NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
STATE OF FLORIDA, ) ) Appellant, ) ) v. ) Case No. 2D17-2973 ) DERRICK JAMMELL PETTIS, ) ) Appellee. ) )
Opinion filed March 6, 2019.
Appeal from the Circuit Court for Pinellas County; Frank Quesada, Judge.
Ashley Moody, Attorney General, Tallahassee, and Jason M. Miller, Assistant Attorney General, Tampa, for Appellant.
Robert A. Love, St. Petersburg, for Appellee.
LaROSE, Chief Judge.
The State appeals the trial court's order suppressing contraband found in
Derrick Jammell Pettis's car. We have jurisdiction. See Fla. R. App. P. 9.140(c)(1)(B).
As framed by the trial court's order, the issue for us is whether the car was within the
curtilage of the house where it was parked. If so, law enforcement officers needed a
warrant to search the car and seize the contraband. See Collins v. Virginia, 138 S. Ct. 1663, 1668 (2018) (holding that the automobile exception does not permit "a police
officer, uninvited and without a warrant, to enter the curtilage of a home in order to
search a vehicle parked therein").
Initially, however, we must confront Mr. Pettis's standing to challenge the
search and seizure involved here. Although standing was not raised below, the State
correctly observes that it may raise lack of standing for the first time on appeal. See
Hendley v. State, 58 So. 3d 296, 299 (Fla. 2d DCA 2011) ("Although the State did not
raise this issue in the circuit court, standing may be properly raised for the first time on
appeal."); McCauley v. State, 842 So. 2d 897, 900 (Fla. 2d DCA 2002) ("Although this
point was not argued by the State at the hearing on the motion, the concept of standing
has been subsumed into Fourth Amendment issues and can be raised for the first time
on appeal.").
Because the standing issue was not developed in the trial court, we
reverse the order on appeal and remand for the trial court to conduct a suppression
hearing to determine Mr. Pettis's standing to challenge the search and seizure.
Background Facts
A police officer in an unmarked cruiser saw Mr. Pettis fail to make a
complete stop at a stop sign. Mr. Pettis continued on for a short while until he parked
his car near his mother's house. He exited the vehicle, ambled up to the house, and
joined his mother on the front porch. About a minute later, six or seven police cruisers
converged on the scene. Officers approached and announced that they wanted to
speak with Mr. Pettis. He told the officers that he had no desire to speak with them and
began to go into the house. The officers restrained him, and a scuffle ensued.
-2- During the course of walking from their cruisers to the house, some
officers walked by Mr. Pettis's car. They observed through the front windshield a large
unlabeled pill bottle containing baggies of what appeared to be either cocaine or heroin.
The officers did not seize the bottle at the scene. Rather, after arresting Mr. Pettis for
his unruly behavior, officers seized his car keys from his pocket, and an officer drove
the car to the police station.1 There, the substance tested positive for heroin.
In granting the suppression motion, the trial court found that there was
neither hot pursuit nor any other exigent circumstance that would justify the warrantless
entry into Mr. Pettis's locked car and the seizure of heroin. Although the written order
does not explicitly say so, in orally announcing its ruling, the trial court stated that the
car was "on the curtilage" of his mother's house.
Discussion
During the evidentiary hearing, the parties elicited scant testimony or other
evidence explaining Mr. Pettis's connection to the house. This omission detracts from
our determination of the extent of protection afforded Mr. Pettis under the Fourth
Amendment. See, e.g., State v. Washington, 884 So. 2d 97, 100 (Fla. 2d DCA 2004)
(holding that defendant lacked standing to challenge search of home where she was
short-term, nonovernight, casual guest). Compare Minnesota v. Carter, 525 U.S. 83,
90-91 (1998) (holding that persons present in the home of a casual acquaintance for a
few hours for business purposes do not have a reasonable expectation of privacy), with
Minnesota v. Olson, 495 U.S. 91, 98 (1990) (holding that an overnight guest possessed
1Officers testified that they removed the car from the scene because onlookers were becoming argumentative and combative; the officers feared for their safety as well as for the integrity of the crime scene. Our review of the surveillance CD shows a couple of curious passersby. -3- a legitimate expectation of privacy and was thus entitled to the protection of the Fourth
Amendment).
