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Price v. State

Florida Court of Appeals, Fourth District

August 7, 2019

JUSTIN LEE PRICE, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Steven J. Levin, Judge; L.T. Case No. 56-2016-CF-003007-A.

          Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender, West Palm Beach, for appellant.

          Ashley Moody, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

          CONNER, J.

         Justin Lee Price appeals his conviction and sentence for felony possession of cannabis, contending the trial court erred in denying his motion to suppress, misapprehending its discretion in sentencing, and relying upon an improper sentencing factor. We affirm without discussion the issue asserting the trial court misapprehended its discretion in sentencing. We affirm the denial of Price's motion to suppress, but reverse the sentence imposed because the record supports the conclusion that the trial court improperly relied upon Price's new arrest for marijuana occurring a week before sentencing. We remand the case for sentencing before a different judge.

         Background

         Price was charged with one count of possession of more than twenty grams of cannabis after police searched the car that he was driving and found a backpack with cannabis in it.

         The search was incident to the execution of a search warrant on the property where the car was parked. The warrant authorized the search because the residence was the suspected headquarters for several drug dealers. Price was not listed on the search warrant as one of the owners of the property or as a target of the search. An italicized caption under a picture of the property identified it as "the desired residential location to be searched, along with any persons, vehicles and/or outbuildings found on the curtilage thereof." The search warrant authorized officers to "enter and search the said residence, curtilage, outbuildings, and conveyances, and persons located on said curtilage for items and contraband as listed above."

         The property has a thirty-foot driveway that extends from the street to the front door of the residence. Anyone exiting the residence through the front door steps immediately onto the driveway. There is no porch on the front of the residence, and the driveway is not covered or enclosed in any way. The front yard is not fenced. At the time Price's vehicle was searched, there were four vehicles parked in the driveway. Price's car was parked at the end of the driveway closest to the street, with another vehicle parked in front of his vehicle. No part of Price's car was on the street.

         The police searched Price's car while executing the warrant. They found an ounce of cannabis in a backpack laying on the back seat. After receiving Miranda[1] warnings, Price admitted that the backpack was his.

         Price's attorney filed a motion to suppress the drug evidence and Price's confession arguing his vehicle was illegally searched because the search warrant only encompassed the subject residence and curtilage, and the driveway was not curtilage. At a hearing on the motion to suppress, Price testified that the night of the search was the first time he had been to the residence. He only knew one occupant of the residence and he was there to pick him up. He explained the backpack in his car was closed and could not readily be seen. Neither he nor his girlfriend gave police permission to search the car or the backpack. Price stated that the backpack was not his and that he confessed that the marijuana was his because the police threatened to charge him with sale and delivery if he did not.

         After hearing argument from the State and the defense, the trial court found that the driveway was clearly curtilage "under any analysis" because it was connected to the house. It found that the search warrant extended to the car because Price was an invited visitor to the property and the car was within the curtilage. Consequently, the trial court denied Price's motion to suppress.

         After the motion to suppress was denied, Price entered an open plea of no contest, reserving his right to appeal the denial of his motion. At sentencing, Price and his girlfriend testified that he would do well under supervised release. Price's attorney argued that he ...


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