Many injury claims are caused by unsafe conditions on both commercial and private property. When someone is injured by a slip and fall on a property, how do Florida courts determine if the owner/occupant of a property is liable? The answer depends on what the injured party was doing on the property. This status dictates the duty of care owed by the owner/occupant. An invitee is a person who is on the owner’s property because they have been led to believe the property is open for their use. An example of an invitee is a visitor to a public place such as a park or a business customer. Likewise a social guest is an invitee. A property owner owes an invitee a duty of care to warn of dangers of which the owner is aware or should be aware and a duty to keep the property in a reasonably safe condition. The owner is also responsible, of course, for his intentional actions.

Licensees are persons who enter upon the property of another for their own convenience, benefit or pleasure. This includes uninvited licensees whose presence is tolerated or permitted by the owner of the property. A licensee, for example, might be a person who entered a store to get change for a dollar. The duty of care owed by a property owner to a licensee is to not willfully injure him and to not be wantonly negligent. The owner also has a duty to warn the licensee of any dangers known to the owner which are not readily noticable.

A trespasser is a person who enters the property of another without an invitation or license and who does so for his own self-interest. A property owner owes no duty to a trespasser other than to not intentionally harm him and to warn him of dangerous conditions which are not open and obvious.

Several years ago, I had a client in Destin who visited a convenience store on Highway 98 and Beach Drive. While fueling her car, her feet became tangled in the gas hose and she fell, breaking her ankle. I discovered that the hoses were longer than allowed by regulations and were thus laying on the ground around the pump. Because she was a business invitee, the convenience store breached its duty of care by creating a dangerous condition. The convenience store settled out of court before trial.

Michael Weimorts,

Attorney At Law


I recently had a criminal case where my client was pulled over for allegedly speeding.
The canine officer who pulled him over quickly moved from the speeding accusation to
requesting consent to search my client’s vehicle. When my client declined, the officer walked his
canine around the vehicle, whereupon the dog “alerted” to the presence of “illicit drugs.” Is this
a legal search?

When pulled over for an alleged traffic offense, the officer must restrict his duties to
resolving the traffic offense. Many officers attempt to draw out the process of issuing a traffic
citation to allow a canine officer to arrive. I have seen other cases where the officer tells the
driver that they can wait for the canine unit or the driver can “save time” by allowing the officer
to search the vehicle.

If the officer who stopped the vehicle is himself a canine officer, they often do not advise
a driver that they are free to go. Instead, they may attempt to gain “consent” to the improper
search or simply conduct the canine “search.”

The Fourth Amendment to the United States Constitution, however, provides that no
person shall be subjected to unreasonable searches and seizures and that no warrant shall be
issued except based upon probable cause. In Maxwell v. State, 785 So. 2d 1277, 1279 (Fla. 5th
DCA 2001), the Court held that, absent a reasonable suspicion of criminal activity, officers may
not detain a vehicle any longer than is necessary to issue the traffic citation. Unless the officer
has a reasonable suspicion of such criminal activity, an officer’s detention of a driver for long
than the time reasonably necessary to issue a traffic ticket is improper. See Sanchez v. State, 785
So. 2d 1043 (Fla. 4th DCA 2003).

In my case, I filed a Motion to Suppress all evidence seized during this improper search.
The Court granted my motion and, because the issue was dispositive of the case, dismissed the
entire matter.


May 10, 2013

I recently had a case where my client’s probation officer conducted a search
(accompanied by investigators from the Sheriff’s department) of my client’s home without a
warrant. The probation officer indicated she had been by the house ten (10) days earlier and had
noticed a “chemical smell.” During the search, the probation officer allegedly discovered
chemicals used to synthesize methamphetamine and a bottle of “meth oil.” The probation officer
went out of the trailer and sent the Sheriff’s investigators in to take photographs of the interior of
the trailer. Based upon this alleged evidence, my client was arrested for violation of his
probation and new charges of manufacture of methamphetamine.

The Fourth Amendment to the Constitution of the United States provides that no person
shall be subjected to unreasonable searches and seizures and that no warrant shall be issued
except based upon probable cause. Is a warrantless search of a probationer’s home by a
probation officer valid? Can the evidence obtained in this search be used in a new law

Prior to 2001, Florida courts recognized a dichotomy between probationary searches and
investigative searches. Under this doctrine, evidence discovered in probationary searches was
admissible only in violation of probation proceedings. This evidence would not be admissible in
the new criminal case.

This doctrine was overturned by U.S. v. Knights, a 2001 United State Supreme Court
case. In Knights, the Court held that the condition of Knights’ probation that he submit his
person and property to a warrantless search did not restrict itself to searches by a probation
officer or dictate evidence found during such a search be subject to limitation in the violation of
probation case. The Knight Court thus held that the condition of probation allowed probation
officers as well as other law enforcement to conduct warrantless searches of the Defendant’s
property and that evidence discovered during such a search was admissible in the new criminal
case if the search was based upon “reasonable suspicion.”