Peering Through A Window Next to A Front Door Held to Be A Fourth Amendment Search

Here’s an interesting new application of Florida v. Jardines (March 26, 2013), which recently held that bringing a drug-sniffing dog up to the front door of a home for a “sniff” of the front door area is a Fourth Amendment search. In this morning’s decision in Powell v. State of Florida, officers went up to the front door of a mobile home and knocked. When there was no answer, they took a step off the front steps and peered through a window at eye level about two feet from the front steps. Peering in, the officers saw marijuana growing under lamps in the home; they later obtained a warrant based on that viewing and searched the home.

The state intermediate court held that peering into the window was a Fourth Amendment search that required a warrant. Going up to the front door and knocking was fine, but peering through the window off of the front steps was not okay under the Jones trespass/intrusion test:

The deputies . . . deviated from established norms by entering upon that portion of the property directly in front of the window. Nothing in their testimony or the record establishes any license to do that. The officers had to step off the front door step, move two feet to the left, and position themselves directly in front of the window, their faces no more than a foot away. At that point they were virtually within the home without breaking its close. Because they physically entered a part of the curtilage where they had no right to be for the purpose of gaining information, the intrusion test is met.

The court notes that the Jones trespass/intrusion test is the easiest way to resolve the case: “Cases involving warrantless searches of the home or curtilage may be somewhat easier to analyze under the intrusion approach because the property interests are generally better defined.” (The court also concludes that the Jones test is best characterized as being about physical “intrusion” not “trespass.” See Footnote 3.) The court also holds that this was a search under the Katz privacy test:

Similarly, the State’s evidence lacked any indicia that the privacy of the mobile home’s kitchen area had been diminished by its occupants. No evidence exists that Powell or Wilbourn knowingly exposed the interior of their home where the plants were located to the public view or impliedly licensed the general public to peer in their front window from a foot away. No evidence was presented that the kitchen area (where the plants were located) could be seen from the public roadway, from the pathway leading to the front door, or from the front door itself. Instead, the plants could only be seen from outside the home by stepping away from the front door, placing officers within a hand’s width of the window pane, casting their view rightward at an acute angle. As in Olivera, Powell and Wilbourn “could reasonably expect that no one would observe or overhear [their] activities” from just outside their window.

It’s true that the window was right near the front door. But the fact that the officers stepped off the front porch meant that it exceeded the implied permission of the homeowners:

We cannot agree . . . 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 length away from the window pane is anything other than an impermissible intrusion into constitutionally protected space. Whether two feet or twenty, the distance between the door and window matters little given that the officers said they could not see the plants without leaving the front door step and positioning themselves at a spot where they had no right to be.

Does that sound like a fine line? Well, welcome to the fact-sensitive Fourth Amendment:

That said, we can envision front door configurations that have windows incorporated directly into their designs through which a visitor might be able to see the interior using no unusual means or devices. This case simply does not involve such a situation. Under certain circumstances, implicit permission may exist to look through an un-curtained window while standing on a front porch momentarily to see whether the resident is approaching the door, assuming no unreasonable means or devices are used.

Thanks to several Florida lawyers for sending on the opinion — including among them Howard Blumberg, who argued and won Jardines.