|Consent Search Grow House|
Growhouse Consent Case Dismissed
Defense Attorney notes a recent Grow House case where despite police allegations that there had been consent to search the house, the consent was invalidated after a finding that the cops had trespassed into the property after entering through a gate.
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"The police narcotics bureau received an anonymous tip that a home in southwest Miami-Dade County was being used as a marijuana hydroponics lab. The police decided to investigate the house. When the police arrived at the house, they set up surveillance around the perimeter of the property."
"When the defendant used the remote control device inside the car to open the driveway gate to leave, Sergeant Falcon slipped inside the property through the gate as it opened. Sergeant Falcon waived to Detective Murillo to enter the property. Murillo drove his car into the driveway, “a couple of feet” from the defendant’s car, blocking the defendant’s exit through the gate. "
"When Sergeant Falcon slipped into the gate that serendipitously opened while the police were surveilling the property, he committed a trespass onto the defendant’s property. The consent arguably obtained from the defendant after the trespass did not cure the taint of the illegality."
"A yard adjacent to a residential dwelling, particularly one blocked from view from the street, “is clothed with a reasonable expectation of privacy from unreasonable governmental intrusion.” Potts v. Johnson, 654 So. 2d 596, 599 (Fla. 3d DCA 1995) (citing Morsman v. State, 360 So. 2d 137, 138 (Fla. 2d DCA 1978)). “A police officer may be held liable in trespass for entering upon the property of another . . . .” Potts, (citing Guin v. City of Riviera Beach, 388 So.2d 604 (Fla. 4th DCA 1980))."
"Section 810.08(1), Florida Statutes (2008), specifies that an unauthorized entry into a “structure” is a trespass and a second-degree misdemeanor. "
"This case is also distinguishable from the “knock and talk” cases. Here, as in United States v. Quintana, 594 F. Supp. 2d 1291 (M.D. Fla. 2009), this exception will not apply because Sergeant Falcon did not enter the property as a public person would have, through an opening created for that purpose. "
"The defendant’s subsequent consent did not remedy the effect of the illegal entry. There was no break in the chain of events between the illegal entry and the procuring of the consent to the search. When a consent to search is obtained after illegal police activity, such as the illegal entry here, “the unlawful police action presumptively taints and renders involuntary any consent to search.” Gonzalez v. State, 578 So. 2d 729, 734 (Fla. 3d DCA 1991). "
"Therefore, this reversal requires that the trial court, on remand, dismiss the case. "
Source: 36 Fla. L. Weekly D1274a
Growhouse Defense Attorney