author: WELLS, Judge. SCHWARTZ, Senior Judge

text:
    Kathleen SWAN as Personal Representative of the Estate and Survivors of Alan Swan, Sr., deceased, and Mary Joe Swan, individually, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign for-profit corporation, Appellee.
    No. 3D10-107.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.

      Colson Hicks Eidson, and Maureen E. Lefebvre and Deborah J. Gander, Coral Gables, for appellants.
    Carlton Fields and Paul L. Nettleton, Miami, for appellee.
    Before GERSTEN and WELLS, JJ„ and SCHWARTZ, Senior Judge.
   WELLS, Judge.

Kathleen Swan, as personal representative of the Estate and Survivors of Alan Swan, Sr., deceased, and Mary Joe Swan, appeal a final summary judgment entered in favor of State Farm Mutual Automobile Insurance Company on their claim for stacked uninsured motorist (“UM”) benefits under an automobile insurance policy. Because the insureds expressly rejected UM coverage on the subject policy and paid no premium for such coverage, we affirm. See Coleman v. Fla. Ins. Guar. Ass’n, 517 So.2d 686, 689-91 (Fla.1988) (holding that while “[t]he owner of several vehicles, by paying a single premium for [UM] coverage applicable to only one of them, secures [UM] coverage for himself and his family while occupying the uninsured vehicles as well as the insured vehicle,” the “number of uninsured motorist coverages available to be stacked should be based upon the number of coverages for which uninsured motorist premiums were paid”); Collins v. Gov’t Employees Ins. Co., 922 So.2d 358, 354 (Fla. 3d DCA 2006) (“Uninsured motorist coverage may be stacked based on the number of uninsured motorist coverages for which the insured has paid a premium rather than just the number of automobiles owned by the insured.”).

This is an insurance dispute arising out of an automobile accident that occurred on June 8, 2008, when a Honda vehicle owned and occupied by Alan Swan, Sr. and Mary Joe Swan (“the Swans”) was struck by a vehicle driven by an uninsured motorist, Juan Carlos Delgado. Mary Joe Swan was seriously injured in the accident and Alan Swan, Sr. died as a result of his injuries. Thereafter, Kathleen Swan, as personal representative for Alan Swan, Sr.’s estate, and Mary Joe Swan applied to State Farm for UM benefits under two separate automobile insurance policies: the first policy being the policy insuring the Swan’s Honda that was involved in the accident; the second policy being the policy insuring the Swan’s separately insured Acura. Specifically, the appellants sought to obtain $200,000 ($100,000 per person) in stacked UM benefits from State Farm from the policy insuring the Honda vehicle and another $200,000 ($100,000 per person) in stacked UM benefits from the policy insuring the Acura vehicle.

State Farm agreed to tender $200,000 for UM coverage under the Honda policy, but refused to tender an additional $200,000 under the Acura policy. The appellants thereafter filed this action in the lower court against the uninsured motorist, Mr. Delgado, and State Farm. The trial court entered summary final judgment in favor of State Farm, finding that the appellants were not entitled to an additional. $200,000 in UM benefits under the Acura policy because the Swans had expressly rejected UM coverage on that policy and had not paid any premiums for UM benefits thereunder. This appeal ensued.

With respect to the Swans, State Farm has always issued a separate policy for each of their vehicles. The so-called “Acura policy” at issue here was purchased in 1990 and, while the vehicle covered under that policy has changed over time (most recently to the Acura insured therein), the coverage afforded by the policy has remained the same. It is undisputed that when the Swans purchased this Acura policy in 1990, they expressly rejected UM coverage via a signed rejection form and have never paid a premium for UM coverage on that policy. The Swans purchased the so-called “Honda policy” in 2001. Unlike the Acura policy, the Swans did not reject UM coverage on the Honda vehicle in writing. The Swans therefore received stacked UM coverage in the Honda policy as required by section 627.727 of the Florida Statutes; as required they paid an additional premium for this coverage.

The appellants first argument is that that they are entitled to recover an additional $200,000 in UM benefits from the Acura policy — even though UM coverage on that policy was rejected — because the Swans purchased stacked UM coverage on the Honda policy. This, according to appellants, is because the commonly understood meaning of the word “stacked” presupposes that there are at least two UM policy limits that will be added together to give greater coverage than a single policy limit alone. We disagree as this argument conflates UM coverage, which ensures that the insurer will pay damages for bodily injuries sustained in an accident with an uninsured motor vehicle, with aggregating UM policy limits.

In Coleman, the Florida Supreme Court dispelled this argument, definitively explaining that the payment of a single premium for UM coverage on one vehicle secures liability insurance for the insured regardless of what vehicle the insured is driving at the time of an accident with an uninsured motorist; and, that the payment of an additional premium for UM coverage on a second vehicle provides additional UM coverage that supplements the insurance already available under a single coverage, which can be added together with the single coverage to provide a higher payout to the injured insured:

“[T]he case law supports tying the number of UM coverages available to the number of premiums for which UM coverage was paid.” 501 So.2d at 34. Uninsured motorist protection does not inure to a particular motor vehicle, but instead protects the named insured or insured members of his family against bodily injury inflicted by the negligence of any uninsured motorist under whatever conditions, locations, or circumstances any of such insureds happen to be in at the time. See Mullis v. State Farm Mutual Auto. Insurance Co., 252 So.2d 229 (Fla.1971); Tucker v. Government Employees Insurance Co., 288 So.2d 238, 242 (Fla.1973). Thus, the insured may be a pedestrian at the time of such injury, riding in motor vehicles of others or in public conveyances or occupying motor vehicles owned by but which are not “insured automobiles” of the named insured. Mullis, 252 So.2d at 233. It is this aspect of uninsured motorist coverage which gives rise to aggregation or “stacking” of uninsured motorist coverages. The owner of several vehicles, by paying a single premium for coverage applicable to only one of them, secures coverage for himself and his family while occupying the uninsured vehicles as well as the insured vehicle. Thus, when an insured pays additional uninsured motorist coverage premiums, he has purchased additional coverage “coextensive with and supplementing the insurance already available under a single coverage.” Schermer, Automobile Liability Insurance, § 31.02[8] (1987). Otherwise, nothing would have been gained by payment of an additional premium because the insured’s purchase of a single uninsured motorist coverage protects him “whenever or wherever bodily injury is inflicted upon him by the negligence of an uninsured motorist.” Mullis, 252 So.2d at 238.
Thus, in Sellers v. United States Fidelity & Guaranty Co., 185 So.2d 689 (Fla.1966), it was held that an insured protected by more than one policy of uninsured motorist insurance was entitled to recover under all such policies to the extent of his bodily injury. Later, in Tucker, this Court stated that the same rule applied when multiple coverage was afforded in a single policy rather than multiple policies. As we stated in Tucker, “[a]n insured under uninsured motorist coverage is entitled by the statute to the full bodily injury protection that he purchases and for which he pays premi-urns,” regardless of the number of vehicles covered by his auto liability policy. 288 So.2d 238, 242 (Fla.1973). Accordingly, consistent with this Court’s decision in Tucker, we hold that an insured may stack a number of uninsured motorist coverages equal to the number of coverages for which he paid a premium.
In summary, we hold that the number of uninsured motorist coverages available to be stacked should be based upon the number of coverages for which uninsured motorist premiums were paid.

Coleman, 517 So.2d at 689-91. Based on Coleman, we must find that the appellants are not entitled to any additional UM benefits from the Acura policy because the Swans paid no UM premium on that policy and, in fact, expressly rejected such coverage.

The appellant’s next argument is that by not permitting the Swans to aggregate UM benefits in this case, the Swans received no benefit at all for paying an additional premium for stacked UM coverage over the less expensive non-stacked UM coverage. We again disagree. Not only does this argument reflect a fundamental misunderstanding of the differences between “stacked” and “non-stacked” UM coverage as set forth in section 627.727, but it also ignores the fact that this Court rejected this same argument in Collins, 922 So.2d at 353.

Section 627.727(1) mandates that insurers offer UM coverage in all automobile insurance policies. By operation of this statute, the insured receives stacked UM coverage unless the insured either makes a written rejection of the coverage on behalf of all insureds under the policy, or the insured elects to accept non-stacked UM coverage from the insurer. § 627.727(1), (9) Fla. Stat. (2010). While the policy premium for non-stacked coverage is at least twenty percent less than the premium for stacked coverage, non-stacked coverage is subject to numerous coverage limitations that are not applicable to stacked coverage. See § 627.727(9)(a)-(e), Fla. Stat. (2010). These limitations include not just the inability to add together (or “stack”) the UM liability limits of two or more motor vehicle policies — which is the primary focus of the appellants — see § 627.727(9)(a), Fla. Stat. (2010), but also the restriction that non-stacked coverage does not apply to an insured who is injured “while occupying any vehicle owned by such insured[ ] for which uninsured motorist coverage was not purchased.” § 627.727(9)(d), Fla. Stat. (2010). Therefore, a crucial distinction between stacked and non-stacked coverage that is overlooked by the appellants is that, unlike stacked coverage, non-stacked UM coverage does not provide coverage for every vehicle that the insured owns — it only provides coverage for the vehicle on which the UM premium was paid.

