JOHN R. KISHEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a warrantless search of a building near the defendant's residence, which was part of the curtilage, violated the Fourth Amendment, rendering the subsequent arrest and convictions unlawful.
[1] A building located approximately 30 feet from a residence, even if not occupied as a residence itself, may be considered part of the curtilage protected by the Fourth Ame…
[2] A warrantless search of a building within the curtilage requires a demonstration of an exemption from Fourth Amendment requirements.
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Join FLexlaw to unlock all legal intelligenceDefendant was convicted of marijuana possession and resisting an officer based on evidence from a warrantless search of a building owned by his father…
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MAGER, Judge.
Defendant appeals convictions of possession of marijuana and resisting an officer with violence to his person. The conviction came as a result of a warrantless search of a building owned by defendant’s father located some 30 feet from the building in which defendant and his father occupied as a residence.
We are of the opinion under the circumstances and facts of this case, that the building in question, although not occupied as a “residence” was part of the curtilage included within the protection of the Fourth Amendment. Ashby v. State, Fla.App.1969, 228 So. 2d 400. Furthermore, the evidence not having demonstrated any exemption from the requirements of the Fourth Amendment, a search warrant was necessary. Ashby v. State, supra. See also State v. Hetzko, Fla.App. 1973, 283 So. 2d 49. In addition, we hold that the defendant, as a member of the family of the owner of the building, was legally on the premises which was subject to the search and therefore had the standing to attack the validity of the search under the decision in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). See also State v. Leveson, Fla.1963, 151 So. 2d 283; Robinson v. State, Fla.App.1967, 194 So. 2d 29; Russell v. State, Fla.App.1972, 270 So. 2d 462; Godbee v. State, Fla.App.1969, 224 So. 2d 441; McCain v. State, Fla.App.1963, 151 So. 2d 841; Tribue v. State, Fla.App.1958, 106 So. 2d 630; Ashby v. State, supra; 78 A.L.R.2d 246, 267; cf. Moore v. Wainwright, Fla.App.1971, 248 So. 2d 262.
The evidence which was illegally seized should have been suppressed; defendant’s arrest haying been predicated upon an illegal search and seizure such arrest was .unlawful thereby rendering defective the charge of resisting an officer. State v. Rameriz, Fla.App.1973, 284 So. 2d 241; Kirby v. State, Fla.App.1969, 217 So. 2d 619. See also 5 Am.Jur.2d Arrest § 94.
The convictions appealed from are reversed and the cause remanded to the trial court for further proceedings.
CROSS and DOWNEY, JJ., concur.
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Cited By
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State v. Saunders, 339 So. 2d 641 (Fla. 1976)…v. State, 313 So. 2d 479 (Fla. 2d DCA 1975) merits not reached 326 So. 2d 441 (Fla.1976); English v. State, 293 So. 2d 105 (Fla. 1st DCA 1974); Smith v. State, 292 So. 2d 69 (Fla. 3rd DCA 1974) cert. den. 297 So. 2d 570 (Fla.1974); Kishel v. State, 287 So. 2d 414 (Fla. 4th DCA 1974). The rule was stated in Phillips v. State, 314 So. 2d 619, 620 (Fla. 4th DCA 1975), as follows: [I]f a person . . is to be convicted of resisting [a warrantless] arrest with violence, the state must prove that the officer was at…
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State v. Byrne, 311 So. 2d 764 (Fla. 4th DCA 1975)…aw by our prior decision. The only question before the Court on a motion to suppress evidence is the validity of its seizure. State v. Brown, 257 So. 2d 263 (3rd D.C.A.1973). [*766] Appellee’s reliance upon our decision in Kishel v. State, Fla.App., 287 So. 2d 414 (1974) is misplaced. In that case, Kishel’s arrest was predicated entirely upon an illegal search. In the case sub ju-dice the arrest was'grounded upon probable cause existing prior to and independently of the illegal seizure. The officer had probab…
Authorities Cited (13 total)
- Jones v. United States, 362 U.S. 257 (U.S. 1960)
- Felda Douglas Godbee v. State, 224 So. 2d 441 (Fla. 2d DCA 1969)
- Macon Tribue v. State, 106 So. 2d 630 (Fla. 2d DCA 1958)
- Kirby v. State, 217 So. 2d 619 (Fla. 4th DCA 1969)
- McCAIN v. State, 151 So. 2d 841 (Fla. 2d DCA 1963)
- State v. Harris Leveson, Jr., 151 So. 2d 283 (Fla. 1963)
- In the Interest of S. T. P., 194 So. 2d 29 (Fla. 3d DCA 1967)
- Ashby v. State, 228 So. 2d 400 (Fla. 2d DCA 1969)
- Moore v. Wainwright, 248 So. 2d 262 (Fla. 1st DCA 1971)
- Universal Underwriters Ins. Co. v. Napoli, 283 So. 2d 49 (Fla. 4th DCA 1973)