Summary
In State v. Crowley, 232 So. 3d 473, 477 (Fla. 1st DCA 2017), we allowed a knock and talk on a property with a "no soliciting" sign, recognizing that law enforcement officers did not fall into the specific class of potential visitors excluded by such a sign.
Summary of this case from State v. WareOpinion
CASE NO. 1D16–3380
09-29-2017
STATE of Florida, Appellant, v. Robert David CROWLEY, Appellee.
Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellant. Andy Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellee.
Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellant.
Andy Thomas, Public Defender, and Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellee.
OSTERHAUS, J.
In this case we address whether a "No Soliciting" sign posted on a home's front door prohibited law enforcement officers who lacked a search warrant from knocking and talking to the home's occupant. We don't think so, and thus reverse the trial court's suppression order.
I.
After receiving an anonymous tip in 2015 that someone was growing and selling cannabis out of a Jacksonville home, officers from the Jacksonville Sheriff's Office decided to visit the home and try to talk to the home's resident. From the street outside in front of the home, two plainclothes officers made an ordinary approach up the front walkway to the front door (there wasn't any fence or gate), where they confronted a conspicuous "No Soliciting" sign mounted on the front door. The officers paid no attention to the sign and knocked on the door. No one answered. But later on, when another officer attempted a similar knock and talk, Appellee Robert David Crowley opened the door and spoke with the officer. Mr. Crowley did not order the officer to leave his property, and the officer proceeded to briefly ask Mr. Crowley about a supposed lost friend. At the same time, the officer smelled a strong marijuana odor coming out of the open door. After the conversation ended, the officers got a warrant to search the home and returned. Their search found seventy-seven marijuana plants, drug paraphernalia, and a firearm, leading to Mr. Crowley's arrest and criminal charges.
After being charged, Mr. Crowley filed a motion to suppress the evidence seized from his home. He argued that the officers violated his Fourth Amendment rights by disregarding his "No Soliciting" sign and by gathering critical information at his front door to support the search warrant. The trial court agreed with Mr. Crowley. It ruled that the sign invalidated the officer's license to remain within the curtilage of Mr. Crowley's home: "Here, the posting of the No Soliciting sign was all that was required for Mr. Crowley to negate the license an ordinary citizen would have to knock on his front door without invitation." On this basis, the trial court decided that the search warrant was invalid, and it suppressed the evidence. The State appealed.
II.
A.
We review a trial court's ruling on a motion to suppress under a mixed standard of review, deferring to the trial court on factual issues, but considering the legal issues de novo. State v. Rand , 209 So.3d 660, 663 (Fla. 1st DCA 2017). The Fourth Amendment to the United States Constitution establishes "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." See also art. I, § 12, Fla. Const. This right especially protects the home, which the United States Supreme Court has referred to as "first among equals." Florida v. Jardines , 569 U.S. 1, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013). "At the Amendment's ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ " Id. (quoting Silverman v. United States , 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) ). Falling within the ambit of this Fourth Amendment protection is a home's curtilage, that part of the home "immediately surrounding and associated with the home ... [which is regarded to be] part of the home itself for Fourth Amendment purposes." Jardines , 133 S.Ct. at 1414 (quoting Oliver v. United States , 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) ). A property's front porch and door area generally fall within the constitutionally protected curtilage of the home. And so, persons entering someone else's property to knock at the front door must have either express or implied approval to do so.In most cases, according to the United States Supreme Court, approaching a home's front door is impliedly approved "from the habits of the country." Id. at 1415. Visitors may approach the front door of a home "by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave." Id. ; see also Powell v. State , 120 So.3d 577, 584 (Fla. 1st DCA 2013) ("[T]he resident does not have a reasonable expectation of privacy in what is plainly viewed from the vantage point of a temporary visitor who walks along the pathway or stands at the doorway."). This implied license to approach the front door extends to both neighborly visitors and law enforcement officers alike. Jardines , 133 S.Ct. at 1415–16 ; see also Kentucky v. King, 563 U.S. 452, 469–70, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) ; Powell , 120 So.3d at 584. With respect to law enforcement-related visitors, it doesn't matter if their motivation for knocking at a front door includes the hope of discovering useful information:
[I]t is not a Fourth Amendment search to approach the home in order to speak with the occupant, because all are invited to do that . The mere purpose of discovering information in the course of engaging in that permitted conduct does not cause it to violate the Fourth Amendment.
Jardines , 133 S.Ct. at 1416 n.4 (internal citation and quotation marks omitted); see also Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ("[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions."). However, knock-and-talk activity by law enforcement that diverts from the customary path to a home's front door, or that exceeds other objectively reasonable bounds, can present Fourth Amendment problems requiring the suppression of evidence. Jardines , 133 S.Ct. at 1416–17 (suppressing evidence where a drug-sniffing dog was walked to a home's front door because the officer's objective behavior "reveal[ed] a purpose to conduct a search, which [was] not what anyone would think he had license to do"); Powell , 120 So.3d at 587 (suppressing evidence where an officer spied contraband by peering through a home's front window that was off the traditional path to the front door); State v. Adams, 378 So.2d 72, 74 (Fla. 3d DCA 1979) (suppressing evidence where an officer stood on a chair on the front porch to look down through a window into an apartment).
