“You Can’t Prove a Negative”: Why an Empty House Doesn’t Mean You Moved

By: John Guidry

How hard is it to prove a negative? Urban myth claims that “you can’t prove a negative.” Take the rather cliché notion that we can never prove that “God does not exist”—because we can’t prove a negative. (This is intellectually lazy nonsense, but I digress). Actually, it is easy to prove a negative. Take the following statement: No Ferraris exist in John’s garage.

• The Proof: Open my garage door. Bam. No Ferrari. (I wish there was an Alfa Romeo, but alas).

The Legal Problem: Many violations of probation involve proving a negative. Specifically, the State tries to prove that “The Defendant does not live here anymore.” Let’s delve into why probation often fails on this issue.

Did your PO violate you just because you weren’t home when they knocked?

Being out doesn’t mean you moved. Call John today at (407) 423-1117.

The Case: Allen v. State (The Realtor Lockbox)

A common probation violation involves changing residence without permission. Typically, this happens after that dreaded “Home Visit.” That is just what happened in Allen v. State, 211 So. 3d 55 (Fla. 4th DCA 2017).

• The Stakes: Allen was found guilty of violating 5 years of probation. The sentence? 25 Years in Prison.

The Evidence: Allen’s Probation Officer (PO) decided to visit his home.

• Visit #1: He wasn’t there. (Surprise, surprise. People have jobs/lives).
• Visit #2: The PO returned. She was stopped by a locked gate and saw a Realtor’s Lockbox on the door.
• The Conclusion: Probation decided, “He’s not home, and the house is for sale. He must have moved! Violation filed.”

The Ruling: Strike One, Strike Two

Do those facts prove the negative (that he doesn’t live there)? No. The Appeals Court overturned the “Change of Residence” violation.

1. Strike One: The Court held that “the fact that Allen was not present the two times the probation officer visited would not establish that he had moved.”
2. Strike Two: What about the lockbox? The Court noted that a “lockbox does not necessarily mean that the renter no longer lives there. It may only have meant that a realtor was showing the house.”

The Lesson: Probation cannot assume you moved just because they can’t find you. They have to prove you established a residence somewhere else.

The “Shed Defense”: A Real Life Example

So, how do you prove a negative? The Allen court hinted that testimony from the homeowner might be enough. I disagree.

I once had a client arrested for Failure to Register as a Sex Offender after the task force found his registered home to be vacant.

• The Evidence: The house was empty. The owner (an out-of-state investor) testified my client no longer lived inside.
• The Defense: We didn’t challenge that the house was vacant. My client testified that he continued to live in the back shed of the property.
• The Result: Case Dismissed. Even the owner’s testimony couldn’t refute the fact that my client was physically residing on the property (in the shed). The State could not prove the negative.

John’s 2026 Update: The “Digital Bed Check”

Note: In 2017, Allen saved himself because the PO was lazy. In 2026, the PO uses data.

1. Historic GPS & Cell Tower Analysis In the past, POs had to catch you sleeping somewhere else.

• The 2026 Reality: If you are on “High Risk” probation, you likely have a Smart Monitor (ankle or wrist). The State simply pulls the “Sleep Pattern Report.” If the GPS shows you are stationary at your girlfriend’s house from 11:00 PM to 6:00 AM for 10 days in a row, they don’t need a lockbox to prove you moved. They have the data.

2. The Ring Camera Subpoena Probation officers are now trained to check for Smart Doorbells.

• The Tactic: If they suspect you moved, they can subpoena the footage (or ask the landlord for it) to see who is coming and going. If the footage shows you moving furniture out, Allen won’t save you.

3. The “Homeless Registration” Trap Because it is hard to prove residency, many probationers try to register as “Transient/Homeless.”

• The Warning: This is a trap. If you register as homeless to avoid “Change of Residence” violations, you are subject to stricter reporting requirements (often checking in every 48 hours). Missing a check-in is much easier for them to prove than a move.

25 Years is a Long Time

In Allen, even though we won the argument on the residence, the Court upheld other violations, and he is stuck with that 25-year sentence. Do not play games with your address. If you move, tell them. If you haven’t moved, let me fight for you.

Call me at (407) 423-1117. Let’s prove you were home.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.