By way of example, consider three possible scenarios involving an accident between a vehicle owned and occupied by the Swans with a vehicle driven by an uninsured motorist, the last of which occurred in this case:

• If Mr. Swan had paid a premium for stacked UM coverage on both of the policies insuring the Honda and the Acura, then it would not matter which vehicle he and his wife were occupying at the time of the accident. They would be entitled to recover UM benefits from both policies under the Florida Supreme Court’s Coleman opinion. That is, they would be able to claim $100,000 per person under the UM coverage purchased and paid for on the Honda and $100,000 per person under the UM coverage purchased and paid for on the Acura, for a total of $400,000.
• If Mr. Swan had accepted and paid a reduced premium for non-stacked UM coverage on the Honda, but rejected UM coverage on the Acura, then he and his wife would only be able to recover $100,000 per person from the Honda policy if they were occupying the Honda. There would be no UM coverage whatsoever if they were occupying the Acura pursuant to the limitation set forth in section 627.727(9)(d).
• If, as in this case, Mr. Swan paid a premium for stacked coverage on the Honda, but rejected UM coverage on the Acura then it does not matter which vehicle he and his wife were occupying at the time of the accident. He and his wife would be entitled to UM benefits under the Honda policy, even if they were occupying the Acura. However, under Coleman they would be entitled to receive only $100,000 per person, for a total of $200,000, under the Honda policy because they only paid a premium for stacked coverage on that vehicle. The Swans could, not also recover UM benefits under the Acura policy because they rejected UM coverage and paid no additional premium for it.

In claiming that the Swans received no benefit in purchasing stacked UM coverage in this case because they were precluded from recovering an additional $200,000 in UM benefits from the Acura policy, the appellants ignore the second example above, which demonstrates a very valuable benefit that stacked coverage provides over non-stacked coverage beyond just the ability to aggregate UM benefits. Indeed, this Court reached this very conclusion in Collins, where we explained that even an insured who owns only one automobile receives additional benefits by paying for stacked coverage:

Collins contended at oral argument that she is entitled to a return of her stacked uninsured motorist premium for the years she owned only one automobile. She argues that an insured benefits from stacking only when the insured can aggregate or stack the coverage from one vehicle upon another. Therefore, she received no benefit for the additional premiums she paid. We disagree. It is true that stacked uninsured coverage enables the insured to stack the coverage for one owned automobile onto the coverage of another owned automobile. That is not the only benefit of stacked coverage. Even with one automobile, should the insured have an uninsured motorist claim, stacked coverage provides certain benefits above those received with non-stacked. Section 627.727(9)(a)-(e) delineates the limitations in uninsured motorist coverage, in addition to the limitation of not being able to stack the coverage from one vehicle onto another, when non-stacked insurance is obtained for a twenty percent decrease in premium. When the insured purchases stacked coverage, the limitations of section 627.727(9)(a)-(e) do not apply thereby giving the insured certain benefits for the twenty percent additional premium even when only one vehicle is owned. Therefore, a benefit was received by Collins for the premiums she paid for stacked coverage.

Collins, 922 So.2d at 353.

For these reasons, we find that the appellants are not entitled to receive additional UM benefits on the Acura policy and affirm summary final judgment in favor of State Farm.

SCHWARTZ, Senior Judge

(specially concurring).

Like the trial judge, I am disconcerted by a situation in which Professor Swan’s estate receives the exact amount of UM coverage in return for an increased premium that he would have had if he had not paid it. However, after a long and arduous search, I have been unable to find a principled way to avoid that result. The applicable statutory and case law is just what the majority says it is. Moreover, there is no basis for concluding that State Farm’s solicitation and acceptance of the increased premium somehow involved a promise to provide more than the law required in “stacking” his Honda UM coverage on UM coverage on the Acura which did not exist because he specifically rejected it. Compare Belmont v. Allstate Ins. Co., 721 So.2d 436, 438 n. 2(Fla. 5th DCA 1998) (“Because the resolution of this case is governed by the contract language in Allstate’s form, we express no opinion whether [statutory] subsection (1) and subsection (9) have different notice requirements.”).

Hence, I must concur.

      . For purposes of this appeal, the only relevant claims are those against State Farm seeking an additional $200,000 in stacked UM benefits on the Acura policy.

      . Section 627.727(1) provides, in relevant part:
      No motor vehicle liability insurance policy which provides bodily injury liability coverage shall be delivered or issued for delivery in this state with respect to any specifically insured or identified motor vehicle registered or principally garaged in this state unless uninsured motor vehicle coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.

      . The limitations non-stacked coverage set forth in section 627.727(9)(a)-(e) are as follows:
      (9) Insurers may offer policies of uninsured motorist coverage containing policy provisions, in language approved by the office, establishing that if the insured accepts this offer:
      (a) The coverage provided as to two or more motor vehicles shall not be added together to determine the limit of insurance coverage available to an injured person for any one accident, except as provided in paragraph (c).
      (b) If at the time of the accident the injured person is occupying a motor vehicle, the uninsured motorist coverage available to her or him is the coverage available as to that motor vehicle.
      (c) If the injured person is occupying a motor vehicle which is not owned by her or him or by a family member residing with her or him, the injured person is entitled to the highest limits of uninsured motorist coverage afforded for any one vehicle as to which she or he is a named insured or insured family member. Such coverage shall be excess over the coverage on the vehicle the injured person is occupying.
      (d) The uninsured motorist coverage provided by the policy does not apply to the named insured or family members residing in her or his household who are injured while occupying any vehicle owned by such insureds for which uninsured motorist coverage was not purchased.
      (e) If, at the time of the accident the injured person is not occupying a motor vehicle, she or he is entitled to select any one limit of uninsured motorist coverage for any one vehicle afforded by a policy under which she or he is insured as a named insured or as an insured resident of the named insured's household.
      In connection with the offer authorized by this subsection, insurers shall inform the named insured, applicant, or lessee, on a form approved by the office, of the limitations imposed under this subsection and that such coverage is an alternative to coverage without such limitations. If this form is signed by a named insured, applicant, or lessee, it shall be conclusively presumed that there was an informed, knowing acceptance of such limitations. When the named insured, applicant, or lessee has initially accepted such limitations, such acceptance shall apply to any policy which renews, extends, changes, supersedes, or replaces an existing policy unless the named insured requests deletion of such limitations and pays the appropriate premium for such coverage. Any insurer who provides coverage which includes the limitations provided in this subsection shall file revised premium rates with the office for such uninsured motorist coverage to take effect prior to initially providing such coverage. The revised rates shall reflect the anticipated reduction in loss costs attributable to such limitations but shall in any event reflect a reduction in the uninsured motorist coverage premium of at least 20 percent for policies with such limitations. Such filing shall not increase the rates for coverage which does not contain the limitations authorized by this subsection, and such rates shall remain in effect until the insurer demonstrates the need for a change in uninsured motorist rates pursuant to s. 627.0651.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    C.J., a juvenile, Appellant, v. STATE of Florida, Appellee.
    No. 3D10-2573.
    District Court of Appeal of Florida, Third District.
    April 27, 2011.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. Sinclair v. State, 995 So.2d 552 (Fla. 3d DCA 2008); A.A. v. State, 461 So.2d 165 (Fla. 3d DCA 1984).


text:
    Ludolfo MEDINA, Petitioner, v. FONTAINEBLEAU HILTON and FHM Ins. Co./United Self Insured, Respondents.
    No. 1D11-0952.
    District Court of Appeal of Florida, First District.
    April 28, 2011.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Petitioner.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Respondents.
   PER CURIAM.

DENIED. See, e.g., Dep’t of Revenue v. Groman, 46 So.3d 1058, 1060-61 (Fla. 1st DCA 2010); Taylor v. TGI Friday’s, Inc., 16 So.3d 312, 313 (Fla. 1st DCA 2009); Dawson v. Clerk of Cir. Ct.-Hillsborough County, 991 So.2d 407, 411 (Fla. 1st DCA 2008).

