Wheeler v. State

• Decision Date: 10 June 2011
• Docket Number: No. 5D10–1994.,5D10–1994.
• Citation: 62 So.3d 1218
• Parties: Bryon Keith WHEELER, Appellant,v.STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

62 So.3d 1218

Bryon Keith WHEELER, Appellant,

v.STATE of Florida, Appellee.

No. 5D10–1994.

District Court of Appeal of Florida, Fifth District.

June 10, 2011.

James S. Purdy, Public Defender, and Christopher S. Quarles, Assistant Public Defender, Daytona Beach, for Appellant.Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Appellee.PER CURIAM.

The sole issue presented here is whether Appellant's vehicle was located within the curtilage of a residence that was the target of a search warrant. The trial court concluded that it was because the vehicle was partially overlapping a portion of the driveway to the residence, and accordingly, denied Appellant's motion to suppress a firearm and drugs located within the vehicle. We conclude that the vehicle was not within the curtilage of the residence, and accordingly, we reverse.

After conducting a controlled purchase of drugs, the police obtained a search warrant for the single family residence. The warrant authorized the search of any vehicle located within the residence's “curtilage.” Appellant, who had no connection to the investigation or the residence that was the target of the search, happened to be parked in his car in front of the residence with a female companion at the time the warrant was executed. The residence was located on a city street adjacent to a paved road. It was surrounded by a chain-link fence with an opening for ingress and egress through a dirt driveway. Appellant was parked outside the chain link fence, parallel to the road within the city right-of-way very close to the paved portion of the right-of-way. Part of Appellant's vehicle was parked over the driveway portion of the right-of-way impeding, but not blocking, ingress and egress to the property through the opening in the fence. Appellant and his companion were in the vehicle at the time of the search.

Appellant's sole argument is that his vehicle was not within the scope of the warrant because it was not within the curtilage of the residence.¹ The trial court concluded that, because part of Appellant's vehicle extended into the driveway portion of the right-of-way, the vehicle was within the curtilage. We disagree.

The term “curtilage” in the Fourth Amendment context describes the area around a home that is “intimately tied to the home itself.” United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987).² “[T]he extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.” Id. at 300, 107 S.Ct. 1134. Clearly, the legal boundaries of a given piece of property do not necessarily define its curtilage for Fourth Amendment purposes. To determine the scope of the curtilage to a particular residence, we must consider the four factors identified in Dunn. Wilson v. State, 952 So.2d 564, 568–69 (Fla. 5th DCA 2007). They are: “[1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by.” Dunn, 480 U.S. at 301, 107 S.Ct. 1134.

Here, an analysis of the four factors leads to the inescapable conclusion that the area outside the chain link enclosure is outside the curtilage of the residence. Although the proximity factor favors the State's argument, all of the remaining factors favor Appellant. The fact that the homeowner chose to enclose a portion of the yard with a chain-link fence is perhaps the most compelling fact here. See Dunn, 480 U.S. at 302, 107 S.Ct. 1134 (use of fence to separate area around house from other area is “significant”); ³ see also United States v. Gerard, 362 F.3d 484, 487–88 (8th Cir.2004) (presence of fence between primary residence and another area typically means area is outside curtilage). Similarly, the third and fourth Dunn factors support Appellant's position. Although a small portion of the area outside the fence was used as a point of ingress and egress, it was outside the fence and within an area designated as a public right-of-way. The homeowner manifested no attempt to protect against observation by people passing by.⁴

Accordingly, we reverse the order denying the dispositive motion to suppress and remand this cause with instructions to grant the motion and vacate the judgment and sentence.

REVERSED AND REMANDED.

LAWSON and COHEN, JJ., concur.TORPY, J., concurs specially with opinion.TORPY, J., concurring specially.

I agree that the search of Appellant's vehicle was not authorized by the warrant because it was not located within the “curtilage.” See Hartpence v. State, 509 So.2d 975 (Fla. 5th DCA 1987). Had the warrant authorized searches of vehicles anywhere on the “premises,” the result might have been different-at least as to the issue raised by Appellant. The more interesting question to me is the one that was not raised or argued: whether the police have the authority to search a vehicle, even if located within the curtilage, when there is no reason to suspect a connection to the illegal activity. The decisional law on this issue is less than clear.

