Jacksonville Criminal Lawyer Blog
In order for the police to be able to search your home for evidence of a crime, they either have to have a valid search warrant or they have to have consent from the owner or someone with proper authorization to give that consent. For the latter method, the police are generally allowed to walk up to your front door, knock and ask to come inside. As long as people give the police permission to come inside their homes and search, the police almost never have to get search warrants by explaining to a judge what legal reason they have to enter a residence. Therefore, it is important for people to understand that they can always (and usually should) refuse when police ask to search their property.
Unless your property is gated or otherwise partitioned from public access, the police can go to your door, knock and try to get permission to enter in Florida. What can the police do if you do not answer the door or if you are not home? If you are not home, they cannot enter since they would not have permission. They would have to get a search warrant from a judge. If you are home, the police can see or hear that you are home and you do not come to the door, can they enter the home?
In a recent case near Jacksonville, Florida, police went to the defendant’s apartment to investigate a battery call, but they also had information that the defendant was selling marijuana. When they arrived at the apartment, they knocked, but the defendant did not answer. The police walked a few feet to the front window and were able to see the defendant inside. They knocked on the window, but the defendant still did not answer. They sent the defendant a text message asking if he would come outside, and he still did not answer. At this point, the police claimed to have smelled marijuana coming through the air conditioning unit and then got the apartment manager to let them inside the apartment. (If this testimony sounds ridiculous, the criminal defense attorney had an air conditioning professional testify that this would not have been possible with the defendant’s air conditioning unit. This is another sad statement as to the lengths police will go to arrest people for possessing a plant.)
The police ultimately searched the apartment and found marijuana inside that was packaged for sale. The defendant was arrested for possession with intent to sell marijuana. There was no evidence of any battery. The judge in the case ruled that the search was valid, but the criminal defense lawyer appealed, and this ruling was reversed. The appellate court noted that the police do have a right to knock on a suspect’s door to try and get permission to search a residence, but that right is limited. The police can knock on the door and wait briefly, but if someone does not open the door in a reasonably short period of time, the police have to leave. Essentially, they have to act like a normal visitor would. Normal visitors do not walk around to a window, look inside and knock on the window to try and gain access. The state argued that the police were justified in doing this as they allegedly smelled marijuana from outside of the apartment. However, a police officer’s right to investigate further when they see or hear something in plain view, or outside of the apartment, is only valid if the police have a legal right to be where they are when they see or smell the evidence. In this case, the police officers walked to the window, which was not an area that visitors would normally go to locate the suspect. Since they did not have a right to be in this area, referred to as the curtilage of the residence, any evidence discovered in that area could not be used against the defendant.
Because the police illegally gained access to the apartment where the marijuana was found, the marijuana sale charge was thrown out, and taxpayer time and government resources for a criminal case and an appeal were wasted over a flawed marijuana case.