JUSTIN LEE PRICE v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JUSTIN LEE PRICE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D18-1293

[August 7, 2019]

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

1 Miranda v. Arizona, 384 U.S. 436 (1966).

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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 should receive

supervised release and the State argued for two years in prison.

The trial court adopted the State’s recommendation. Preliminary to

imposing a 24-month prison sentence, the trial court said:

THE COURT: Okay. Thank you. Mr. Price, you got yourself

in this bind and I look at it and I look—you’ve had a

misdemeanor since this happened apparently and it—I—

that’s probably marijuana too or every one’s marijuana. . . . It

just seems like now it’s marijuana. So I don’t have any idea

how this is going to stop. And if I give you five years or four

years or three years or two years or whatever, it—how’s it

going to stop? I don’t know any way it’s going to stop. I really

don’t. There’s no indication it’s going to and that’s what

bothers me the most. If it’s marijuana there’s one way to stop

it and that is—well, it—but the bottom line is that—for him to

relocate. But the bottom line is it is what it is today. . . .

Yeah, Mr. Price, I can tell you I’ve seen a lot of people in front

of me, you seem to come across well, you seem to be able to

handle the future, it’s just I—I wish I was a—I really do, I wish

I was a magic person and I could stop all this. I mean I really

do because you seem to be—but the state’s offer is totally—

statement is totally reasonable. I can’t really deny to do that

and I’m not just going to undercut it for the sake of

undercutting it. So that’s where we’re going to go and when

you get out take care of it, sir. Take care of it. What happens

with his misdemeanor charge?

[PROSECUTOR]: It’s—I don’t even—I don’t even know if it was

filed on yet, because it was just last week.

After sentencing, Price gave notice of appeal.

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Appellate Analysis

Denial of the Motion to Suppress

A trial court’s ruling on a motion to suppress is reviewed under a mixed

standard. Factual findings are reviewed for competent and substantial

evidence; application of the facts to the law is reviewed de novo. State v.

Young, 974 So. 2d 601, 608 (Fla. 1st DCA 2008).

Although the trial court grounded its denial of the motion to suppress

upon concluding that Price’s vehicle was parked within the curtilage of the

residence, we do not need to wade into the nettlesome issue of what was

within the curtilage of the residence searched.

In this instant case, the 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.” We construe the term “conveyances,” as used in the warrant to

refer to vehicles. Black’s Law Dictionary defines a vehicle as: “1. An

instrument of transportation or conveyance. 2. Any conveyance used in

transporting passengers or things by land, water, or air.” Vehicle, Black’s

Law Dictionary (11th ed. 2019) (emphasis added). More importantly, given

the use of commas in the sentence, we do construe the qualifying language

“located on said curtilage” to refer to persons and not conveyances. With

regard to physical structures, we view the warrant to authorize the search

of the “residence,” “curtilage,” “outbuildings,” and “conveyances” located

on a parcel of real property with a specific address.

The Second and Fifth Districts agree that vehicles within the curtilage

may be searched if the warrant expressly authorizes the search of vehicles.

See Howard v. State, 59 So. 3d 229, 231-32 (Fla. 2d DCA 2011) (affirming

search of a vehicle where the warrant included the search of “all vehicles

on the premises and curtilage”) (emphasis added); Lowe v. State, 751 So.

2d 177, 178-79 (Fla. 2d DCA 2000) (affirming a vehicle search where the

warrant authorized the search of the “premises together with the yard and

curtilage thereof, and . . . all . . . vehicles thereon”) (emphases added); State

v. Ferris, 623 So. 2d 752, 753-55 (Fla. 2d DCA 1993) (reversing where the

warrant authorized the search of “the residence, its curtilage, and persons

therein or vehicles thereon reasonably believed to be connected with the

described illegal activities”) (emphases added); Richardson v. State, 547 So.

2d 323, 324 (Fla. 5th DCA 1989) (affirming a vehicle search where the

warrant authorized the search of the premises “together with the yard and

curtilage thereof, and all vehicles thereon”) (emphases added); State v.

Musselwhite, 402 So. 2d 1235, 1236-37 (Fla. 2d DCA 1981) (reversing

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suppression of evidence found in a vehicle parked in a driveway where the

search warrant authorized the search of a “all vessels and vehicles found

within the curtilage”) (emphasis added).

Similar to the above cases which have upheld searches of vehicles

located within the curtilage of a residence based on the language of

warrants describing the scope of locations on real property to be searched,

in this case, the search warrant authorized the search of any vehicle

located on the property. Under the Fourth Amendment, we deem the

search of Price’s vehicle to be a reasonable one because it was specifically

authorized by a judicial officer. “Generally, the scope of a lawful search of

fixed premises pursuant to a warrant extends to the entire area in which

the object of the search may be found.” Jackson v. State, 18 So. 3d 1016,

1028 (Fla. 2009). “As a principle of clearly established constitutional law,

a search warrant must particularly describe the items law enforcement

officers are authorized to seize as well as the geographical location they are

authorized to search.” Merriel v. State, 7 So. 3d 587, 589 (Fla. 1st DCA

2009) (emphasis added).

