VoteKansas.org

Where only vehicle around was the police officer in front of defendant, defendant's failure to use a signal might have affected that vehicle, so it justified a stop. The undisputed evidence was that the police car was the only car around. Mitchell v. State, 2012 Ark. App. 128 (February 8, 2012).* [I find this laughable. The court is straining so hard it loses its credibility as an institution.]

Defendant’s trash search was valid, and that led to a search warrant with probable cause. United States v. Rodgers, 2012 U.S. Dist. LEXIS 13865 (E.D. N.C. February 06, 2012).*

Defendant ran a stop sign, recorded by the dashcam, and fled when the officer tried to stop him. When finally stopped, the officer validly saw drugs in the car in plain view. Defendant’s pro se motion to suppress denied. United States v. Scott, 2012 U.S. Dist. LEXIS 14053 (W.D. Mo. January 6, 2012).*

Defendant’s roommate consented to an entry by officer to look around for the defendant who was alleged to be an unregistered sex offender. The officer looked in a grey bag that was suppressed. As to a shelf, however, the court declines to find getting a stepladder to look on the shelf was an unreasonable search. Add to that the roommate’s getting the stepladder. The box of ammunition proclaimed its contents, and it was validly seized under plain view. United States v. Tolbert, 2012 U.S. Dist. LEXIS 14287 (E.D. Wis. February 7, 2012):

It is true that, ordinarily, the police must obtain a warrant before opening a closed container because, by concealing the contents from plain view, the possessor creates a reasonable expectation of privacy. United States v. Banks, 514 F.3d 769, 773 (8th Cir. 2008). “However, like objects that sit out in the open, the contents of some containers are treated similarly to objects in plain view.” Id. Courts have held that containers which permit one to infer their contents based on their outward appearance are not entitled to full Fourth Amendment protection. Id. (citing Arkansas v. Sanders, 442 U.S. 753, 764-65 n.13 (1979) (“Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.”), overruled on other grounds by California v. Acevedo, 500 U.S. 565 (1991)); United States v. Meada, 408 F.3d 14, 23 (1st Cir. 2005) (collecting cases holding that containers which betray their contents are treated as being in plain view); United States v. Miller, 929 F.2d 364, 364-65 (8th Cir. 1991) (holding that no warrant was required to search a bag whose size and shape suggested it contained a gun). Individuals possess a lesser expectation of privacy in the contents of such containers when the container is observed from a lawful vantage point. Banks, 514 F.3d at 774.

In the present case, the boxes Decker saw proclaimed their contents -- Remington ammunition. While it might be theoretically possible that the boxes contained something else, there is certainly a reasonable likelihood that they contained bullets. Because ammunition, possessed by a felon, is evidence of a crime, Decker lawfully seized these boxes. See Banks, 514 F.3d at 775-76.

. . .

Second, even if Decker used a stool to observe and photograph the ammunition, I cannot conclude that this exceeded the scope of Warren’s consent. While a person’s failure to object should not be construed as expanding the scope of consent, the court may properly consider silence in understanding what it is she allowed the police to do. Thus, while I agree with the magistrate judge that Warren’s acquiescence to Decker’s looking through the gray bag cannot bring that search within the ambit of her consent, her apparent agreement in Decker’s use of a stool to photograph the bedroom is something else. Indeed, it appears that Warren may have fetched the stool for Decker, which suggests that she did not see this as outside the scope of what she agreed he could do.

Democracy Now: Ramarley Graham: NYPD Slays Unarmed Black Teen as Outrage Over Targeting of People of Color Grows:

The New York City Police Department is under mounting criticism after police shoot dead an unarmed teenager inside his own home. Eighteen-year-old Ramarley Graham was shot at close range in his parents’ apartment in the Bronx after being chased into the house by narcotics detectives. Police said they found marijuana in the home and think Graham may have been trying to flush some down the toilet. The NYPD is coming under criticism not only for shooting Graham, but also for its broader "stop-and-frisk" policy, which critics say disproportionately targets people of color. On Monday, about 500 protesters rallied in the Bronx to condemn the police treatment of black youth. We speak to Jamel Mims, an organizer with the Stop Mass Incarceration Network, which is working to end the practice of stop-and-frisk; and Nicholas Peart, who is serving as a witness in a federal class action lawsuit challenging "stop-and frisk" as racist and unconstitutional.

I was interviewed yesterday by Huffington Post about the Fourth Amendment issues yesterday.