BENTON, C.J., WEBSTER, and VAN NORTWICK, JJ„ concur.


author: ALTENBERND, Judge.

text:
    Michael NIEMINSKI, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1087.
    District Court of Appeal of Florida, Second District.
    April 29, 2011.

      Lee Hollander of Law Offices of Hollander and Hanuka, Naples, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Michael Nieminski appeals his judgment and sentence for trafficking in cannabis in excess of twenty-five pounds. He pleaded no contest to this charge and reserved the right to challenge the denial of the disposi-tive motion to suppress evidence obtained after law enforcement officers executed a search warrant on a marijuana grow house. The critical issue in this case is whether, without a warrant, deputies may enter a suburban or rural acreage completely surrounded by a six-foot chain-link fence in order to conduct a knock and talk at the front door of a residence. The only entrance to the property was a driveway that had a closed, but unlocked, gate that could be readily opened. The property was not posted with “no trespassing” signs, and a horse and three friendly dogs were inside the fencing.

Although not specifically argued by Mr. Nieminski, we recognize that the two deputies who initially entered the property for a knock and talk might have been trespassing. Even if the entry onto the property could be characterized as a trespass, that possibility by itself would not be enough to constitute a violation of the Fourth Amendment justifying a remedy under the exclusionary rule. The deputies entered this property through the unlocked gate for the purposes of a knock and talk, which is a form of citizen’s encounter. Mr. Nieminski had the initial burden in this case to establish that he had a reasonable expectation of privacy that included an expectation that citizens would not enter the property through the unlocked gate to knock on his door for the ordinary purposes for which people knock on doors under similar circumstances. He failed to establish that his expectation of privacy at this property included protection for such a limited intrusion. Because the evidence gathered to support the search warrant arose from that brief intrusion into the curtilage, we affirm the judgment and sentence on appeal.

I. The Facts

In early May 2009, Mr. Nieminski and his girlfriend moved into a single-family, three-bedroom house in Collier County. Although the address of the house was a street number on 56th Avenue Northeast in Naples, Florida, this “neighborhood” in Naples is actually a sparsely populated area with platted acreages. This particular property was approximately two or three acres. It included the house and a modest stable capable of housing a few horses. A standard, six-foot chain-link fence surrounded the property along its borders. The house was set back at least 100 feet, and only a driveway led to the house. There was no pedestrian gate in the fence. The gate for the driveway had once been operated electronically, but it is undisputed that the gate opened by hand in 2009. The property was not posted and did not have any other signs that might discourage a person from entering for the purpose of knocking on the front door.

Mr. Nieminski and his girlfriend were living in the house in order to tend a sizable marijuana crop that was being grown under lights in some of the rooms in the house. It is undisputed that Mr. Nie-minski was not only working in this house but also was eating and sleeping there.

In June 2009, the Collier County Sheriffs Office received an anonymous tip that marijuana was being cultivated at this house. Several deputies went to the house to check out the tip. When they arrived, they could see a pickup truck parked next to the house. They decided to perform a knock and talk if the gate to the property was unlocked. One of the deputies checked the gate and determined that it was not locked and that he could readily slide the gate open.

Two of the deputies entered the property through the gate. Inside the fence, they encountered Mr. Nieminski’s horse and his three dogs. The deputies then walked to the front porch of the house, which faced the road. They knocked on the front door, but no one answered. Standing at the front door, both officers smelled the odor of marijuana through a partially opened window on the front porch.

The two officers left to obtain a search warrant while the other officers remained behind at the roadside. The affidavit the officers prepared in support of a warrant included all of the important facts except for the existence of the fence and the unlocked gate.

A magistrate issued the search warrant, and the officers returned to the home that same afternoon. The search of the home revealed forty-one marijuana plants weighing approximately sixty-nine pounds, a grow room, and various machinery. The officers arrested Mr. Nieminski and his girlfriend on the property, and the State charged them with trafficking in cannabis in excess of twenty-five pounds.

Mr. Nieminski moved to suppress the evidence obtained during the search. The trial court, after conducting an evidentiary hearing, denied the motion in a written order. The trial court concluded that Mr. Nieminski could not challenge the search because he did not have a reasonable expectation of privacy at the house. The court reasoned that he was not an owner or tenant of the home and that the premises were being used as a commercial enterprise. Despite this determination that Mr. Nieminski could not challenge the search, the court continued its Fourth Amendment analysis and concluded that the smells the officers perceived from the front porch provided sufficient probable cause to issue the warrant. After the denial of the motion, Mr. Nieminski negotiated a plea in this case, reserving the right to appeal the denial of the dispositive motion to suppress.

We conclude that the trial court erred in determining that Mr. Nieminski could not challenge the search because he did not have a reasonable expectation of privacy in the residence. Nevertheless, like the trial court, we conclude that officers seized the evidence pursuant to a valid search warrant. The fact that the officers developed the evidence essential for the issuance of the search warrant during an attempt to conduct a knock and talk, after walking through an unlocked gate to approach the front door, does not invalidate the warrant under these facts. Because the knock and talk was not itself an act that violated Mr. Nieminski’s reasonable expectation of privacy, it was not a violation of the Fourth Amendment. Accordingly, the omission of the facts about the fence and the gate in the affidavit does not invalidate the warrant or require the suppression of the evidence seized during the search pursuant to the warrant.

II. Mr. Nieminski had a reasonable expectation of privacy in the residence that allowed him to challenge the search warrant.

There was a time when the courts of Florida addressed Fourth Amendment issues involving searches of real property by determining whether the defendant had a right to raise the issue as a victimized “owner, lessee or tenant, or the lawful occupant of the premises searched.” Tribue v. State, 106 So.2d 680, 633 (Fla. 2d DCA 1958). The courts often described this as an issue of “standing,” and there is still a tendency to frame this threshold issue as such. State v. Washington, 884 So.2d 97, 98 (Fla. 2d DCA 2004).

Nevertheless, it is now well established that most Fourth Amendment issues are not addressed by any typical preliminary analysis of “standing.” Hicks v.State, 929 So.2d 13, 16 n. 3 (Fla. 2d DCA 2006). Instead, before the trial court considers the merits of a Fourth Amendment motion to suppress, the defendant must first establish a factual basis justifying his or her claim to have possessed a Fourth Amendment right at the time of the alleged invasion. This analysis is actually the first part of the substantive legal analysis of a Fourth Amendment claim. As we explained in Hicks:

The United States Supreme Court has held that Fourth Amendment rights are personal and a defendant has the burden to establish that his own Fourth Amendment rights have been infringed. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); see also Dean v. State, 478 So.2d 38, 40 (Fla.1985). Whether a defendant has a reasonable expectation of privacy is a threshold inquiry. Rakas, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387. A search violates a defendant’s Fourth Amendment rights only if (1) a defendant demonstrates that he or she had an actual, subjective expectation of privacy in the property searched and (2) a defendant establishes that society would recognize that subjective expectation as objectively reasonable. Minnesota v. Olson, 495 U.S. 91, 95, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); Smith v. Maryland, 442 U.S. 735, 740-41, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

Id. (footnotes and parallel citations omitted).

This two-fold analysis used to determine whether a person has the type of interest protected by the Fourth Amendment emanates from Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and specifically from Justice Harlan’s concurring opinion. Scholars question whether the first subjective prong of this analysis is appropriate. 1 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 2.1(c) (4th ed. 2004). In Mr. Nieminski’s case, as will be seen, the critical privacy issues concern only the second prong of the analysis.

In this case, the trial court received evidence that Mr. Nieminski had not changed the address on his driver’s license to the address of the grow house. It also considered the fact that Mr. Nieminski provided another address as his residence when he was booked into the county jail. While this evidence might be relevant to determine residency or domicile, we are not convinced that it is more than marginally relevant in deciding the two-pronged threshold inquiry described above.

Under some circumstances, even an overnight guest can have the right to challenge a search. See generally Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). Courts have held a short-term visitor engaged in drug operations to have no reasonable expectation of privacy. See, e.g., Minnesota v. Carter, 525 U.S. 83, 90-91, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998); see generally Washington, 884 So.2d 97 (discussing the Rakas test in the context of a short-term, casual guest). But Mr. Nieminski was hardly a short-term visitor.

The trial court was also convinced to rely on the theory that society would not recognize as objectively reasonable Mr. Nieminski’s subjective expectation of privacy because the marijuana grow house was a commercial venture. Admittedly, a commercial venture can create an environment in which persons have a reduced expectation of privacy. There are cases in which courts have held that persons engaged in drug-related activities have no reasonable expectation of privacy because the operation was a commercial venture. See Carter, 525 U.S. at 90-91, 119 S.Ct. 469. The State, however, has provided no authority for the proposition that a clandestine marijuana grow house, also functioning as a home, with a resident employee and no commercial invitees has such a reduced expectation of privacy.