The Second and Fifth Districts do not require “a nexus between any

vehicle found on the property and the alleged illegal activity when the

search warrant authorizes the police to search any vehicle within the

curtilage of the premises.” Lowe, 751 So. 2d at 179 (quoting State v.

Freeman, 673 So. 2d 139, 141 (Fla. 5th DCA 1996) (listing cases stating

that no nexus is required)).

We acknowledge that in Dunn v. State, 292 So. 2d 435, 435-36 (Fla. 4th

DCA 1974), we reversed the denial of a motion to suppress where a vehicle

parked in a driveway was searched during the execution of a search

warrant for a residence and curtilage. In Dunn, we said: “In the case at

hand, there was no such evidence to connect the vehicle in question with

the premises and we believe some such evidence necessary in order to

authorize the search of a vehicle parked even within ‘the curtilage.’” Id. at

436. However, we distinguish the instant case from Dunn on the basis

that unlike this case, the search warrant in Dunn authorized the search of

“certain premises And [sic] the curtilage,” but said nothing about vehicles

or other structures. Id. Similar to Dunn, the First District in Miller v. State,

516 So. 2d 1118 (Fla. 1st DCA 1987), reversed the denial of a motion to

suppress the search of a vehicle after determining there was “no

evidentiary connection between the residence authorized to be searched

and appellants’ vehicle.” Id. at 1119. We again distinguish this case from

Miller because in Miller, the warrant authorized “the search of the

‘premises and curtilage thereof’ for marijuana” and the warrant said

nothing about vehicles or other structures. Id.

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Because we are satisfied that the search warrant in this case

specifically authorized the search of any vehicles located on the property,

we affirm the denial of the motion to suppress, without addressing the

correctness of the trial court’s premise that the vehicle was within the

curtilage of the home. Ramkelawan v. State, 152 So. 3d 680, 681 (Fla. 4th

DCA 2014) (quoting Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002)

(“[T]he ‘tipsy coachman’ doctrine[] allows an appellate court to affirm a trial

court that ‘reaches the right result, but for the wrong reasons’ so long as

‘there is any basis which would support the judgment in the record.’”)).

Consideration of an Improper Sentencing Factor

Although an appellate court generally may not review a sentence that

is within statutory limits under the Criminal Punishment Code, when the

trial court relies upon a constitutionally impermissible factor in imposing

a sentence, an exception exits. See, e.g., Dowling v. State, 829 So. 2d 368,

370-71 (Fla. 4th DCA 2002); Evans v. State, 816 So. 2d 742, 743-44 (Fla.

4th DCA 2002). Reliance upon an improper sentencing factor is

fundamental error. Gage v. State, 147 So. 3d 1020, 1022 (Fla. 2d DCA

2014). With a claim that the trial court relied upon an improper

sentencing factor, our review is de novo, regardless of whether it was raised

below. Josephs v. State, 86 So. 3d 1270, 1272 (Fla. 4th DCA 2012).

Our supreme court has clearly stated that “a trial court may not

consider a subsequent arrest without conviction during sentencing for the

primary offense.” Norvil v. State, 191 So. 3d 406, 407 (Fla. 2016). This is

a “bright line rule for sentencing purposes,” designed to protect due

process. Id. at 410.

Even though it was Price’s attorney who first mentioned, generically,

“there was [sic] new misdemeanor charges . . . last week,” it is clear from

the transcript that the trial court knew the arrest was for marijuana. It is

also clear that the trial court mentioned the new marijuana arrest two

separate times in discussing its reasoning for the sentence imposed, all in

the context of marijuana use and “how is this going to stop.” Perhaps most

concerning is the trial court’s statement:

I don’t know any way it’s going to stop. I really don’t. There’s

no indication it’s going to and that’s what bothers me the most.

If it’s marijuana there’s one way to stop it and that is—well,

it—but the bottom line is that—for him to relocate. But the

bottom line is it is what it is today.

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(emphases added). Our review of the transcript leads us to conclude that

Price’s new arrest for marijuana a week before sentencing in this case was

an improper factor considered by the trial judge at sentencing.

Conclusion

We affirm Price’s conviction, but reverse the sentence imposed and

remand for resentencing before a judge other than the original sentencing

judge.

Affirmed in part, reversed in part, and remanded for further proceedings.

WARNER and GERBER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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