Boynton v. State

• Citation: 64 So.2d 536
• Parties: BOYNTON et al. v. STATE.
• Decision Date: 07 April 1953
• Court: Florida Supreme Court

Page 536

64 So.2d 536

BOYNTON et al. v. STATE.

Supreme Court of Florida, en Banc.

April 7, 1953.

R. L. Williams of Fishback, Williams & Smith, Orlando, and Garland W. Spencer, Sanford, for appellants.

Richard W. Ervin, Atty. Gen., and William A. O'Bryan, Asst. Atty. Gen., for appellee.

MATHEWS, Justice.

This case grows out of a raid conducted by Chief Law Enforcement Officer Bowen of the Beverage Department and a large number of supervisors, together with the sheriff and some deputies from Orange County, on what is known as the Flamingo Club in Orange County, Florida.

The Attorney General spotlights the general circumstances under which the raid occurred which gave rise to the prosecution of the appellants; for in his main brief filed before this Court, it is stated:

'Beverage officers Whidden and Bowen and Sheriff Starr entered the front door of the building which opened into a small bar. Apparently without stopping or encountering anyone, they passed from this small bar into a rather large dining and dancing room, crossed this room and entered into what was known as the gambling room, toward the back of the building. The record is devoid of any suggestion that they made any inspection or search of the premises for any violations of the Beverage Act from the moment they entered the building until they arrived at the so-called gambling room.' (Emphasis supplied.)

After the raid, arrests, searches and seizures, the sheriff made affidavits upon which warrants were issued for the arrest of each of the appellants. In due course information was filed against all of the appellants in four counts.

(1) The appellants, Andrew W. Boynton and Ralph Strawder, and Bessie McKinney were charged with the offense of maintaining a gambling room, (2) the appellants, Andrew W. Boynton, Ralph Strawder, Charles D. Cotton, John C. Franklin, D. C. Broadnax and Josephine Wright, and Bessie McKinney were charged with the offense of conducting a lottery, (3) the appellants, Andrew W. Boynton, Ralph Strawder, Charles D. Cotton, John C. Franklin, D. C. Broadnax and Josephine Wright, and Bessie McKinney were charged with the offense of possession of implements and devices for conducting a lottery, and (4) the appellants, Andrew W. Boynton, Ralph Strawder, Charles D. Cotton, John C. Franklin, D. C. Broadnax and Josephine Wright, and Bessie McKinney were charged with the offense of possession of lottery tickets representing an interest in a lottery for money.

Bessie McKinney was found not guilty of the charges against her.

John C. Franklin was found guilty on the second count of conducting a lottery, guilty of the third count of possession of implements and devices for conducting a lottery, and guilty on the fourth count of having in his possession lottery tickets representing an interest in a lottery for money. Charles D. Cotton was found guilty on the second, third and fourth counts of the offenses of conducting a lottery, possession of implements and devices for conducting a lottery, and having in his possession lottery tickets representing an interest in a lottery for money. D. C. Broadnax was found guilty under the second count only of conducting a lottery. Josephine Wright was found guilty under the second, third and fourth counts as above set forth.

Prior to the date of trial, the appellants, Andrew W. Boynton and Ralph Strawder, filed a motion to suppress the evidence, which among other grounds, contained the following:

'1. That the business operated by Flamingo Club was leased to Defendants on and prior to September 22, 1951, and was not open for business on the 22nd day of September, A.D.1951, and the only part of said building open for business was a small bar open to the public, and that said small bar open to the public was far distant from the back room searched by the Beverage Inspectors and Agents and by the Sheriff and Deputy Sheriffs of Orange County, Florida.

'2. That the only door open for business in the building searched by said officers was the door leading into the small bar far distant from the room searched by said officers.

'3. That the room searched by the said officers could only be entered from an outside entrance door far distant from the bar in said building which was open for business, and said room was not on the 22nd day of September, A.D.1951, used for the transaction of business with the public generally, and never had at any time prior to the 22nd day of September, A.D.1951, ever been used for the transaction of business with the public generally.