B.
The novel issue in this case is whether the presence of a "No Soliciting" sign negates the customary license of visitors and officers to knock at a home's front door. The trial court concluded that it does. But we hold otherwise.
While posting a "No Soliciting" sign seemingly prohibits would-be visitors from approaching the home in order to sell stuff, seek contributions, and the like, it does not clearly communicate an intention to exclude non-soliciting visitors. In fact, "No Soliciting" signs can be found in places where visitors are plainly welcome and expected, including supermarkets, malls, neighborhoods, hospitals, and stadiums. See , e.g. , Publix Super Markets, Inc. v. Tallahasseans for Practical Law Enforcement , No. 2004 CA 1817, 2005 WL 3673662 (Fla. 2d Cir. Ct. 2005) (supermarket); Salmon Run Shopping Ctr. LLC v. N.L.R.B. , 534 F.3d 108, 112 (2d Cir. 2008) (shopping mall); Watchtower Bible & Tract Soc'y of New York, Inc. v. Vill. of Stratton , 536 U.S. 150, 156, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002) (neighborhood); Beth Israel Hosp. v. N.L.R.B. , 437 U.S. 483, 486, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978) (hospital); Int'l Soc'y for Krishna Consciousness, Inc. v. New Jersey Sports & Exposition Auth. , 691 F.2d 155, 158 (3d Cir. 1982) (stadium); Mitchell v. Baltimore Sun Co. , 164 Md.App. 497, 883 A.2d 1008, 1011 (Md. Ct. Spec. App. 2005) (nursing home); Furman v. Call , 234 Va. 437, 362 S.E.2d 709, 711 (2017) (condominium complex). This isn't a case where the sign on the property obviously intended to keep visitors away. See § 810.09, Fla. Stat. (2016) (defining trespassing partly upon the basis of whether specific signs have been posted); Bainter v. State , 135 So.3d 517 (Fla. 5th DCA 2014) (holding that officers violated the Fourth Amendment by entering a property surrounded by a barbed-wire fence with a chain-link push fence and several visible "No Trespassing" signs). Different from other more broadly restrictive signs—"Keep Out," "No Visitors," "No Trespassing," etc.—a "No Soliciting" sign is more similar to "No Hunting," "No Fishing," and "No Swimming" signs that prohibit specific activities. Here, Mr. Crowley's lone sign unquestionably warned away would-be solicitors from his door, but not non-soliciting visitors. The officers didn't arrive at Mr. Crowley's front door in this case for the purpose of soliciting him, for instance, to buy tickets to a policeman's ball, or to contribute to the police athletic league. Thus, the officers' implied license to approach Mr. Crowley's front door, knock, and talk to him—as well as the implied license of other general visitors—remained intact. "Where no signs forbid entry, and there is a recognizable pathway to a front door, a limited license to enter the property on the pathway and knock on the door exists." Powell , 120 So.3d at 584 (citing Nieminski v. State, 60 So.3d 521, 526–27 (Fla. 2d DCA 2011) ).
A local ordinance where Mr. Crowley lives defines "soliciting" and "solicitor" as follows:
(a) Soliciting shall mean and include any one or more of the following activities:
(1) Seeking to obtain orders for the purchase of goods, wares, merchandise, foodstuffs, services, of any kind, character or description whatever, for any kind of consideration whatever; or
(2) Seeking to obtain prospective customers for application or purchase of insurance of any type, kind or publication; or
(3) Seeking to obtain subscriptions to books, magazines, periodicals, newspapers and every other type or kind of publication; or
(4) Seeking to obtain gifts or contributions of money, clothing or any other valuable thing for the support or benefit of any charitable or nonprofit association, organization, corporation, or project or for any other purpose.
* * *
(e) Solicitor shall mean and include any person engaged in soliciting whether or not a registered solicitor.
§ 250.701, Jacksonville Ordinance Code (2016). See also Prior v. White , 132 Fla. 1, 180 So. 347, 348 (1938) (describing a no soliciting ordinance in the City of New Smyrna that banned "soliciting orders for the sale of goods, wares, and merchandise").
The Jacksonville Ordinance Code confirms that no soliciting signs "exhibited upon or near [a home's] main entrance door" are effective to give "[n]otice of the determination by the occupant(s) of ... the refusal of invitation to solicitors , to any residence(s)." § 250.703(a) (emphasis added).
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Finally, we recognize that the trial court based its suppression order partly on a sentence in Powell , which stated that "homeowners who post ‘No Trespassing’ or ‘No Soliciting’ signs effectively negate a license to enter the posted property." 120 So.3d at 584. Powell wasn't a sign case, so it does not control the outcome here. But even so, we see no inconsistency between Powell and our holding. Similar to what Powell contemplates for "No Soliciting" cases like this one, our holding gives effect to the terms of the sign at face value, recognizing that Mr. Crowley's notice negated the license of solicitors to remain at his residence. In this case, however, the officers' non-soliciting behavior was reasonable and consistent with the "No Soliciting" sign. The sign did not negate the implied license of non-soliciting visitors to knock at Mr. Crowley's front door.
III.
For these reasons, we REVERSE the order granting the defendant's motion to suppress and REMAND for further proceedings.
B.L. THOMAS, C.J., and WINSOR, J., CONCUR.