FL3: Officer entering fenced yard when electronic gate opened was a violation of the curtilage

Officers suspected defendant of a hydroponic grow operation, and they set up surveillance. The house was surrounded by a tall fence and an electronically operated gate. When defendant left the property and opened the gate, an officer’s slipping in before the gate closed was a violation of the Fourth Amendment. Fernandez v. State, 63 So. 3d 881 (Fla. App. 3d DCA 2011):

The state argues, however, that Sergeant Falcon was free to enter the premises when the gate opened. That argument is not persuasive because the momentary opening of the gate for the defendant to leave was not an open invitation to the public, or by extension to the police, to enter. Certainly, a policeman may enter the curtilage surrounding a home in the same way as a salesman or visitor could. Potts, 654 So. 2d at 599 (citing State v. Morsman, 394 So. 2d 408, 409 (Fla. 1981)). But those are not the facts here. No salesman or visitor could have entered the enclosed curtilage during the momentary opening. The momentary opening of the gate for the express purpose of leaving did not alter the Dunn expectation-of-privacy factors. This was not an opening to invite the public into the area. Here, there was effectively a trespass onto the property.

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. Nothing in this record would support a finding that the officers “approached the residence ‘just [as] any private citizen [could].’” Quintana, 594 F. Supp. 2d at 1302 (citing United States v. Taylor, 458 F. 3d 1201, 1204 (11th Cir. 2006)). …