FL5: Use of flashlight to look in screened-in porch was unreasonable violation of curtilage

Officers came to defendant’s home which was next door to a murder crime scene. They were looking for potential witnesses. They knocked on the screened-in porch door and got no answer. It was dark inside. The screened-in porch was a constitutionally protected area in the curtilage. This one had opaque coverings inside for protection from the sun and weather. They used a flashlight to see inside. Thus, the officers couldn’t see in from outside without help. There was no probable cause, no exigency, no nothing for this view. Rudolph v. State, 5D22-2108 (Fla. 5th DCA Apr. 12, 2024):

… Police officers are often called upon to use flashlights in nighttime situations, such as illuminating a public pathway, structure or space, which is permissible; what occurred here, however, was quite different—the flashlight was being used to peer into an otherwise impenetrable private space. As the First District explained in Powell, “[u]nder certain circumstances, implicit permission may exist to look through an un-curtained window while standing on a front porch momentarily to see whether the resident is approaching the door, assuming no unreasonable means or devices are used.” 120 So. 3d at 587 (emphasis added). Here, no un-curtained window existed; instead, the officer used a flashlight to break the close, allowing her to peer into a private space. The officers, as they both testified, knocked on Rudolph’s porch door solely to find witnesses. When Rudolph didn’t answer the door, the officers’ license to engage in a “knock and talk” ended; it was thereby improper to linger and use a flashlight to peer inside in a manner no different than peering through a keyhole. See Jardines, 569 U.S. at 9 (noting that officers cannot position themselves at a home’s doorstep and “peer into the house through binoculars with impunity. That is not the law, as even the State concedes.”); see also Commonwealth v. Murray, 223 A.2d 102, 110 (Pa. 1966) (stating that “if detectives and private intermeddlers may, without legal responsibility, peer through keyholes, eavesdrop at the table, listen at the transom and over the telephone, and crawl under the bed, then all constitutional guarantees become [a] meaningless aggregation of words, as disconnected as a broken necklace whose beads have scattered on the floor”).

One of the officers explained that it was common practice in the jurisdiction to enter private spaces, such as enclosed porches with beds, furniture, blinds, and other indicia of privacy, when no one answers their knocks; in these situations, they enter the space and attempt to locate and knock on another door. This practice is impermissible. As Justice Scalia noted in Jardines, officers “may only approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” 569 U.S. at 8. It is well-established that officers may not “look into windows or enter other protected areas around the home simply because a knock on the front door goes unanswered.” Id.; see State v. Morsman, 394 So. 2d 408, 408−09 (Fla. 1981) (concluding that entering backyard after no answer at front door was an unlawful search); Lollie v. State, 14 So. 3d 1078, 1079 (Fla. 1st DCA 2009) (finding that constitutional protection of side and backyard areas of home “does not depend on whether someone might be home”); Waldo v. State, 975 So. 2d 542, 543 (Fla. 1st DCA 2008) (holding that entry into side and backyards was unlawful after “nobody answered” knock on front door); see also United States v. Fuentes, 800 F. Supp. 2d 1144, 1154 (D. Or. 2011) (concluding that entering curtilage and standing “within inches of a window” to peer into the home as way to contact an occupant was unlawful). As such, the practice of entering private enclosed porches after initial knocks go unanswered to search for another door within the home upon which to knock is insupportable. See Jardines, 569 U.S. at 9 n.4 (“[N]o one is impliedly invited to enter the protected premises of the home in order to do nothing but conduct a search.”).