Carlton v. State
| Citation | 149 So. 767,111 Fla. 777 |
| Parties | CARLTON v. STATE. |
| Decision Date | 07 September 1933 |
| Court | United States State Supreme Court of Florida |
Rehearing Denied Sept. 27, 1933.
Error to Criminal Court of Record, Hillsborough County; W. Raleigh Petteway, Judge.
Ernest Carlton was convicted of an offense, and he brings error.
Affirmed.
COUNSEL Robert H. Givens, Jr., of Tampa, for plaintiff in error.
Cary D Landis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.
This is the second appearance of this case in this court. See Carlton v. State, 145 So. 249, 250. On the first writ of error we reversed the judgment because of an erroneous charge to the jury. Following a second conviction after remand of the first appeal, we are again asked to reverse the judgment on two principal grounds: (1) Alleged error in the admissibility of evidence alleged to have been obtained by an unconstitutional search of the defendant's dwelling house; (2) alleged error in a charge to the jury concerning the effect of the accused's failure to take the stand as a witness in his own behalf and testify.
The first proposition might well be disposed of on the authority of what was said in the opinion of the first writ of error, wherein we said: 'There was no error in the admission of evidence relating to the property seized in the search without search warrant of defendant's private dwelling, under the circumstances appearing in this case.' (Italics supplied.) That holding was based on the proposition that the record showed that not only the defendant's youthful wife, but that he himself, consented to, and indeed invited, a search of his premises at the time of his arrest on March 7, 1932. In the present case, the witness McClellan, a police officer of the city of Tampa testified without contradiction that he went out to Ernest Carlton's house and picked him up for investigation; that Ernest Carlton came to the door and invited the officer and a Mr. Williams to come in, saying that he was expecting them that, upon being asked if it would be all right for the officers to look through the house, Carlton said 'Yes,' after which all three of those present did go through the house, without any objection, expressed or implied, having been raised by Carlton as to the searching of his premises without a search warrant.
The fact that a subsequent search without a search warrant was made on the same premises on the next day, after the defendant had been placed in jail, but with the consent of and in the presence of, his wife, does not demonstrate that the constitutional rights of the accused to be immune from unauthorized searches was violated by the officer who made that search. On the contrary, the record shows that the officer did what was done with every regard for the proprieties of the occasion, and with solicitude for the feelings, as well as the legal rights, of the parties affected. Piecing the whole procedure together, we are unable to find any basis for the complaint that the searches made were involuntarily consummated, especially in view of the defendant's own personal invitation to another officer to make a search of the same premises the day before.
The essence of an objection against an unconstitutional search or seizure is that it must be perpetrated by the officers in violation of the...
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...defendant exercised exclusive control or possession over those items seized on October 12. For a similar conclusion see Carlton v. State, 111 Fla. 777, 149 So. 767 (1933); State v. Cairo, 74 R.I. 377, 60 A.2d 841 (1948); People v. Shambley, 4 Ill.2d 38, 122 N.E.2d 172 (1954); and Embry v. S......
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