       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          JUSTIN LEE PRICE,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D18-1293

                             [August 7, 2019]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Steven J. Levin, Judge; L.T. Case No. 56-2016-CF-003007-
A.

  Carey Haughwout, Public Defender, and Erika Follmer, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

    Justin Lee Price appeals his conviction and sentence for felony
possession of cannabis, contending the trial court erred in denying his
motion to suppress, misapprehending its discretion in sentencing, and
relying upon an improper sentencing factor. We affirm without discussion
the issue asserting the trial court misapprehended its discretion in
sentencing. We affirm the denial of Price’s motion to suppress, but reverse
the sentence imposed because the record supports the conclusion that the
trial court improperly relied upon Price’s new arrest for marijuana
occurring a week before sentencing. We remand the case for sentencing
before a different judge.

                               Background

   Price was charged with one count of possession of more than twenty
grams of cannabis after police searched the car that he was driving and
found a backpack with cannabis in it.
    The search was incident to the execution of a search warrant on the
property where the car was parked. The warrant authorized the search
because the residence was the suspected headquarters for several drug
dealers. Price was not listed on the search warrant as one of the owners
of the property or as a target of the search. An italicized caption under a
picture of the property identified it as “the desired residential location to
be searched, along with any persons, vehicles and/or outbuildings found
on the curtilage thereof.” The search warrant authorized officers to “enter
and search the said residence, curtilage, outbuildings, and conveyances,
and persons located on said curtilage for items and contraband as listed
above.”

    The property has a thirty-foot driveway that extends from the street to
the front door of the residence. Anyone exiting the residence through the
front door steps immediately onto the driveway. There is no porch on the
front of the residence, and the driveway is not covered or enclosed in any
way. The front yard is not fenced. At the time Price’s vehicle was searched,
there were four vehicles parked in the driveway. Price’s car was parked at
the end of the driveway closest to the street, with another vehicle parked
in front of his vehicle. No part of Price’s car was on the street.

   The police searched Price’s car while executing the warrant. They found
an ounce of cannabis in a backpack laying on the back seat. After
receiving Miranda 1 warnings, Price admitted that the backpack was his.

    Price’s attorney filed a motion to suppress the drug evidence and Price’s
confession arguing his vehicle was illegally searched because the search
warrant only encompassed the subject residence and curtilage, and the
driveway was not curtilage. At a hearing on the motion to suppress, Price
testified that the night of the search was the first time he had been to the
residence. He only knew one occupant of the residence and he was there
to pick him up. He explained the backpack in his car was closed and could
not readily be seen. Neither he nor his girlfriend gave police permission to
search the car or the backpack. Price stated that the backpack was not
his and that he confessed that the marijuana was his because the police
threatened to charge him with sale and delivery if he did not.

    After hearing argument from the State and the defense, the trial court
found that the driveway was clearly curtilage “under any analysis” because
it was connected to the house. It found that the search warrant extended
to the car because Price was an invited visitor to the property and the car


1   Miranda v. Arizona, 384 U.S. 436 (1966).

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was within the curtilage.    Consequently, the trial court denied Price’s
motion to suppress.

   After the motion to suppress was denied, Price entered an open plea of
no contest, reserving his right to appeal the denial of his motion. At
sentencing, Price and his girlfriend testified that he would do well under
supervised release. Price’s attorney argued that he should receive
supervised release and the State argued for two years in prison.

  The trial court adopted the State’s recommendation. Preliminary to
imposing a 24-month prison sentence, the trial court said:


      THE COURT: Okay. Thank you. Mr. Price, you got yourself
      in this bind and I look at it and I look—you’ve had a
      misdemeanor since this happened apparently and it—I—
      that’s probably marijuana too or every one’s marijuana. . . . It
      just seems like now it’s marijuana. So I don’t have any idea
      how this is going to stop. And if I give you five years or four
      years or three years or two years or whatever, it—how’s it
      going to stop? I don’t know any way it’s going to stop. I really
      don’t. There’s no indication it’s going to and that’s what
      bothers me the most. If it’s marijuana there’s one way to stop
      it and that is—well, it—but the bottom line is that—for him to
      relocate. But the bottom line is it is what it is today. . . .