To invoke Fourth Amendment protections, a defendant must demonstrate
a reasonable expectation of privacy in the place searched. See Rakas v. Illinois, 439
U.S. 128, 143 (1978); cf. U.S. v. Puliese, 671 F. Supp. 1353, 1359 (S.D. Fla. 1987)
(enumerating six factors to be considered in determining whether a guest's expectation
of privacy is reasonable: "(1) Who has invited the guest into the home; (2) For what
purpose and for how long has the movant been invited into the home; (3) Has the owner
or lessee given the guest a key or other means of entry to the home; (4) What use has
the guest made of the home and indeed what use has been made of the intruded area;
(5) Does the movant/guest have the power and authority to exclude others from the
home; and, (6) With how many other people has the use of the area been shared").
The expectation of privacy must originate from "a source outside of the
Fourth Amendment, either by reference to concepts of real or personal property law or
to understandings that are recognized and permitted by society." Rakas, 439 U.S. at
143 n.12. The capacity to claim constitutional protection depends upon the person and
not merely upon a property right in the invaded place. Id. at 143 (citing Katz v. United
States, 389 U.S. 347, 353 (1967)). Thus, Mr. Pettis's status at the house is a necessary
part of our Fourth Amendment analysis.
In turn, his status will inform whether he is entitled to the Fourth
Amendment protections afforded to a house and its curtilage, because, after all, "[t]he
Fourth Amendment protects the curtilage of a house." Abel v. State, 668 So. 2d 1121,
1122-23 (Fla. 2d DCA 1996); see also Florida v. Jardines, 569 U.S. 1, 6 (2013) ("We
therefore regard the area 'immediately surrounding and associated with the home'— -4- what our cases call the curtilage—as 'part of the home itself for Fourth Amendment
purposes.' " (quoting Oliver v. United States, 466 U.S. 170, 180 (1984))); Powell v.
State, 120 So. 3d 577, 583 (Fla. 1st DCA 2013) ("Because it is appurtenant to the
home, the curtilage is entitled to the same Fourth Amendment protection as the area
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
STATE OF FLORIDA, ) ) Appellant, ) ) v. ) Case No. 2D17-2973 ) DERRICK JAMMELL PETTIS, ) ) Appellee. ) )
Opinion filed March 6, 2019.
Appeal from the Circuit Court for Pinellas County; Frank Quesada, Judge.
Ashley Moody, Attorney General, Tallahassee, and Jason M. Miller, Assistant Attorney General, Tampa, for Appellant.
Robert A. Love, St. Petersburg, for Appellee.
LaROSE, Chief Judge.
The State appeals the trial court's order suppressing contraband found in
Derrick Jammell Pettis's car. We have jurisdiction. See Fla. R. App. P. 9.140(c)(1)(B).
As framed by the trial court's order, the issue for us is whether the car was within the
curtilage of the house where it was parked. If so, law enforcement officers needed a
warrant to search the car and seize the contraband. See Collins v. Virginia, 138 S. Ct. 1663, 1668 (2018) (holding that the automobile exception does not permit "a police
officer, uninvited and without a warrant, to enter the curtilage of a home in order to
search a vehicle parked therein").
Initially, however, we must confront Mr. Pettis's standing to challenge the
search and seizure involved here. Although standing was not raised below, the State
correctly observes that it may raise lack of standing for the first time on appeal. See
Hendley v. State, 58 So. 3d 296, 299 (Fla. 2d DCA 2011) ("Although the State did not
raise this issue in the circuit court, standing may be properly raised for the first time on
appeal."); McCauley v. State, 842 So. 2d 897, 900 (Fla. 2d DCA 2002) ("Although this
point was not argued by the State at the hearing on the motion, the concept of standing
has been subsumed into Fourth Amendment issues and can be raised for the first time
on appeal.").
Because the standing issue was not developed in the trial court, we
reverse the order on appeal and remand for the trial court to conduct a suppression
hearing to determine Mr. Pettis's standing to challenge the search and seizure.
