Bicking v. State, T--261

• Citation: 293 So.2d 385
• Decision Date: 30 April 1974
• Docket Number: No. T--261,T--261
• Parties: Kenneth A. BICKING, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 385

293 So.2d 385

Kenneth A. BICKING, Appellant, v. STATE of Florida, Appellee.

No. T--261.

District Court of Appeal of Florida, First District.

April 30, 1974.

Louis O. Frost, J., Public Defender, and James O. Brecher, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appellee.

PER CURIAM.

This is an appeal from an order denying defendant-appellant's motion to suppress the evidence in a marijuana possession case. Following entry of the order denying his motion, appellant entered a plea of nolo contendere to the felony charged against him.

For reversal, appellant relies on the rule enunciated in Mann v. State, 292 So.2d 432, opinion filed January 16, 1974, by the Second District Court of Appeal of Florida, wherein the court held that when an accused moves to suppress evidence obtained through a warrantless search, the State has the burden of proof as to the validity of a warrantless search. In the case at bar, the trial court placed that burden on the defendant.

The cases relied upon by appellant, of which Mann v. State,supra, is only an example, appear to control. When a defendant has shown a warrantless search, he has presented a prima facie case of unreasonableness and has met the burden imposed upon him by Rule 3.190(h)(3), Florida Rules of Criminal Procedure, 33 F.S.A. The burden then shifts to the State to prove a legal search. In addition to the authorities cited in Mann v. State, supra, see also Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564.

Accordingly, we reverse and remand for a new hearing on appellant's motion to suppress, in which hearing the State must bear the burden of proof as to the validity of the search involved.

SPECTOR, Acting C.J., and McCORD, J., concur.

BOYER, J., concurs specially.

BOYER, Judge (concurring specially).

I concur in reversal. However, insofar as the above opinion might be construed, procedurally, to relieve a defendant of any obligation other than the filing of a motion to suppress, I disagree.

The Florida Rules of Criminal Procedure became effective in the State of Florida on February 1, 1973. They were formally adopted by an opinion of the Supreme Court of Florida filed December 6, 1972. Accordingly, they constitute the announced opinion of that Court.

Rule 3.190(a), relating to pretrial motions in general, provides that each motion or other pleading 'shall state the ground or grounds on which it is based.' Subsection (h)(1) of that rule, specifically treating a motion to suppress evidence in an unlawful search, sets forth five grounds upon which an aggrieved defendant may move to suppress evidence.

Rule 3.190(h)(2) provides as follows:

'Every motion to suppress evidence shall clearly state the particular evidence sought to be suppressed, The reasons for suppression and a general statement of the facts on which the motion is based.' (Emphasis added)

It is obvious therefore that the Supreme Court, in adopting said rule, did not anticipate that a defendant might simply move that evidence be suppressed; but instead carefully provided that the motion set forth the reasons for suppression and a general statement on the facts on which the motion is based.

Rule 3.190(h)(3) provides that:

'Before hearing evidence, the court shall determine if the motion is legally sufficient. If it is not, the motion shall be denied. If the court hears the motion on its merits, The defendant shall present evidence supporting his position and the state may offer rebuttal evidence.' (Emphasis added)

The question then arises as to what procedure is to be followed in the hearing on a motion to suppress evidence incident to an unlawful search. The defendant in the case sub judice relies upon Benefield v. State, Fla.1964, 160 So.2d 706 and Earman v. State, Fla.1972, 265 So.2d 695. A careful reading of the former reveals no procedural help. In Earman we find the following:

'* * * Once Earman challenged his arrest, the burden of proving its validity as a predicate for the lawful admission for the seized marijuana in evidence, was upon the State. * * *' (at page 697)

I do not construe the above cited language, particularly when it is read in context with the balance of the opinion, to mean that a defendant has sufficiently 'challenged his arrest' by merely filing a motion to suppress. Neither does Urquhart v. State, Fla.App.2nd 1968, 211 So.2d 79, cited in Earman, supra, so hold.

It would appear, therefore, and I would so hold, that if a defendant desires to suppress evidence obtained as a result of an alleged unlawful search or seizure, the following procedure should be followed:

The defendant should file a motion pursuant to Rule 3.190(h), F.R.Cr.P. clearly stating the particular evidence sought to be suppressed and clearly stating the reasons for suppression and a general statement of the facts upon which the defendant relies, to wit: facts which if true will demonstrate that the evidence sought to be suppressed is not admissible under the laws of the State of Florida.

A hearing on the motion to suppress should be scheduled in accordance with the appropriate rules at which time the trial judge should consider the allegations of the motion to determine whether the defendant has alleged a proper ground under the law for suppression and whether the allegations of fact contained in the motion are such that if they are found to be true the evidence...