         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                               NOT FINAL UNTIL TIME EXPIRES TO
                                               FILE MOTION FOR REHEARING AND
                                               DISPOSITION THEREOF IF FILED


MATTHEW FRIEDSON,

             Appellant,

 v.                                                          Case No. 5D15-3063

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed December 16, 2016

Appeal from the Circuit Court
for St. Johns County,
J. Michael Traynor, Judge.

James S. Purdy, Public Defender, and
Jacqueline Rae Luker, Assistant Public
Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Deborah A. Cheesman,
Assistant Attorney General, Daytona
Beach, for Appellee.


WALLIS, J.

      Matthew Friedson ("Appellant") appeals the trial court's denial of his motion to

suppress evidence obtained from his apartment pursuant to a search warrant. After the

trial court denied Appellant's motion to suppress, he entered a nolo contendere plea to
possession of marijuana with intent to sell1 and possession of drug paraphernalia. 2

Appellant expressly reserved the right to appeal the denial of his motion to suppress, and

the State stipulated that the order was dispositive. See Fla. R. App. P. 9.140(b)(2)(A)(i).

Finding that the trial court erred by denying Appellant's dispositive motion to suppress,

we reverse and remand with instructions to vacate Appellant's judgment and sentences.

       The evidence at the hearing on Appellant's motion to suppress established that on

the evening of September 1, 2014, Detectives Glenn English and Sean Tice with the St.

Johns County Sherriff's Office went to Appellant's apartment to investigate an alleged

battery. Before arriving at Appellant's residence, the detectives reviewed intel reports,

which provided that Appellant was suspected of selling marijuana out of his apartment.

The intel reports further provided that Appellant is deaf. Appellant's apartment complex

consists of several one-story apartment buildings with outside entry. Each apartment has

a defined concrete path leading from the sidewalk to the front door. Located

approximately two feet to the right of Appellant's front door is a large window that sits

above an air-conditioning unit. Small concrete steps under the window form a short

walkway into a private front yard surrounded by a fence on three sides.

       Upon arriving at Appellant's apartment, the detectives found the front door closed

and blinds on the adjacent window drawn, but not fully shut. The detectives knocked on

Appellant's door, hoping "he would hear vibrations of the door." When Appellant did not

answer, the detectives moved off his front porch to the area directly in front of the window.

The detectives then shined their flashlights through and banged on the window, at which



       1   § 893.13(1)(a), Fla. Stat. (2014).

       2   § 893.145, Fla. Stat. (2014).

                                                2
testimony contradicted that position because Detective English specifically testified that

he never smelled marijuana while outside the apartment.

       The State further argues that the area adjacent to Appellant's front step is not

curtilage because it is a "common area[ ] shared by the residents in Appellant's apartment

complex." The State relies on State v. Batista, where the Third District Court held that a

resident had no reasonable expectation of privacy in the shared areas of an apartment

building. 524 So. 2d 481, 482 (Fla. 3d DCA 1988). Unlike in Batista, the evidence in this

case is that Appellant does not live in a large apartment building with a common lobby,

hallways, or other areas frequented by all residents. Cf. id. Rather, our record evidence

describes the area in front of Appellant's apartment as more akin to a private front yard.

Furthermore, the State elicited no testimony at the suppression hearing to support its

assertion that other residents utilize this area.

       For these reasons, we find that the detectives exceeded the permissible scope of

a knock-and-talk, venturing into constitutionally protected areas of Appellant's home to

gain information forming the basis for a search warrant.3 The detectives did not smell the

marijuana while occupying a place they had a legitimate right to be, and thus the plain

smell doctrine does not apply. See Ferrer, 113 So. 3d at 863. Having determined that the

detectives improperly relied on the smell of marijuana as the basis for a search warrant,




       3  We decline to entertain the State's argument that law enforcement could
reasonably rely on smelling marijuana once inside Appellant's apartment, as ordering the
apartment manager to unlock and open Appellant's door clearly amounted to improper
state action. See, e.g., Glasser v. State, 737 So. 2d 597, 598 (Fla. 4th DCA 1999) (holding
that if the government becomes involved "either directly or as a participant or indirectly
as an encourager of the private citizen's actions," courts will deem the private citizen an
instrument of the State (quoting United States v. Walther, 652 F.2d 788, 791 (9th Cir.
1981))).

