            FIRST DISTRICT COURT OF APPEAL
                   STATE OF FLORIDA
                    _____________________________

                            No. 1D17-0941
                    _____________________________

DARWIN DWAYNE DAVIS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                     ___________________________

On appeal from the Circuit Court for Okaloosa County.
William F. Stone, Judge.

                            October 31, 2018


WINOKUR, J.

     Darwin Dwayne Davis was convicted of possessing a
controlled substance, and now challenges the trial court’s denial
of his motion to suppress. We affirm.

                                 I.

     Davis was involved in a traffic stop that included a canine
sniff of his vehicle, which alerted to the presence of narcotics. The
subsequent search of Davis’ vehicle yielded a package of synthetic
marijuana wedged between the cushions on the front seat area.
Davis acknowledged ownership of the contraband to police. After
his arrest, Davis filed a motion to suppress all evidence and
statements stemming from the search of the vehicle, arguing that
the vehicle had been within the curtilage of Davis’ mobile home.
As a result, Davis maintained that the warrantless search of his
vehicle was unreasonable.

     During the suppression hearing, Investigator Travis
Topolski of the Okaloosa County Sheriff’s Office testified that he
initiated the traffic stop because Davis failed to come to a
complete stop when exiting a gas station. Davis eventually
stopped on a dirt road on the west side of his mobile home.
Topolski further testified that there was a chain-link fence
around Davis’ mobile home and that Davis stopped his vehicle
outside of the fenced-in area. Topolski observed that there was no
type of enclosure around the vehicle or roof over it.
Approximately six minutes after the stop, Deputy Elliot Howard
arrived with a dog, which conducted a canine sniff of the vehicle.
Both Topolski and Howard testified that neither they nor the dog
entered or searched any of the area within the fenced-in portion
of Davis’ property.

      For his part, Davis testified that he objected to the search
and that he did not give police permission to bring the dog onto
his property. Davis also stated that he stopped his vehicle in his
driveway, but agreed that it was outside of the fenced-in area of
the property. Davis testified that he lived at the mobile home for
approximately seventeen years and that the fence was in place
before he moved into the property. Davis added that over the
years he had repaired the fence and that he never tried to change
its layout.

     The trial court denied suppression, finding Topolski’s
testimony credible and concluding that Davis’ vehicle was outside
the curtilage of his mobile home. As a result, the trial court found
that the traffic stop was lawful and the search was reasonable.
Davis subsequently accepted the State’s plea offer and the trial
court found that Davis’ suppression motion was dispositive for
appellate purposes.

                                II.

     A trial court’s ruling on a motion to suppress evidence
presents a mixed question of law and fact. Connor v. State, 803
So. 2d 598, 608 (Fla. 2001). The trial court’s factual findings will

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be upheld if there is competent, substantial evidence to support
them. State v. Young, 974 So. 2d 601, 608 (Fla. 1st DCA 2008).
However, the trial court’s application of the law to those facts is
reviewed de novo. Id. Additionally, Florida courts are bound by
all United States Supreme Court decisions relating to search and
seizure law. Art. I, § 12, Fla. Const.; Johnson v. State, 995 So. 2d
1011 (Fla. 1st DCA 2008).

     A canine sniff test conducted during a lawful traffic stop does
not violate the Fourth Amendment as long as the traffic stop is
not “prolonged beyond the time reasonably required to complete
that mission.” Illinois v. Caballes, 543 U.S. 405, 407 (2005). In
contrast, a warrantless canine sniff test on a residence or its
curtilage violates the Fourth Amendment. Florida v. Jardines,
569 U.S. 1, 7-12 (2013).

     Davis does not dispute the trial court’s factual findings, but
rather challenges its legal analysis. Therefore, the issue for this
Court is whether Davis’ vehicle was within the curtilage of his
residence. If so, then the warrantless canine sniff was an
unreasonable search pursuant to Jardines. On the other hand, if
Davis’ vehicle was outside the curtilage then Caballes controls
and the canine sniff was permissible.

                                III.

      Curtilage is “the land or yard adjoining a house, usually
within an enclosure.” Black’s Law Dictionary 466 (10th ed. 2014).
The central inquiry in determining if an area constitutes
curtilage is whether the area harbors the “intimate activity
associated with the ‘sanctity of a man’s home and the privacies of
life.’” Oliver v. United States, 466 U.S. 170, 180 (1984) (quoting
Boyd v. United States, 116 U.S. 616, 630 (1886)).