It is undisputed that Mr. Nieminski, his girlfriend, his horse, and his three friendly dogs had been living at this grow house for approximately a month before the execution of the search warrant. Mr. Nieminski was not a trespasser on this property; he was both working and living full time at this location. We conclude that these undisputed facts, in addition to providing a solid foundation for a country-western song, are sufficient to satisfy Mr. Niemin-ski’s threshold burden under the Katz analysis: (1) he clearly demonstrated that he had an actual, subjective expectation of privacy in the property searched, and (2) given that the premises appeared from the exterior and to a large extent even from the interior to be a typical, quiet home on the boundaries between urban and rural living, he established that society would recognize that his subjective expectation was objectively reasonable. Accordingly, the trial court was required to address his motion to suppress on the merits to determine whether the search warrant was properly issued. Fortunately, the trial court did proceed in this case to address the merits of the motion.

III. The analysis in this case must narrowly focus on whether the entry onto the property for a knock and talk violated the Fourth Amendment.

This case is not the typical case in which a defendant argues that a law enforcement officer omitted factual information from an affidavit in an effort to establish probable cause where none existed. See generally Pilieci v. State, 991 So.2d 883, 892-94 (Fla. 2d DCA 2008); see also State v. Rabb, 920 So.2d 1175, 1180-81 (Fla. 4th DCA 2006). Instead, Mr. Nieminski is arguing that the law enforcement officer should have revealed to the magistrate that he or she obtained the relevant information by a means that was itself a violation of the Fourth Amendment. As a result, in this context, we do not need to evaluate the sufficiency of the affidavit or the validity of the warrant if we first conclude that the entry onto the property and the knock and talk did not violate the Fourth Amendment. If the officers’ actions did not violate the Fourth Amendment, the officers did not need to include the circumstances relating to the fence and gate in the affidavit, and the evidence described in the affidavit was clearly sufficient to obtain the warrant.

We conclude that the entry onto the property and the knock and talk did not violate the Fourth Amendment. This step of our analysis returns us to the Katz test but this time to determine more narrowly whether Mr. Nieminski had a protected expectation of privacy as to persons approaching his front door.

IV. Mr. Nieminski did not establish that his reasonable expectation of privacy included the right to assume that ordinary citizens would not open his gate and knock on his front door occasionally.

The dispositive issue in this case is whether a law enforcement officer may open a closed, but unlocked, driveway gate on a rural or suburban acreage that is completely surrounded by a chain-link fence in order to walk to the front door of a house to engage in a knock and talk. At least in the absence of a “no trespassing” sign or similar warning that the fence and gate are intended to keep people out rather than to keep animals in, we conclude that the officer may enter the curtilage for this limited purpose.

It is worth emphasizing that the burden of proof on this issue fell upon Mr. Nie-minski. In most Fourth Amendment cases, the burden of proof is on the State if the search is warrantless, Hilton v. State, 961 So.2d 284, 296 (Fla.2007), and upon the defendant if the search was pursuant to a warrant, State v. Bell, 417 So.2d 822, 823 (Fla. 4th DCA 1982). This case, however, involves the threshold question of whether Mr. Nieminski had a protectable expectation of privacy for purposes of the Fourth Amendment. The burden of proof and persuasion on this threshold issue is generally placed upon the defendant by courts that have addressed this issue. State v. Rewolinski, 159 Wis.2d 1, 464 N.W.2d 401, 406 (1990); see also United States v. Cavely, 318 F.3d 987 (10th Cir.2003); United States v. French, 291 F.3d 945 (7th Cir.2002).

In this ease, the officers employed legitimate investigative methods that did not constitute a search. Some police investigative tools, while very effective at gathering evidence useful in developing probable cause, are not deemed to be searches. For example, an officer may rummage through your trash can at the curb and take its contents without conducting a search or seizure. See California v. Greenwood, 486 U.S. 35, 39-40, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988); State v. Slatko, 432 So.2d 635, 635 (Fla. 3d DCA 1983); State v. Schultz, 388 So.2d 1326, 1329 (Fla. 4th DCA 1980). Most relevant to this case, a citizen’s encounter, including a knock and talk, is not regarded as a search or seizure. See State v. Navarro, 19 So.3d 370, 372-73 (Fla. 2d DCA 2009); Luna-Martinez v. State, 984 So.2d 592, 598 (Fla. 2d DCA 2008); State v. Triana, 979 So.2d 1039, 1043 (Fla. 3d DCA 2008). As we explained in Hardin v. State, 18 So.3d 1246, 1247 (Fla. 2d DCA 2009): “A ‘knock and talk’ is a purely consensual encounter, which officers may initiate without any objective level of suspicion.” (Citations omitted.)

In Lunar-Martinez, we further explained:

“A ‘knock and talk’ ” encounter “is a procedure [ordinarily] used by police officers to investigate a complaint where there is no probable cause for a search warrant.” Murphy v. State, 898 So.2d 1031, 1032 n. 4 (Fla. 5th DCA 2005). In employing this procedure, “police officers knock on the door, try to make contact with persons inside, and talk to them about the subject of the complaints” underlying the investigation. Id. Such a consensual encounter may lead to a request by the police for voluntary consent to conduct a search. “Courts generally have upheld [the knock-and-talk] investigative procedure as a legitimate effort to obtain a suspect’s consent to search.” United States v. Chambers, 395 F.3d 563, 567 n. 2 (6th Cir.2005). The key to the legitimacy of the knock-and-talk technique — as well as any other technique employed to obtain consent to search — 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.” United States v. Thomas, 430 F.3d 274, 277 (6th Cir.2005). Nor should “overbearing tactics” be employed in gaining entry to a dwelling or in obtaining consent to search.

984 So.2d at 598-99.

When a court holds that such an investigative method is not a search, in essence, the court is stating that such conduct is either so minimally intrusive in the eyes of the general public or that the conduct is committed with such frequency by members of the public other than police officers that no one in society has a reasonable expectation of privacy that protects them from the challenged conduct. These judicial rulings arguably are bright-line rulings in a field of law that normally eschews bright lines.

In this case, if the address in Naples, Florida, had been a more traditional lot in a residential neighborhood surrounded by a white picket fence and a gate that closed but did not lock, no one would reasonably suggest that the knock and talk was improper or that officers were required to describe the picket fence in the affidavit used to obtain the warrant. On the other hand, if the fence in this case was solid and had barbed wire at the top, a large combination lock on the gate, a “no trespassing” sign, a telephone number to call for entrance, and three bad dogs, no one would reasonably suggest that the police had the authority to climb over the fence to conduct a knock and talk. See, e.g., United States v. Hambelton, No. 1:08cr26-SPM, 2009 WL 722284 (N.D.Fla. Mar.18, 2009). In other words, there are cases in which an established bright-line rule generally authorizing police conduct begins to fade, and we engage in the more traditional case-specific analysis of all the circumstances to determine whether specific police conduct is a search despite the general bright line established by the case law. The knock and talk in this case seems to fall into that category. That is why we have chosen to return to the Katz test to determine more narrowly whether Mr. Nieminski had a protected expectation of privacy as to persons approaching his front door where such conduct constitutes a statutory trespass. We have found no Florida case expressly addressing this issue.

Undoubtedly, the most troublesome fact in this case is the fact that the deputies’ entry onto the property arguably may have been a violation of section 810.09, Florida Statutes (2008). The officers willfully entered the property without being expressly authorized, licensed, or invited to enter. Although no one on the property communicated to them that they could not enter, and the property was not posted with signs, the property was “fenced land” and is considered enclosed and posted. See §§ 810.09(l)(a)(l), 810.011(7), (8). It is not necessary in Florida to post enclosed land in order to obtain the benefit of section 810.09 if the property includes a dwelling house and does not exceed five acres in size. § 810.011(5)(b). A violation of the statute is more than civil trespass; technically, it is a misdemeanor — albeit one that is rarely prosecuted. See § 810.09(2)(a). Accordingly, if the actions here constituted a statutory trespass and if such a statutory violation automatically results in a violation of the Fourth Amendment, this knock and talk violated the Fourth Amendment, and the evidence that was the fruit of this entry could not be used to obtain the search warrant.