Background Facts
A police officer in an unmarked cruiser saw Mr. Pettis fail to make a
complete stop at a stop sign. Mr. Pettis continued on for a short while until he parked
his car near his mother's house. He exited the vehicle, ambled up to the house, and
joined his mother on the front porch. About a minute later, six or seven police cruisers
converged on the scene. Officers approached and announced that they wanted to
speak with Mr. Pettis. He told the officers that he had no desire to speak with them and
began to go into the house. The officers restrained him, and a scuffle ensued.
-2- During the course of walking from their cruisers to the house, some
officers walked by Mr. Pettis's car. They observed through the front windshield a large
unlabeled pill bottle containing baggies of what appeared to be either cocaine or heroin.
The officers did not seize the bottle at the scene. Rather, after arresting Mr. Pettis for
his unruly behavior, officers seized his car keys from his pocket, and an officer drove
the car to the police station.1 There, the substance tested positive for heroin.
In granting the suppression motion, the trial court found that there was
neither hot pursuit nor any other exigent circumstance that would justify the warrantless
entry into Mr. Pettis's locked car and the seizure of heroin. Although the written order
does not explicitly say so, in orally announcing its ruling, the trial court stated that the
car was "on the curtilage" of his mother's house.
Discussion
During the evidentiary hearing, the parties elicited scant testimony or other
evidence explaining Mr. Pettis's connection to the house. This omission detracts from
our determination of the extent of protection afforded Mr. Pettis under the Fourth
Amendment. See, e.g., State v. Washington, 884 So. 2d 97, 100 (Fla. 2d DCA 2004)
(holding that defendant lacked standing to challenge search of home where she was
short-term, nonovernight, casual guest). Compare Minnesota v. Carter, 525 U.S. 83,
90-91 (1998) (holding that persons present in the home of a casual acquaintance for a
few hours for business purposes do not have a reasonable expectation of privacy), with
Minnesota v. Olson, 495 U.S. 91, 98 (1990) (holding that an overnight guest possessed
1Officers testified that they removed the car from the scene because onlookers were becoming argumentative and combative; the officers feared for their safety as well as for the integrity of the crime scene. Our review of the surveillance CD shows a couple of curious passersby. -3- a legitimate expectation of privacy and was thus entitled to the protection of the Fourth
Amendment).
To invoke Fourth Amendment protections, a defendant must demonstrate
a reasonable expectation of privacy in the place searched. See Rakas v. Illinois, 439
U.S. 128, 143 (1978); cf. U.S. v. Puliese, 671 F. Supp. 1353, 1359 (S.D. Fla. 1987)
(enumerating six factors to be considered in determining whether a guest's expectation
of privacy is reasonable: "(1) Who has invited the guest into the home; (2) For what
purpose and for how long has the movant been invited into the home; (3) Has the owner
or lessee given the guest a key or other means of entry to the home; (4) What use has
the guest made of the home and indeed what use has been made of the intruded area;
(5) Does the movant/guest have the power and authority to exclude others from the
home; and, (6) With how many other people has the use of the area been shared").
The expectation of privacy must originate from "a source outside of the
Fourth Amendment, either by reference to concepts of real or personal property law or
to understandings that are recognized and permitted by society." Rakas, 439 U.S. at
143 n.12. The capacity to claim constitutional protection depends upon the person and
not merely upon a property right in the invaded place. Id. at 143 (citing Katz v. United
States, 389 U.S. 347, 353 (1967)). Thus, Mr. Pettis's status at the house is a necessary
part of our Fourth Amendment analysis.
In turn, his status will inform whether he is entitled to the Fourth
Amendment protections afforded to a house and its curtilage, because, after all, "[t]he
Fourth Amendment protects the curtilage of a house." Abel v. State, 668 So. 2d 1121,
1122-23 (Fla. 2d DCA 1996); see also Florida v. Jardines, 569 U.S. 1, 6 (2013) ("We
therefore regard the area 'immediately surrounding and associated with the home'— -4- what our cases call the curtilage—as 'part of the home itself for Fourth Amendment
purposes.' " (quoting Oliver v. United States, 466 U.S. 170, 180 (1984))); Powell v.
