Police Can Trespass Too

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 think only one thing–drugs are behind those walls. But can that stop crime fighting? Heck no. Just sit back and relax, as we review the case of Fernandez v. State, 2011 WL 2497217 (Fla. 2nd DCA 2011).

In Fernandez, police got a tip that Fernandez was growing marijuana behind his big gates and fences. So, when the defendant opened his electronic driveway gate to leave, a police officer slipped inside the gate, while another blocked Fernandez’s exit with his police car. After all that, they requested permission to search and permission was granted. The search revealed marijuana (144 plants, to be exact), and he was charged with possession of cannabis with intent to sell or deliver.

Thankfully, the Second District overturned the conviction, reasoning that the defendant had an obvious expectation of privacy in the area surrounding his home as evidenced by his barriers which obstructed a view of his property. The court noted that the officers did not enter the property in a manner like that of a visitor or salesman, but rather they basically committed a trespass by taking advantage of the momentary opening of the gate., noting that such gate openings do not constitute an open invitation to the public, or police, to enter the property. Id.

But what about the consent to search, you ask? The court found that the police’s illegal entry into the home rendered Fernandez’s consent involuntary, because when consent to search is obtained after illegal police activity such as this trespass, such police actions taint any consent to search.