5D06-931 Tracy Wilson v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D06-931

Case Date: 02/19/2007

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2007

TRACY W. WILSON, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed February 23, 2007 Appeal from the Circuit Court for Lake County, G. Richard Singeltary, Judge. Michael H. Hatfield of Hatfield & Baxley, P.A., Umatilla, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D06-931

TORPY, J. Appellant challenges the denial of his dispositive motion to suppress marijuana, paraphernalia and a firearm found during a warrantless search of his home and greenhouse. Concluding that sheriff's agents did not infringe upon Appellant's

constitutional rights before Appellant voluntarily consented to the search of his residence and greenhouse, we affirm.

Appellant owns and lives on a 36-acre parcel of land in Lake County. A natural vegetative buffer makes it nearly impossible to see the interior of the property from its boundary lines, and a perimeter fence entirely surrounds the property except for a drive gate. The fence is primarily "rail" fencing, but one section of the fence is constructed of barbed wire. The drive gate, located near the front of the property, is usually kept closed. A "No Trespassing" sign is conspicuously displayed next to the gate. Approximately 100 feet behind Appellant's residence is a greenhouse constructed of steel framing covered with semi-transparent plastic material. The

greenhouse is only partially visible from the residence. There is no doorway in the greenhouse. Ingress and egress is accomplished by lifting the plastic sides. The sides of the greenhouse are covered with nursery shade-cloth, which renders it difficult to see the interior of the greenhouse. Electrical power for the greenhouse is provided via an extension cord connected to Appellant's residence. Approximately ten days before Appellant's arrest, one of his neighbors entered his property to look for the neighbor's dog. At that time, the neighbor observed the greenhouse, which the neighbor believed contained marijuana. The neighbor notified sheriff's agents who began a surveillance of Appellant's property over the course of several days. Because sheriff's agents could not see the greenhouse from the boundary of the property, they surreptitiously entered the property by climbing over the fence and traversing the property up to the greenhouse. To view the contents of the greenhouse, it was necessary that the agents get very close to the greenhouse and touch its exterior. They wore camouflage suits to avoid detection. On the first occasion of their entry to

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the property, the agents observed more than 200 marijuana plants in the greenhouse, which they were able to view through a two -foot wide void in the covering on the greenhouse wall. After confirming that marijuana was growing in the greenhouse, the agents returned and entered the property on three more occasions over several days. On the fourth occasion of their surveillance they were detected by Appellant's dog. As Appellant was walking in the area of the greenhouse, his dog alerted to the presence of one sheriff's agent who was crawling on the ground. When Appellant and his dog got close to the agent, the agent, Detective Padgett, rose to his feet, identified himself as a law enforcement officer, pointed a gun at Appellant, ordered Appellant to the ground and threatened to shoot Appellant's dog if Appellant did not control the dog. Padgett held Appellant at bay for several minutes until two other law enforcement officers arrived, at which time the agents instructed Appellant to get off the ground and keep his hands on his head. Appellant was "walked" to the front of his mobile home. Once at the front of the mobile home, the agents told Appellant that they had reason to believe he was growing marijuana. They advised him of his Miranda rights, which he waived, and they asked for permission to search his residence and greenhouse. Appellant agreed and executed a written form that permitted the agents to conduct the search, which revealed the contraband and firearm. Appellant was charged with possession of a firearm by a convicted felon and several drug related counts. The trial court concluded that the entry by officers onto the property was lawful because the greenhouse and surrounding field were not within the curtilage of the residence. Furthermore, the lower court concluded that Appellant's consent to search was freely and voluntarily given. As a result, the court denied Appellant's motion to

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suppress. Thereafter, Appellant entered a plea to the charges while preserving his right to appeal the dispositive issue of whether the evidence should have been suppressed. On appeal, Appellant argues that the agents infringed upon his Fourth Amendment rights by crossing his fence, traversing his field and peering into the greenhouse. The State responds that these actions did not amount to a violation of the Fourth Amendment because the agents never penetrated the curtilage of the residence.1 We are constrained to agree with the State based on the Supreme Court's holding in United States v. Dunn, 480 U.S. 294 (1987). In Dunn, DEA agents made three warrantless entries onto the defendant's 198acre ranch on two consecutive days by crossing over a perimeter fence that completely surrounded the property. Thereafter they walked one-half mile, crossed several barbed wire fences, climbed a wooden fence and peered into the barn using flashlights to view the interior of the locked barn, at which time agents observed an illicit drug laboratory. Although not argued by Appellant here or below, we note parenthetically that, at first blush, the fact that State agents apparently committed criminal trespass by entering fenced lands without consent presents a compelling argument for exclusion of the fruits of this unlawful intrusion. See

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