Ok to search Car in driveway of House because of language in Search Warrant of home(4th DCA August 7th 2019)

Price v. State, 4th DCA, August 7th, 2019.  This was an appeal from a Motion to Suppress of a large quantity of marijuana that was denied by the trial court.  The car was parked at the end of a long drive and the police had a search warrant for the "residence, curtilage, outbuildings and conveyances."  The appeals court specifically did not challenge the courts finding that the vehicle was within the curtilege because it was satisfied that the warrant said "conveyances," which is generally taken to mean vehicles.  Had the warrant not had this specific languge they may not have agreed with the lower court.  They had this to say about the application of this case to others:

We acknowledge that in Dunn v. State, 292 So. 2d 435, 435-36 (Fla. 4th DCA 1974), we reversed the denial of a motion to suppress where a vehicle parked in a driveway was searched during the execution of a search warrant for a residence and curtilage.  In Dunn, we said: “In the case at hand, there was no such evidence to connect the vehicle in question with the premises and we believe some such evidence necessary in order to authorize the search of a vehicle parked even within ‘the curtilage.’”  Id. at 436.  However, we distinguish the instant case from Dunn on the basis that unlike this case, the search warrant in Dunn authorized the search of “certain premises And [sic] the curtilage,” but said nothing about vehicles or other structures.  Id.  Similar to Dunn, the First District in Miller v. State, 516 So. 2d 1118 (Fla. 1st DCA 1987), reversed the denial of a motion to suppress the search of a vehicle after determining there was “no evidentiary connection between the residence authorized to be searched and appellants’ vehicle.”  Id. at 1119.  We again distinguish this case from Miller because in Miller, the warrant authorized “the search of the ‘premises and curtilage thereof’ for marijuana” and the warrant said nothing about vehicles or other structures.


Hastings v. State (Fla. 9th Circuit Court, 2015)

The defendant was convicted of speeding, and the trial court suspended his license for 120 days, followed by a six-month restriction limited to a business-purposes-only license. He was also ordered to pay a fine and court costs. He filed a motion for rehearing and arrest of judgment, arguing that the license suspension was an illegal penalty. The trial court denied the motion, but the circuit court, in its appellate capacity, agreed with the defendant and reversed, noting that violations of section 316.189, Florida Statutes, "must be cited as a moving violation, punishable as provided in chapter 318," and that chapter 318 does not include license suspension as a penalty for violating section 316.189(2).



Yul Medina v. State (4th DCA, January 6th, 2016)

The circuit court revoked the petitioner’s bond and ordered pretrial detention based solely on the pretrial release officer’s affidavit stating only that the petitioner, while on pretrial release, had been charged in a Miami-Dade County case with driving while license suspended. The affidavit did not state any facts establishing probable cause for the new charge. See § 903.0471, Fla. Stat. (2015) ("Notwithstanding s. 907.041, a court may, on its own motion, revoke pretrial release and order pretrial detention if the court finds probable cause to believe that the defendant committed a new crime while on pretrial release.") (emphasis added); Simeus v. Rambosk, 100 So. 3d 2, 4 (Fla. 2d DCA 2011) (the probable cause determination required under section 903.0471 is similar to the probable cause determination necessary to support an arrest warrant or to the probable cause determination made at first appearance; it must be based on an affidavit of a police officer, a sworn complaint, sworn deposition testimony, or other testimony under oath properly recorded).


Because the affidavit did not state any facts establishing probable cause for the new charge, the affidavit was insufficient to revoke pretrial release and order pretrial detention.  This is important to know if you are out on a conditional release and pick up any new criminal charge.  You should hire an attorney immediately, or let your current attorney know so they can be prepared should the State move to revoke a bond.