In State v. Haugee, 402 So.2d 1216 (Fla. 5th DCA 1981), for example, a divided panel of this Court authorized the search of a vehicle owned by a person who was present at a home when a search warrant was executed, despite the owner's lack of connection to the suspected illegal activities. We reasoned that a contrary view would enable criminals to hide contraband in an un-owned vehicle and avoid its detection. Id. at 1218; accord State v. Booream, 560 So.2d 1303 (Fla. 2d DCA 1990) (police may search visitor's car located within curtilage). Other courts have confirmed that no “nexus” is required between a vehicle within the curtilage and the suspected illegal activities, even when it is apparent that the vehicle is not under the control of an occupant of the premises. In Lowe v. State, 751 So.2d 177 (Fla. 2d DCA 2000), for example, the defendant arrived in his vehicle while the search was underway. Despite the lack of nexus between the defendant, the searched premises or the suspected drug dealer, the court upheld the search of his vehicle, although acknowledging that the search of his person would not be authorized (apparently based on Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979)).

A seemingly contrary view is expressed in Simmons v. State, 491 So.2d 1307, 1309 (Fla. 1st DCA 1986), where the court held that there must be “some evidentiary connection” between the searched vehicle and the residence that is the object of the search. In that case, the court determined that the connection was established because the owner of the vehicle lived in the residence, although he was not the target of the investigation. Id.; see also State v. Freeman, 673 So.2d 139 (Fla. 5th DCA 1996) (expressing view that no nexus required, albeit under facts similar to Simmons ).

In Miller v. State, 516 So.2d 1118 (Fla. 1st DCA 1987), our sister court, in reliance on Simmons' “connection” test, concluded that the search of an unattended vehicle parked within the curtilage of the searched premises was not authorized because of the lack of connection to the residence. Apparently, the owner of the residence operated an automobile repair business and the searched vehicle was parked among junk cars and other cars waiting for repairs. The Miller panel certified conflict with Haugee, an ostensible conflict that remains unresolved.

A review of the federal authorities on this point also suggests somewhat divergent views. For example, in United States v. Cole, 628 F.2d 897, 900 (5th Cir.1980), a divided panel of the Fifth Circuit concluded that a warrant authorizing the search of vehicles within the curtilage permitted the search of a vehicle that arrived on the premises just as the warrant execution was commencing. In that case, the vehicle parked in the carport just as police arrived. In distinguishing an earlier precedent from the same court, the dissent observed:

A different result might be in order if [the appellant] and his truck, were not observed arriving by the officers as all parties converged on the scene, and in this respect Napoli⁵ neither controls nor was wrongly decided. For purposes of construing the scope of a premises search warrant, it is much more reasonable to regard a car which is discovered for the first time already on the premises to be searched as a part of the premises, subject to search. The allegations in support of the issuance of a warrant might well justify the magistrate reasonably to intend, and the policeman reasonably to understand the magistrate to mean, a description of “premises” to include anything at the described location which is under the control or direction of the person whose effects are to be searched which might serve as a hiding place for the contraband sought. But this reasoning cannot apply to an outsider who shows up during the course of a search.... To say in effect that the warrant's use of the word “premises” alone suffices as a determination by the magistrate, resting on probable cause, that the warrant extend to any and all visitors found on the premises, is to stretch the word beyond its normal meaning, or, as discussed above, its reasonable interpretation. The use of the word “premises” alone does not, and should not, include visitors or their vehicles caught in the act of visiting.

Id. at 900–01 (Clark, J., dissenting).

In United States v. Tamari, 454 F.3d 1259, 1262 (11th Cir.2006), the Eleventh Circuit relied upon Cole and upheld the search of a vehicle that arrived during the execution of a warrant. The court rejected the contention that the search of a vehicle is unauthorized unless under the “dominion and control of...