Although common law or statutory trespass and the Fourth Amendment involve interrelated legal concepts, it is well established that an officer’s trespass does not necessarily amount to a violation of the Fourth Amendment. See, e.g., United States v. Dunn, 480 U.S. 294, 304-05, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987) (holding government agents’ trespass did not violate the Fourth Amendment where they crossed over defendant’s perimeter fence and interior fences to observe defendant’s barn); Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (holding officers’ criminal trespass on defendant’s fenced and posted land did not violate the Fourth Amendment); Sarantopoulos v. State, 629 So.2d 121, 123 (Fla.1993) (holding officer’s civil trespass on neighbor’s land in order to observe defendant’s backyard did not constitute a Fourth Amendment violation). Even if the actions of the officers in this case could be deemed a trespass, that fact alone is insufficient to transform the officers’ conduct into a violation of the Fourth Amendment. A government intrusion that constitutes a trespass becomes a Fourth Amendment violation only when it “infringes upon the personal and societal values protected by the Fourth Amendment.” Oliver, 466 U.S. at 182-83, 104 S.Ct. 1735. “The existence of a property right is but one element in determining whether expectations of privacy are legitimate.” Id. at 183, 104 S.Ct. 1735. The hallmark of the analysis is whether a person enjoyed a “ ‘constitutionally protected reasonable expectation of privacy ” in the intruded area. Id. at 177, 104 S.Ct. 1735 (quoting Katz, 389 U.S. at 360, 88 S.Ct. 507) (Harlan, J., concurring).

Hence, it was Mr. Nieminski’s initial burden to establish that he had a reasonable expectation that ordinary citizens would not occasionally enter his property by opening the gate and walking up the driveway to the front door to communicate with the occupant for all of the many reasons that people knock on front doors. However, Mr. Nieminski provided no evidence that other people had not opened the gate and walked to his front door during the period that he had lived in the home. Indeed, the evidence did not establish that persons approaching the property would or should know that they were not welcome to enter through the unlocked gate in order to approach the front door to deliver something or to make contact with the occupants of the home. It is quite apparent from the deputies’ testimony that they did not perceive that it might be a trespass for them to walk to the house if the gate was unlocked. In this case, an ordinary person might have concluded that the gate was closed, but unlocked, to keep animals in the enclosure and not to keep people "out. Had there been other indicia that entry onto the property was unwelcome, our conclusion might be different.

The Eleventh Circuit has had occasion to address a somewhat similar circumstance arising in a rural setting. See United States v. Taylor, 458 F.3d 1201 (11th Cir.2006). In that case, an officer was sent in the night to a home from which a 911 call had been made, but the person calling 911 had hung up. Id. at 1203. The property was fully fenced and the officer drove onto the property through an unlocked gate. The officer was not there intending to perform a search but rather to check on the safety of the occupants. Id. The Eleventh Circuit held that the knock and talk did not violate the Fourth Amendment. Id. at 1204-05.

In Hambelton, 2009 WL 722284, at *1, the court considered a case similar to this case involving a marijuana grow operation. In that case, the court held the entry onto the property by the officers was illegal and the warrant invalid. Id. at *7. In Hambelton, however, the gate was locked with two padlocks and had two warning signs explaining that the property was guarded by dogs. Id. at *1.

The photographs and video in this court’s record could be better, but they establish that the building on this property is an ordinary home. Even if the mail is delivered to a roadside mailbox, it is clear that an occupant of this house should reasonably expect an occasional deliveryman, salesperson, other solicitor, or neighbor to approach the front door through the unlocked gate. This is particularly true when nothing in the record suggests that contact with the occupants could readily be made in any other manner, such as through a call box at the gate or a sign with a phone number on it. Accordingly, we hold that Mr. Nieminski failed to establish that his reasonable expectation of privacy in this house included an expectation that persons would not occasionally enter through the gate and approach the front door to talk to him. Since the deputies discovered the critical evidence while engaged in such conduct, we conclude that the deputies did not violate the Fourth Amendment, and the trial court properly denied the motion to suppress the evidence obtained during the subsequent search.

Affirmed.

SILBERMAN and BLACK, JJ., Concur.

      . A full discussion of "standing” in this context is beyond the scope of this opinion. There are cases in which the initial issue is whether the person making a Fourth Amendment claim has standing to raise it. See 6 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 11.3 (4th ed. 2004). In this case, however, the "standing” issue and the substantive issue, both of which require analysis of Mr. Nieminski’s reasonable expectation of privacy, are essentially the same.


author: NORTHCUTT, Judge.

text:
    Clarence EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2399.
    District Court of Appeal of Florida, Second District.
    April 29, 2011.

      James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

Clarence Edwards was imprisoned for crimes of lewd molestation and, after finishing his sentence, began serving ten years on probation. In this case he has appealed the revocation of his probation for failing to follow the instructions of his probation officer and failing to abide by the terms of his electronic monitoring. We agree with Edwards’s assertion that the evidence was insufficient to prove the violations, and we reverse the probation revocation.

The terms of Edwards’s probation were modified several times. The final modification before this revocation required, among other things, that he comply with a “curfew 10pm-6am or as otherwise directed” by his probation officer. He was also required to “[w]ear a GPSA monitor with monthly fee.” The affidavit of violation asserted that Edwards failed to follow the instructions of his probation officer and violated a condition of his probation by failing to remain near his personal tracking device, thereby causing multiple “bracelet gone” alerts between May 16, 2008, and June 8, 2008. The probation officer who signed the affidavit averred that she had learned of these alerts from Pro Tech Monitoring.

No representative of Pro Tech Monitoring testified at the revocation hearing. The records of the company were introduced at the hearing through a correction probation specialist, but they were clearly hearsay — the evidence showed they were compiled and maintained by Pro Tech. The probation specialist, an electronic monitoring coordinator, testified that she printed out the reports from Pro Tech and determined whether a situation required an officer’s attention. Edwards’s report showed numerous “bracelet gone” alerts. Most of the alerts were less than three or four minutes’ duration, and most occurred between 10 p.m. and 4 a.m. Three of the alerts happened during late afternoon, around 4 p.m., and lasted from thirty minutes to an hour. Pro Tech’s report reflected that a company representative had contacted Edwards during one of these longer alerts and he reported that he was outside working in his yard.

Edwards’s probation officer also testified about the “bracelet gone” violations. She stated that she learned of the alerts from Pro Tech’s report, which had been reviewed by the electronic monitoring coordinators. She talked to Edwards on numerous occasions about the “bracelet gone” issues. He complained that the equipment was not working properly. One time the probation officer was at Edwards’s home conducting an inspection and found the base station of his monitoring device face down on the floor, but she never testified that she was present when an alert actually occurred. The probation officer commented that Edwards expressed his frustration with the device and just seemed to have given up, telling her to send him back to prison.

The circuit court found that Edwards violated the conditions of his probation that required him to follow his probation officer’s orders and to submit to electronic monitoring. Both of these violations were grounded on the “bracelet gone” alerts, but the only evidence of the alerts was hearsay. No one from Pro Tech established that the alerts occurred or was present to authenticate the report as a business record. See Gammon v. State, 778 So.2d 390, 392 (Fla. 2d DCA 2001) (citing Thomas v. State, 711 So.2d 96, 97 (Fla. 4th DCA 1998), for the proposition that hearsay evidence falling within an exception to the hearsay rule may support a revocation of probation). Although hearsay evidence, such as Pro Tech’s report, is admissible at a probation revocation hearing, such evidence may not form the sole basis of a decision to revoke. Cuciak v. State, 410 So.2d 916, 918 (Fla.1982).

We contrast the facts of this case with those described in Ruise v. State, 43 So.3d 885 (Fla. 1st DCA 2010), in which the circuit court found a violation of community control based on GPS data compiled by a monitoring company. There the State’s witnesses included an employee of the monitoring company who explained how the GPS system worked and how the data from the system was compiled into a computer database. The testimony of the monitoring company representative qualified its reports as “business records” and was thus sufficient to establish the violation. Id. at 886-87 (also citing Thomas, 711 So.2d at 97, for the proposition that hearsay evidence that falls within an exception to the hearsay rule may support a revocation of probation); see also Soliz v. State, 18 So.3d 1094, 1097 (Fla. 2d DCA 2009) (remarking on testimony of “the records custodian at the bracelet monitoring locale”). In this case, the report was hearsay and all the evidence about Edwards’s violation stemmed from the report. Accordingly we reverse the revocation of Edwards’s probation. See Cuciak, 410 So.2d at 918.