Ramirez v. State (7th Judicial Circuit, Volusia County July 31, 2015)

Driver was stopped for speeding.  During initial contact at the driver's door, the Deputy detected "an odor of alcohol coming from the Defendant."  The Deputy also indicated that the driver had difficulties obtaining his driver's license.  Based only on these factors, the Deputy ordered the driver to exit his car to conduct a DUI investigation.  Field sobriety exercises were then completed and the driver was arrested for DUI.  The Defense filed a motion to suppress saying that those two factors alone were not enough to give the deputy "reasonable suspicion" that the driver was under the influence.  Thus, the Deputy did not have the authority to order him out of the car.  The Court agreed saying that just because an officer believes that a driver has consumed alcohol does not mean he can order them out of the car without "more facts and circumstances showing a probability that a driver is impaired by alcohol or has an unlawful amount in his system."  The Deputy made no other observations of impairment, he did not observed the Defendant's eyes, there was no indication of slurred speech or flushed face.  there simply was no other evidence to support the deputies suspicion that the driver's normal faculties were impaired. 

This case is a County Court case so it would not necessarily binding on our circuit, only persuasive.  It could still be very useful as guidance to our Judges when the initial contact between an officer and driver involves very little actual evidence.  It is important to evaluate the initial evidence that the officer uses to then initiate further investigation.  If the Court agrees that there wasn't enough in the beginning then it may grant a Motion to Suppress.


Gay v. State (2nd District Court of Appeals, May 15th, 2014)

Officer determined not to cite driver during traffic stop for a rolling stop at a stop sign.  But he then asked the driver for consent to search the vehicle.  The driver agreed which rendered the encounter what is deemed a "consensual encounter."  The officer's actions in searching passenger's purse and pill box contained in purse, removing the pill box from the vehicle, and taking box to his patrol car for further investigation resulted in the encounter becoming an investigatory detention, which was not justified by reasonable suspicion of criminal activity.  The Court said the officer's actions would have led a reasonable person to conclude she was not free to leave, and nothing about the pills or pill box gave officer reasonable suspicion that passenger or driver had committed, was committing, or was about to commit a crime.  The evidence was suppressed as the product of an illegal search.


Ramirez, v. State(1st District Court of Appeals, January 16, 2013). 

This case explains what is called the "Prescription Defense" in trafficking and possession of prescription medication cases.  Specifically, the charge of trafficking may be proven through possession of a certain amount of a controlled substance.  BUT, an affirmative prescription defense is ... "available to those who have a valid prescription written directly on their behalf for the pills in their possession." McCoy v. State, 56 So.3d 37, 39 (Fla. 1st DCA 2010) (citations omitted). Section 893.13(6)(a) states:

It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter.

A valid prescription is a complete defense to trafficking and a defendant is entitled to a jury instruction on the defense.” (citing O'Hara v. State, 964 So.2d 839, 847 (Fla. 2d DCA 2007))).  Moreover, the prescription defense is not limited to the person holding a valid prescription, but may also be asserted by “any individual authorized by the prescription holder to hold the medications on his or her behalf.” State v. Latona, 75 So.3d 394, 395 (Fla. 5th DCA 2011) (citing McCoy, 56 So.3d at 39).

This is a powerful defense.  However, the burden of proving this defense rest solely with the Defendant through his attorney.  This is why it is important to have an experienced criminal attorney.


Teamer v. State (1st District Court of Appeals December 21st, 2012.)

A Deputy observed a bright green Chevy. The deputy “ran” the license plate tag number through the Department of Highway Safety and Motor Vehicles which came up registered to a blue Chevy.  The deputy pulled the vehicle over based only on the color inconsistency. Upon interviewing the occupants, the deputy learned that the vehicle had recently been painted, thus explaining the inconsistency. During the stop, however, the deputy smelled marijuana emanating from the car and conducted a search of appellant, his passenger, and the vehicle. Marijuana and crack cocaine were recovered from the vehicle, and about $1,100 in cash was recovered from appellant. Appellant was charged with trafficking in cocaine (between 28–200 grams), possession of marijuana (less than 20 grams), and possession of drug paraphernalia, scales.


On appeal, the Court held that the mere fact that the color of a vehicle does not match the color indicated on motor vehicle registration records does not establish a reasonable, articulable suspicion of criminal activity to support an investigatory stop of a vehicle. This is particularly true in Florida where there is no legal requirement that a vehicle owner inform the DHSMV of a change in the color of the vehicle.

