Ferrer v. State
113 So. 3d 860
| Fla. Dist. Ct. App. | 2012Background
- Ferrer owned a two-story Collier County home suspected of marijuana cultivation.
- Access to the property was blocked by an electric gate and surrounding fencing; officers surveilled from adjacent lots and streets.
- Ferrer retrieved trash cans at the gate; officers spoke to him from outside the gate and asked to speak on the other side.
- Ferrer opened the gate; officers followed him down the driveway while others went to the back and smelled marijuana on the second-story porch.
- Based on the odor, officers detained Ferrer pending a search warrant; contraband was found during the ensuing search.
- The trial court denied Ferrer’s motion to suppress with minimal explanation, but the judge acknowledged limited consent during testimony; the appellate court later reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the curtilage encounter exceed Ferrer’s consent? | Ferrer argues consent only covered speaking on the other side of the gate. | State contends knock-and-talk permitted broader access to the front area. | Yes; consent limited to speaking on the gate’s other side; search beyond the gate was unlawful. |
| Is the odor of marijuana admissible when detected outside the allowed consent scope? | N/A | State relies on plain smell doctrine to justify seizure/search. | Plain smell doctrine does not apply; officers were not lawfully present where odor was detected. |
| Should the appeal suppress the obtained evidence due to improper initial entry? | Improper initial entry taints the search warrant evidence. | N/A | Yes; suppression warranted; reverse and discharge Ferrer. |
Key Cases Cited
- Katz v. United States, 389 U.S. 347 (U.S. 1967) (establishes Fourth Amendment reasonableness standard and consent scope)
- Florida v. Jimeno, 500 U.S. 248 (U.S. 1991) (consent scope measured objectively by reasonable understanding)
- Illinois v. Rodriguez, 497 U.S. 177 (U.S. 1990) (objective reasonableness in interpreting consent and authority)
- Walter v. United States, 447 U.S. 649 (U.S. 1980) (consent limits on police activity and scope of search)
- Soldo v. State, 583 So.2d 1080 (Fla. 3d DCA 1991) (permission to enter residence does not imply full property search)
- State v. Triana, 979 So.2d 1039 (Fla. 3d DCA 2008) (consensual encounter outside locked gate does not authorize entering)
- Pereira v. State, 967 So.2d 312 (Fla. 3d DCA 2007) (odor detection off-porch/open area not justifiable where privacy is present)
- Nieminski v. State, 60 So.3d 521 (Fla. 2d DCA 2011) (fenced property privacy considerations relevant to entry)
- Fernandez v. State, 63 So.3d 881 (Fla. 3d DCA 2011) (privacy in fenced yard adjacent to residence; momentary gate opening not an invitation)
- Navarro, 19 So.3d 370 (Fla. 2d DCA 2009) (knock-and-talk principles and entry scope considerations)