Benefield v. State, 32506

• Decision Date: 12 February 1964
• Docket Number: No. 32506,32506
• Citation: 160 So.2d 706
• Parties: J. C. BENEFIELD, Petitioner, v. The STATE of Florida, Respondent.
• Court: Florida Supreme Court

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.

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 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 delivered. It is, therefore, clear that the officers may have had probable cause to believe a felony had been committed. Nevertheless, the question recurs, was the lawfulness of the arrest, even though based on probable cause, vitiated by the unlawful means in which the home was entered?

In a recent opinion of the Supreme Court of the United States, that court recognized that the lawfulness of an arrest by a state officer for an offense against a state is to be determined by state law. Ker v. California, supra.

Section 901.19(1), the applicable Florida Statute, provides:

'An officer, in order to make an arrest either by virtue of a warrant, or when authorized to make such arrest for a felony without a warrant, may break open a door or window of any building in which the person to be arrested is or is reasonably believed to be, if he is refused admittance after he has announced his authority and purpose.'

The facts reveal that the officers did not make the slightest effort to comply with this statute. Although there is some question as to whether or not Hollander held the door open for Sgt. Hooper, Hollander's testimony, as well as that of Mrs. Benefield, clearly discloses that the officer opened the unlocked screened door and stepped into the house. Such an entry would constitute entry by breaking. Boynton v. State, Fla.1953, 64 So.2d 536, 548, and Scott v. State, Fla.App.1962, 137 So.2d 625.

It is true that the act is ambiguous and poorly drawn, but a reasonable interpretation of it runs like this: When an officer is authorized to make an arrest in any building, he should first approach the entrance to the building. He should then knock on the door and announce his name and authority, sheriff, deputy sheriff, policeman or other legal authority and what his purpose is in being there. If he is admitted and has a warrant, he may proceed to serve it. He is not authorized to be there to make an arrest unless he has a warrant or is authorized to arrest for a felony without a warrant. If he is refused admission and is armed with a warrant or has authority to arrest for a felony without a warrant, he may then break open a door or window to gain admission to the building and make the arrest. If the building happens to be one's home, these requirements should be strictly observed.

Entering one's home without legal authority and neglect to give the occupants notice have been condemned by the law and the common custom of this country and England from time immemorial. It was condemned by the yearbooks of Edward IV, before the discovery of this country by Columbus. Judge Prettyman for the Court of Appeals in Accarino v. United States, 85 U.S.App.D.C. 394, 179 F.2d 456, 465, discussed the history and reasons for it. See also 22 Mich.L.Rev. 541, 673, 798, 'Arrest Without a Warrant,' by Wilgus. William Pitt categorized a man's home as his castle. Paraphrasing one of his speeches in which he apostrophized the home, it was said in about this fashion: The poorest pioneer in his log cabin may bid defiance to the forces of the crown. It may be located so far in the backwoods that the sun rises this side of it; it may be unsteady; the roof may leak; the wind may blow through it; the cold may penetrate it and his dog may sleep beneath the front steps, but it is his castle that the king may not enter and his men dare not cross the...