One has a reasonable expectation of privacy in the crawl space below a Florida residence protected only by a lattice. A pill bottle seen there was argued by the state to be abandoned, but it was in a constitutionally protected area. Davis v. State, 2017 Fla. App. LEXIS 9355 (Fla. 2d DCA June 28, 2017):
Further, any argument that the pill bottle was not in a constitutionally protected area because it was outside the house is not supported by the facts here. While there is some dispute as to whether the curtilage of a rooming house is afforded the same Fourth Amendment protection as a single-family dwelling, see Titus, 707 So. 2d at 707 n.1 (stating that the opinion is limited to the interior areas of rooming house and does not address the exterior areas or curtilage), here the pill bottle was not found in the curtilage. Instead, the record shows that Davis placed the pill bottle in concrete latticework that was attached to the foundation of the house and protected the crawlspace from intruders. This latticework and the crawlspace behind it were part of the structure. See Tindall v. State, 997 So. 2d 1260, 1261 (Fla. 5th DCA 2009) (holding that entry into the crawlspace constituted entry into a structure because the defendant “penetrated the invisible, vertical plane into the airspace of the house by crawling under the house to gain access”); see also Dicks v. State, 75 So. 3d 857, 860 (Fla. 1st DCA 2011) (holding that defendant’s entry into the crawlspace under a mobile home was sufficient to constitute his “entering” the dwelling for purposes of a burglary charge); cf. Peterson v. Jones, No. 3:14CV104/RV/CJK, 2016 U.S. Dist. LEXIS 28833, 2016 WL 873235 at *8 (N.D. Fla. 2016) (holding that burglary conviction of defendant who crawled onto the roof of a building and stole air conditioning coils from units on the roof was supported by the evidence because entry onto the roof penetrated the vertical plane of the structure). Hence, Acri did more than enter the curtilage of the rooming house; he entered the house itself by penetrating the “invisible vertical plane into the airspace of the house.” This intrusion into a constitutionally protected space removes this case from the “non-intrusion” line of cases relied upon by the trial court and renders the trial court’s ruling that the area was not constitutionally protected incorrect.
Having determined that the latticework and the crawl space behind it are part of the constitutionally protected space of the rooming house, we conclude that the only way Acri could validly seize the pill bottle was if it could somehow be considered to have been in “open view.” As discussed above, HN7Go to the description of this Headnote.the “open view” doctrine applies when an officer is located outside of a constitutionally protected area looking in. If the officer sees contraband in that situation, it furnishes him probable cause to seize the item, but he must either obtain a warrant or have some exception to the warrant requirement before he may enter the protected area and seize the contraband. Rickard, 420 So. 2d at 305. The problem here is that Acri did not see “contraband” in the latticework; he saw only an opaque pill bottle. His hunch that it might contain contraband was just that—a hunch.
But more importantly, Acri had neither a warrant nor facts to support an exception to the warrant requirement when he entered the property. …
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)