Cameron v. State, A-230

• Decision Date: 12 May 1959
• Docket Number: No. A-230,A-230
• Citation: 112 So.2d 864
• Parties: Archie Bruce CAMERON and Wesley Pless, Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 864

112 So.2d 864

Archie Bruce CAMERON and Wesley Pless, Appellants, v. STATE of Florida, Appellee.

No. A-230.

District Court of Appeal of Florida,

First District.

May 12, 1959.

Rehearing Denied May 28, 1959.

On Motion to Strike Petition for Writ of Certiorari June 9, 1959.

Arthur T. Boone, Jacksonville, for appellants.

Richard W. Ervin, Atty. Gen., and David U. Tumin and Eugene P. Spellman, Asst. Attys. Gen., for appellee.

STURGIS, Chief Judge.

This is an appeal from a judgment of conviction and sentence rendered by the Duval County Criminal Court of Record.

The defendants were jointly charged in and convicted under a two count information; first, with breaking and entering with intent to commit a felony, and secondly, with grand larceny. Each defendant was sentenced to serve a term of seven years at Raiford as a result of their conviction under count one. Passing of sentence under count two was deferred from day to day and term to term until finally disposed of, jurisdiction being expressly reserved for that purpose.

The principal question urged on this appeal concerns the trial court's denial of defendants' motion to suppress certain evidence which was subsequently introduced at the trial and identified as property stolen from a store in Duval County. The subject evidence was located and seized by law enforcement officials under circumstances hereinafter related.

The defendants were seen by an officer of the State Highway Patrol as they drove through St. Augustine around noon on the morning of August 22, 1957, in a 1957 Ford automobile bearing a Wisconsin license tag. Their unshaven and unkempt appearance aroused the officer's suspicion. Being off duty at the time and driving with his family in their private car, the officer took no steps to apprehend the defendants. Later, however at around 4:00 p. m. on the same day, the defendants were again seen by the same patrolman, then on duty, as they drove along highway A1A some six miles south of St. Augustine, whereupon the officer determined to 'check them out.' It is undisputed that the defendants were violating no traffic regulation or otherwise conducting themselves in any unlawful manner. The patrol officer admitted that his sole cause for stopping them was the fact that his suspicion had been aroused by their physical appearance; not because they were violating the law or because of any information indicating either had committed or was committing any crime.

After stopping the car at that time being driven by Cameron, the officer checked the driver's license issued by the State of Wisconsin and found it to be in order. Upon being informed by Cameron that he owned the car, the officer requested that he be permitted to examine the registration card of the automobile, to which Cameron asserted that he had none for the reason that the State of Wisconsin issued no such paper to automobile owners. In the course of these happenings the officer, by his unobstructed view of the inside of the automobile from his position on the outside, observed that the radio and heater had been removed and saw certain articles, of which more later. Upon inquiring as to the whereabouts of the heater and radio, Cameron stated that he had 'gone broke' and pawned them.

These circumstances sharpened the officer's suspicions to the extent that he twice radioed his headquarters to inquire whether there was any information there concerning the automobile or its occupants. He received a negative response, but nevertheless placed both occupants under arrest. While awaiting the arrival of assistance the patrol officer opened and searched the glove compartment in an effort to locate some evidence of ownership.

During the night, after the defendants had been arrested and incarcerated and the car impounded, the patrol officer became advised that a Wisconsin warrant was outstanding against Cameron for theft of the automobile. On the following day formal steps were taken to hold him thereunder. Later in the day the officer conducted a search of the automobile, at which time he removed the property which was identified as having been taken incident to a robbery in this state. Cameron and Pless were delivered to Duval County authorities to face the charges out of which this appeal arose.

Testimony establishing the foregoing facts, together with those hereinafter recited, was received by the trial court in the absence of the jury and resulted in a denial of defendants' motion to suppress. Defendants' objection to introduction of the seized property was likewise overruled and the State was permitted to place it before the jury. These rulings constitute the primary grounds of appeal.