This Court disagreed with the Aders court(this is the decision that remains law in Palm Beach County) that a color discrepancy alone warrants an investigatory stop and, therefore, certify conflict with the Fourth District's opinion in Aders v. State,67 So.2d 368 (Fla. 4th DCA 2011). The lower court's judgment and sentence were reversed, and the case was remanded to the trial court for appellant to be discharged.

We shall see what happens next.  The State can appeal this to the Florida Supreme Court to resolve the conflict between our (the 4th District) and this decision.  Stay tuned.


F.Q. v. State (4th District Court of Appeals, October 17th, 2012).

Evidence was insufficient to establish juvenile's constructive possession of cannabis, as would support adjudication of juvenile as delinquent for possession of cannabis, in case in which law enforcement officer saw juvenile discard a bag that appeared to contain marijuana, at same time that another juvenile discarded two bags as officer approached both juveniles; State did not offer proof that bag that was admitted into evidence was the same bag that juvenile dropped, and only one of the three discarded bags had been tested for drugs.  Although there was evidence that F.Q. was aware of all the baggies thrown, there was no evidence he exercised dominion and control over the baggie admitted into evidence, and that he knew the baggie contained marijuana.
The Court discussed other cases of contructive possession. Isaac v. State, 730 So.2d 757 (Fla. 2d DCA 1999) (holding that judgment of acquittal should have been granted after state rested, as the evidence did not establish constructive possession where it showed only that the defendant and another man were passing a baggie of marijuana back and forth, and one of the men dropped it when they noticed an officer was observing them). Compare with Stevens v. State, 782 So.2d 550 (Fla. 5th DCA 2001) (state proved constructive possession where defendant and other man did not begin passing cigar tube containing crack cocaine back and forth until after they saw deputies, they were both in possession of the cigar tube when it was dropped, and defendant had a large amount of cash on his person when he was arrested, which was organized by denomination, and the deputies testified this was a characteristic of drug dealers).

Hernandez v. State (5th District Court of Appeals, October 5th, 2012).

This case shows the limitations and protections when a third party consents to a search of a residence when police have no warrant.

The Court held that the police officers who performed warrantless search of defendant's residence with the consent of his girlfriend, whose apparent authority to consent to the search did not extend to a locked room that she told officers she lacked permission to enter, could not enter the locked room as part of a protective sweep; officers knew they lacked consent to enter the locked room before they entered residence, officers waited over an hour before entering residence without making any effort to obtain a search warrant, and need for a warrantless protective sweep of the locked room could readily have been avoided by procurement of a warrant.

If the police enter a residence without a warrant and claim they entered to do a "protective sweep," this limited type of search must be narrowly confined to a cursory visual inspection of those places in which a person might be hiding. 


Dieujuste v. State (4th District Court of Appeals, May 2nd 2012).

The issue presented on appeal in this case was whether there was enough evidence of Defendant's participation in any prior activity regarding a drug transaction sufficient to establish an agreement to traffic in oxycodone.  The evidence showed that the Defendant was sitting in the back seat of her vehicle while the co-defendant driver completed an undercover drug transaction inside an apartment.  Later she was found in possession of oxycodone in a pill bottle with her name on it, and with $400 in marked bills that the co-defendant had obtained from the undercover police officer.

The law in Florida requires that to establish a conspiracy and a defendant's participation in it, the State must prove an express or implied agreement or understanding between two or more persons to commit a criminal offense, and an intention to commit that offense.  When the evidence establishes that the defendant was merely present at the scene of the crime, had knowledge of the crime, or even aided others in the commission of the crime, it is inadequate, without more, to sustain a conspiracy conviction.


Smith v. State (4th District Court of Appeals, April 25th, 2012).

Reasonable person in defendant's position would not have felt free to leave when a deputy parked “catty corner” to defendant's vehicle, activated his emergency lights, and used his spotlight to illuminate the interior of defendant's vehicle, and thus defendant was seized at that point for purposes of the Fourth Amendment; defendant was legally parked on the side of a residential street, nothing objectively indicated that defendant was in need of aid, and defendant did not exhibit any conduct to indicate that he sought police assistance.

Thus, the marijuana and cocaine found by this officer was the product of an illegal encounter and the State cannot use the evidence against the Defendant.


Thornton v. State (4th District Court of Appeals, March 7th, 2012).

