Oliver v. State
| Decision Date | 18 June 2008 |
| Docket Number | No. 2D07-2743.,2D07-2743. |
| Citation | 989 So.2d 16 |
| Parties | Derrious Auntrell OLIVER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
Derrious Auntrell Oliver appeals a judgment withholding adjudication and imposing a twenty-four month term of probation pursuant to his guilty plea to one count of possession of cocaine. Mr. Oliver reserved the right to appeal his dispositive motion to suppress the cocaine. Because the trial court erred in denying the motion to suppress, we reverse.
Two police officers responded to an anonymous tip that drugs were being sold from a backyard shed. Upon arriving at the designated address, the officers walked toward a four-foot-high chain-link fence surrounding the entire property, including the shed. Standing outside the fence, an officer witnessed Mr. Oliver drop a baggie on the ground while sitting outside the shed. The officer also witnessed Mr. Oliver's codefendant, Donald Mason, move his hands in a "furtive motion" while standing inside the shed. The officer testified at the suppression hearing that although she could not identify the contents of the baggie or the substance that Mr. Mason was brushing off of his hands, her training and experience suggested that the baggie contained either marijuana or cocaine. Because Mr. Oliver's and Mr. Mason's movements indicated to the officers that they were trying to destroy evidence, they entered the yard without a warrant. The officers seized the baggie and arrested Mr. Oliver because they determined the baggie contained crack cocaine.
At the suppression hearing, Mr. Oliver argued that the officers conducted an illegal warrantless search because no exception to the warrant requirement existed. The trial court denied the motion to suppress and the subsequent amended motion to suppress, finding that Mr. Oliver did not have a reasonable expectation of privacy in a backyard surrounded by a chain-link fence and that the defendants created exigent circumstances by attempting to destroy evidence.
Officers are permitted to conduct a warrantless seizure of an item in "plain view" if (1) the police see the item from a place they have a lawful right to be, (2) the incriminating nature of the item is "immediately apparent," and (3) the police have lawful access to the incriminating item. See Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). "The zone of protection under the Fourth Amendment extends to the curtilage of a home, which includes a fenced or enclosed area encompassing the dwelling." Tillman v. State, 934 So.2d 1263, 1272 (Fla.2006). Therefore, this was an "open view" situation. See State v. Rickard, 420 So.2d 303 (Fla.1982) (). "Open-view" is treated similarly to "plain-view," with the exception that some exigent circumstance is required to justify warrantless entry into the protected area in an "open-view" situation. See Murphy v. State, 898 So.2d 1031, 1033-34 (Fla. 5th DCA 2005).
We are required to reverse the order denying the motion to suppress because the evidence at the suppression hearing clearly demonstrates that the incriminating nature of the items was not immediately apparent before the officers entered the backyard without a warrant:
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