During this stop with reasonable suspicion, the defendant wanted cigarettes and the officer was permitted to into the car after them seeing crack cocaine in plain view. United States v. Scott, 2012 U.S. App. LEXIS 2178 (4th Cir. February 3, 2012) (unpublished).*

Defendant’s claim that the government coerced him to provide the password to his cell phone has no support in the record at all. He was only asked his phone number when he was booked. United States v. Askew, 2011 U.S. Dist. LEXIS 152781 (W.D. Ky. December 2, 2011).*

Officers had both reasonable suspicion for a stop and saw a traffic violation. Approaching the vehicle, the officer smelled fresh marijuana, and that was probable cause. United States v. Salcido-Guzman, 2011 U.S. Dist. LEXIS 152791 (W.D. Ky. October 28, 2011).*

The officer’s observation of defendant stopping nearly in the middle of an intersection and almost hitting mailboxes was reasonable suspicion for his stop. State v. Napier, 2012 Ohio 394, 2012 Ohio App. LEXIS 338 (9th Dist. February 6, 2012).*

NYTimes: ‘We the People’ Loses Appeal With People Around the World by Adam Liptak:

The Constitution has seen better days.

Sure, it is the nation’s founding document and sacred text. And it is the oldest written national constitution still in force anywhere in the world. But its influence is waning.

Same with the Fourth Amendment and personal privacy.

This child pornography investigation involved search warrants for AOL emails, a subpoena for subscriber information, then a search warrant for the offending computer as it is supposed to be done. The only issue was whether the first search warrant for the emails was stale where the information was six months old. As an aside, the court notes that defendant probably did not have standing because the account was not in his name, and the issue is saved for another day. Commonwealth v. Hoppert, 2012 PA Super 21, 2012 Pa. Super. LEXIS 26 (February 6, 2012), n.3:

We further note that while neither party nor the trial court raised the issue, we question whether Appellant had an expectation of privacy in the AOL records that were the subject of the first search warrant. “[A]s a preliminary matter, [a defendant] must show that he had a privacy interest in the area searched.” Commonwealth v. Jones, 874 A.2d 108, 117 (Pa. Super. 2005). Here, the AOL account was registered to Sallie Hoppert, not Appellant.

Although it does not appear that Pennsylvania courts have addressed the expectation of privacy in computer user accounts, we note that another panel of this Court recently examined the issue in relation to cellular phone records in Commonwealth v. Benson, 10 A.3d 1268 (Pa. Super. 2010). In Benson, the defendant sought to suppress records related to a cellular phone owned by his then-girlfriend, on a cell phone primarily used by him. We ultimately concluded:

[W]hile Appellant had use of the telephone, the bills in question were not his telephone bills. ...Appellant had no legal right to request or control access to the information from the telephone company because he was not the owner of the telephone. He had no legitimate expectation of privacy in them.

Id. at 1273-1274 (emphasis in original). Moreover, our decision in Benson relied upon a 2008 Washington Court of Appeals case wherein that court held that “a defendant did not have a legitimate expectation of privacy in telephone bills in the name of defendant’s wife.” Id. at 1273 (emphasis added).

However, because the precise issue was not squarely before the trial court, we do not reach a decision as to whether Appellant had an expectation of privacy in the AOL records held in his wife’s name. We merely note this threshold requirement for future guidance for both bench and bar.

Defendant was convicted of felony DUI. An officer came up to defendant’s parked car and tapped on the window. Defendant was free to ignore it. State v. Randle, 2012 Ida. App. LEXIS 11 (February 6, 2012). [I still don’t buy this utter fiction. People who ignore police “commands” or even suggestions do it at their peril, and most of them know it. Only the truly street smart would walk away. Probably what’s more laughable is watching the DA and the LEO argue to the court that he was free to ignore it all to justify the stop. In my jurisdiction, and most of them, you'd be arrested for driving off. I’m representing a guy Tasered in the back three times for not responding fast enough to what was supposedly a “consensual encounter.”]

