PAMELA MILLER AND B.J. MILLER, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a search warrant for a residence and its curtilage does not authorize the search of a visitor's vehicle parked on the premises, absent an evidentiary connection between the vehicle and the residence.
[1] A search warrant authorizing the search of "the premises and curtilage thereof" does not extend to a visitor's automobile parked on the premises without an evidentiary co…
[2] The mere presence of a visitor on premises authorized to be searched is insufficient evidence connecting the visitor with criminal conduct to justify a search of their pe…
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Join FLexlaw to unlock all legal intelligenceAppellants were visitors at a residence being searched pursuant to a warrant. After arresting the residents and appellants, deputies searched the curt…
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SMITH, Chief Judge.
Appellants, Pamela Miller and B.J. Miller, entered pleas of nolo contendere to charges of possession of more than 20 grams of marijuana, expressly reserving their right to appeal the trial court’s order denying their motion to suppress evidence discovered during a search of their automobile. We reverse.
On February 9, 1986, at about 1:00 a.m., deputies from the Madison County Sheriff’s Office executed a search warrant at the residence of Shawn Shea. The warrant authorized the search of the “premises and curtilage thereof” for marijuana. The basis for the search warrant was a confidential informant’s drug buy from Shea at his residence. When the deputies arrived, appellants were sitting on the couch in the living room of Shea’s house. Following the discovery of contraband in various places in the house, none of which was in plain view of appellants, the deputies arrested the Sheas and appellants.
After the arrestees had been transported to the county jail, the deputies searched the curtilage. Shea operated an automobile repair shop in his garage, and there were 10-15 junk cars located in the front and back of the house and near the road. The Sheas’ pickup truck and a van owned by appellants were parked adjacent to the garage. The deputies searched most of the unlocked junk cars located in the front of the house and near the shop area; then they searched the truck and finally the van. Marijuana was found inside a purse which was lying on the front seat of the van. Deputy Melgaard, who searched the van, testified that he was “pretty sure” that he found out that the van was owned by appellants before he entered it, but that he thought the search warrant authorized its search due to its location within the curtilage.
In denying the motion to suppress, the trial court found that Deputy Melgaard was not certain that the van belonged to appellants before he searched it. In addition, the trial court concluded that the search warrant authorized the search of the van because it was located within the curtilage of Shea’s dwelling, relying upon the authority of State v. Haugee, 402 So. 2d 1216 (Fla. 5th DCA 1981), rev.den., 415 So. 2d 1360 (Fla.1982) (search warrant authorizing search of vehicles within the curtilage included truck owned by nonoccu-pant of the premises who was in the house when the search warrant was executed).
After a careful review of the record herein, we find no evidentiary connection between the residence authorized to be searched and appellants’ vehicle. This case is therefore controlled by our decision in Simmons v. State, 491 So. 2d 1307 (Fla. 1st DCA 1986), which had not been released when the trial court entered its order in the present case. We are aware that our decision conflicts with that of the Fifth District in State v. Haugee, supra.
In support of our holding here, we note that the mere presence of a visitor on premises authorized to be searched is insufficient evidence connecting him with criminal conduct to justify a search of his person. Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). It would be an anomaly to prohibit the search of a visitor while simultaneously permitting a search of the automobile in which he arrived on the premises. Although some courts have held otherwise,1 we believe the better view to be that during mere visitation, without more, a visitor does not relinquish control of his automobile to the person being visited so as to subject the automobile to search under a warrant generally describing “the premises and curtilage thereof.”2 The search warrant in the present case did not cover appellants, who were visitors, nor their automobile which by mere fortuity of circumstances was parked on the premises.
We hold that the trial court erred in denying appellants’ motion to suppress evidence which was discovered in their van, and certify conflict with State v. Haugee, supra, pursuant to Rule 9.030(a)(2)(A)(vi), Florida Rules of Appellate Procedure.
REVERSED.
WENTWORTH, J., concurs.
JOANOS, J., specially concurs in result.
. Two decisions upholding a search of the visitor’s automobile while suppressing evidence found on his person, United States v. Cole, 628 F. 2d 897 (5th Cir.1980) and Beeler v. State, 677 P. 2d 653 (Okl.Cr.App.1984), have been criticized in LaFave, 2 Search and Seizure (Second Edition), s. 4.10(c), n. 53, p. 323, 1987.
. U.S. v. Reivich, 793 F. 2d 957 (8th Cir.1986); U.S. v. Percival, 756 F. 2d 600 (7th Cir.1985).
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Citator
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State v. Quillis Lee Freeman, Jr., 673 So. 2d 139 (Fla. 5th DCA 1996)…age of the premises. State v. Booream, 560 So. 2d 1303 (Fla. 2d DCA 1990); Richardson v. State, 547 So. 2d 323 (Fla. 5th DCA 1989); State v. Haugee, 402 So. 2d 1216 (Fla. 5th DCA 1981), rev. den., 415 So. 2d 1360 (Fla.1982); but see Miller v. State, 516 So. 2d 1118 (Fla. 1st DCA 1987). Given that the authority to search the vehicle was explicitly within the search warrant a final, and conclusive, authority for doing so exists. REVERSED AND REMANDED. PETERSON, C.J., and ANTOON, J., concur. . §§ 893.13(6)(a)…
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State v. Booream, 560 So. 2d 1303 (Fla. 2d DCA 1990)…rch warrant that expressly permitted the search of vehicles within the curtilage. Reversed and remanded for proceedings consistent with this opinion. SCHEB, A.C.J., and HALL, J., concur. * We recognize that the first district in Miller v. State, 516 So. 2d 1118 (Fla. 1st DCA 1987), has reached a result contrary to Haugee and has certified conflict with the Haugee decision to the supreme court.…
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Bryon Keith Wheeler v. State, 62 So. 3d 1218 (Fla. 5th DCA 2011)…le 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 res…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ybarra v. Illinois, 444 U.S. 85 (U.S. 1979)
- United States v. Percival, 756 F.2d 600 (7th Cir. 1985)
- United States v. Reivich, 793 F.2d 957 (8th Cir. 1986)
- United States v. Cole, 628 F.2d 897 (5th Cir. 1980)
- State v. Haugee, 402 So. 2d 1216 (Fla. 5th DCA 1981)
- Simmons v. State, 491 So. 2d 1307 (Fla. 1st DCA 1986)