               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



FRED DAVIS, III,                             )
                                             )
              Appellant,                     )
                                             )
v.                                           )          Case No. 2D16-887
                                             )
STATE OF FLORIDA,                            )
                                             )
              Appellee.                      )
                                             )

Opinion filed June 28, 2017.

Appeal from the Circuit Court for Pinellas
County; Frank Quesada, Judge.

Howard L. Dimmig, II, Public Defender, and
Elisabeth G. Whitmire, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Helene S. Parnes,
Assistant Attorney General, Tampa, for
Appellee.


VILLANTI, Chief Judge.


              Fred Davis, III, appeals his conviction and sentence for one count of

possession of cocaine, arguing that the trial court erred by denying his dispositive

motion to suppress the cocaine seized from a pill bottle stashed in concrete latticework

attached to the foundation of the rooming house where Davis was staying. We agree
with the trial court's determination that Davis had standing to challenge the seizure of

the pill bottle and its contents. However, because we determine that Davis had a

constitutionally protected interest in the latticework where he stashed the pill bottle, we

conclude that he did not abandon it. And because the officer had no legal basis for

seizing the pill bottle other than its alleged abandonment, we must reverse Davis's

conviction and sentence and remand for discharge.

              The facts of this case are essentially undisputed. Davis was staying with

his brother in a rooming house in St. Petersburg. Davis had a key to the rooming house

and kept belongings there, although he sometimes also stayed with his girlfriend who

lived elsewhere. Davis paid his brother a portion of the rent for the room in the rooming

house.

              On the night of April 7, 2015, Officer Acri was in the area of the rooming

house on a wholly unrelated call about a suspicious vehicle when he saw Davis and his

brother standing on the back porch of the rooming house. Acri testified that he heard

Davis's brother say "cops" before he turned and went inside the rooming house. Rather

than joining his brother inside, Davis walked down the porch steps and crossed the

grass lawn that surrounded the house. He then placed a small bottle in the concrete

latticework that was attached to the foundation of the house and that covered the crawl

space under it; picked up his bicycle, which had been leaning against the house; and

began to walk away while pushing the bicycle.

              Based on a hunch that the pill bottle might contain an illegal substance,

Acri stopped Davis and began to question him about the suspicious vehicle that had

been reported in the area. After Davis said he knew nothing about that, Acri asked




                                            -2-
Davis what was in the pill bottle that he had placed in the latticework. Davis denied

knowing anything about the pill bottle. Acri then handcuffed Davis and put him in the

back of his cruiser.

                With Davis secured, Acri walked through the yard to the side of the

rooming house, reached into the latticework under the house, and pulled out a pill

bottle. He opened the pill bottle and discovered cocaine inside. It was undisputed that

Acri did not attempt to obtain consent from Davis or any other resident of the rooming

house before he crossed the lawn and reached into the latticework under the house. It

was also undisputed that Acri had only an inchoate hunch as to what was in the pill

bottle before he retrieved it and opened it. Upon Acri discovering the contents of the pill

bottle, he arrested Davis for possession of the cocaine in the pill bottle. The State later

formally charged Davis with trafficking in cocaine based on the amount of cocaine found

in the pill bottle.

                Davis filed a motion to suppress the pill bottle and its contents, arguing

that Acri had no right to seize the pill bottle from under the house without a warrant or

proof that an exception to the warrant requirement applied. The State argued that Davis

had no standing to challenge the search because he had abandoned the pill bottle and

because Acri had an obligation to "check out" the bottle as a matter of public policy so

that children would not find it and so that it could be returned to its rightful owner.

Despite the State's argument, the trial court correctly found that Davis in fact had

standing to challenge the seizure, but the court then concluded that Davis had

abandoned the pill bottle by putting it in an area that was not constitutionally protected.




                                             -3-
Therefore, the trial court denied the motion to suppress on this alternate basis. Davis

now appeals.

               As a general proposition, "[a] defendant who voluntarily abandons

property or disclaims ownership lacks standing to challenge its search and seizure."

