DEFENDANT, by and through his undersigned attorney and pursuant to rules 3.190(h) and 3.190(i), Florida Rules of Criminal Procedure, moves this Honorable Court to suppress certain evidence and admissions in this cause.


Any and all evidence obtained as a result of the warrantless entry into Defendant’s residence on or about September 15, 2011. This evidence includes, but is not limited to, contraband allegedly found at or around defendant’s residence, paraphernalia allegedly found at or around the residence, and testimony of law enforcement officers who were present at or around the residence.


  1. The evidence was illegally seized only as a result of unlawful law enforcement activity, to-wit: the illegal warrantless entry into Defendant’s residence and property and the curtilage associated with the residence and property, in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Sections 9 and 12 of the Constitution of the State of Florida.
  2. The evidence was obtained only as a result of an illegal search without a warrant, in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 and 12 of the Constitution of the State of Florida.
  3. The evidence was obtained in violation of Defendant’s right to privacy guaranteed by Article I, Section 23, of the Constitution of the State of Florida.
  4. The evidence is the “tainted fruit of the poisonous tree,” having been obtained as a result of an illegal entry into Defendant’s home without a warrant and without consent.


On or about September 13, 2011, Officer William Smith of the Brevard County Sheriff’s Office responded to the area of Dairy Road and Line Road, in Brevard County, Florida, in reference to assisting other police officers in apprehending suspects that had fled from a stolen vehicle. At the scene of the stolen vehicle, Officer Smith was informed by Sergeant John Madsen that “the suspects had first run west from Sebastian Road and then possibly doubled back Eastbound.” Officer Smith then asked Sergeant Madsen whether anyone “had checked [Defendant’s] residence as it [was] East of the where the stolen vehicle was.” Sergeant Madsen responded in the negative, and Officer Smith proceeded to the residence to conduct a search.

Upon arrival, Officer Smith, acting without a warrant, entered the front yard of the property and observed that the “front house at the property was quiet.” After observing the front yard, he proceeded along the side of the house and into the back yard, where two building associated with the home were located. One building was a structure where Defendant “was known to sleep” and the other building was a workshop used for various household and family activities.
Officer Smith heard “music” and “talking” in the workshop, and proceeded through the side and back yards to enter the workshop. Officer Smith alleges that, upon going inside, he found Defendant and two friends smoking an alleged cannabis “bong.” In conjunction with other officers who had arrived on scene, Officer Smith interviewed the various parties, obtained statements, and collected other evidence from the location. Defendant was subsequently charged with Possession of Less Than Twenty Grams of Cannabis (M1) and Possession or Use of Drug Paraphernalia (M1).


The evidence obtained in the above-described incident was the result of an illegal warrantless search and must be suppressed. Under the Fourth Amendment exclusionary rule, evidence obtained as a result of an illegal search or seizure is not admissible in proceedings against an accused where a timely application is made to suppress or exclude the evidence. Hilton v. State, 961 So. 2d 284 (Fla. 2007). This rule prohibits the introduction into evidence of tangible materials seized during an unlawful search, testimony concerning knowledge acquired during an unlawful search, and derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search up to the point at which the connection with the unlawful search becomes so attenuated as to dissipate the taint. Murray v. U.S., 487 U.S. 533 (1988).

Both the United States and Florida Constitutions forbid unreasonable searches and seizures. U.S. Const. Amend. IV; Fla. Const. Art. I, Sec. 12. Warrantless entries into a person’s home are per se unreasonable, unless they fall under certain exceptions such as an emergency or exigent circumstances. However, to invoke the emergency rule, the exigent situation must be so compelling that a warrantless search is objectively reasonable. See State v. Boyd, 615 So.2d 786 (Fla. 2d DCA 1993) citing to Mincey v. Arizona, 437 U.S. 385 (1978). Therefore, the officer must have a reasonable belief that an emergency exists.

It is settled law that that the Fourth Amendment protection of the home extends to the “curtilage” of the residence, with the extent of the curtilage being determined on the basis of the use to which the area is put and how that use related to family life. United States v. Dunn, 480 U.S. 294 (1987); Riley v. State, 511 So.2d at 285.

In Riley, the court reviewed the high degree of Fourth Amendment protection afforded to curtilage, noting that “state and federal courts have long recognized that the curtilage concept extends to residential backyards and outbuildings located within close vicinity of the residence.” Riley, 511 So.2d at 286; See also State v. Morsman, 394 So.2d 408, 409 (Fla. 1981), cert. denied, 452 U.S. 930, 101 S. Ct. 3066, 69 L. Ed. 2d 431 (1981) (no expectation of privacy with respect to front porch, but backyard is private because passersby cannot generally view the area); Huffer v. State, 344 So.2d 1332 (Fla. 2d DCA 1977) (hothouse located ten to forty feet from residence was within curtilage of residence, and deserving of constitutional protection); Fixel v. Wainwright, 492 F.2d 480 (5th Cir. 1974) (backyard of four-unit apartment building sufficiently removed and private in character to afford reasonable expectation of privacy).

In the present case, there was no evidence that exigent circumstances existed that would justify a warrantless entry into Defendant’s home or property. Officer Smith conceded that upon arrival at the front of the residence, the location appeared “quiet.” There was furthermore no indication that any suspect connected to alleged stolen vehicle was identified on the property. There was no fresh pursuit and nothing to indicate that evidence was being destroyed or lost.

Acting without a warrant, Officer Smith took it upon himself to enter on to private property after hearing only “talking” and “music.” In doing so, he entered into the side and back yards of a residence and proceeded to approach outbuildings associated with the primary dwelling unit of that residence. He then entered the workshop where he allegedly encountered Mr. XXXX and two other individuals. The areas entered upon and searched by Officer Smith constitute “curtilage” within the meaning of the Fourth Amendment and, as such, required a valid warrant before a search was conducted. Without a valid search warrant, Officer Smith’s search of the side yard, back yard, sleeping area, and workshop were unlawful and violated the privacy protections guaranteed by the Fourth Amendment.


Officer Smith and other police officers entered Defendant’s residence and the “curtilage” of the residence without a warrant, without consent, and without the presence of exigent circumstances. This rendered the entry upon and search of the property unlawful. Any information or evidence obtained during the search must therefore be suppressed as the fruit of an unlawful law enforcement activity.

WHEREFORE, Defendant respectfully requests that this Honorable Court enter an Order suppressing in this cause the evidence described above.