Defendant was stopped for DUI3 based on his making a wide right turn in violation of statute. Because the officer’s interpretation of the statute was reasonable, the stop was based on reasonable suspicion. State v. Dahl, 2012 SD 8, 2012 S.D. LEXIS 5 (February 1, 2012).*

While proximity to a possible crime is not enough to search, the officers here knew more, and that justified the stop of defendant’s vehicle. United States v. Landeros-Sandovar, 2011 U.S. Dist. LEXIS 152784 (W.D. Ky. October 28, 2011).*

NJ refuses to overrule State v. Pena-Flores without a full statistical record. The one proffered by the state was too limited. State v. Shannon, 2012 N.J. LEXIS 51 (February 2, 2012)*:

In these companion cases, the State asks the Court to revisit its recent decision in State v. Pena-Flores, 198 N.J. 6, 965 A.2d 114 (2009), which addressed the proper standard for warrantless searches of motor vehicles. The State contends that the decision's impact on police practices and New Jersey motorists provides special justification to overturn Pena-Flores. As support, the State relies in part on certain data taken only from New Jersey State Police motor vehicle stops. That data represents a fraction of statewide encounters with motorists and covers the limited period of time since Pena-Flores went into effect.

We do not find sufficient support in the current record to establish the "special justification" needed to depart from precedent. State v. Brown, 190 N.J. 144, 157, 919 A.2d 107 (2007) (quoting Dickerson v. United States, 530 U.S. 428, 443, 120 S. Ct. 2326, 2336, 147 L. Ed. 2d 405, 419 (2000)). We rely on the Attorney General, the Public Defender, the American Civil Liberties Union, appearing in this matter as amicus curiae, and other interested non-parties to amass and develop a more thorough, statistical record over time relating to motor vehicle stops by the State Police and local authorities.

To the extent that it is impractical to collect data from local law enforcement throughout the entire State, data from representative urban, suburban, and rural areas may suffice. That information should include, where possible, (a) the total number of motor vehicle stops, (b) the number of warrantless probable cause searches conducted, consent searches requested, consent searches conducted, and vehicles impounded -- both before and after Pena-Flores -- and (c) other relevant information.

The first paragraph of Pena-Flores:

At issue in these appeals, which we have consolidated for the purpose of this opinion, is the automobile exception to the warrant requirement. Today, we reaffirm our longstanding precedent that permits an automobile search without a warrant only in cases in which the police have both probable cause to believe that the vehicle contains evidence and exigent circumstances that would justify dispensing with the warrant requirement. The question of whether exigent circumstances exist is to be determined, as it has always been, on a case-by-case basis with the focus on police safety and preservation of evidence.

Don't be concerned about the court relying on the ACLU--New Jersey has been sued repeatedly over the last two decades for racial profiling and other abuses, and most have been proved. See, e.g., State v. Carty, 170 N.J. 632, 790 A.2d 903 (2002), discussing the statistic proof of driving while black and intimidation once stopped.

The officer waited four hours observing defendant’s vehicle license was expired to stop defendant, ostensibly because the officer was investigating another more serious crime. Neither the delay nor ulterior motive made the stop invalid because of the ongoing nature of the traffic violation, which is distinguished from discrete traffic offenses. United States v. Anderson, 2012 U.S. App. LEXIS 2072, 2012 FED App. 0108N (6th Cir. January 31, 2012) (unpublished). [Opinion has numerous citations.]

To get a suppression hearing on a search warrant, the defendant has to make a showing that contested facts exist. Here, the record is devoid of anything showing who owned the van, and that was a lack of standing. Even if there was standing, there was probable cause. United States v. Harris, 2012 U.S. Dist. LEXIS 12976 (W.D. Ky. February 2, 2012):

While the defendant seeks to probe various statements in the affidavit, he has, in fact, not shown that any contested facts exist. Harris is not entitled to an evidentiary hearing in the absence of such a showing. "An evidentiary hearing is required 'only if the motion is sufficiently definite, specific, detailed, and non-conjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.' United States v. Downs, No. 96-3862, 1999 WL 130786, at *3 (6th Cir. Jan. 19, 1999) (citing United States v. Unimex, Inc., 991 F.2d 546, 551 (9th Cir.1993)) (emphasis supplied)." US v. Abboud, 438 F.3d 554, 557 (6th Cir. 2006).

USA Today: FBI cuts back on GPS surveillance after Supreme Court ruling by Kevin Johnson:

The FBI has begun cutting back GPS surveillance in an array of criminal and intelligence investigations following a Supreme Court ruling last month restricting its use, a federal law enforcement official said.

The bureau began implementing the change the day after the Jan. 23 ruling in which the court found that attaching such a device to a car amounted to a search covered by the Fourth Amendment, requiring police to seek warrants in many cases.