State v. Fosmire, 135 So. 3d 1153, 1156 (Fla. 1st DCA 2014); see also K.W. v. State,

183 So. 3d 1123, 1129 (Fla. 5th DCA 2015); Mori v. State, 662 So. 2d 431, 431 (Fla. 3d

DCA 1995); State v. Daniels, 576 So. 2d 819, 823 (Fla. 4th DCA 1991). For example, in

Fosmire, when the defendant told the police that two of the cell phones seized during a

consensual search were not hers, she had no standing to challenge a subsequent

search of those cell phones. 135 So. 3d at 1156. Similarly, in Daniels, when the

defendant affirmatively told the police that a particular suitcase was not hers, she had

no standing to challenge the warrantless search of that suitcase. 576 So. 2d at 823;

see also United States v. Roman, 849 F.2d 920, 922 (5th Cir. 1988) (holding that one

who disclaims ownership of a suitcase has no legitimate expectation of privacy in that

suitcase or its contents and therefore cannot challenge the search). Essentially, by

repudiating ownership, the defendant loses standing.

               However, the theory of abandonment applies only when "a defendant has

voluntarily abandoned [property] in an area where he has no reasonable expectation of

privacy . . . ." State v. Oliver, 368 So. 2d 1331, 1335 (Fla. 3d DCA 1979) (emphasis

added) (citing Freyre v. State, 362 So. 2d 989, 991 (Fla. 3d DCA 1978)). This is so

because in such cases "the person has made a voluntary decision to avoid a police

search by discarding evidence in an area where he has no Fourth Amendment

protection." Id. Thus, the question of whether Davis "abandoned" his property and so




                                           -4-
lacked standing turns on whether the latticework under the rooming house where Davis

lived was subject to Fourth Amendment protection.1

             Further, the same Fourth Amendment considerations apply to the State's

argument on appeal that the seizure of the pill bottle was lawful under the plain view

doctrine. The supreme court has explained the variations of the plain view doctrine in

detail:

                     The term "plain view" has been misunderstood and
             misapplied because courts have made it applicable to three
             distinct factual situations. This has resulted in confusion of
             the elements of the "plain view doctrine." To eliminate this
             confusion, we believe it appropriate to distinguish the true
             "plain view doctrine" as established in Coolidge v. New
             Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564
             (1971), from other situations where officers observe
             contraband.
                     The first factual situation we identify as a "prior valid
             intrusion." In this situation, an officer is legally inside, by
             warrant or warrant exception, a constitutionally protected
             area and inadvertently observes contraband also in the
             protected area. It is this situation for which the United States
             Supreme Court created the "plain view doctrine" in Coolidge
             and held that an officer could constitutionally seize the
             contraband in "plain view" from within this protected area.
             We emphasize that it is critical under this doctrine for the
             officer to be already within the constitutionally protected area
             when he inadvertently discovers the contraband.
                     We identify the second factual situation as a "non-
             intrusion." This situation occurs when both the officer and
             the contraband are in a non-constitutionally protected area.
             Because no protected area is involved, the resulting seizure
             has no fourth amendment ramifications, and, while the
             contraband could be defined as in "plain view," it should not
             be so labeled to prevent any confusion with the Coolidge
             "plain view doctrine."



             1
               Because the nature and placement of this latticework were critical to this
court's consideration of this issue, we include a photograph of the rooming house as an
appendix to this opinion. This photograph was introduced into evidence at the hearing
on Davis's motion.


                                           -5-
                      The third situation concerns a "pre-intrusion." Here,
              the officer is located outside of a constitutionally protected
              area and is looking inside that area. If the officer observes
              contraband in this situation, it only furnishes him probable
              cause to seize the item. He must either obtain a warrant or
              have some exception to the warrant requirement before he
              may enter the protected area and seize the contraband. As
              with the non-intrusion situation, the term "plain view" should
              not be employed here to prevent confusion. For clarity, we
              label an observation in the latter two non-Coolidge situations
              as a legally permissive "open view."

