WADE M. MERRICK AND ROBERT FREDRICK MUNDAY, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1976-10-08
Nos. 75-1560, 75-1645
DOWNEY, J., and MORROW, RUSSELL O., Associate Judge, concur.
338 So. 2d 77 Florida District Court of Appeal, Fourth District (1976) Positive Treatment
Cited by 5 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Appellants were convicted of marijuana possession based on evidence seized from a rear cottage in Fort Lauderdale. The court reversed because the search warrant inadequately described the premises and the warrant executed only identified the main house, not the separate cottage where the marijuana was found.


Holding

The search warrant was invalid because it failed to adequately describe the separate cottage where the marijuana was discovered, and the cottage cannot be deemed part of the curtilage of the main house. The search cannot be justified as incident to arrest because it involved a building entirely separated from where the arrested persons were detained. The speculative claim that contraband might have been removed does not justify the search as an emergency search.


Headnotes

[1] A search warrant must particularly describe the place to be searched; a warrant describing only a main house does not authorize a search of a separate outbuilding.

[2] A search of a separate building is not incident to an arrest occurring in a different structure, even if the arrest is otherwise valid.

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Key Quotes

“It is apparent that the warrant did not adequately or sufficiently describe the premises which were searched and in which the cannabis was actually found. The entirely separate cottage in which these events occurred was not specified in the warrant and cannot properly be regarded as within the "curtilage" of the larger house which was described.”

The court's finding that the search warrant was facially invalid because it failed to describe the actual location of the search.

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Facts & Procedural History

Police obtained a search warrant based on probable cause to believe contraband was in a cottage located behind a two-story red and white house at 929 …

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Opinion of the Court
SCHWARTZ, ALAN R., Associate Judge.

SCHWARTZ, ALAN R., Associate Judge.

The defendants appeal from judgments of guilt and sentences for possession of cannabis. We reverse because the trial judge erroneously denied their motion to suppress the forty pounds of marijuana introduced against them.

Based upon what were concededly ample grounds to believe that contraband was contained in a separate cottage located some distance to the rear of a two-story, red and white house in Fort Lauderdale, police secured a search warrant which described the property in question only as a:

“. . . two story wood frame house, color red with white trim, located at 929 Northeast 16th Terrace, and the curtilage thereof . . . .”

The marijuana was in fact discovered, upon an execution of the warrant, in the residence located at the back of the described house.

It is apparent that the warrant did not adequately or sufficiently describe the premises which were searched and in which the cannabis was actually found. The entirely separate cottage in which these events occurred was not specified in the warrant and cannot properly be regarded as within the “curtilage” of the larger house which was described. State v. Gordillo, 245 So. 2d 898 (3 DCA Fla.1971); Fance v. State, 207 So. 2d 331 (3 DCA Fla.1968); Dunnavant v. State, 46 So. 2d 871 (Fla.1950); Fla. Stat., Secs. 933.02, 933.18; cf. Joyner v. State, 303 So. 2d 60 (1 DCA Fla.1974).

On appeal, however, the state attempts to justify the search on grounds unrelated to the thus ineffective warrant. It claims that it was either undertaken incident to a valid arrest (the police, as they put it, “froze” the occupants of the larger house and did not permit them to leave that structure for an hour or more while waiting for the search warrant to arrive), or that it was a permissible “emergency search.” Neither contention may be accepted.

As to the former, we need not decide whether we agree with the Attorney General that reasonable cause existed for a war-rantless arrest of the defendants or with the police officers who were themselves unwilling to characterize their otherwise utterly unjustified “freeze” as an arrest at all because they felt they had no lawful basis for making one. This is so because, even if a valid arrest took place, the search of a building entirely separated from the one in which the persons arrested were being detained was plainly not properly incidental to it. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

And a mere speculative claim, particularly one made only at the appellate level, that the contraband “might” have been removed if it had not been seized without a valid warrant, is just as plainly an insufficient basis upon which to justify the search as arising out of an “emergency” or from “exigent circumstances.” Hannigan v. State, 307 So. 2d 850, 852 (1 DCA Fla.1975); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Since that is the only ground suggested for the state’s theory in this regard, this contention must be rejected as well.

REVERSED AND REMANDED, with directions to grant the motion to suppress.

DOWNEY, J., and MORROW, RUSSELL O., Associate Judge, concur.


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Citator

Cited By

  • Valentino DeGEORGE v. State, 358 So. 2d 217 (Fla. 4th DCA 1978)
    …rthermore, the court found that the curtilage need not be separated from other lands by a fence, nor does the intersection of a divisional fence necessarily affect the relation of a building thus separated by it. More recently, in Merrick v. State, 338 So. 2d 77 (Fla. 4th DCA 1976), the Fourth District Court of Appeal, in construing the validity of a search warrant, applied the common law definition of curtilage in declaring a separate cottage not to be within the curtilage of the larger house described in…
  • Rodgers v. State, 264 So. 3d 1119 (Fla. 2d DCA 2019)

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