                                              8
       Appellant's evidence at the motion to suppress hearing included testimony from an

expert in heating and air-conditioning, who testified that the air-conditioner at Appellant's

apartment would not blow air from inside the apartment to outside the apartment. The

apartment manager also testified that Appellant's air-conditioner does not operate in the

way described by the detectives. However, the expert did not physically inspect

Appellant's air-conditioner, and instead based his testimony on his general knowledge

and review of the manuals for the air-conditioner model at Appellant's apartment.

       The trial court ultimately denied Appellant's motion to suppress. As grounds for the

denial, the trial court focused on the finding that Detective Tice smelled the odor of

marijuana emanating from Appellant's apartment after the air-conditioning unit turned on,

rejecting the expert's testimony that the air-conditioner does not operate in this fashion.

The trial court further determined that Detective Tice was lawfully permitted to occupy the

area in front of Appellant's window where he smelled marijuana. The trial court noted that,

even if the detectives' entry into Appellant's home was unlawful, "inclusion of information

gathered within the home in the affidavit for the search warrant would not invalidate the

search warrant." In light of this ruling, Appellant entered a negotiated nolo contendere

plea, reserving his right to appeal the dispositive motion to suppress. The trial court

withheld adjudication and sentenced Appellant to thirty-six months' drug offender

probation for possession of marijuana and twelve months' probation for possession of

paraphernalia, to run concurrently.

       In considering a motion to suppress, we review the trial court's legal conclusions

de novo, but we defer to its factual findings provided that they are supported by

competent, substantial evidence. Ferryman v. State, 919 So. 2d 710, 712 (Fla. 5th DCA




                                             4
2006). Evidence obtained from an unlawful search cannot serve as the basis for issuance

of a search warrant. State v. Hood, 68 So. 3d 392, 395 (Fla. 2d DCA 2011). However,

"[t]he inclusion of illegally obtained evidence in the supporting affidavit, where the affidavit

contains other valid allegations sufficient to establish probable cause, does not invalidate

a search warrant." State v. Hunwick, 434 So. 2d 1000, 1001 (Fla. 4th DCA 1983) (citing

Neary v. State, 384 So. 2d 881 (Fla. 1980)).

       The plain view doctrine applies when: "1) the police view the contraband from a

place they have a legitimate right to be; 2) the incriminating character of the contraband

is immediately apparent to the viewing police officer; and 3) the police officer has a lawful

right of access to the contraband." Murphy v. State, 898 So. 2d 1031, 1033 (Fla. 5th DCA

2005) (citing Horton v. California, 496 U.S. 128 (1990); Rimmer v. State, 825 So. 2d 304,

313 (Fla. 2002)). "Just as evidence in the plain view of officers may be searched without

a warrant, evidence in the plain smell may be detected without a warrant." Nelson v. State,

867 So. 2d 534, 537 (Fla. 5th DCA 2004) (citations omitted). "[T]he analysis to be

employed in determining whether the warrantless seizure of the property is justified

depends primarily on where the observation occurred." Jones v. State, 648 So. 2d 669,

676 (Fla. 1994). Thus, the plain smell doctrine applies only when law enforcement officers

detect the odor while occupying a place where they have a legitimate right to be. See

Ferrer v. State, 113 So. 3d 860, 863 (Fla. 2d DCA 2012).

       The United States Supreme Court has explained that "the knocker on the front

door is treated as an invitation or license to attempt an entry, justifying ingress to the

home by solicitors, hawkers and peddlers for all kinds of salable articles." Breard v. City

of Alexandria, 341 U.S. 622, 626 (1951) (footnote omitted), abrogated on other grounds




                                               5
by Vill. of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620 (1980). This license

permits law enforcement, as well as private citizens, "to approach the home by the front

path, knock promptly, wait briefly to be received, and then (absent invitation to linger

longer) leave." Florida v. Jardines, 133 S.Ct. 1409, 1415 (2013).

              The key to the legitimacy of the knock-and-talk technique . . .
              is the absence of coercive police conduct, including any
              express or implied assertion of authority to enter or authority
              to search. In properly initiating a knock-and-talk encounter,
              the police should not "deploy overbearing tactics that
              essentially force the individual out of the home." Nor should
              "overbearing tactics" be employed in gaining entry to a
              dwelling or in obtaining consent to search.

Luna-Martinez v. State, 984 So. 2d 592, 599 (Fla. 2d DCA 2008) (quoting United States

v. Thomas, 430 F.3d 274, 277 (6th Cir. 2005)).