State, 120 So. 3d 577, 583 (Fla. 1st DCA 2013) ("Because it is appurtenant to the
home, the curtilage is entitled to the same Fourth Amendment protection as the area
within the home." (citing California v. Ciraolo, 476 U.S. 207, 212 (1986))); Pinyan v.
State, 523 So. 2d 718, 720 (Fla. 1st DCA 1988) ("It is well settled that the Fourth
Amendment protection of the home extends to the curtilage of a residence."); United
States v. Maestas, 639 F.3d 1032, 1036-37 (10th Cir. 2011) ("Under well-settled Fourth
Amendment jurisprudence, the privacy expectation that one has in the home generally
extends to the 'curtilage' of the home.").
We utilize a mixed standard of review in examining a trial court's ruling on
a motion to suppress:
The trial court's "determination of historical facts enjoys a presumption of correctness and is subject to reversal only if not supported by competent, substantial evidence in the record. However, the circuit court's determinations on mixed questions of law and fact and its legal conclusions are subject to de novo review."
State v. K.S., 28 So. 3d 985, 987 (Fla. 2d DCA 2010) (quoting State v. Clark, 986 So.
2d 625, 628 (Fla. 2d DCA 2008)). Our review of the surveillance CD supports the trial
court's finding that Mr. Pettis parked his car within the curtilage of his mother's house.
But that determination does not automatically compel the conclusion that a warrant was
necessary to search the car. Cf. State v. Rickard, 420 So. 2d 303, 305 (Fla. 1982)
(distinguishing between " 'non-intrusion' . . . when both the officer and the contraband
are in a non-constitutionally protected area" and "the resulting seizure has no fourth
amendment ramifications" and " 'preintrusion.' Here the officer is located outside of a
-5- 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" (quoting Ensor v. State, 403
So. 2d 349, 352 (Fla. 1981))).
The extent of Fourth Amendment protection afforded to Mr. Pettis is
cabined by the a priori determination of whether he had standing in the first place to
challenge the search and seizure of the car. See Washington, 884 So. 2d at 98
("Although the issue here is generally framed as one of 'standing,' the Supreme Court in
[Rakas, 439 U.S. 128], refused to employ only the traditional concept of standing when
analyzing Fourth Amendment rights; instead, it stated that 'the definition of those rights
is more properly placed within the purview of substantive Fourth Amendment law than
within that of standing.' " (quoting Rakas, 439 U.S. at 140)). "A search violates a
defendant's Fourth Amendment rights only if (1) a defendant demonstrates that he or
she had an actual, subjective expectation of privacy in the property searched and (2) a
defendant establishes that society would recognize that subjective expectation as
objectively reasonable." Hicks v. State, 929 So. 2d 13, 16 (Fla. 2d DCA 2006); see also
Nieminski v. State, 60 So. 3d 521, 524 (Fla. 2d DCA 2011) ("[B]efore the trial court
considers the merits of a Fourth Amendment motion to suppress, the defendant must
first establish a factual basis justifying his or her claim to have possessed a Fourth
Amendment right at the time of the alleged invasion. This analysis is actually the first
part of the substantive legal analysis of a Fourth Amendment claim.").
If, on remand, the trial court concludes that Mr. Pettis had standing to
challenge the search and seizure, then it follows that he likewise possessed an -6- expectation of privacy in the car located within the curtilage of the house. And,
therefore, officers were obligated to obtain a warrant prior to searching and seizing the
automobile and the contraband therein. See Collins, 138 S. Ct. at 1671 ("In physically
intruding on the curtilage of Collins' home to search the motorcycle, Officer Rhodes not
only invaded Collins' Fourth Amendment interest in the item searched, i.e., the
motorcycle, but also invaded Collins' Fourth Amendment interest in the curtilage of his
home. The question before the Court is whether the automobile exception justifies the
invasion of the curtilage. The answer is no." (footnote omitted)).
