Bernovich v. State

• Decision Date: 17 January 1973
• Docket Number: No. 41751,41751
• Citation: 272 So.2d 505
• Parties: Dennis L. BERNOVICH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 505

272 So.2d 505

Dennis L. BERNOVICH, Appellant, v. STATE of Florida, Appellee.

No. 41751.

Supreme Court of Florida.

Jan. 17, 1973.

Rehearing Denied Feb. 23, 1973.

Gordon V. Frederick, Sanford, for appellant.

Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.

DEKLE, Justice.

After a five-day jury trial on a charge of rape, the defendant was found guilty without recommendation of mercy. Pending consideration of the appeal here, the case of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), effectively terminated existing capital punishment in Florida. Donaldson v. Sack, 265 So.2d 499 (Fla.1972). This Court was then left with no alternative but to void the death penalty in this case and in the interest of expediting this and numerous similar cases then pending, we dealt with them in our opinion in Anderson et al. v. State, 267 So.2d 8 (Fla.1972), and provided for resentencing by the trial judge in such instances as here of rape without murder prior to January 1, 1972. This action of course concluded that principal aspect of this appeal. The defendant has since been duly resentenced to life imprisonment by the trial judge on September 20, 1972.

In this cause, as in others, we have proceeded to examine the record, however, to consider any other remaining points on appeal for our decision. In the present case we find assertions of error strongly urged by defendant that his motion to suppress the evidence should have been granted and a directed verdict of acquittal entered and in certain other rulings and denials of post trial motions.

We do not see in these circumstances an illegal search, and we affirm the able trial judge in denial of the motion to suppress. The facts here are consistent with Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921).

Ours is an instance in which an individual who was not a police officer, nor acting under police direction, obtained the articles in question and turned them over to the police. It is contended that Fla.Const. art. I, § 12, F.S.A., has been violated by an illegal search. We do not think so.

The articles in question (consisting of a knife, gun and stocking mask related to the crime) were in the defendant's automobile which his wife--after the date in question--drove to her father's home, told her father of the contents, whereupon he went to the car and inspected them, put them back under the seat and then called the police, advising them of the articles and that they should see them. Upon the officers' arrival, the father advised them that the articles were in the car and he (the father) went to the car and removed them and handed the articles to the police. It is contended that the father was acting 'as an arm of the police' in so doing. Here, however, the testimony reveals the lack of a participation by the officers in the search or seizure, which negates this contention.

Prior to the decision in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), law enforcement officers could receive under the 'silver platter' doctrine evidence illegally seized by state police without the knowledge or cooperation of the federal authorities. However, the Elkins decision no longer makes available to federal authorities under the silver platter doctrine evidence obtained by state officers in an unreasonable search and seizure. In this connection, the Supreme Court of the United States in Elkins said that if the search and seizure would have been unlawful had it been committed by federal authorities, the evidence is still 'tainted' and must be excluded in a federal case. Burdeau however, involved private persons not connected with any governmental body, so...