Edwards also asserts that the State failed to prove that his violations were willful. We note that his probation officer testified that Edwards did not seem to care about the alleged bracelet alerts. This evidence suggested a certain willfulness. But Edwards and his daughter both testified that he had experienced repeated problems with malfunctioning monitoring devices. In this case, as in Correa v. State, 43 So.3d 738 (Fla. 2d DCA 2010), Edwards’s revocation was based on a disregard of the “monitoring rules”; there was no allegation or finding that he had left his home in violation of any restrictive conditions of his probation, such as his curfew. And as in Correa, we are unclear exactly what rules Mr. Edwards violated. He testified that he was asleep during most of the alleged “bracelet gone” alarms. And, indeed, Pro Tech’s report reflected that most of the alerts occurred in the late evening and early morning hours. Moreover, the report showed that most of the alarms were “cleared” within a minute or so. Even if the report were admissible, no one explained how these alerts violated the terms of Edwards’s monitoring agreement.

As we remarked in Coma, “intentional disregard of the GPS monitoring rules, tampering with the equipment, or actual violations of curfew or other activity restrictions will generally amount to willful and substantial violations of the conditions imposed.” 43 So.3d at 745; see also Ruise, 43 So.3d at 888 (finding a willful violation of community control when GPS data showed that the defendant was away from his residence when his conditions required that he remain confined to that residence and that he was wandering the neighborhood on a daily basis). But if the rules violations result from “equipment problems or the subject’s unintentional failure to operate the equipment properly,” such noncompliance does not rise to the level of a willful and substantial violation of probation. Correa, 43 So.3d at 745.

Reversed.

DAVIS and SILBERMAN, JJ., Concur.


author: WOLF, J.

text:
    Ralph LANHAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5299.
    District Court of Appeal of Florida, First District.
    April 29, 2011.
    James C. Banks of Law Firm of Banks & Morris, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

We reverse the trial court’s imposition of consecutive minimum mandatory sentences for appellant’s two convictions, for assaulting two victims with a firearm, which arose out of the same criminal episode. Appellant displayed, but never fired, his weapon. See State v. Sousa, 903 So.2d 923, 926 (Fla.2005); State v. Christian, 692 So.2d 889, 890-91 (Fla.1997). In addition, there was an insufficient temporal or spatial break to constitute two separate criminal episodes. See Perry v. State, 973 So.2d 1289 (Fla. 4th DCA 2008); Roberts v. State, 990 So.2d 671, 675 (Fla. 4th DCA 2008); Irizarry v. State, 946 So.2d 555 (Fla. 5th DCA 2006). Appellant need not be present for the ministerial act of correcting his sentences.

REVERSED and REMANDED for entry of corrected order.

PADOVANO and ROWE, JJ., concur.


text:
    Antonio Dewayne DEAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2214.
    District Court of Appeal of Florida, First District.
    April 29, 2011.

      Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The trial court erred in failing to give Appellant, Antonio Dewayne Dean, the opportunity to address the court before imposing sentence, pursuant to Florida Rule of Criminal Procedure 3.720(b). Ventura v. State, 741 So.2d 1187, 1189 (Fla. 3d DCA 1999). The State properly concedes error. Accordingly, we AFFIRM Appellant’s convictions and the revocation of his probation, REVERSE Appellant’s sentences, and REMAND for a new sentencing hearing.

DAVIS, LEWIS and WETHERELL, JJ., concur.


text:
    Roger MARTINEZ, Appellant, v. LAKE PARK AUTO BROKERS, INC., and Unisource Administrators, Inc., C & I Ins. Co, AIG SB, Appellees.
    No. 1D10-4395.
    District Court of Appeal of Florida, First District.
    April 29, 2011.

      Harvey Kaufman, Palm Beach Gardens, for Appellant.
    Kimberly J. Fernandes of Kelley, Kro-nenberg, Gilmartin, Fichtel, Wander, Bam-das, Eskalyo & Dunbrack, P.A., Fort Lauderdale, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) denying permanent total disability (PTD) and supplemental PTD benefits. We remand because the JCC failed to address the adequacy of Claimant’s job search.

Section 440.15(l)(b), Florida Statutes (2006), provides that an injured employee may prove entitlement to PTD benefits by “establishing] that he or she is not able to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to his or her physical limitation.” We have explained that there are three alternative methods by which a claimant may prove entitlement to PTD benefits:

by presenting evidence of (1) permanent medical incapacity to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to physical limitation; (2) permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search; or (3) permanent work-related physical restrictions that, while not alone totally disabling, preclude Claimant from engaging in at least sedentary employment when combined with vocational factors.

Blake v. Merck & Co., 43 So.3d 882, 883 (Fla. 1st DCA 2010) (emphasis added).

Here, the JCC found Claimant’s job search “does not establish that his inability to secure at least sedentary employment within a 50-mile radius of his residence was ‘due to his physical limitations,’ ” a finding that addresses the first method listed in Blake. The JCC failed to consider, however, the possibility of Claimant’s entitlement under the second method, likely because the JCC did not have the benefit of Blake at the time she entered her order. Blake requires remand for the JCC to consider the adequacy of Claimant’s job search.

We find no merit to the Employer/Carrier’s contention that Claimant must also present direct proof of a causal connection between his physical limitations and his unsuccessful job search. This court has never required direct proof of such a connection; rather, this is a finding that may be inferred from a claimant’s inability to find employment after an exhaustive job search. See Fla. Mining and Minerals v. Brantley, 418 So.2d 352, 353 (Fla. 1st DCA 1982) (“[Although there is no direct proof of rejection for a job because of [Brantley’s] disability, such direct proof of this essential element has not been required by prior decisions of this court.”). The job search must, however, be conducted in good faith, and JCCs retain discretion to find a job search inadequate. See Publix Supermarkets, Inc. v. Redding, 689 So.2d 1253, 1254 (Fla. 1st DCA 1997) (“[I]n passing on the sufficiency of a work search, the JCC must decide whether claimant’s efforts were reasonable and performed in good faith in light of all the relevant circumstances: physical impairment, age, industrial history, training, education, motivation, work experience, work record, and diligence.”) (quoting Borges v. Osceola Farms Co., 651 So.2d 173, 174 (Fla. 1st DCA 1995)); Korody v. Quality Steel & Claims Ctr., 694 So.2d 40, 42 (Fla. 1st DCA 1997) (“There is no ‘absolute number of minimum or average monthly contacts as a threshold requirement for an adequate work search. The decisions of this court have cautioned against such a mechanical approach, emphasizing instead that the adequacy of a work search is a factual issue which is dependent upon the totality of the circumstances, including quality and context as well as number of job contacts, in each case.’ ”) (quoting GCC Beverages v. Simmons, 571 So.2d 59, 60 (Fla. 1st DCA 1990)). Cf. Holiday Care Ctr. v. Scriven, 418 So.2d 322, 326 (Fla. 1st DCA 1982) (“[O]ne who does not look for work she is physically able to perform risks not only the postponement of gainful employment but also her continuing entitlement to wage loss benefits during a conscientious search.”).

For these reasons, the order on appeal is reversed and this case is remanded to the JCC for further proceedings consistent with this opinion.

REVERSED and REMANDED for further proceedings.

ROBERTS, CLARK and WETHERELL, JJ., concur.


text:
    Linda T. SEVER, Former Wife, Appellant, v. Andrew Edward SEVER, Former Husband, Appellee.
    No. 1D09-3818.
    District Court of Appeal of Florida, First District.
    April 29, 2011.
    Robert J. Slama of Robert J. Slama, P.A., Jacksonville, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

LEWIS, HAWKES, and MARSTILLER, JJ., concur.


text:
    Tony Lekendrick BOSTIC, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1390.
    District Court of Appeal of Florida, First District.
    May 2, 2011.
    Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Tony Lekendrick Bostic appeals a judgment of conviction for three counts of failure to register as a sex offender in violation of section 943.0435(14), Florida Statutes (2006). Bostic argues that these multiple convictions for failure to report as a sex offender result in double jeopardy. We do not agree. Appellant was obligated to report upon release from incarceration under section 943.0435(2) and on the month of his birth and every six months thereafter under section 943.0435(14). Even if failure to report is considered a continuing offense, see Lieble v. State, 933 So.2d 119 (Fla. 5th DCA 2006), each failure to report constituted a new violation of the applicable reporting statute and a separate offense, not part of “one criminal episode or transaction.” § 775.021(4)(b), Fla. Stat. (2006); compare People v. Meeks, 123 Cal.App.4th 695, 705-06, 20 Cal.Rptr.3d 445, 452-53 (Cal.Ct.App.2004) (explaining each failure to report on a sex offender’s birthday is a separate offense and the failure to punish an offender for each failure to report as required frustrates the purpose of the sex offender reporting law).

Accordingly, we affirm.