The official, who was not authorized to comment publicly on the matter, said the GPS directive was issued until further legal guidance is provided on the use of the technology.

Peter Swire, A Reasonableness Approach to Searches After the Jones GPS Tracking Case, 64 Stan. L. Rev. Online 57 (2012):

In the oral argument this fall in United States v. Jones,[1] several Supreme Court Justices struggled with the government’s view that it can place Global Positioning System (GPS) tracking devices on cars without a warrant or other Fourth Amendment limit. Chief Justice Roberts asked: “You think there would also not be a search if you put a GPS device on all of [the Justices’] cars, monitored our movements for a month?”[2] (The lawyer for the government said yes.) Justice Breyer remarked: “[I]f you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.”[3] He added: “[I]f you win, you suddenly produce what sounds like 1984 ....”

Examiner.com: Harrisburg headlines: Pilot program of drug tests for welfare recipients may go statewide by Yvonne P Mazzulo:

On January 18th, 2012, Senator David G. Argall (R-29) announced that the Pennsylvania Department of Public Welfare (DPW) would implement a drug testing pilot program in Schuylkill County.

Under the pilot program, DPW will randomly drug test applicants and recipients of Temporary Assistance for Needy Families and General Assistance cash assistance who have been convicted of a felony drug offense that occurred within the past five years and for applicants who are currently on probation for a felony drug offense.

Upon the announcement of the pilot program for Schuylkill County, Senator Argall stated, “People at my town hall meetings throughout the district repeatedly tell me they would like to see serious reforms to stop giving a ‘free ride’. This news is long overdue in a department that consumes 30 percent of the state budget.”

In a murder case, officers seized defendant’s car, allegedly without probable cause, but shortly thereafter had a search warrant for the car. Whether the initial seizure was invalid really doesn’t matter. Segura applies. Browne v. People, 2012 V.I. Supreme LEXIS 9 (February 2, 2012).*

As to Browne’s co-defendant, the government’s claim he lacked standing to contest a search of the car was not raised in the trial court, and it is waived. Melendez v. People, 2012 V.I. Supreme LEXIS 8 (February 2, 2012):

As an initial matter, we must determine whether the People can assert for the first time on appeal that Melendez does not have standing to challenge the seizure of Jeffrey's vehicle. In United States v. Butler, 405 Fed. Appx. 652, 654 (3d Cir. 2010) (unpublished), the Court of Appeals for the Third Circuit held that if the government fails to raise the issue of standing in the trial court, the issue is waived on appeal. The court reasoned:

Unlike Article III standing, which cannot be waived, Fourth Amendment standing can be waived if not raised and properly preserved. See Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) ("[T]his Court's long history of insistence that Fourth Amendment rights are personal in nature has already answered many of these traditional standing inquiries, and we think that definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing."); see also United States v. Washington, 380 F.3d 236, 240 n.3 (6th Cir. 2004) ("'Standing to challenge a search or seizure is a matter of substantive Fourth Amendment law rather than of Article III jurisdiction, meaning that the government can waive the standing defense by not asserting it.'" (quoting United States v. Huggins, 299 F.3d 1039, 1050 n.15 (9th Cir. 2002))); United States v. Dewitt, 946 F.2d 1497, 1499-1500 (10th Cir. 1991) ("[T]he issue of [F]ourth [A]mendment standing could be waived if the government has failed to raise it in a timely fashion during the litigation." (quotation marks and alterations omitted)).

Id. In addition to those cited in Butler, other federal circuits have also held that failing to raise the issue of standing in the trial court bars the government from raising it on appeal. See United States v. Gonzalez, 71 F.3d 819, 827 n.18 (11th Cir. 1996); United States v. Mendoza, 722 F.2d 96, 97 n.1 (5th Cir. 1983).7 We agree with the majority of the Courts of Appeals that have addressed this issue and find that by failing to raise the issue of standing in the Superior Court, the People have waived the issue on appeal. See Steagald v. United States, 451 U.S. 204, 209 (1981) (warning that the government can "lose its right" to challenge "standing" "when it has made contrary assertions in the courts below ... or when it has failed to raise such questions in a timely fashion during the litigation"). Accordingly, since the People failed to assert that Melendez lacked standing to challenge the seizure of Jeffrey's vehicle in the Superior Court, we deem this argument waived and proceed to the merits of Melendez's claim.

