Phillips v. State, G-41

• Decision Date: 08 July 1965
• Docket Number: G-41
• Citation: 177 So.2d 243
• Parties: William Roy PHILLIPS, Appellant, v. STATE of Florida, Appellee. No
• Court: Florida District Court of Appeals

Page 243

177 So.2d 243

William Roy PHILLIPS, Appellant, v. STATE of Florida, Appellee.

No G-41.

District Court of Appeal of Florida, First District.

July 8, 1965.

Rehearing Denied Aug. 3, 1965.

Steadman S. Stahl, Jr., Ft. Lauderdale, for appellant.

Earl Faircloth, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.

STURGIS, Judge.

The appellant, William Roy Phillips, having waived jury trial, was jointly tried with his co-defendant, one Herbert Lane, before the Honorable W. Troy Hall, Jr., Circuit Judge, and adjudged guilty on two informations: one charging them jointly with unlawful possession of moonshine whiskey, and the other with unlawful possession of a still, hence this appeal.

The points of law involved are:

1. Whether the trial court erred in admitting in evidence, over objection, (a) photographs of the still, and (b) items of contraband that were thereupon seized and confiscated.

2. Whether the evidence was sufficient to establish that appellant was in possession of the still and moonshine whiskey, as charged by the informations and essential to conviction.

The testimony reveals that agents of the State Beverage Department, accompanied by a federal agent, having been informed the someone was operating a moonshine still in the vicinity of a rural community known as Blitchton, in Marion County, Florida, but not being informed of the exact location thereof, without the aid of a search warrant made a search of the area. This they did by pairing off and walking across the countryside. Ultimately one of the agents detected the odor of fermenting mash nearby and upon tracing it out, discovered a moonshine still located in an oak hammock 50 to 60 yards behind a dwelling house and attended by a man later identified as Herbert Lane, who was jointly charged and tried for the same offenses as appellant Phillips. Neither the owner nor occupant, who were not known to them at the time, gave the officers permission to go upon the property. Upon being apprehended, Lane informed the officers of appellant's presence in the dwelling house. They went there, found appellant asleep in one of the rooms, wakened him, and brought him to the site of the still. Except as hereinafter indicated, neither appellant nor Lane made any other statements or disclosures to or in the presence of the arresting officers.

One of the agents testified he first smelled the mash when approximately 100 yards from the hammock where the still was located and that he could not see the still until he was approximately 15 yards from the hammock. A Mr. William Gomez testified that he owned and leased to Lane approximately eight acres for hog-raising purposes, on which land the house was located. Appellant Phillips testified that he paid Lane 'half of the money towards the lease with an option for a year,' which money covered 'eight acres of land and the house' where he was arrested. Co-defendant Lane testified that he and Phillips leased the property under an oral arrangement with Gomez for $50.00 per month. This was the extent of the testimony adduced from Phillips and Lane and no other testimony was presented in their behalf.

The court overruled appellant's timely objections to the search resulting in discovery of the still, and to receiving in evidence still apparatus and other contraband seized at the scene and photographs that were taken of the scene. Appellant's brief concedes that if the search was proper, it was lawful to seize the contraband and take the photographs admitted in evidence, but it is contended that the search and seizure was in violation of Section 22, Declaration of Rights, Constitution of Florida, F.S.A., and the Fourth Amendment to the Constitution of the United States. Houston v. State, 113 So.2d 582 (Fla.App.1959), is cited in support thereof.

In that case this court held the trial court in error for admitting at the trial evidence obtained by search without warrant of Houston's barn which was located in an enclosure with appellant's home and another small building, 'all being within the curtilage.' Houston's curtilage was not fenced on the side next to a road leading thereto, but there was a fenced field behind the barn and between it and a wooded territory where a still had formerly been found, and it was from the field that the agents gained access to the barn. The facts in the case now on review are clearly distinguishable in that the testimony reveals that the still, other contraband, and moonshine whiskey were located outside the curtilage of the dwelling and appurtenances thereto, which formed only a fractional part of the property leased by appellant and his co-defendant. The noun 'curtilage' has a distinctive meaning in legal parlance. It has been described as the yard, courtyard, or piece of ground lying around or near to a dwelling house, included within the...