FL2: Officers couldn’t pass gate with No Trespassing sign and mailbox outside fence to do a knock-and-talk

“We conclude that the detectives could not enter the property to conduct a knock and talk or to pursue a consensual encounter with Mr. Robinson without first obtaining his permission to enter the property. We reach this conclusion because the property, a semirural homestead where the detectives found two marijuana plants, was surrounded by a chain-link fence; had a closed gate with a ‘no trespassing—violators will be prosecuted’ sign and a ‘beware of dog’ sign; and had a mailbox accessible from outside the fence. These facts distinguish this case from Nieminski v. State, 60 So. 3d 521 (Fla. 2d DCA 2011). Accordingly, the trial court was required to grant the motion to suppress. We remand for the trial court to vacate the withhold of adjudication and sentence and dismiss the proceeding.” Robinson v. State, 2015 Fla. App. LEXIS 7723 (Fla. 2d DCA May 22, 2015):

Unlike Mr. Nieminski, Mr. Robinson did establish that he had a reasonable expectation of privacy in this property because ordinary citizens would not disregard his threat of prosecution and the risk of a bad dog to enter through his closed but unlocked gate. This case is more similar to the cases distinguished in Nieminski and to this court’s recent decision in Ferrer v. State, 113 So. 3d 860 (Fla. 2d DCA 2012).

Although we do not have occasion to recede from Nieminski, we note that the Nieminski decision relied significantly on the “reasonable expectation” test derived from Katz v. United States, 389 U.S. 347 (1967). See Nieminski, 60 So. 3d at 524-29. We recognized that the officers in that case may have committed a trespass under section 810.09, Florida Statutes (2008). Id. at 528-29. We discussed cases in which an officer’s trespass had not been treated as a violation of the Fourth Amendment based on the Katz analysis. Id. Since our decision in Nieminski, however, the United States Supreme Court has twice written divided decisions relying upon a pre-Katz trespass analysis. See Florida v. Jardines, 133 S. Ct. 1409 (2013); United States v. Jones, 132 S. Ct. 945 (2012). Whether these cases would now require a different outcome in Nieminski is open for debate but is not a matter that we need to decide today.