Defendant did not argue that the sobriety checkpoint was illegally set up, instead challenging his consent to search, which was found voluntary. In any event, defendant cannot show he was prejudiced by the consent search when he took the stand and said he was addicted to cocaine and had it in his possession. Wilson v. State, 2012 Ark. App. 96, 2012 Ark. App. LEXIS 195 (February 1, 2012). [Note: Probably no harm here because the trial court's findings of consent would likely be sustained on appeal, anyway.]

A sobriety checkpoint was not exactly where the press release said it would be, and that was not enough to suppress a stop there. It was still done according to a predetermined plan. Commonwealth v. Aivano, 2012 Mass. App. LEXIS 79 (February 3, 2012).*

The USMJ’s findings that the stop of defendant was invalid, based on the credibility of the officer’s testimony, was supported by the evidence. The government’s objections did not overcome the findings. United States v. Northington, 2012 U.S. Dist. LEXIS 12941 (E.D. N.C. January 31, 2012).*

Officers query to “come over here” was not a command that could legally be ignored. City of Columbus v. Body, 2012 Ohio 379, 2012 Ohio App. LEXIS 318 (10th Dist. February 2, 2012):

[*P18] Federal courts have also recognized that "simply calling out to someone to come over to talk does not constitute a seizure." United States v. Brown (C.A.6, 2012), 2012 U.S. App. LEXIS 302, 2012 WL 29209, citing United States v. Matthews (C.A.6, 2002), 278 F.3d 560, 562. In Brown, the officer "holler[ed] for [the defendant] to come here," at which point the defendant turned his car around. The Sixth Circuit relied on its earlier decision in Matthews where it found that the statement, "Hey, buddy, come here," did not constitute a stop because the addressee could have "politely declined to do so, and walked away." Id., citing Matthews, 278 F.3d at 562; see also United States v. Richardson (C.A.8, 2008), 537 F.3d 951, 956 (no seizure where the officer states "[c]ome here" in a "[p]olice tone of voice").

[And I've got a bridge to sell you.]

While the state search warrant rule defines “law enforcement officer” as a state law enforcement officer, it does not violate the rule to have a DEA agent along for the ride participating. Long v. State, 2012 Ohio 366, 2012 Ohio App. LEXIS 306 (8th Dist. February 2, 2012):

As stated by this court in State v. Joiner, 8th Dist. No. 81394, 2003 Ohio 3324, 2003 WL 21468900, HN3Go to the description of this Headnote."[f]ederal and state officers often work in conjunction in criminal cases and their cooperating in the execution of a search warrant is acceptable provided they are searching for the same contraband." See also State v. Siegrist, 11th Dist. No. 10-088, 1984 Ohio App. LEXIS 10955, 1984 WL 7295 (Sept. 28, 1984) (upholding warrant allegedly requested by DEA agent but executed by local police); State v. Miller, 9th Dist. No. 12198, 1986 Ohio App. LEXIS 5412, 1986 WL 1127 (Jan. 22, 1986) (stating that if officers from the jurisdiction where the search took place are present, the presence of unauthorized officers is immaterial); State v. Ridgeway, 4th Dist. No. 00CA19, 2001 Ohio 2655, 2001 WL 1710397 (holding that DEA agent could participate in search on local warrant).

Defendant was arrested for having an open container that was in plain view. While a search incident at the time of the arrest would have been valid, a search the next day was not. People v Tashbaeva, 2012 N.Y. Misc. LEXIS 349, 2012 NY Slip Op 22022 (Richmond Co. January 31, 2012).

The officers had reasonable suspicion for stopping a Lincoln Town Car that pulled up in front of a residence under surveillance for drug activity. The car stopped 3-5' from the curb, the driver stayed in the car, somebody ran inside, stayed a few seconds, and came back out, and then the car drove away committing a couple of traffic offenses. When the officer started following, the Town Car stopped in the midele of the street. Lovato v. State, 2012 WY 10, 2012 Wyo. LEXIS 10 (January 31, 2012).*

Defendant and the officer taking his statement were unaware of an allegedly illegal search of his computer for child pornography before he made an incriminating statement. Therefore, the statement was not caused by the illegal search. United States v. Howe, 2012 U.S. Dist. LEXIS 12989 (W.D. N.Y. February 2, 2012).*

Under Michigan v. Summers and Maryland cases, defendant approaching a house being searched under a warrant could be detained. An explicit threat is not required. Fields v. State, 2012 Md. App. LEXIS 4 (February 2, 2012):

Michigan v. Summers and other cases have established that, when executing a search warrant, police officers may reasonably detain persons found in and about the premises for reasons of safety and to secure the premises being searched. While the particular issue presented by this case, viz., that the person detained was walking towards the premises being searched, is a matter of first impression in this State, our conclusion that the police acted reasonably in detaining appellant is fully consistent with Maryland law and supported by persuasive decisions from other jurisdictions.