VAN NORTWICK, HAWKES, and MARSTILLER, JJ., concur.


text:
    William IBARRA, Appellant, v. HERCULES DISTRIBUTING CO. & FWCIGA, Reliance Insurance c/o USIS, Appellees.
    No. 1D11-1231.
    District Court of Appeal of Florida, First District.
    May 2, 2011.
    William Ibarra, pro se, Appellant.
    Michelle E. Ready of Walton, Lantaff, Schroeder & Carson, LLP, Miami, for Ap-pellees.
   PER CURIAM.

Upon review of Appellant’s timely response to this court’s March 21, 2011, order to show cause, we conclude Appellant has failed to show cause why the appeal should not be dismissed as one from a non-appealable, non-final order. See Fla. R.App. P. 9.180(b)(1). Accordingly, the appeal is DISMISSED for lack of jurisdiction.

DAVIS, VAN NORTWICK, and CLARK, JJ., concur.


author: CONNER, J.

text:
    AMQUIP CRANE RENTAL, LLC, as successor of Amquip Corporation, Appellant, v. VERCON CONSTRUCTION MANAGEMENT, INC., Appellee.
    No. 4D10-1303.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.

      Gary M. Heilman of Goldman & Hellman, Fort Lauderdale, for appellant.
    Alan M. Stein and Ravi Batta of Rosen-feld Stein Batta, P.A., Miami, for appellee.
   CONNER, J.

Amquip Crane Rental, LLC, (“Amquip”) appeals an order dismissing its complaint pursuant to Florida Rule of Civil Procedure 1.420(b). Amquip raises four issues on appeal; however, we reverse on only one issue, the denial of the right to a trial by jury. The other issues are moot by our reversal.

Amquip filed a complaint alleging breach of a written lease agreement against Vercon Construction Management, Inc. (“Vercon”). Amquip requested a trial by jury in paragraph II and the concluding paragraph of the complaint. Although a jury trial was demanded, the trial court on its own initiative determined the parties were not entitled to a jury trial based on certain language in the lease agreement, and the case was tried nonjury.

The case was initially called for jury trial before Judge Jack Luzzo, but a retired judge, Richard Feder, presided because Judge Luzzo was occupied with other matters. Before the commencement of the jury trial, Vercon attempted to renew a pretrial motion regarding improper venue of the court. In support of its position, Vercon referred the court to paragraph 18 of the lease, which is a forum selection clause. Paragraph 18 of the lease provides:

CONSENT TO JURISDICTION— Lessee consents to the exclusive jurisdiction of the Courts of Common Pleas of the Commonwealth of Pennsylvania and/or the United States District Court for the Eastern District of Pennsylvania in any and all actions and proceedings between the parties (whether at law or equity) and ... Lessee waives the right to jury trial.

(Emphasis added). After hearing arguments on the venue motion, Judge Feder denied Vercon’s venue argument because it had previously been decided by Judge Luzzo during a pretrial hearing.

Judge Feder then raised sua sponte the issue of Amquip’s entitlement to a jury trial. Judge Feder relied on the same forum selection clause, paragraph 18, wherein Vercon waived the right to a trial by jury, to conclude that Amquip had likewise waived its right to a trial by jury on a theory of mutuality of contract. Despite vigorous opposition by Amquip, Judge Feder found no basis for a trial by jury. Vercon successfully moved for a continuance, and the court ruled that the matter should be reset on a non-jury docket.

Amquip filed a motion for rehearing of the court’s order striking its entitlement to a trial by jury. Judge Feder denied the motion for rehearing, and the case proceeded to a nonjury trial. At the nonjury trial, Amquip was not able to present live witnesses, and instead, unsuccessfully tried to introduce deposition testimony into evidence to prove its case. Eventually, Am-quip rested its case without presenting evidence and Vercon successfully obtained an involuntary dismissal.

Amquip argues the trial court erred in denying its entitlement to a jury trial because it misconstrued the plain language of paragraph 18 by finding there was a mutual waiver of a jury trial. Vercon responds that Amquip failed to preserve this issue because it waived its right to a jury trial by affirmatively noticing the case for a nonjury trial, participating in a nonjury trial, and asking the court to decide the case based on the record as it existed.

We first address preservation. Florida Rule of Civil Procedure 1.4B0 provides:

(a) Right Preserved. The right of trial by jury as declared by the Constitution or by statute shall be preserved to the parties inviolate.
(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other party a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue.

The right to a trial by jury may be waived in civil cases by litigants. Baron Auctioneer, Inc. v. Ball, 674 So.2d 212, 214 (Fla. 4th DCA 1996). However, “[wjaiver of the right to a jury trial is to be strictly construed and not to be lightly inferred.” Poller v. First Va. Mortg. & Real Estate Inv. Trust, 471 So.2d 104, 106 (Fla. 3d DCA 1985) (citing Boston Rug Galleries, Inc. v. William Iselin & Co., 212 So.2d 58 (Fla. 4th DCA 1968)). Questions as to the right to a trial by jury should be resolved in favor of the party seeking the jury trial. Hollywood, Inc. v. City of Hollywood, 321 So.2d 65, 71 (Fla.1975); Fox v. City of Pompano Beach, 984 So.2d 664, 668 (Fla. 4th DCA 2008).

Here, Amquip clearly met the requirements of rule 1.430(b) because its complaint demanded a trial by jury. There has been no showing that Amquip waived this right. The record of the transcript before Judge Feder on the date the case was scheduled for jury trial clearly reveals that Amquip contested the trial court’s denial of its right to a trial by jury. Further evidencing Amquip’s objection was the subsequent filing of its motion for rehearing on the very same issue. At the rehearing, Amquip again voiced its objections to the trial court’s denial of its right to a trial by jury, but Judge Feder denied the motion saying that “the language in clause eighteen, which deprives the lessee of the right to jury trial, equally deprives the lessor.”

Amquip participated in a non-jury trial because it was required to do so over its objection. Having been rebuffed twice on its argument that paragraph 18 did not waive Amquip’s right to a trial by jury, a renewal of demand for a jury trial at the beginning of a nonjury trial would have been futile. See Boston Rug Galleries, Inc. v. William Iselin & Co., Inc., 212 So.2d 58, 61 (Fla. 4th DCA 1968) (finding the defendant did not waive its right to a jury trial by participating in the nonjury trial without objection because he repeatedly objected prior to the nonjury trial; when a proper demand for a jury trial has been made, the right is preserved inviolate).

We next address whether the plain language in the lease waived Am-quip’s entitlement to a jury trial. The trial court erred in holding that Amquip, as lessor, waived its right to a jury trial because the trial court misconstrued the plain language of the lease. “The interpretation or construction of a contract that is clear and unambiguous is a matter of law that is reviewed de novo.” Lipton v. First Union Nat’l Bank, 944 So.2d 1256, 1258 (Fla. 4th DCA 2007) (quoting Caulkins Indiantown Citrus Co. v. Nevins Fruit Co., 831 So.2d 727, 735 (Fla. 4th DCA 2002)). When a contract is clear and unambiguous, its plain meaning controls. Palm Beach Pain Mgmt., Inc. v. Carroll, 7 So.3d 1144, 1146 (Fla. 4th DCA 2009).

Here, paragraph 18 of the lease provided that the “Lessee waives the right to jury trial.” The plain language indicates that the lessee, not the lessor, waived the right to a trial by jury. There is no language in the lease providing that the lessor waived the right to a trial by jury.

Neither the trial court nor Vercon cited any cases for the proposition that there is a mutuality of contract requirement applicable to a waiver of a trial by jury. On the contrary, one party may waive its right to a jury trial if the waiver was entered knowingly, voluntarily, and intelligently. See, e.g., Leslie v. Carnival Corp., 22 So.3d 567, 581 (Fla. 3d DCA 2009) (listing the five factors courts consider in determining whether a jury trial waiver was entered knowingly).

“The legal principle requiring mutuality in contracts does not require that in every case each party have the same remedy.” Wright & Seaton, Inc. v. Prescott, 420 So.2d 623, 625 n. 2 (Fla. 4th DCA 1982) (quoting Bossert v. Palm Beach County Comprehensive Cmty. Mental Health Ctr., Inc., 404 So.2d 1138, 1139 (Fla. 4th DCA 1981)). In Wright, this court commented that one of the most illuminating discussions of the theory of mutuality of contractual obligations is found in Meurer Steel Barrel Co. v. Martin, 1 F.2d 687, 688 (3d Cir.1924), in which the Third Circuit discussed:

The doctrine of mutuality of obligation appears therefore to be merely one aspect of the rule that mutual promises constitute considerations for each other. Where there is no other consideration for a contract, mutual promises must be binding on both parties. But where there is any other consideration for the contract, mutuality of obligation is not essential.

