MICHAEL WARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant violated the open container ordinance by possessing an open beer container on a walkway outside a lounge, even if it was considered curtilage.
[1] A walkway outside a lounge, even if considered curtilage, is not excepted from an ordinance prohibiting open containers of alcoholic beverages on the premises outside any…
[2] An arrest for possessing an open container of alcohol is lawful if the person is observed with such a container outside an establishment open to the public.
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Join FLexlaw to unlock all legal intelligencePolice observed Michael Ward with an open container of beer outside a lounge. He was arrested for violating a city ordinance, and cocaine was found du…
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HARRIS, Judge.
Michael Ward timely appeals a judgment and sentence for possession of cocaine. He argues that the trial judge erred in denying his motion to suppress certain evidence pri-or to trial. Because of our recent en banc holding in Thomas v. State, 583 So. 2d 336 (Fla. 5th DCA 1991) we affirm. On January 26, 1989, officers were on the premises of the Econo Motor Lodge in Melbourne for the purpose of serving a warrant on the Sports and Spirits Lounge for gambling. Ward was present in the bar at the time. Upon the police entering the lounge, Ward immediately left the bar carrying an open container of beer. Officer Woerner signaled another officer, Shultz, to stop Ward. Shultz testified that he observed Ward with an open container of beer which he put down when the officer approached. Schultz then arrested him for having an open container, patted him down for weapons and took him back into the bar. Officer Driggers subsequently searched him and discovered cocaine in his pocket.
Ward filed a motion to suppress the cocaine found on his person on the grounds that he had not violated the open container ordinance.1 After hearing testimony, the trial judge denied his motion by order dated June 21, 1989. Appellant subsequently entered a plea of nolo contendere to the charge of possession and was sentenced to 4 years probation. He brings this appeal.
The Melbourne City Ordinance prohibits “any person to ... possess an open container of alcoholic beverage on the premises outside ... of any building containing an establishment open to the general public.” Ward contends that since he was on the walkway outside the lounge at the time of his arrest, and since such walkway was a part of the “curtilage” of the motel, he did not violate the ordinance. We disagree. The ordinance specifically prohibits the possession of an open container outside “any building containing an establishment open to the public.” The ordinance does not except the curtilage area.
AFFIRMED.
DAUKSCH and COBB, JJ., concur. . Ward also urges that the stop was pretextual. The record fails to support this claim.
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Citator
Cited By
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Smith v. State, 75 So. 3d 800 (Fla. 5th DCA 2011)…f Smith was also invalid. See Lennear, 784 So. 2d at 1182 (explaining that if defendant was improperly detained for violation of open container ordinance the evidence [*803] seized pursuant to detention should be suppressed); see also Ward v. State, 584 So. 2d 186, 187 (Fla. 5th DCA 1991) (affirming denial of motion to suppress cocaine found during search incident to arrest for open container ordinance violation because arrest was valid); Thomas v. State, 583 So. 2d 386, 339 (Fla. 5th DCA 1991) (finding arres…
Authorities Cited
- Taylor v. State, 583 So. 2d 336 (Fla. 3d DCA 1991)
- Thomas v. State, 583 So. 2d 336 (Fla. 5th DCA 1991)