Dunnavant v. State

• Citation: 46 So.2d 871
• Parties: DUNNAVANT v. STATE.
• Decision Date: 13 June 1950
• Court: United States State Supreme Court of Florida

Page 871

46 So.2d 871

DUNNAVANT v. STATE.

Supreme Court of Florida, Division B.

June 13, 1950.

Philip D. Beall, Jr., and Coe & Eggart, Pensacola, for appellant.

Richard W. Ervin, Attorney General, and Murray Sams, Jr., Assistant Attorney General, and Roy T. Rhodes, Special Assistant Attorney General, for appellee.

CHAPMEN, Justice.

The appellant, Louie Frank Dunnavant, was convicted of the crime of possessing untaxed liquor in the Court of Record of Escambia County, Florida, and sentenced to serve a period of two years at hard labor in the State Prison. The whiskey was found in the appellant's home when it was searched by the officers under the authority of a search warrant. The judgment of conviction challenged on this appeal either stands or falls on the legality of the search of the appellant's home. The search warrant was issued on the affidavit of Nolen L. Booker by Honorable Harvey E. Page, County Judge of Escambia County, Florida, and are substantially as follows:

'State a Florida,

'Escambia County.

'Before the Undersigned Harvey E. Page, County Judge personally came Nolan Booker who by me being first duly sworn deposes and says:

'(2) That the laws of the State of Florida, towit: The Laws against the sale, possession, manufacture of untaxed alcoholic and intoxicating liquor are being violated on the following described premises: a one story frame building located on the northwest corner of West Jackson and North A Streets and bearing the number 700 on the Jackson Street side in the city of Pensacola, County of Escambia, State of Florida, and being the premises of persons unknown by reason of the following facts, to-wit: On June 1, 1949, the affiant searched a confidential informer and determined that he had no whiskey on his persons and witnessed him enter the building described above and in a few minutes come therefrom and come directly to affiant, when he handed him one pint bottle of non tax paid or moonshine whiskey. Affiant gave the confidential informer two dollars before he entered the said premises and the informer stated that he paid two dollars for the pint of non tax paid whiskey and that the whiskey was secured from the back part of the building and delivered to him in the front part of the building.

'Search of the above premises to be made to seize all untaxed intoxicating beverages, and/or all apparatus, containers, etc., used in and about the possession, manufacture or sale of untaxed alcoholic beverages and to seize all persons in possession thereof.

'Wherefore it is prayed that a search warrant issue for the above described premises to seize all untaxed, illegal intoxicating liquors and all illegal untaxed apparatus, containers, etc., used in and about the unlawful sale, possession and manufacture of untaxed and illegal intoxicating beverages.

'/s/ Nolen L. Booker

'Sworn to and subscribed before me in my presence this 3 day of June, A.D. 1949.

'(Seal) /s/ Harvey E. Page

'County Judge, Escambia County, Fla.

'The above application for search warrant coming on to be heard and having examined the applicant under oath and the above sworn affidavit set forth and other facts and thereupon being satisfied that there is probable cause to believe that the grounds set forth in said application and facts do exist and that the law is being violated as alleged, I so find and a search warrant is hereby allowed and issued.

'/s/ Harvey E. Page

'County Judge, Escambia County, Fla.

'Search Warrant

'State of Florida

'County of Escambia}

'In the Name of the State of Florida:

'To All and Singular the Sheriffs and Constables, Supervisors and Agents of the Beverage Department of the State of Florida:

'Whereas, complaint on oath and in writing, supported by affidavit has been made before the undersigned County Judge of Escambia County, Florida, and Whereas said facts made known to me have caused me to certify and find that there is probable cause to believe that the laws of the State of Florida have been and are being violated on or in the premises known and described as follows: A one frame building located on the northwest corner of West Jackson and North A Streets and bearing the number 700 on the Jackson Street side, in the City of Pensacola, in the County of Escambia, State of Florida, and being the premises of persons unknown, by having on and in said premises illegal, untaxed intoxicating beverages.

'Now, Therefore, you or either of you, with such lawful assistance as may be necessary, are hereby commanded, in the day time or in the night time, to enter the said premises and then and there to search diligently for said illegal, untaxed intoxicating beverages, property described in this warrant, and if the same or any part thereof be found on said premises, you are hereby authorized to seize and secure the same and to make return of your doings under this warrant to the undersigned within ten days from the date hereof, and you are likewise commanded in the event you seize or take the property or materials mantioned in this warrant to safely keep the same until otherwise ordered by a court having jurisdiction thereof, and that you give proper receipts for said property and deliver a copy of this warrant to the person from whom taken or in whose possession it is found or in the absence of any such person to leave said copy in the place where said property or material was found, and you are further directed to bring all illegal, untaxed, intoxicating beverages, illegal untaxed distilling apparatus, containers, etc., if any found, and the person or persons in possession thereof, before a court of competent authority.

'Witness my hand and official seal this the 3 day of June, A.D. 1949.

'/s/ Harvey E. Page

'County Judge

'Received 3rd day of June, 1949.

'And returned this 3rd June day of June, A.D. 1949.

'Served by making search as within directed; upon which search I found approximately 4 and 1/2 gas. moonshine whiskey.

'/s/ N. L. Booker

'Sworn to and subscribed before me this 4th day of June, A.D. 1949.

'Alma Ward

'Notary Public.'

It appears by the record that the appellant owned and operated a grocery store and meat market on June 3, 1949, at the corner of Jackson and 'A' Streets in the City of Pensacola, being No. 700 Jackson Street. The building was under one roof and part of it used as a grocery store and the remaining portion of the building occupied by the family of the appellant as a dwelling. The living quarters of the appellant and wife were connected with the grocery store by a door but no business was transacted with the public in the living quarters. It is true that the appellant went from his grocery store through a door into his living quarters but the door was closed to the public. The officers found no whiskey in the grocery store, but found the whiskey described in the information in the bathroom of the appellant's living quarters.

Mr. Booker, in part, testified for the State viz.: 'A. * * * The living quarters is right in where we went; right in this corner is your meat box, this is an opening here. This is a door that opens into one room and off from that door right behind the meat box is also a bedroom and this little closet is right through this opening, right in this corner, right here. (Indicating on diagram).

'Q. In other words, the closet gives in the bedroom? A. Yes, sir.

'Q. What I am particularly interested in, Mr. Booker, is the outer door. Did you not recall a table in here like an ordinary dining room? A. Yes, sir, that is on the rear of the building.'

'We went into the store and I told Mr. Dunnevant, I asked him, 'Who was in charge' and he said 'he was', I asked him his name and he told me, and I told him...