In this case, there is no issue of mutuality of contract which would make the contract unenforceable. Amquip promised to lease equipment to Vercon, and Vercon promised to pay rent for the equipment. One of the contract terms provided for Vercon to waive its right to a trial by jury as additional consideration for Amquip to enter into the agreement. The fact that the procedural remedies for enforcing the contract may be different does not make the contract unenforceable, or the waiver of jury trial unenforceable. Wright, 420 So.2d at 625.

Having determined that Amquip properly demanded a trial by jury and did not waive its right to a trial by jury, the case is reversed and remanded to the trial court for a trial by jury.

WARNER and LEVINE, JJ., concur.

      . On appeal, Amquip argues the trial court also erred in denying: its motion for summary judgment, the admission into evidence of depositions, and its motion for a continuance.

      . Amquip contends on appeal that the trial court erred in denying its request to admit deposition transcripts into evidence and in denying its motion for continuance when it was unable to get the deposition transcripts into evidence. As mentioned previously, those issues are moot because this case is reversed on the denial of the right to a trial by jury.

      . Although Vercon contends Amquip waived its right to a jury trial by participating in a nonjury trial, this argument relates to whether Amquip preserved the issue for appeal. See Crespo v. Crespo, 28 So.3d 125, 128 (Fla. 4th DCA 2010) (holding ex-wife's claim regarding admission of parol evidence was not preserved for appeal because she failed to object to the evidence or to having an eviden-tiary hearing).


author: GROSS, C.J.

text:
    Todd J. MOSS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4254.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, C.J.

Todd Moss appeals his conviction of pet-it theft. Originally, he had been charged with grand theft, arising from his unauthorized use of his employer’s company gas credit card. A jury returned a guilty verdict of the lesser charge. We reverse because the trial judge erred in denying a motion to suppress the custodial statement Moss gave to the police.

At trial, Moss challenged the admission of a taped statement as violating Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). During the statement, the interrogating detective went through the required Miranda warnings, one by one. The following exchange occurred:

Q: No. 7 says: Knowing and understanding your rights as I explained them to you, are you willing to answer my questions without a lawyer present?
Moss: I want a lawyer (unintelligible).
Q: No. 8 says: Have you previously requested any law enforcement officers to allow you to speak to a lawyer? Have you asked me or anybody else, hey, I want to talk to a lawyer today?
Moss: I want to talk to a lawyer.
Q: Before you talk to me?
Moss: Yes.
Q: Okay. So that means, if you request to talk to a lawyer before you talk to me, then we won’t be able to talk about what happened in this incident.
Moss: Okay. But if I speak to you—
Q: ‘Cause I don’t have a lawyer here for you. Do you understand what I’m saying?
Moss: I understand all that.

After this exchange, the interrogation continued.

The trial court determined that Moss’s invocation of his right to an attorney was equivocal and denied the motion to suppress. The state offered the statement into evidence at trial. On appeal, Moss repeats the argument he made to the trial court — that his assertion of the right to counsel was unequivocal and, without a valid waiver, any subsequent interrogation violated Miranda.

“Both the United States and Florida Constitutions provide that persons shall not be ‘compelled’ to be witnesses against themselves in any criminal matter.” Ross v. State, 45 So.3d 403, 412 (Fla.2010) (citing amend. V, U.S. Const.; art. I, § 9, Fla. Const.). To give effect to the Fifth Amendment right against self-incrimination, an accused person has the right to have counsel present during a custodial interrogation, and police must clearly advise the accused of that right. Miranda, 384 U.S. at 467-72, 86 S.Ct. 1602.

When an accused has “expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Ari zona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Thus, “[o]nce an individual has invoked his or her right to counsel, police questioning of the person must cease.” Black v. State, 59 So.3d 340 (Fla. 4th DCA 2011); see also Youngblood v. State, 9 So.3d 717, 719 (Fla. 2d DCA 2009).

“[A]t a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney” is a sufficient invocation of rights to require the cessation of further interrogation. McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). Cases examining the sufficiency of a suspect’s invocation of Miranda rights often characterize a suspect’s statements as either “unequivocal” or “equivocal” requests for counsel. When the “suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, [the law] [does] not require the cessation of questioning.” Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (emphasis in original).

Here, Moss’s request for a lawyer was unequivocal. During the detective’s reading of the Miranda rights, Moss said, “I want a lawyer (unintelligible)” and “I want to talk to a lawyer.”

It is hard to imagine more unequivocal statements. Compare Shook v. State, 770 So.2d 1261 (Fla. 1st DCA 2000) (holding that “Get me an attorney right now” was an unequivocal request for counsel), and Cannady v. Dugger, 931 F.2d 752, 755 (11th Cir.1991) (holding that “I think I should call my lawyer” was unequivocal); State v. Brown, 287 Ga. 473, 697 S.E.2d 192, (2010) (holding that “I want a lawyer” was unequivocal); State v. Fontenot, 918 So.2d 1096, (La.Ct.App.3d Cir.2005) (holding that “I want a judge. I want a lawyer,” was unequivocal); People v. Gordon, 77 A.D.2d 659, 430 N.Y.S.2d 661, 661-62 (N.Y.App.Div.2d Dep’t.1980) (holding that “I want to talk to a lawyer,” and “I want a lawyer present,” were unequivocal); State v. Consaul, 960 S.W.2d 680, 687-88 (Tex.App.-El Paso 1997) (holding that “Yes, I want a lawyer” was unequivocal); Potts v. Virginia, 35 Va.App. 485, 546 S.E.2d 229, 232-33 (2001) (holding that “I want to talk to a lawyer” was unequivocal), with Cilio v. State, 849 So.2d 353 (Fla. 2d DCA 2003) (holding as equivocal “I have a lawyer, but I don’t know if I can get ahold of him right now,” and his desire for a lawyer depended on “what this is all about, whether I’m going to answer any questions without my lawyer”), and Davis, 512 U.S. at 462, 114 S.Ct. 2350 (holding that “Maybe I should talk to a lawyer” was equivocal).

In arguing that Moss’s request was equivocal, the State points to statements Moss made after his initial request for an attorney. While the United States Supreme Court has held that pre-invocation statements may be used to shed light on the clarity of the request, it has rejected the same analysis for post-invocation statements:

[U]nder the clear logical force of settled precedent, an accused’s postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself. Such subsequent statements are relevant only to the distinct question of waiver.

Smith v. Illinois, 469 U.S. 91, 100, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (emphasis in original).

Because Moss’s request was unequivocal, waiver is the next question we must address. Although Moss invoked his right to counsel, the detective ignored the invocation and continued to question him. “[I]f the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.” Id. at 95, 105 S.Ct. 490 (citations omitted). Accordingly, “a valid waiver of that right cannot be established by showing only that [the accused] responded to further police-initiated custodial interrogation.” Edwards, 451 U.S. at 484, 101 S.Ct. 1880. The accused must “himself initiate! ] further communication, exchanges, or conversations with the police.” Id. at 484-85, 101 S.Ct. 1880. “This was in effect a prophylactic rule, designed to protect an accused in police custody from being badgered by police officers[.]” Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983).

In this case, the detective disregarded Moss’s invocation of his right to counsel and continued to question Moss in the first breath after the invocation. The detective subtly undermined Moss’s request for a lawyer by referring to the lack of readily available attorneys and hinting that Moss had the choice of speaking with him or going to jail. Further, the detective minimized the value of a lawyer’s as- . sistance by pointing out that he and Moss had already spoken about the case over the telephone. After his request for a lawyer, Moss did not reinitiate further exchanges with law enforcement; the ongoing interrogation never paused.

The continued conversation was a strategy to “wear down [Moss’s] resistance and make him change his mind” about talking with the detective before consulting a lawyer. Black, 59 So.3d 340; see also Virginia v. Ferguson, 278 Va. 118, 677 S.E.2d 45, 49 (2009) (holding in a case with similar facts that “this encounter was one continuous custodial interrogation conducted in such a manner as to deliberately disregard a clear, unambiguous and unequivocal invocation of the right to counsel and coerce [the defendant] to incriminate himself’). In light of this coercion, the state has not met its “heavy burden” to demonstrate that Moss knowingly and intelligently waived his privilege against self-incrimination and the right to counsel. See Youngblood, 9 So.3d at 720.

For these reasons, we hold that the trial court erred in denying the motion to suppress the statement. The admission of the statement into evidence was not harmless error — we cannot say that “there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). We have considered the other points raised on appeal and find them to be either moot or without merit.

Reversed and remanded for a new trial.

HAZOURI and CIKLIN, JJ., concur.