State v. Rickard, 420 So. 2d 303, 304-05 (Fla. 1982) (quoting Ensor v. State, 403 So.

2d 349, 352 (Fla. 1981)).

              Here, the trial court found that Davis had standing, thus implicitly finding

that he did not abandon the pill bottle in an area outside Fourth Amendment protection.

It also concluded that the facts fell not within an abandonment theory, but instead within

the second category of "non-intrusion," apparently finding that the latticework protecting

the crawl space under the rooming house where Davis lived was not a constitutionally

protected area and hence that Acri's seizure of the pill bottle from that area did not have

any Fourth Amendment ramifications. But these two findings are irreconcilable from a

Fourth Amendment standpoint, and resolution of this case requires us to address the

question of whether the latticework attached to the foundation of the rooming house

was, or was not, an area protected by the Fourth Amendment.

              Initially, it appears that Florida law, as explained in State v. Titus, 707 So.

2d 706 (Fla. 1998), would hold that the foundation of the rooming house was an area in

which Davis would have a reasonable expectation of privacy. In Titus, the police

received a tip that a resident of a rooming house was smoking narcotics inside. Id. at

707. Without obtaining either consent or a warrant, the police entered the property




                                            -6-
through a side gate and entered the house through a back door that was open and

possibly doorless. Id. The police walked through a hall to the common kitchen, where

several people were gathered—some residents, some guests, and some others. Id.

The police found Titus placing a crack pipe in his pocket, and he was arrested and

charged with possession of cocaine and paraphernalia. Id.

              Titus moved to suppress the cocaine, arguing that he had a reasonable

expectation of privacy in the house, even though it was a rooming house where he

shared certain living spaces with others. Id. The trial court rejected this argument, and

Titus pleaded no contest while reserving his right to appeal. And on appeal, the Fourth

District reversed, holding that the officers' entry into the rooming house was improper

absent either a search warrant or consent from an occupant. Id. The State then sought

review.

              In affirming the Fourth District's decision, the supreme court agreed with

Titus that a rooming house was a dwelling and that the fact that residents lacked total

privacy and had to traverse hallways to reach their bedrooms from the common areas

did not defeat the "essential nature" of the building as a private dwelling. Id. at 707-08.

As the court explained:

              The Fourth Amendment establishes "[t]he right of the people
              to be secure in their persons, houses, papers, and effects,
              against unreasonable searches and seizures. . . ." U.S.
              Const. amend. IV[ ]. Indeed, "physical entry of the home is
              the chief evil against which the wording of the Fourth
              Amendment is directed," United States v. United States
              District Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 2134-35,
              32 L. Ed. 2d 752 (1972), and "[a]t the very core [of the
              Fourth Amendment] stands the right of a man to retreat into
              his own home and there be free from unreasonable
              governmental intrusion." Silverman v. United States, 365
              U.S. 505, 511, 81 S. Ct. 679, 682-83, 5 L. Ed. 2d 734 (1961).



                                            -7-
                      It is this concept of "home," so sacrosanct under
              Fourth Amendment law, that guides our decision today. The
              mere fact that certain rooms traditionally associated with a
              home are shared by rooming house residents does not
              render the structure any less a home to those residents.
              See, e.g., McDonald v. United States, 335 U.S. 451, 453-56,
              69 S. Ct. 191, 192-94, 93 L. Ed. 153 (1948) (applying Fourth
              Amendment protections of the home to rooming house in
              reversing denial of suppression motion where warrantless
              police climbed through landlady's window and proceeded to
              hallway where they observed illegal activity in defendant's
              room by standing on chair and looking through transom); id.
              at 458, 69 S. Ct. at 194 ("[E]ach tenant of a building, while
              he has no right to exclude from the common hallways those
              who enter lawfully, does have a personal and constitutionally
              protected interest in the integrity and security of the entire
              building against unlawful breaking and entry.") (Jackson, J.,
              concurring); Brown v. United States, 83 F.2d 383, 386 (3d.
              Cir. 1936) ("[Certain of the appellants] were roomers in the
              house. It was their home and so far as the unlawful search
              affected them, it violated their constitutional rights."); United
              States v. Booth, 455 A.2d 1351, 1353-54 (D.C. 1983)
              (rejecting government's argument that because appellees
              lived in a rooming house, as opposed to a private home,
              they lacked a legitimate expectation of privacy in the front
              hall where police made warrantless entry); People v.
              Garriga, 189 A.D.2d 236, 596 N.Y.S.2d 25, 28 ("[W]e believe
              that the officers here, by entering the internal hallways of the
              defendant's rooming house to find him engaged in a criminal
              transaction, entered the defendant's home in a constitutional
              sense."), leave to appeal denied, 82 N.Y.2d 718, 602
              N.Y.S.2d 815, 622 N.E.2d 316 (1993).