If, on the other hand, the trial court finds that Mr. Pettis lacked standing,
then he will not succeed in suppressing the drugs and drug paraphernalia on Fourth
Amendment grounds. See Washington, 884 So. 2d at 98 ("To successfully claim the
protection afforded by the Fourth Amendment, a defendant must demonstrate that he
personally has an expectation of privacy in the place searched and that this expectation
is reasonable."). In such a scenario, Mr. Pettis's vehicle is not afforded the Fourth
Amendment protections extended to a home's curtilage. Consequently, law
enforcement's observations of the drugs in open view from outside of the car,2 see
Rickard, 420 So. 2d at 305, a non-constitutionally protected area, would furnish officers
with probable cause to conduct a warrantless, yet constitutional, search of the vehicle.
This would not offend the Fourth Amendment. See State v. Ross, 209 So. 3d 606, 609
(Fla. 2d DCA 2016) ("Mr. Ross was arrested after fleeing and eluding police officers and
hiding in a home. After his arrest, a police officer looked through the window of his car
2In Oliver v. State, 989 So. 2d 16, 17-18 (Fla. 2d DCA 2008), this court reversed the trial court's denial of a suppression order in an " 'open-view' situation" where the "incriminating nature of the items was not immediately apparent." Mr. Pettis ventures no such argument here. -7- and saw crack cocaine in plain view. Sergeant Seymour's lawful observation of illegal
drugs in the car gave the police probable cause to believe that the car contained
evidence of a crime. The warrantless search of the car was thus authorized by the
automobile exception." (footnote omitted) (citing State v. Green, 934 So. 2d 1004, 1006-
07 (Fla. 2d DCA 2006); State v. Gardner, 72 So. 3d 218, 220-21 (Fla. 2d DCA 2011);
State v. Fischer, 987 So. 2d 708, 711-13 (Fla. 5th DCA 2008))).
Because the parties did not develop the standing issue below, we are
reluctant to assess the issue in the first instance.3 See McCauley, 842 So. 2d at 900
("Because McCauley was not given an opportunity to prove his interest in the premises
below due to the State's tacit concession of standing, we conclude that he is entitled to
a hearing on the matter."); see also State v. Fernandez, 36 So. 3d 120, 123 (Fla. 2d
DCA 2010) ("[W]e reverse the order suppressing the evidence and remand for further
proceedings. If Fernandez wishes to pursue her motion to suppress, the trial court shall
hold a hearing on the issue of standing, at which time Fernandez will have the burden to
establish that she had a reasonable expectation of privacy in the prescriptions.");
Murphy v. State, 32 So. 3d 122, 125 (Fla. 2d DCA 2009) ("While the issue can be
addressed by this court, Murphy was never given an opportunity to meet his burden of
proof on this issue. Accordingly, Murphy is entitled to an evidentiary hearing on the
matter." (citation omitted)). But see Hendley v. State, 58 So. 3d 296, 299 (Fla. 2d DCA
2011) (declining to reverse and remand trial court's denial of motion to suppress on
3OfficerAaron Franklin testified that during questioning, Mr. Pettis related that the residence "was his mother's house" and that "he was going there to visit his mom." Be that as it may, this issue is best developed and addressed on remand with the introduction of additional evidence and/or argument, rather than by this court on the record before us. -8- issue of standing raised for the first time on appeal because "a remand for that
purpose would be a futile exercise in this case").
Conclusion
As we did in McCauley and its progeny, we reverse and remand for the
trial court to conduct a new suppression hearing at which it shall address standing. 842
So. 2d at 900 ("We therefore reverse and remand for a new suppression hearing at
which the trial court shall address only the issue of standing. If the trial court finds that
McCauley established standing, it should grant the motion to suppress based on the
fact that the search and seizure was otherwise illegal."); see also State v. Mobley, 98
So. 3d 124, 125 (Fla. 5th DCA 2012) ("The proponent of a motion to suppress carries
the initial burden of establishing a violation of the Fourth Amendment." (citing Rakas,
439 U.S. at 130 n.1)).
Reversed and remanded with instructions.
KHOUZAM and SLEET, JJ., Concur.
-9-