     United States v. Dunn, 480 U.S. 294 (1987), sets forth a test
to determine whether an area constitutes curtilage by weighing
these four factors: 1) the proximity of the area at issue to the
home; 2) whether the area is within the enclosure surrounding
the home; 3) the particular use of the area; and 4) the steps taken
to protect the area from observation from individuals passing by.
Id. at 301. The purpose of the test is to ascertain “whether the

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area in question is so intimately tied to the home itself that it
should be placed under the home’s ‘umbrella’ of Fourth
Amendment protection.” Id. See also State v. Hamilton, 660 So.
2d 1038, 1042 (Fla. 1995); Sarantopoulos v. State, 629 So. 2d 121,
123 (Fla. 1993).

    Davis claims that the vehicle was on the curtilage of his
mobile home. However, the Dunn factor-test demonstrates that
Davis’ vehicle was outside the curtilage of the property.

     First, the trial court found that the distance of the parking
area to Davis’ mobile home was approximately twenty feet. While
the area was close to Davis’ mobile home, this is the only Dunn
factor that suggests it was part of the curtilage.

     Second, the parking area was located outside of the fence
surrounding his mobile home. The presence of a fence is not
dispositive of the issue, but it bolsters the trial court’s conclusion
that the parking area was not intended to be part of the
curtilage. Indeed, the Dunn court noted “that ‘for most homes,
the boundaries of the curtilage will be clearly marked; and the
conception defining curtilage—as the area around the home to
which the activity of home life extends—is a familiar one easily
understood from our daily experience.” 480 U.S. at 302 (quoting
Oliver, 466 U.S. at 182, n.12).

     Third, the record does not disclose that the parking area was
used for any purpose other than parking. Finally, Davis made no
effort to conceal the parking area from observation from the
viewing public. On the contrary, Davis testified that he has
repaired and replaced parts of the fence, but has not extended it
to cover the parking area. It is reasonable to conclude that Davis
had no intention to extend any sort of privacy to the parking
area. As a result, we find that Davis’ vehicle was not on the
curtilage of his mobile home.

     Davis relies on two cases for the proposition that a parking
area is per se curtilage. State v. Musselwhite, 402 So. 2d 1235
(Fla. 2d DCA 1981); Joyner v. State, 303 So. 2d 60 (Fla. 1st DCA
1974). In Joyner, this Court held “that yards, courtyards,
driveways and parking areas usually and customarily used in

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common by occupants of apartment houses, condominiums and
other such complexes with other occupants thereof constitute a
part of the curtilage.” 303 So. 2d at 64. In Musselwhite, the
Second District relied on Joyner and held that “a driveway to
one’s residence is within the curtilage of that property.” 402 So.
2d at 1237.

     Joyner and Musselwhite are both distinguishable because
neither case involved a parking area that was outside of a fenced
area. In contrast, the Fifth District has held that a vehicle parked
outside of a residence’s fenced area was not on the home’s
curtilage. Wheeler v. State, 62 So. 3d 1218, 1220-21 (Fla. 5th DCA
2011). The Wheeler court noted that “[t]he homeowner manifested
no attempt to protect against observation by people passing by.”
Id. at 1221. The same is true here.

     More importantly, both Joyner and Musselwhite predate
Dunn. As a result, neither case engaged in the requisite four-
factor inquiry. The Second District has recently called into doubt
this Court’s holding in Joyner. See Shannon v. State, 43 Fla. L.
Weekly D1704, D1705 (Fla. 2d DCA July 27, 2018)
(acknowledging this Court’s decision in Joyner, but holding that
post-Dunn a vehicle located in a motel parking was not part of
the curtilage; noting that the Dunn court “set forth a more
narrow definition of a curtilage” than we had in Joyner). We
agree with the Second District’s analysis that Joyner is
inconsistent with Dunn.

                                IV.

     Nothing in the record indicates that Davis intended the
parking area to be associated with the privacies of his home life.
Therefore, the trial court’s determination that the parking area
was not curtilage is appropriate pursuant to Dunn. Since the
canine sniff of Davis’ vehicle did not last longer than needed to
effectuate the traffic stop, it was reasonable. Accordingly, we
affirm Davis’ judgment and sentence.

    AFFIRMED.

ROBERTS and ROWE, JJ., concur.

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                _____________________________

   Not final until disposition of any timely and
   authorized motion under Fla. R. App. P. 9.330 or
   9.331.
               _____________________________


Andy Thomas, Public Defender, and Laurel Cornell Niles,
Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Barbara Debelius,
Assistant Attorney General, Tallahassee, for Appellee.




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