Benefield v. State, No. 32506

• Court: United States State Supreme Court of Florida
• Writing for the Court: TERRELL; Petitioner; PER CURIAM; The foregoing opinion and judgment by TERRELL; DREW
• Citation: 160 So.2d 706
• Parties: J. C. BENEFIELD, Petitioner, v. The STATE of Florida, Respondent.
• Docket Number: No. 32506
• Decision Date: 12 February 1964

Page 706

160 So.2d 706 J. C. BENEFIELD, Petitioner,
v.
The STATE of Florida, Respondent. No. 32506. Supreme Court of Florida. Feb. 12, 1964.

Page 707

Fogle, Wilson & Shingler, St. Petersburg, and Lindsey & Cargell, St. Petersburg Beach, for petitioner.

James W. Kynes, Atty. Gen., and James G. Mahorner, Asst. Atty. Gen., for respondent.

TERRELL, Justice.

Petitioner, J. C. Benefield, was informed against for grand larceny. He was tried by a jury and convicted of attempt to commit grand larceny. On appeal his conviction was affirmed by the District Court of Appeal, Second District. Petitioner now seeks review of the latter judgment by certiorari on the theory that it is in direct conflict with this court's decision in Dickens v. State, Fla.1952, 59 So.2d 775.

It is clear from an examination of the opinions in the case at bar and the Dickens case that although both involve substantially the same controlling facts, identical rules of law were applied to each in such a way as to produce opposite results. That is sufficient to activate this court's jurisdiction. See Nielsen v. City of Sarasota, Fla.1960, 117 So.2d 731.

If there are those who do not think we have jurisdiction on this theory, certainly we have it on the theory that the decision of the district court of appeal herein has generated confusion and instability among the precedents rendering the law 'unclear, if not in conflict,' as we said in Trustees of the Internal Improvement Fund v. LoBean, Fla.1961, 127 So.2d 98. For additional authorities see Justice Thornal's opinion in Kyle v. Kyle, Fla.1962, 139 So.2d 885, and Justice Hobson's special concurrence in King v. State, Fla.1962, 143 So.2d 458, and his opinion in Pinkerton-Hays Lumber Co. v. Pope, Fla.1961, 127 So.2d 441.

The essential facts in the case are as follows: Petitioner is alleged to have approached Hollander and Rosenthal, operators of a bowling alley located in St. Petersburg, and offered to help them secure a liquor license if they would pay him $5,000 in small bills. On April 27, 1961, Hollander and Rosenthal, after notifying the St. Petersburg Times and the St. Petersburg police department and securing certain marked money from their attorney, went to the petitioner's office. The petitioner was not at his office but was at home sick so they proceeded to his home in St. Petersburg. They were accompanied by two city detectives who waited outside while Hollander and Rosenthal entered the petitioner's home for the purpose of delivering the marked money to him. Upon completion of the transaction with petitioner, Hollander and Rosenthal left the house. One of the police officers, Sgt. Hooper, approached Hollander and Rosenthal just as they left the doorway. The sergeant asked Hollander if the petitioner had the money. Hollander lander nodded yes. The police officer then 'stepped inside the door,' asked petitioner's wife if the petitioner was home and if he could see him, walked back to the petitioner's bedroom, and after identifying himself to the petitioner, placed the petitioner under arrest. Sgt. Hooper further testified that when he entered the front door it was open, that Hollander was holding it open, and that he stepped inside before he saw petitioner's wife.

Hollander testified that he did not hold the door open for the officers, and petitioner's wife testified that by the time she had reached the hall, Sgt. Hooper had opened the door and was standing inside.

The record discloses that the two arresting officers made no announcement of their authority and purpose before entering petitioner's home; in fact, this was not done

Page 708

until the officers entered petitioner's bedroom at the rear of the home. The trial judge himself noted that the officers were not inside the home with the permission of petitioner or his wife.

On May 11, 1961, petitioner made timely motion to suppress the introduction of the marked money on the ground that it was secured by an unlawful search and seizure. Said motion was denied by the trial court on August 17, 1961, after hearing testimony and arguments of counsel.

It is clear from the record that the police officers did not have a search warrant or a warrant for petitioner's arrest and that the search for the money took place subsequent to petitioner's arrest.

The district court of appeal held that because the police officers had reasonable grounds to believe that petitioner had committed a felony, his arrest without a warrant was authorized by § 901.15, Florida Statutes, F.S.A., and thus valid. Said holding of the district court of appeal might have been a correct interpretation of § 901.15 if the officers had found petitioner out on the commons and were attempting to arrest him. In this case petitioner was in his home and the officers were proceeding under § 901.19(1), Florida Statutes, F.S.A. They were bound by the requirements of that act and what we have said here relates to the execution of it. There was no attempt whatever to comply with § 901.19(1), Florida Statutes, F.S.A., and the two acts relate to a different kind of arrest.

The evidence seized, in order to be admissible at trial, must be the product of a search incident to a lawful arrest, since the officers had no search warrant. Mixon v. State, Fla.1951, 54 So.2d 190. The lawfulness of an arrest without warrant, in turn must be based upon probable cause, which exists, where the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed. Ker v. California, 1963, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Dunnavant v. State, Fla.1950, 46 So.2d 871. In the instant case the officers were in possession of the affidavits of Hollander and Rosenthal which described the petitioner's activities prior to the payoff. The officers also were aware that Hollander and Rosenthal had entered the petitioner's house for the purpose of delivering certain marked money to him. Immediately prior to their entry into petitioner's home, Hollander had informed the arresting officer that the money had been...