Davis v. State

• Decision Date: 28 June 2017
• Docket Number: Case No. 2D16-887.
• Citation: 226 So.3d 318
• Parties: Fred DAVIS, III, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

226 So.3d 318

Fred DAVIS, III, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D16-887.

District Court of Appeal of Florida, Second District.

Opinion filed June 28, 2017

Rehearing Denied August 8, 2017

Howard L. Dimmig, II, Public Defender, and Elisabeth G. Whitmire, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Chief Judge.

Fred Davis, III, appeals his conviction and sentence for one count of possession of cocaine, arguing that the trial court erred by denying his dispositive motion to suppress the cocaine seized from a pill bottle stashed in concrete latticework attached to the foundation of the rooming house where Davis was staying. We agree with the trial court's determination that Davis had standing to challenge the seizure of the pill bottle and its contents. However, because we determine that Davis had a constitutionally protected interest in the latticework where he stashed the pill bottle, we conclude that he did not abandon it. And because the officer had no legal basis for seizing the pill bottle other than its alleged abandonment, we must reverse Davis's conviction and sentence and remand for discharge.

The facts of this case are essentially undisputed. Davis was staying with his brother in a rooming house in St. Petersburg. Davis had a key to the rooming house and kept belongings there, although he sometimes also stayed with his girlfriend who lived elsewhere. Davis paid his brother a portion of the rent for the room in the rooming house.

On the night of April 7, 2015, Officer Acri was in the area of the rooming house on a wholly unrelated call about a suspicious vehicle when he saw Davis and his brother standing on the back porch of the rooming house. Acri testified that he heard Davis's brother say "cops" before he turned and went inside the rooming house. Rather than joining his brother inside, Davis walked down the porch steps and crossed the grass lawn that surrounded the house. He then placed a small bottle in the concrete latticework that was attached to the foundation of the house and that covered the crawl space under it; picked up his bicycle, which had been leaning against the house; and began to walk away while pushing the bicycle.

Based on a hunch that the pill bottle might contain an illegal substance, Acri stopped Davis and began to question him about the suspicious vehicle that had been reported in the area. After Davis said he knew nothing about that, Acri asked Davis what was in the pill bottle that he had placed in the latticework. Davis denied knowing anything about the pill bottle. Acri then handcuffed Davis and put him in the back of his cruiser.

With Davis secured, Acri walked through the yard to the side of the rooming house, reached into the latticework under the house, and pulled out a pill bottle. He opened the pill bottle and discovered cocaine inside. It was undisputed that Acri did not attempt to obtain consent from Davis or any other resident of the rooming house before he crossed the lawn and reached into the latticework under the house. It was also undisputed that Acri had only an inchoate hunch as to what was in the pill bottle before he retrieved it and opened it. Upon Acri discovering the contents of the pill bottle, he arrested Davis for possession of the cocaine in the pill bottle. The State later formally charged Davis with trafficking in cocaine based on the amount of cocaine found in the pill bottle.

Davis filed a motion to suppress the pill bottle and its contents, arguing that Acri had no right to seize the pill bottle from under the house without a warrant or proof that an exception to the warrant requirement applied. The State argued that Davis had no standing to challenge the search because he had abandoned the pill bottle and because Acri had an obligation to "check out" the bottle as a matter of public policy so that children would not find it and so that it could be returned to its rightful owner. Despite the State's argument, the trial court correctly found that Davis in fact had standing to challenge the seizure, but the court then concluded that Davis had abandoned the pill bottle by putting it in an area that was not constitutionally protected. Therefore, the trial court denied the motion to suppress on this alternate basis. Davis now appeals.

