final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; Steven J. Levin, Judge; L.T. Case No.
Haughwout, Public Defender, and Erika Follmer, Assistant
Public Defender, West Palm Beach, for appellant.
Moody, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.
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.
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.
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."
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.
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 warnings, Price
admitted that the backpack was his.
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.
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.
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 ...