Stuart Police Department received an email regarding “suspicious activity” from anonymous source. The email reported that males, most with dreadlocks, were “congregating” at the barber shop; that people would walk to the front door, make a call and then enter the barber shop through the back door; and that this activity would occur at night and people would leave their cars running while they were in the barber shop.

Detectives drove over to the strip mall around four o'clock in the afternoon and observed Defendant and ten to fifteen males standing near the barber shop. When the detectives exited the vehicle, the men entered the barber shop. One Detective followed the men to the barber shop back door while another approached Defendant, who was sitting in a parked car with the windows down and doors closed.

When the Detective approached the parked car, the Defendant looked into the center console and then looked up at the detective. The Defendant was asked to exit the vehicle because the Detective was concerned for officer safety and concerned that there was something “dangerous” in the console.  Defendant appeared nervous and fidgety and was breathing rapidly. McLain did not observe anything that appeared to be a weapon on Defendant, but told Defendant that he was going to conduct a pat down. When he attempted to do so, Defendant swatted his hand away. Defendant was then arrested and charged with possession with intent to sell, manufacture or deliver cocaine within 1000 feet of a park, community center or recreational facility and resisting an officer without violence.

The Court held that when the Detective asked Defendant to exit the car, a seizure occurred and the detective lacked reasonable suspicion to detain Defendant. The person providing the information in the email wished to remain anonymous, placing the tip very low on the reliability scale.  Further, the tip was vague and contained no allegations of criminal activity, but only “suspicious,” yet innocent, behavior. Finally, Defendant's conduct of reaching into the console, appearing “nervous,” and lying to the detective similarly did not provide reasonable suspicion for the detention.

Lastly, since the detention was illegal, the detective was not engaged in the “lawful” execution of a legal duty so as to support the resisting without violence conviction.  Therefore, all charges should have been suppressed.

This case is a good general discussion of the application of "Tips" to police investigation.


State v. Bowers (Florida Supreme Court, Feb. 23rd 2012).


The Florida Supreme Court reviewed a case where the Second District Court of Appeal and the Fourth District Court of Appeal disagreed. The conflict between these two districts involves the application of the fellow officer rule to testimony in a motion to suppress hearing where the defendant is challenging the validity of a traffic stop.

The Supreme Court held that the fellow officer rule does not allow an officer who does not have firsthand knowledge of the traffic stop and was not involved in the investigation at that time to testify as to hearsay regarding what the initial officer who conducted the stop told him or her for the purpose of proving a violation of the traffic law so as to establish the validity of the initial stop.

This decision is important because this decision says the Fourth District Court of Appeals was wrong and this is the Appeals Court for Palm Beach County.



Jackson v. State (4th District Court of Appeals- Broward County, Jan. 11, 20120)

Defendant appealed his conviction for trafficking in cocaine in an amount over 200 grams.  At his trial, a police officer testified that he first came in contact with Defendant when he arrived at his residence to execute a search warrant. During the search, a substance that appeared to be powder cocaine was discovered. A canine was called to the scene and alerted to several locations throughout the residence.  A crime lab technician testified that she tested two items recovered from Defendant's residence. Item one consisted of eight baggies containing a powdery substance. The chemist tested a random sample of the powder and concluded that the powder was cocaine. The eight baggies had a combined weight of 182.7 grams. The chemist also tested two baggies containing cocaine rocks. Bag one weighed 22.9 grams and bag two weighed 6.6 grams. On cross-examination, the chemist testified that she tested only one of the eight baggies containing the powdery substance. She indicated that she could not confirm that the other seven bags contained cocaine.
The Court held that the State failed to meet its burden under Ross, where only one of eight baggies was tested. See also Safford v. State,708 So.2d 676, 677 (Fla. 2d DCA 1998) (in reliance on Ross, reversing conviction for trafficking in cocaine of an amount exceeding twenty-eight grams, where State failed to test forty separately-packaged foils of cocaine powder). We also note that the circumstantial evidence of weight presented by the State was similarly insufficient to meet its burden.
Accordingly, Defendant's conviction was reversed with directions that the conviction for trafficking in cocaine in an amount of 200 grams or more, but less than 400 grams, be reduced to the lesser offense of trafficking in cocaine in an amount of twenty-eight grams or more, but less than 200 grams, and that his sentence be modified accordingly.

