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.”).
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)