      Yeah, Mr. Price, I can tell you I’ve seen a lot of people in front
      of me, you seem to come across well, you seem to be able to
      handle the future, it’s just I—I wish I was a—I really do, I wish
      I was a magic person and I could stop all this. I mean I really
      do because you seem to be—but the state’s offer is totally—
      statement is totally reasonable. I can’t really deny to do that
      and I’m not just going to undercut it for the sake of
      undercutting it. So that’s where we’re going to go and when
      you get out take care of it, sir. Take care of it. What happens
      with his misdemeanor charge?

      [PROSECUTOR]: It’s—I don’t even—I don’t even know if it was
      filed on yet, because it was just last week.

   After sentencing, Price gave notice of appeal.




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                              Appellate Analysis

Denial of the Motion to Suppress

   A trial court’s ruling on a motion to suppress is reviewed under a mixed
standard. Factual findings are reviewed for competent and substantial
evidence; application of the facts to the law is reviewed de novo. State v.
Young, 974 So. 2d 601, 608 (Fla. 1st DCA 2008).

   Although the trial court grounded its denial of the motion to suppress
upon concluding that Price’s vehicle was parked within the curtilage of the
residence, we do not need to wade into the nettlesome issue of what was
within the curtilage of the residence searched.

    In this instant case, the warrant authorized officers to “enter and
search the said residence, curtilage, outbuildings, and conveyances, and
persons located on said curtilage for items and contraband as listed
above.” We construe the term “conveyances,” as used in the warrant to
refer to vehicles. Black’s Law Dictionary defines a vehicle as: “1. An
instrument of transportation or conveyance. 2. Any conveyance used in
transporting passengers or things by land, water, or air.” Vehicle, Black’s
Law Dictionary (11th ed. 2019) (emphasis added). More importantly, given
the use of commas in the sentence, we do construe the qualifying language
“located on said curtilage” to refer to persons and not conveyances. With
regard to physical structures, we view the warrant to authorize the search
of the “residence,” “curtilage,” “outbuildings,” and “conveyances” located
on a parcel of real property with a specific address.

    The Second and Fifth Districts agree that vehicles within the curtilage
may be searched if the warrant expressly authorizes the search of vehicles.
See Howard v. State, 59 So. 3d 229, 231-32 (Fla. 2d DCA 2011) (affirming
search of a vehicle where the warrant included the search of “all vehicles
on the premises and curtilage”) (emphasis added); Lowe v. State, 751 So.
2d 177, 178-79 (Fla. 2d DCA 2000) (affirming a vehicle search where the
warrant authorized the search of the “premises together with the yard and
curtilage thereof, and . . . all . . . vehicles thereon”) (emphases added); State
v. Ferris, 623 So. 2d 752, 753-55 (Fla. 2d DCA 1993) (reversing where the
warrant authorized the search of “the residence, its curtilage, and persons
therein or vehicles thereon reasonably believed to be connected with the
described illegal activities”) (emphases added); Richardson v. State, 547 So.
2d 323, 324 (Fla. 5th DCA 1989) (affirming a vehicle search where the
warrant authorized the search of the premises “together with the yard and
curtilage thereof, and all vehicles thereon”) (emphases added); State v.
Musselwhite, 402 So. 2d 1235, 1236-37 (Fla. 2d DCA 1981) (reversing


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suppression of evidence found in a vehicle parked in a driveway where the
search warrant authorized the search of a “all vessels and vehicles found
within the curtilage”) (emphasis added).

    Similar to the above cases which have upheld searches of vehicles
located within the curtilage of a residence based on the language of
warrants describing the scope of locations on real property to be searched,
in this case, the search warrant authorized the search of any vehicle
located on the property. Under the Fourth Amendment, we deem the
search of Price’s vehicle to be a reasonable one because it was specifically
authorized by a judicial officer. “Generally, the scope of a lawful search of
fixed premises pursuant to a warrant extends to the entire area in which
the object of the search may be found.” Jackson v. State, 18 So. 3d 1016,
1028 (Fla. 2009). “As a principle of clearly established constitutional law,
a search warrant must particularly describe the items law enforcement
officers are authorized to seize as well as the geographical location they are
authorized to search.” Merriel v. State, 7 So. 3d 587, 589 (Fla. 1st DCA
2009) (emphasis added).