As a general proposition, "[a] defendant who voluntarily abandons property or disclaims ownership lacks standing to challenge its search and seizure." State v. Fosmire, 135 So.3d 1153, 1156 (Fla. 1st DCA 2014) ; see also K.W. v. State, 183 So.3d 1123, 1129 (Fla. 5th DCA 2015) ; Mori v. State, 662 So.2d 431, 431 (Fla. 3d DCA 1995) ; State v. Daniels, 576 So.2d 819, 823 (Fla. 4th DCA 1991). For example, in Fosmire, when the defendant told the police that two of the cell phones seized during a consensual search were not hers, she had no standing to challenge a subsequent search of those cell phones. 135 So.3d at 1156. Similarly, in Daniels, when the defendant affirmatively told the police that a particular suitcase was not hers, she had no standing to challenge the warrantless search of that suitcase. 576 So.2d at 823 ; see also United States v. Roman, 849 F.2d 920, 922 (5th Cir. 1988) (holding that one who disclaims ownership of a suitcase has no legitimate expectation of privacy in that suitcase or its contents and therefore cannot challenge the search). Essentially, by repudiating ownership, the defendant loses standing.

However, the theory of abandonment applies only when "a defendant has voluntarily abandoned [property] in an area where he has no reasonable expectation of privacy...." State v. Oliver, 368 So.2d 1331, 1335 (Fla. 3d DCA 1979) (emphasis added) (citing Freyre v. State, 362 So.2d 989, 991 (Fla. 3d DCA 1978) ). This is so because in such cases "the person has made a voluntary decision to avoid a police search by discarding evidence in an area where he has no Fourth Amendment protection." Id. Thus, the question of whether Davis "abandoned" his property and so lacked standing turns on whether the latticework under the rooming house where Davis lived was subject to Fourth Amendment protection.¹

Further, the same Fourth Amendment considerations apply to the State's argument on appeal that the seizure of the pill bottle was lawful under the plain view doctrine. The supreme court has explained the variations of the plain view doctrine in detail:

The term "plain view" has been misunderstood and misapplied because courts have made it applicable to three distinct factual situations. This has resulted in confusion of the elements of the "plain view doctrine." To eliminate this confusion, we believe it appropriate to distinguish the true "plain view doctrine" as established in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed. 2d 564 (1971), from other situations where officers observe contraband.

The first factual situation we identify as a "prior valid intrusion." In this situation, an officer is legally inside, by warrant or warrant exception, a constitutionally protected area and inadvertently observes contraband also in the protected area. It is this situation for which the United States Supreme Court created the "plain view doctrine" in Coolidge and held that an officer could constitutionally seize the contraband in "plain view" from within this protected area. We emphasize that it is critical under this doctrine for the officer to be already within the constitutionally protected area when he inadvertently discovers the contraband.

We identify the second factual situation as a "non-intrusion." This situation occurs when both the officer and the contraband are in a non-constitutionally protected area. Because no protected area is involved, the resulting seizure has no fourth amendment ramifications, and, while the contraband could be defined as in "plain view," it should not be so labeled to prevent any confusion with the Coolidge"plain view doctrine."

The third situation concerns a "pre-intrusion." Here, the officer is located outside of a constitutionally protected area and is looking inside that area. If the officer observes contraband in this situation, it only furnishes him probable cause to seize the item. He must either obtain a warrant or have some exception to the warrant requirement before he may enter the protected area and seize the contraband. As with the non-intrusion situation, the term "plain view" should not be employed here to prevent confusion. For clarity, we label an observation in the latter two non- Coolidge situations as a legally permissive "open view."

State v. Rickard, 420 So.2d 303, 304–05 (Fla. 1982) (quoting Ensor v. State, 403 So.2d 349, 352 (Fla. 1981) ).

Here, the trial court found that Davis had standing, thus implicitly finding that he did not abandon the pill bottle in an area outside Fourth Amendment protection. It also concluded that the facts fell not within an abandonment theory, but instead within the second category of "non-intrusion," apparently finding that the latticework protecting the crawl space under the rooming house where Davis lived was not a constitutionally protected area and hence that Acri's seizure of the pill bottle from that area did not have any Fourth Amendment ramifications. But these two findings are irreconcilable from a Fourth Amendment standpoint, and resolution of this case requires us to address the question of whether the latticework attached to the foundation of the rooming house was, or was not, an area protected by the Fourth Amendment.

Initially, it appears that Florida law, as explained in State v. Titus, 707 So.2d 706 (Fla. 1998), would hold that the foundation of the rooming house was an area in which Davis would have a reasonable expectation of privacy. In Titus, the police received a tip that a resident of a rooming house was smoking narcotics inside. Id. at 707. Without obtaining...