Id. at 708 (emphasis added) (footnote omitted). However, the court cautioned that "this

would not be the case if the rooming house in question was obviously open to the

general public." Id. at 709. But the fact that the premises was a rooming house does

not, ipso facto, establish that the premises is open to the general public. Id. Finally, the

court noted another justification for finding that residents of rooming houses were

entitled to Fourth Amendment protections:




                                            -8-
              [T]here is too, in our view, importance on another level in
              finding the common internal hallway area of a rooming
              house a private, as opposed to a public, place, which arises
              from our obligation as judges to construe and vindicate
              constitutional safeguards in a class-neutral manner. Clearly,
              it is economic necessity that requires those who live in such
              humble circumstances to dwell there. That they cannot
              afford to have their own kitchens and bathrooms, and
              hallway access thereto, does not render such areas "public"
              with respect to the constitutional prerequisites for
              permissible entry by the police. . . . We should vigilantly
              guard against permitting . . . inroads upon the reasonable
              expectations of privacy of the lesser situated of our citizens
              who are forced by economic circumstances to reside in
              rooming houses.

Id. at 710 (quoting People v. Garriga, 596 N.Y.S.2d 25, 29 (N.Y. App. Div. 1993)).

              From Titus, the general principle is clear that the residents of a rooming

house are entitled to the same Fourth Amendment protections as residents of single-

family houses are, as long as the rooming house itself is not open to the public. Cf. City

of Evanston v. Hopkins, 71 N.E.2d 209 (Ill. App. Ct. 1947) (upholding as valid police

entry into a rooming house when there was a "Public Telephone" sign at the entrance

and the door was open). And hence, because the rooming house here was at least

arguably Davis's residence and there was no evidence that it was open to the public,

Davis had a Fourth Amendment right to be free of warrantless searches of that

residence, and the trial court's conclusion that the pill bottle was not in a constitutionally

protected area was erroneous.

              Further, any argument that the pill bottle was not in a constitutionally

protected area because it was outside the house is not supported by the facts here.

While there is some dispute as to whether the curtilage of a rooming house is afforded

the same Fourth Amendment protection as a single-family dwelling, see Titus, 707 So.




                                             -9-
2d at 707 n.1 (stating that the opinion is limited to the interior areas of rooming house

and does not address the exterior areas or curtilage), here the pill bottle was not found

in the curtilage. Instead, the record shows that Davis placed the pill bottle in concrete

latticework that was attached to the foundation of the house and protected the

crawlspace from intruders. This latticework and the crawlspace behind it were part of

the structure. See Tindall v. State, 997 So. 2d 1260, 1261 (Fla. 5th DCA 2009) (holding

that entry into the crawlspace constituted entry into a structure because the defendant

"penetrated the invisible, vertical plane into the airspace of the house by crawling under

the house to gain access"); see also Dicks v. State, 75 So. 3d 857, 860 (Fla. 1st DCA

2011) (holding that defendant's entry into the crawlspace under a mobile home was

sufficient to constitute his "entering" the dwelling for purposes of a burglary charge); cf.

