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Search By Consent is Limited to Scope of Consent in Florida

In Florida, most people understand that the police cannot search a person’s home for drugs or other evidence of criminal activity without a valid search warrant or consent from someone with authorization. This privacy right may also extend to a person’s front and back yards. While a police officer may walk onto a person’s open property to knock on the door and talk about criminal activity, a police officer may not enter gated areas to search without a warrant or consent to search.

In a recent case south of Jacksonville, Florida, the defendant lived at a home that was surrounded by an electric gate. Someone tipped police that he was growing marijuana in his home. The police went to his house and conducted surveillance but did not see any marijuana, marijuana plants or drug transactions. When the defendant exited the house and opened the gate to take out the trash, the police approached him to talk to him. The police asked if they could talk inside the gate. The defendant agreed to talk inside the gate but nothing more. Once inside the gate, one of the police officers spoke to the defendant while another one started searching around the house. The other officer indicated he smelled marijuana in the house. They detained the defendant until they could get a search warrant for the house. With the search warrant, they searched the house and found a large amount of marijuana. The defendant was arrested for trafficking in marijuana.

The criminal defense lawyer filed a motion to suppress the marijuana based on an illegal search. The state argued that the defendant gave consent to enter the premises, the police officer then smelled marijuana and then had probable cause to get a search warrant which allowed them to enter the house. However, the state’s argument was rejected. The key issue was the scope of the consent given by the defendant. The defendant only gave the police officers authority to enter the gate to talk. The police officers were not allowed to search the premises. When the officer left the front yard to search around, he exceeded the scope of the consent. Once he did that, any evidence of marijuana he smelled or found was based on an unlawful search. Likewise, the search warrant was only obtained based on the illegal search. Therefore, the search warrant was not valid.