State v. McCullough (2nd District Court of Appeals, Dec. 30th, 2011).

The Defendant was arrested during a “warrant round-up.” The arresting officer executed the warrant after she pulled into her private driveway. She had already exited her vehicle and locked her door when the officer approached her. The officer then arrested her under the outstanding warrant.  After the officer placed McCullough in his car, he again approached her vehicle and confirmed that it was locked. No evidence was presented that the officer could see any contraband or evidence of any crime inside the car. The officer then went to the door of the home and instructed McCullough's son to give him the keys. After McCullough's son complied with this instruction, the officer returned to the vehicle, unlocked it using McCullough's key, and conducted a search inclusive of McCullough's purse that was inside the car. The search revealed cash, marijuana, and cocaineinside McCullough's purse.
The Court applied the ruling in Gant which says that “[p]olice may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” 129 S.Ct. at 1723. Because it is undisputed that McCullough was secured in handcuffs in the arresting officer's patrol car when her car was searched, this case concerns only the second prong of Gant'sholding. Accordingly, the search can withstand constitutional scrutiny only if it was reasonable to believe McCullough's vehicle contained evidence of the offense underlying her arrest.
The warrant for her arrest was issued four to five months prior to her arrest, and the record is devoid of any evidence whatsoever suggesting that the sale of cocaineshe allegedly committed months before her arrest was still taking place or that the car was involved in that sale. Further, from his lawful standpoint outside the vehicle, the officer observed no contraband, weapons, or any other evidence which would support a reasonable belief that evidence from an offense committed at least four months prior—at an unknown location—would exist inside McCullough's vehicle at the time of her arrest.
Therefore, the Court said the evidence should be suppressed and threw out the case.

Mesa v. State (Fourth District Court of Appeals,St. Lucie County, Dec. 21st 2011)

This case dealt with the legality of a search warrant.  In general, when presented with an application for a search warrant, a magistrate's duty is simply to make a practical, common-sense decision, whether, given all the circumstances set forth within the four corners of the affidavit before him, there is a fair probability that evidence of a crime will be found in a particular place.

In this case, the affidavit did not provide probable cause for the issuance of a warrant to search defendant's residence for drug evidence, even though the affidavit related that defendant loaned his truck to a person who had a marijuanagrow house, that the person often visited defendant and used the truck to further the person's criminal enterprise, that a humming noise was heard from within defendant's residence, and, inter alia, that defendant's residence had sensor lights at its corners.

The affidavit lacked particulars about the visits and use of the truck, facts discovered during police investigation had innocent explanations, and nothing in the affidavit indicated that defendant's residence had the characteristics of the person's grow house.

Therefore, the Appeals Courts through out the convictions for the manufacture of marijuana, conspiracy to traffic in marijuana and possession of cocaine, alprazolam, amphetamine, hydrocodone, and oxycodone.  These drugs were found in the house after the search warrant was executed.


State v. Holland (4th District Court of Appeals, December 14th, 2011).

The Defendant was initially stopped by a Broward County Deputy for suspicion of DUI.  Another Deputy was called to the scene to do the DUI investigation.  The second Deputy requested the driver to submit to Field Sobriety Exercises (FSTs).  The interaction was video taped.  Before trial, the State announced that it did not intend to call the second Deputy as a witness.  The Defense made a Motion to Suppress all of that Deputies involvement in the investigation. This included the entire contents of the videotape. The Defense argued that the State's decision not to call the second Deputy would violate the Confrontation Clause under the Sixth Amendment to the United States Constitution.

Unfortunately, the Court disagreed.  First, they said his refusal to submit to sobriety testing is admissible regardless as "this issue has been resolved by the Legislature's enactment of the implied consent law under section 316.1932(1)(a) which provides in pertinent part that “[t]he refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.” § 316.1932(1)(a)1.a., Fla. Stat. (2010); see also State v. Kline,764 So.2d 716, 717 (Fla. 5th DCA 2000).