. . .

We now return to the case before us. In his brief, Fields emphasizes that his initial interaction with the officers was cordial, so he could not reasonably have been perceived as a threat. He also points out that the officers left the house to meet him before he entered the premises, and implies that their action virtually eliminated him as a threat to the integrity of the ongoing search because he was stopped before actually reaching the house itself.

We are not persuaded that an apparently benign interaction removes the initial encounter in this case from the justifications set forth in Summers and Cotton. First, it is not at all clear that the officers "perceived" no threat. For example, Sergeant Thayer stated on cross-examination that "[t]here's a possibility" that Fields might have "potentially" had a weapon. Additionally, Fields's argument that he could not reasonably be perceived as a threat by the officers because he was in the yard, as opposed to at the house itself, is undermined by Williamson's rejection of the argument that the defendant in that case could not have been a threat to the officers because he was departing the house.

More importantly, a person who is subjected to a limited detention pursuant to Summers may not dictate the contours of the police response simply on the basis of good behavior. Indeed, a "perceived" threat is not a prerequisite for the detention authorized by Summers; instead, "[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation." Summers, 452 U.S. at 702-03. Hence, the limited detention that is sanctioned by Summers does not depend on the presence of a threat, actual or perceived, to the officers executing the warrant.

WaPo: Beware of privacy policies: Time to clean up your digital footprint by Melissa Bell:

Last week, Google tracked the Web sites I visited and, like most technology companies, tried to guess who I was based on the places I visited. Its goal: to target advertising to me. The result? The search engine thought I was a 70-year-old man based in Atlanta.

I am not a man, not 70 and haven’t had the privilege of visiting the Peach State. Google’s guessing game might improve, though, thanks to a change in its privacy policies launched Wednesday. Now all the company’s products are governed by one policy, which lets the company track what I write on Gmail and compare it to what I watch on YouTube — all to better direct ads to me.

Why is facebook worth $75B? The information it has collected on 875M people.

When will the government start datamining to target people? It already can.

Officers asked defendant whether they could come through his gate to talk to him, and he agreed. That did not amount to consent to roam the curtilage or search the house. Ferrer v. State, 2012 Fla. App. LEXIS 1406 (Fla. App. 2d DCA February 3, 2012):

We reject the State's contention that once Ferrer open the locked gate, general "knock-and-talk" principles authorized the deputies to proceed to the front door area. See, e.g., State v. Navarro, 19 So. 3d 370, 372-73 (Fla. 2d DCA 2009). The State argues that because the officers were free to proceed to the front door of the house to knock and talk, the evidence of marijuana was legally obtained under the "plain smell" doctrine. However, the facts of this case do not demonstrate the implied general consent to enter the curtilage of the house that provides the basis for entry to conduct a knock-and-talk investigation. Rather than leaving his property open for any member of the public to enter, Ferrer had taken steps to keep out uninvited visitors by fencing it and erecting an electric gate across his driveway, thereby demonstrating an expectation of privacy. Cf. Nieminski v. State, 60 So. 3d 521, 525-27 (Fla. 2d DCA 2011) (finding no violation of privacy where officers entered fenced property through a closed, but unlocked, gate). Thus, while officers were free to approach the gate to conduct a knock and talk—which they did—the area inside the fence fell under the same constitutional protections as the residence itself, and the officers were not at liberty, absent consent, to approach the residence. Compare Fernandez v. State, 63 So. 3d 881, 883-84 (Fla. 3d DCA 2011) (holding that the defendant had a reasonable expectation of privacy in the fenced yard adjacent to his residence and that the momentary opening of the gate to allow the defendant to leave was not an invitation for police to enter); with State v. Triana, 979 So. 2d 1039, 1045 (Fla. 3d DCA 2008) (finding no constitutional violation where the police had a consensual encounter with the defendant outside of the locked gate to the defendant's property and the defendant agreed to a search and opened the gate to allow the police to enter).