By: Suzanne J. Decopain, Esq., Associate, Saxon, Gilmore, Carraway & Gibbons, P.A.
Published in September/October 2014 FAHROgram
Many times, a landlord may observe illegal drugs in “plain view” while inside a resident’s unit to make a requested repair or to conduct a routine inspection. A landlord is permitted to enter a resident’s unit under Section 83.53(2), Florida Statutes, which provides, in relevant part, that a landlord may enter a unit upon reasonable notice and at a reasonable time for the purpose of repairing the premises. This statute further provides that entry is permitted with the consent of the tenant, in case of emergency, when the tenant unreasonably withholds consent, or if the tenant is absent from the premises for a specified period of time. Many leases include similar language in accordance with this statute. Hence, the landlord typically has authority under the lease and Florida law to enter the resident’s unit to conduct such repairs or inspections, notwithstanding what they may unknowingly observe inside the unit while engaging in such tasks.
However, once the landlord comes across illegal contraband in a resident’s unit, can he or she then call law enforcement to enter the unit to further investigate? Although a landlord may have the authority under the lease and/or the law to enter a resident’s unit, that does not necessarily mean that a landlord can permit third parties, such as law enforcement officials, to enter a resident’s unit beyond what is otherwise allowed by law. Absent exigent circumstances, a warrant is necessary for law enforcement to enter a resident’s unit to search any part of that resident’s unit.
Generally, a landlord should not give law enforcement officials access to a resident’s unit to conduct a warrantless search of the unit or otherwise provide law enforcement with the keys to the unit so that access can be gained. If a resident believes that the landlord has improperly given law enforcement access to the unit, the resident may very well claim that such conduct is grounds for a lawsuit against the landlord; especially if the landlord is attempting to terminate the lease for illegal drugs found in the resident’s unit.
So when a landlord finds illegal drugs in a resident’s unit in violation of the lease, what are some of the issues a landlord should consider when attempting to gather sufficient evidence to support an eviction action? The following are some practical concerns and legal issues a landlord should consider when reviewing such drug-related criminal activity:
• Recognize that entry into a resident’s unit is limited in scope, and items obtained during any such entry can be challenged if the entry was improper and/or unlawful.
• Adequately document the suspected illegal drugs observed in “plain view” inside the unit, including preparing a written statement or incident report and taking photographs of the suspected illegal drugs exactly where they were found.
• Determine who will identify and/or verify that the suspected substance is actually an illegal controlled substance for evidentiary purposes at trial, which can be verified by law enforcement if law enforcement is involved.
• Determine how to handle and/or dispose of the contraband once found.
When such situations arise, it is always recommended that the landlord seek the advice of legal counsel so that each situation can be reviewed and analyzed on a case-by-case basis. Legal counsel can then assist with determining the appropriate course of action that the landlord should take in a particular case to avoid any potential legal pitfalls.
Suzanne J. DeCopain is an associate with Saxon Gilmore. She practices in the area of affordable and public housing. She can be reached at 813.314.4528 or firstname.lastname@example.org.
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