Florida.

Police snuck onto your property without a warrant?

Your privacy rights may have been violated. Call John today at (407) 423-1117.

The Legal Breakdown: Fernandez v. State

In Fernandez, police received a tip that the defendant was growing marijuana behind his big gates and fences.

• The Setup: The property was completely enclosed by a fence and heavy shrubbery, with a closed electronic gate blocking the driveway.
• The “Sneak Attack”: Officers set up surveillance. When Fernandez opened his electronic gate to leave, one officer slipped inside the gate while another used his police car to block Fernandez’s exit.
• The “Consent”: Once inside, the officers asked for permission to search the property. Fernandez, now blocked in and confronted by police inside his own gate, said yes.
• The Result: The search revealed 144 marijuana plants, and Fernandez was charged with possession with intent to sell or deliver.

The Ruling: Thankfully, the Second District Court of Appeal overturned the conviction.

1. Expectation of Privacy

The court reasoned that Fernandez had an obvious expectation of privacy in the area surrounding his home (the “curtilage”). By erecting a fence, planting shrubs, and installing an electronic gate, he was sending a clear message to the public: Keep Out.

2. Police Trespass

The court noted that the officers did not enter the property like a normal visitor (e.g., a mailman or salesman who might walk up to the front door). Instead, they committed a trespass by taking advantage of the momentary opening of the gate.

“Such gate openings do not constitute an open invitation to the public, or police, to enter the property.”

3. Fruit of the Poisonous Tree

But what about the consent? Fernandez did say yes to the search. The court found that the consent was involuntary because it was the direct result of the illegal entry. This is a classic application of the “Fruit of the Poisonous Tree” doctrine.

• The Poisonous Tree: The illegal trespass by the police.
• The Fruit: Fernandez’s consent and the marijuana plants found.

Because the tree (the entry) was poisoned by illegality, the fruit (the consent and the evidence) was also tainted and could not be used in court.

John’s Takeaways

• Fences Work: If you want Fourth Amendment protection for your yard, put up a fence and a gate. It legally establishes your expectation of privacy.
• “Sneaking In” is Illegal: Police cannot just slip through a gate because it opens for a second. If they don’t have a warrant or a true emergency, they have to stay on the public side of the line.
• Tainted Consent: Never assume a search is legal just because you said “yes.” If the police bullied their way in or broke the law to get to you, your “consent” might be invalid.

Don’t Let Them Jump the Fence

If the police ignored your “No Trespassing” signs or slipped through your gate to find evidence, that evidence might be fruit of the poisonous tree.

Call me at (407) 423-1117. Let’s send them back to the sidewalk.

Fruit of the Poisonous Tree doctrine in 5 minutes This video provides a concise explanation of the “Fruit of the Poisonous Tree” doctrine, illustrating how evidence obtained from an initial illegality—like the trespass in the Fernandez case—becomes inadmissible in court.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.