Next, the Supreme Court has held that the admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial, (2) the declarant is unavailable, and (3) the defendant lacked a prior opportunity for cross-examination of the declarant.  The Court then said that the directives by the Deputy on the videotape during the sobriety exercises, both verbal and non-verbal, are not hearsay because they were not offered for the truth of the matter asserted. Instead, they were offered to give meaning to Holland's otherwise ambiguous acts.  Therefore, the video tape comes in over the objections of the Defense.

This decision, if adopted in practice by our Circuit's State Attorney's office, could impact the fairness of many current DUI cases.  Essentially, it allows the prosecutor to push play on a DUI video to prove their case.   


Cordero-Artigas v. State (Second District Court of Appeals, Dec. 9th, 2011).

There was only circumstantial evidence of defendant's involvement in the operation of a marijuana grow house.  This including his fingerprints on two pieces of paper found at the house containing instructions for fertilizing marijuana.  The Court found that this was insufficient to support defendant's convictions for manufacture of a controlled substance and possession of drug paraphernalia.  The State did not introduce any evidence which conflicted with defendant's explanation that the papers were on top of an air conditioner box he helped deliver to the house and that he slipped them in the box without reading them because he thought they might be warranty documents.

In general to support a conviction, it is not sufficient that the facts just create a strong probability of guilt. They must be inconsistent with innocence. Therefore, a motion for judgment of acquittal should be granted in a circumstantial evidence case if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.  Thus, if the State does not offer evidence which is inconsistent with the defendant's hypothesis, the State's evidence would be as a matter of law insufficient to warrant a conviction.


Rozzo v. State (Fourth District Court of Appeals, Dec. 7th, 2011).

Warrantless entry and protective sweep of home violated the Fourth Amendment.  The defendant was arrested outside his home.  The officers observed no open door to home and no illegal activity within.  There was no objectively reasonable basis to suspect on the officer's part that occupants of house (the defendant's parents) were aware that defendant had been arrested outside the home, or that occupants of the house posed safety threat or were actively trying trying to destroy evidence.

The father's consent to search, which was obtained after his son was taken into custody outside home and officers performed protective sweep of the home, did not dissipate taint of illegal sweep; only about 20 minutes elapsed between initial sweep and time when written consent form was signed, consent to search was nothing more than acquiescence to show of authority after officers had ordered parents out of house to conduct protective sweep, and mere fact that written consent form advised father of right to refuse search was insufficie 

Fears for officer safety based on generalizations about drug cases, rather than on any specific risk presented by the facts of defendant's case, do not qualify as exigent circumstances, as would justify warrantless entry into home.nt to dissipate taint of illegal sweep. to destroy evidence.

The Court suppressed the five oxycodone pills found near the defendant.


Gore v. State (4th District Court of Appeals, November 16th, 2011)

Facts: Police had reason to believe that Defendant was committing the crime of withholding information from a physician and gathering large amounts of prescription.  This is commonly known as doctor shopping.  The Police then went to various pharmacies, pulled patient's profiles and, from those patients' profiles, they find out who the prescribing doctors are. The Police then go to the prescribing doctors, and speaks with them without any subpoena or search warrant being issued. The conversations include whether or not Defendant had disclosed previous prescriptions to the doctor. The officer also pulled and reviewed various patient documents.  The Defense filed a Motion to Suppress all medical records, which the Trial Court Denied.
On appeal the 4th District Court of Appeals concluded that the police may secure pharmacy records of Chapter 893 controlled substances pursuant to a criminal investigation, but not pharmacy records of all prescriptions. There is some expectation of privacy in pharmacy records. The police may obtain the permitted records without obtaining a warrant or a subpoena. Doctors' names appear on all prescription records; hence, the police may secure doctors' names on Chapter 893 pharmacy prescription records, as well, without a warrant or a subpoena.
The Appeals Court also said that the trial court erred by denying Defendant's motion to suppress his medical records and physician's statements, which police obtained without a subpoena or Defendant's authorization. Medical records and physician's statements are protected by the statutory physician-patient privilege, and therefore, the State was required to get either a subpoena with court approval or prior notice to and authorization from Defendant. See §§ 456.057(6) & (7)(a), Fla. Stat.
Therefore, all the records were suppressed.