       The First District Court addressed the scope of a knock-and-talk in Powell v. State,

120 So. 3d 577 (Fla. 1st DCA 2013). In Powell, law enforcement received an anonymous

tip that the defendant grew marijuana in his mobile home. Id. at 580. Officers arrived at

the defendant's home, but he did not answer the door. Id. The officers then peered

through a window "that was about two feet to the left of the front door," allowing them to

see marijuana plants under a table in the kitchen. Id. The officers ultimately obtained a

search warrant for the mobile home, and the trial court denied the defendant's motion to

suppress the evidence obtained from the search. Id. at 581-82. On appeal, the First

District Court explained that, while the law permits officers to perform a knock-and-talk,

"[i]t is a different matter when police officers choose to physically enter other portions of

a home's curtilage—areas where they have no right to be." Id. at 584. The court

determined that "stepping off a porch, even a few feet, onto portions of the curtilage where

persons are uninvited and then looking into the home at a sharp angle from a hand's



                                             6
length away from the window pane" was not permissible. Id. at 586. Therefore, the court

reversed the trial court's order denying the defendant's motion to suppress. Id. at 589.

       Based on the foregoing, we find that the detectives exceeded the scope of their

implied license by lingering at Appellant's apartment when he did not answer his door.

The United States Supreme Court has made clear that law enforcement may knock,

briefly wait, and leave if they elicit no response. See, e.g., Jardines, 133 S.Ct. at 1415.

One would not expect a visitor, if their knocking elicited no response, to step off the front

porch to shine flashlights through and bang on an adjacent window. See id. ("To find a

visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same

visitor exploring the front path with a metal detector, or marching his bloodhound into the

garden before saying hello and asking permission, would inspire most of us to—well, call

the police.").

       The State relies on the trial court's determination that the detectives did not occupy

the curtilage of Appellant's home when Detective Tice smelled marijuana. We find that

Powell controls because the circumstances in this case parallel the activity deemed

impermissible by the First District Court. Powell similarly concerned the scenario where

the officers stepped approximately two feet away from the front door to peer through an

adjacent window. See 120 So. 3d at 588. Thus, although the officers only slightly entered

the curtilage of the defendant's mobile home, the plain view doctrine did not apply

because the officers nonetheless ventured into a constitutionally protected area. See id.

Similarly, Detective Tice noticed the smell of marijuana only after moving off the front

porch and peering through Appellant's window above the air-conditioner. Although the

State argues the detectives would have smelled the marijuana from the front porch, direct




                                             7
testimony contradicted that position because Detective English specifically testified that

he never smelled marijuana while outside the apartment.

       The State further argues that the area adjacent to Appellant's front step is not

curtilage because it is a "common area[ ] shared by the residents in Appellant's apartment

complex." The State relies on State v. Batista, where the Third District Court held that a

resident had no reasonable expectation of privacy in the shared areas of an apartment

building. 524 So. 2d 481, 482 (Fla. 3d DCA 1988). Unlike in Batista, the evidence in this

case is that Appellant does not live in a large apartment building with a common lobby,

hallways, or other areas frequented by all residents. Cf. id. Rather, our record evidence

describes the area in front of Appellant's apartment as more akin to a private front yard.

Furthermore, the State elicited no testimony at the suppression hearing to support its

assertion that other residents utilize this area.

       For these reasons, we find that the detectives exceeded the permissible scope of

a knock-and-talk, venturing into constitutionally protected areas of Appellant's home to

gain information forming the basis for a search warrant.3 The detectives did not smell the

marijuana while occupying a place they had a legitimate right to be, and thus the plain

smell doctrine does not apply. See Ferrer, 113 So. 3d at 863. Having determined that the

detectives improperly relied on the smell of marijuana as the basis for a search warrant,




       3  We decline to entertain the State's argument that law enforcement could
reasonably rely on smelling marijuana once inside Appellant's apartment, as ordering the
apartment manager to unlock and open Appellant's door clearly amounted to improper
state action. See, e.g., Glasser v. State, 737 So. 2d 597, 598 (Fla. 4th DCA 1999) (holding
that if the government becomes involved "either directly or as a participant or indirectly
as an encourager of the private citizen's actions," courts will deem the private citizen an
instrument of the State (quoting United States v. Walther, 652 F.2d 788, 791 (9th Cir.
1981))).

                                              8
the evidence obtained pursuant to the warrant is inadmissible as "fruit of the poisonous

tree," and the trial court erred by denying Appellant's motion to suppress. See Wong Sun

v. United States, 371 U.S. 471, 477-78 (1963). Because the parties have stipulated that

Appellant's motion to suppress is dispositive, we reverse with instructions to vacate

Appellant's judgment and sentences.



      REVERSED and REMANDED with Instructions.



SAWAYA and COHEN, JJ., concur.




                                           9