'4. That no liquors or intoxicating beverages were stored in said room searched by said officers, and no permit for storage of liquors therein had ever been granted by the State Beverage Department of the State of Florida nor had any application ever been made to the State Beverage Department for the storage therein.

'5. That said room was forcibly entered by the officers of the State Beverage Department and the Sheriff and Deputy Sheriffs of Orange County, Florida, without any right in law so to do, and without the benefit of first securing a warrant of arrest of any person in said room or any person in said building, and without first securing a good and sufficient search warrant for the purpose of searching said room or said building.'

The appellants, Charles D. Cotton, John C. Franklin, D. C. Broadnax and Josephine Wright, also filed a motion to suppress the evidence on the grounds that:

'1. That none of the defendants are in any wise connected with the ownership, management or operation of Flamingo Club, and that the person and effects of the defendants were unlawfully and illegally searched by said officers and said defendants were required by said officers to surrender up and deliver possession of articles allegedly possessed by them without the benefit of a search warrant and at a time when said defendants were peaceably going about their business and not engaged in the commission of any crime known to the laws of the State of Florida, in the presence of said officers, nor did said officers have a lawful warrant for the arrest of any of said defendants.

'2. That at the time of said illegal and unlawful search defendants had each been placed under arrest by the State Beverage Agents of the State of Florida, without any authority in law in that these defendants had committed no crime known to the laws of the State of Florida, in the presence of said officers or in the presence of any other officer, and said arrest, without a warrant of arrest, was made on suspicion only and was illegal and unlawful in its inception, and the search of the person and affects of these defendants made thereafter was illegal and void and violated the constitutional rights of these defendants guaranteed to them by Section 22 of the Declaration of Rights to the Constitution of the State of Florida [F.S.A.] and by the 4th Amendment of the Constitution of the United States.'

The motions to suppress the evidence were denied. Pleas of not guilty were filed and the trial proceeded which resulted in convictions as above set forth. Judgments and sentences were entered.

In due course motion for new trial was filed as to all appellants, which was denied. The appellee, before the Bar of the Court and in its brief, stated:

'There was no search warrant issued for the premises and the officers were proceeding under the statutory authority provided by Section 561.07, Florida Statutes [F.S.A.], which defines the powers and duties of supervisiors of the Beverage Department, and Section 562.03, Florida Statutes [F.S.A.], which provides that the places of business of licensees shall always be subject to inspection and search during business hours by Beverage Department supervisors and also by sheriffs, deupty sheriffs and police officers.'

Although appellee states the proceedings were under the statutory authority of Section 561.07, F.S.A. and Section 562.03, F.S.A., other sections of the Beverage Law must be construed in connection with the sections above mentioned.

Section 561.07, F.S.A. gives the supervisors access to and the right to inspect the premises of all licensees to collect taxes and to examine the books and records of all licensees. It makes it the duty of the supervisors to require strict compliance with the laws relating to 'the transaction of such business.'

Section 561.29, F.S.A. makes the maintenance of a nuisance or unsanitary premises or permitting disorderly conduct 'on the premises where such beverage business is conducted' a reason to revoke or suspend the license of any licensee.

Section 562.03, F.S.A. makes it mandatory that the licensee by the acceptance of the license to agree that his place of business 'during business hours' shall always be subject to be inspected and searched without search warrant by the supervisors and also by sheriffs, etc. This section prohibits any beverage, except for personal consumption, to be kept by the vendor in any building or room other than the building or room 'mentioned in his license'. The section further provides that where the vendor requires an 'additional building or storeroom' for the storing of a portion of his stock, he shall make application to the director for a permit to store such beverages in some other designated building or room. It then provides that such places (meaning 'additional building or storeroom' mentioned above) may be inspected and searched at any time by the supervisor, deputy sheriff, or other police officer.

Section 823.05, F.S.A. makes the maintenance of a gambling establishment a nuisance.

A diagram of the place where the raid was conducted including approximately 15 different rooms was filed in evidence by the State. This diagram contains numerous markings, dimensions, names of rooms, etc. It is assumed that this building is all under one roof. It is located at the northwest corner of Elwell Street and Cheney Highway.

Beginning at the Northwest corner there is a 'storero...