   The Second and Fifth Districts do not require “a nexus between any
vehicle found on the property and the alleged illegal activity when the
search warrant authorizes the police to search any vehicle within the
curtilage of the premises.” Lowe, 751 So. 2d at 179 (quoting State v.
Freeman, 673 So. 2d 139, 141 (Fla. 5th DCA 1996) (listing cases stating
that no nexus is required)).

   We acknowledge that in Dunn v. State, 292 So. 2d 435, 435-36 (Fla. 4th
DCA 1974), we reversed the denial of a motion to suppress where a vehicle
parked in a driveway was searched during the execution of a search
warrant for a residence and curtilage. In Dunn, we said: “In the case at
hand, there was no such evidence to connect the vehicle in question with
the premises and we believe some such evidence necessary in order to
authorize the search of a vehicle parked even within ‘the curtilage.’” Id. at
436. However, we distinguish the instant case from Dunn on the basis
that unlike this case, the search warrant in Dunn authorized the search of
“certain premises And [sic] the curtilage,” but said nothing about vehicles
or other structures. Id. Similar to Dunn, the First District in Miller v. State,
516 So. 2d 1118 (Fla. 1st DCA 1987), reversed the denial of a motion to
suppress the search of a vehicle after determining there was “no
evidentiary connection between the residence authorized to be searched
and appellants’ vehicle.” Id. at 1119. We again distinguish this case from
Miller because in Miller, the warrant authorized “the search of the
‘premises and curtilage thereof’ for marijuana” and the warrant said
nothing about vehicles or other structures. Id.

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    Because we are satisfied that the search warrant in this case
specifically authorized the search of any vehicles located on the property,
we affirm the denial of the motion to suppress, without addressing the
correctness of the trial court’s premise that the vehicle was within the
curtilage of the home. Ramkelawan v. State, 152 So. 3d 680, 681 (Fla. 4th
DCA 2014) (quoting Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002)
(“[T]he ‘tipsy coachman’ doctrine[] allows an appellate court to affirm a trial
court that ‘reaches the right result, but for the wrong reasons’ so long as
‘there is any basis which would support the judgment in the record.’”)).

Consideration of an Improper Sentencing Factor

    Although an appellate court generally may not review a sentence that
is within statutory limits under the Criminal Punishment Code, when the
trial court relies upon a constitutionally impermissible factor in imposing
a sentence, an exception exits. See, e.g., Dowling v. State, 829 So. 2d 368,
370-71 (Fla. 4th DCA 2002); Evans v. State, 816 So. 2d 742, 743-44 (Fla.
4th DCA 2002).        Reliance upon an improper sentencing factor is
fundamental error. Gage v. State, 147 So. 3d 1020, 1022 (Fla. 2d DCA
2014). With a claim that the trial court relied upon an improper
sentencing factor, our review is de novo, regardless of whether it was raised
below. Josephs v. State, 86 So. 3d 1270, 1272 (Fla. 4th DCA 2012).

   Our supreme court has clearly stated that “a trial court may not
consider a subsequent arrest without conviction during sentencing for the
primary offense.” Norvil v. State, 191 So. 3d 406, 407 (Fla. 2016). This is
a “bright line rule for sentencing purposes,” designed to protect due
process. Id. at 410.

   Even though it was Price’s attorney who first mentioned, generically,
“there was [sic] new misdemeanor charges . . . last week,” it is clear from
the transcript that the trial court knew the arrest was for marijuana. It is
also clear that the trial court mentioned the new marijuana arrest two
separate times in discussing its reasoning for the sentence imposed, all in
the context of marijuana use and “how is this going to stop.” Perhaps most
concerning is the trial court’s statement:

      I don’t know any way it’s going to stop. I really don’t. There’s
      no indication it’s going to and that’s what bothers me the most.
      If it’s marijuana there’s one way to stop it and that is—well,
      it—but the bottom line is that—for him to relocate. But the
      bottom line is it is what it is today.




                                      6
(emphases added). Our review of the transcript leads us to conclude that
Price’s new arrest for marijuana a week before sentencing in this case was
an improper factor considered by the trial judge at sentencing.

                                Conclusion

   We affirm Price’s conviction, but reverse the sentence imposed and
remand for resentencing before a judge other than the original sentencing
judge.

   Affirmed in part, reversed in part, and remanded for further proceedings.

WARNER and GERBER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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