Peterson v. Jones, No. 3:14CV104/RV/CJK, 2016 WL 873235 at *8 (N.D. Fla. 2016)

(holding that burglary conviction of defendant who crawled onto the roof of a building

and stole air conditioning coils from units on the roof was supported by the evidence

because entry onto the roof penetrated the vertical plane of the structure). Hence, Acri

did more than enter the curtilage of the rooming house; he entered the house itself by

penetrating the "invisible vertical plane into the airspace of the house." This intrusion

into a constitutionally protected space removes this case from the "non-intrusion" line of

cases relied upon by the trial court and renders the trial court's ruling that the area was

not constitutionally protected incorrect.

              Having determined that the latticework and the crawl space behind it are

part of the constitutionally protected space of the rooming house, we conclude that the

only way Acri could validly seize the pill bottle was if it could somehow be considered to




                                            - 10 -
have been in "open view." As discussed above, the "open view" doctrine applies when

an officer is located outside of a constitutionally protected area looking in. If the officer

sees contraband in that situation, it furnishes him probable cause to seize the item, but

he must either obtain a warrant or have some exception to the warrant requirement

before he may enter the protected area and seize the contraband. Rickard, 420 So. 2d

at 305. The problem here is that Acri did not see "contraband" in the latticework; he

saw only an opaque pill bottle. His hunch that it might contain contraband was just

that—a hunch.

              But more importantly, Acri had neither a warrant nor facts to support an

exception to the warrant requirement when he entered the property. The five

established exceptions to the warrant requirement are: "(1) consent, (2) incident to a

lawful arrest, (3) with probable cause to search but with exigent circumstances, (4) in

hot pursuit, and (5) stop and frisk." Gnann v. State, 662 So. 2d 406, 408 (Fla. 2d DCA

1995). Here, there is no dispute that Davis did not consent to the search, and no facts

support either hot pursuit or stop and frisk. The trial court found that Davis's arrest was

not lawful, but even it if was, that would not have supported a search of the crawl space

under the house. And while the State argued some form of exigent circumstances in

trying to keep the pill bottle out of the hands of children, the evidence did not show that

there were children in the area, that the police did not have the ability to control the

scene, or that the police did not have time to procure a warrant. Therefore, with no

warrant or warrant exception, the State cannot show that Acri's seizure of the pill bottle

was legal under the "open view" doctrine.




                                            - 11 -
              We recognize that not all areas on the exterior of a residence are subject

to Fourth Amendment protection. For example, in State v. Detlefson, 335 So. 2d 371,

372 (Fla. 1st DCA 1976), the court held that a defendant had no reasonable expectation

of privacy on the front porch of a house because deliverymen and visitors would use the

porch to reach the front door. Perhaps more significantly, in State v. Duhart, 810 So. 2d

972, 973-74 (Fla. 4th DCA 2002), the court held that a defendant had no reasonable

expectation of privacy in an open carport that was attached to the side of the house.

              However, this case does not involve the front porch of a residence, where

one might expect visitors and delivery persons to routinely be. Further, unlike the

carport in Duhart, the latticework in this case was not an open area in which passersby

could readily observe its contents. The record here shows that Davis took affirmative

steps to hide the pill bottle in an area not readily observable by others and where one

would not expect passersby or delivery persons to be. Hence, this case is not

controlled by cases addressing items found on a front porch or in an open carport.

              In sum, we hold that the area in and behind the latticework covering the

foundation was a constitutionally protected area of the rooming house in this case.

Therefore, while we agree with the trial court that Davis had standing to challenge the

seizure of his property from that location, we conclude that the trial court erred in

denying the motion to suppress because the State failed to prove that Acri had a legal

basis upon which to enter the property and seize the pill bottle from that location. And

given the dispositive nature of Davis's motion, Davis must be discharged on remand.

See, e.g., Jacoby v. State, 851 So. 2d 913, 914-15 (Fla. 2d DCA 2003) (ordering




                                           - 12 -
discharge of defendant when denial of dispositive motion to suppress was reversed on

appeal).

             Reversed and remanded for discharge.


LaROSE and SLEET, JJ., Concur.




                                        - 13 -
APPENDIX



  - 14 -
