KEITH HARTPENCE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hartpence appeals from probation imposed after the trial court denied his motion to suppress evidence seized from his vehicle during a search warrant execution. The appellate court reversed, holding that the plastic bag containing marijuana was not in plain view because it was not immediately apparent to the officers that it contained contraband.
The seizure was invalid because the plain view doctrine was not satisfied. It was not immediately apparent to the officer who initially viewed the bag that it contained contraband, as evidenced by his inquiry 'What's that?' and the absence of information regarding the officers' training and experience regarding marijuana identification.
[1] A search warrant for a residence does not extend to a vehicle parked on the street outside the curtilage of the residence.
[2] For an object to be in "open view" and subject to seizure without a warrant, it must be immediately apparent to the officer that the object is evidence of a crime or cont…
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Join FLexlaw to unlock all legal intelligence“If it is immediately apparent to the officer who views the object that it is evidence of a crime or contraband, the officer has probable cause to seize the object.”
Establishes the legal standard for plain view seizures
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Join FLexlaw to unlock all legal intelligencePolice executed a search warrant at a residence in Ocoee, Florida where Hartpence was present. While searching the premises, officers noticed Hartpenc…
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DAUKSCH, Judge.
This is an appeal from an order of probation after the denial of a motion to suppress evidence seized from appellant’s vehicle.
Police executed a search warrant at a residence in Ocoee, Florida. Appellant was inside the residence at the time the warrant was executed. While searching the premises, the police learned that appellant’s vehicle was parked by the curb outside.
Officer Cockcroft looked inside the vehicle from the passenger side, saw a plastic bag containing a green leafy substance and said “What’s that?” Officer Wilson had already opened the driver’s door when Officer Cockcroft announced his discovery. Officer Wilson entered the vehicle and seized the bag. Officer Wilson did not see the bag until after he entered the vehicle.
The vehicle was not within the curtilage of the premises since it was parked along the curb on the street and therefore could not be searched pursuant to the search warrant. The officers readily admitted that they did not have probable cause to search the vehicle because no crime had been committed in their presence. The only valid reason remaining to search the vehicle would be if the bag was in “open view.” Ensor v. State, 403 So. 2d 349 (Fla.1981); Kelly v. State, 407 So. 2d 1011 (Fla. 5th DCA 1981).
If it is immediately apparent to the officer who views the object that it is evidence of a crime or contraband, the officer has probable cause to seize the object. Baggett v. State, 494 So. 2d 221, 222 (Fla. 1st DCA 1986). This requirement is established by evaluating the background, training and experience of the officer who identified the contraband as such. The record in this case is void of any information of experience of either officer. In addition, the only officer to view the object before the vehicle was searched saw the bag and inquired as to what it was. It is clear that the facts within the officer’s knowledge at the time of the seizure did not meet the standard of probable cause. Kelly v. State, 407 So. 2d at 1014. Since it was not immediately apparent that the bag contained marijuana, the search was not valid and the evidence was improperly seized.
Because the court erred in refusing to grant the suppression of evidence, the order withholding adjudication and placing defendant on probation is reversed.
REVERSED.
ORFINGER, J., concurs.
SHARP, J., dissents without opinion.
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Citator
Cited By
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Bryon Keith Wheeler v. State, 62 So. 3d 1218 (Fla. 5th DCA 2011)…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 “cur-tilage.” See Hartpenee 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…
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Henderson v. State, 685 So. 2d 970 (Fla. 2d DCA 1996)…ot listed in the search warrant. Although the warrant authorized the search of the curtilage of the residence, the vehicles were not within the curtilage as they were parked along the curb of the street in front of the residence. Hartpence v. State, 509 So. 2d 975 (Fla. 5th DCA 1987). The one case relied upon by the state is distinguishable because the officers in that case observed two separate hand-to-hand exchanges of currency for an unidentified object in a location known for crack cocaine sales. Revels…
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State v. Reaves, 627 So. 2d 54 (Fla. 4th DCA 1993)…PER CURIAM. The state appeals from an order granting a motion to suppress physical evidence. The trial court, in reliance on Hartpence v. State, 509 So. 2d 975 (Fla. 5th DCA 1987), ruled by necessary implication that an automobile parked in such a way that it was partially on a county road right-of-way and partially on an easement (which was within the curtilage) was not within the curtilage of the premise…
Authorities Cited
- Elton E. Ensor v. State, 403 So. 2d 349 (Fla. 1981)
- O'Neal v. Fran A. O'Neal, 407 So. 2d 1011 (Fla. 5th DCA 1981)
- Kelly v. State, 407 So. 2d 1011 (Fla. 5th DCA 1981)
- Baggett v. State, 494 So. 2d 221 (Fla. 1st DCA 1986)