We recognize that law enforcement officers are not authorized to arrest without warrant one who is lawfully traveling a public way and take him into custody on nothing more than a bare suspicion that he has, or might have violated the law. Kersey v. State, Fla.1952, 58 So.2d 155. We also recognize that if the existing facts do not justify the arrest, it matters not that a search and seizure made as an incident to that arrest produces ample evidence to support what at the time of the arrest was nothing more than a mere suspicion; that an illegal arrest and search cannot be made legal by the fruit it produces. Collins v. State, Fla.1952, 65 So.2d 61; Brown v. State, Fla.1952, 62 So.2d 348. See also Garske v. United States, 8 Cir., 1 F.2d 620; Cornelius on Search and Seizure, 2nd Ed., § 31, p. 86. We are also cognizant of and agree with the proposition stated in a recent decision by Mr. Justice Thornal: 'If government under law even approximates the great principles that it is supposed to comprehend, we are necessarily impelled to the conclusion that the rascal and the chiseler, the thief and the 'con-man' are as much entitled to a fair trial as are those ultimately found to be innocent.' Shargaa v. State, Fal.1958, 102 So.2d 814, 817.

The State contends that the defendant Pless is not in a position to object to the evidence obtained by the search for the reason that he was merely a passenger or hitchhiker in an automobile which he did not own, possess or control. This contention is based upon the principle announced by our Supreme Court in Chacon v. State, Fla.1957, 102 So.2d 578, in which it was held that two of the defendants there were in position to question the validity of a search warrant since they neither owned nor had the lawful right to possession of the premises described therein.

While the exact question does not appear to have been heretofore considered or passed upon by our Supreme Court, it is clear from a review of other authorities that the constitutional guarantee to be secure against unreasonable searches and seizures accrues only to the persons in whom is vested the lawful right of possession of the premises searched, and does not extend to others who might incidentally be on the premises at the time the search is made. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409; United States v. Pepe, 2 Cir., 247 F.2d 838; Lovette v. United States, 5 Cir., 230 F.2d 263; Connolly v. Medalie, 2 Cir., 58 F.2d 629; United States v. Messina, 2 Cir., 36 F.2d 699.

Since defendant Pless was neither the owner nor had the lawful right to possession of the automobile which was the subject of the search resulting in seizure of the stolen property, he was not in position to object to the search and seizure. This would be the case even if the search and seizure had been unlawful as to Cameron. The evidence seized was therefore admissible in the trial of the charges against him.

At the conclusion of the trial, over defendant Pless' objection, the court instructed the jury that where it is shown beyond a reasonable doubt that a building has been entered and property stolen therefrom, and soon thereafter the property is found in the possession of the persons charged with entering the building with intent to steal, such possession unexplained may warrant the inference that such persons not only stole the goods, but that they broke and entered the building with intent to steal them. Defendant Pless contends that such charge was erroneous for the reason that the court had previously overruled his motion to suppress the evidence upon a finding that he was not in possession of the automobile, and therefore had no right to object to the unlawful search which disclosed the stolen property. Pless urges that if as a matter of law he was not in possession of the automobile, there were no facts upon which the jury could have lawfully concluded that he was in possession of the stolen property found therein so as to justify the court's charge regarding the inference of guilt which arises from such possession. At first blush, such contention appears to have merit.

We are of the view, however, that such argument ignores the difference in the types of possession involved in the court's ruling on the motion to suppress, and in the instruction to the jury. The former dealt exclusively with the lawful right to possession of the premises searched, while the latter dealt with possession of the property itself. Without detailing the evidence which showed a constant association between Pless and Cameron commencing during the day on which the store was broken into entered, carrying through the following afternoon when they were apprehended by the highway patrolman, we are of the view there was ample evidence from which the jury could have concluded as a fact that both Pless and Cameron were in the exclusive possession of the stolen goods at the time of their detention by the highway patrolman. This being so, the charge of the court was proper and not amenable to the attack made upon it.

Finding no reversible error as to Pless, his conviction is affirmed. We will hereafter consider a question concerning deferment of his sentence on the second count of the information, of which he stands...