Carter v. State

• Citation: 199 So.2d 324
• Decision Date: 17 March 1967
• Docket Number: No. 6939,6939
• Parties: Henry L. CARTER, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 324

199 So.2d 324

Henry L. CARTER, Appellant, v. STATE of Florida, Appellee.

No. 6939.

District Court of Appeal of Florida, Second District.

March 17, 1967.

Rehearing Denied May 26, 1967.

I. W. Williams, of Minnis & Williams, St. Petersburg, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.

PIERCE, Acting Chief Judge.

Henry L. Carter, defendant below, appeals the judgment entered by the Pinellas County Circuit Court upon a jury verdict convicting him of a violation of the lottery laws of Florida.

The information was in two counts, each count charging that defendant did 'aid and assist in setting up, promoting and conducting a lottery or lottery drawing for money, commonly known as 'cuba' or 'bolita', * * *'. The difference between the two counts is that in the first count it is alleged the 'aiding and assisting' was 'by having in his Possession numerous lottery tickets and records showing the sales in said lottery * * *', while the second count alleged that such 'aiding and assisting' was 'by Transmitting lottery tickets and records of sales in said lottery * * *'.

We are concerned here with two alleged trial errors urged by defendant, (1) legality of defendant's arrest and the consequent seizure of certain lottery equipment, later admitted into evidence over objection, and (2) prejudicial language of the prosecutor in arguing his case to the jury.

A--Legality of the Arrest Without Warrant.

The importance of the question and the numerous diverse holdings at the appellate level, coupled with the regularity with which the problem increasingly recurs, impels us to specifically spell out the law to hereafter govern, at least in this jurisdiction.

Defendant's home at Alhambra Way South and 22nd Avenue in St. Petersburg was under surveillance by St. Petersburg police officers Petry and Reese from about 1500 feet away ¹ on six different occasions in February, 1965, namely, on the 12th, 19th and 26th (Fridays) from about 5 P.M. to 9 P.M., and on the 13th, 20th and 27th (Saturdays) from about 9 A.M. to 10 A.M. On the Friday night vigils they observed some twenty or more vehicles drive up and park to the front or rear of defendant's home while one or more occupants would go into the residence and a few minutes later come out and the car then drive off. On the three Saturday mornings the same thing happened, except that only four or five cars would drive up and park. On each of these six occasions defendant would be observed around his home, 'taking care of his property, watering the flowers and grass, * * * working in the back amongst the vegetable--gardening, attending the rest of the shrubbery on the premises', and on one occasion walking across the street to a neighbor's house and shortly returning.

During the surveillance of Saturday the 13th at about 10 A.M., they observed defendant drive a Ford pick-up truck from his home all the way to the B and S service station at 2001 15th Street North in Tampa, where he parked and entered the office area of the building. On Saturday, the 20th, at about the same time, defendant left his home in a GMC truck, after which the officers lost him from view about ten blocks from his residence but observed him again at about 10:40 A.M. in the same GMC truck at the same service station in Tampa, where he entered and returned about ten minutes later. On Saturday, the 27th, defendant again left his home driving the GMC truck and was trailed by the officers to a point near the Howard Frankland bridge between St. Petersburg and Tampa where defendant's truck was stopped by the officers and they thereupon 'arrested him for the violation of the gambling laws of the State of Florida'. Three carloads of officers converged on the interception of the truck and defendant's arrest. Upon command of the officers, defendant got out of the truck and 'was then searched'.

The foregoing are the salient facts relied upon to sustain validity of the arrest of defendant. The search of defendant and his truck yielded the incriminating lottery tickets and paraphernalia which constituted the main evidence of the State for conviction. At the time the articles were first offered in evidence, the Court commented:

'I don't know Mr. Muntzing (the Assistant State Attorney). It seems to me there are some loopholes in your proffer. * * * Here is the crux of this witness' (officer Reese's) testimony: 'I had reason to believe the gambling laws of the State of Florida were being violated' * * * Mr. Muntzing, I am going to admit the evidence at the present time before the jury subject to your establishing the basis for the witness' belief and the relevancy of the contents of the subject of the evidence itself.'

The only additional evidence the State thereafter offered to establish 'the basis for the witness' belief' that the 'gambling laws * * * were being violated' was the testimony of officer Reese to the effect that soon after the arrest on the highway he 'asked the defendant if this was all the bolita in the truck. He (Carter) stated that this was all he knew about'; also that '(i)n route to the station while he (Carter) was a passenger in the vehicle operated by me, I asked him if the bolita was his bolita. He stated that he did not write bolita, that he just takes it to Tampa.' The prosecutor then announced: '(n)ow, may it please the Court, that is the extent of the State's proffer in this regard.' ² The physical evidence was thus admitted over defendant's objection.

The two statements of the defendant to officer Reese, the one made at the scene about five minutes after the arrest and the other made in the car while taking him to the station, undoubtedly violated the ban upon such type of testimony under the recent opinion of this Court in Williams v. State, Fla.App.1966, 188 So.2d 320. But apart from the tainted character of the testimony, such statements could not be utilized to bolster the legal basis for the prior arrest and search without a warrant. The defendant was already in custody upon the specific charge of violating 'the gambling laws' of the State, and whatever may have transpired thereafter, either in the form of incriminating statements by the defendant or affirmative evidence subsequently discovered, could not be considered as support for the officer's right to arrest at the time the arrest was made. The legality of the arrest must stand or fall upon the facts and circumstances Then existing. Collins v. State, Fla.1953, 65 So.2d 61; Urso v. State, Fla.App.1961, 134 So.2d 810; 3 FlaJur., Arrest, § 21; 29 Fla.Jur., Search and Seizure, § 13.

The Florida Statutes provide the basic essentials for an arrest without a warrant in F.S. Sec. 901.15 F.S.A., which reads:

'A peace officer may without warrant arrest a person:

(1) When the person to be arrested has committed a felony or misdemeanor or violation of a municipal ordinance in his presence. In the case of such arrest for a misdemeanor or violation of a municipal ordinance, the arrest shall be made immediately or on fresh pursuit.

(2) When a felony has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it.

(3) When he has reasonable ground to believe that a felony has been or is being committed and reasonable ground to believe that the person to be arrested has committed or is committing it.

(4) When a warrant has been issued charging any criminal offense and has been placed in the hands of any peace officer for execution.'

In Paula v. State, Fla.App.1966, 188 So.2d 388, this Court said:

"Probable cause' is the same, whether it is the basis of an affidavit for a search warrant or whether as the basis for a search without a warrant; and as to what qualifies as 'probable cause' in either event has been aptly expressed by Judge Kanner of this Court in McCain v. State, Fla.App.1963, 151 So.2d 841, as follows (text 844):

'In dealing with 'probable cause' for search and seizure without a warrant, a court deals with probabilities which are not technical but which are factual and practical considerations of every day life upon which reasonable and prudent men act and not legal technicians. The essence of 'probable cause' is a reasonable ground for belief of guilt; and the court in determining whether there was probable cause to make a search without a warrant must first determine sufficiency of knowledge by the searching officer by comparison to what a reasonable man, knowing all the facts which the searching officer knew, would have believed under all of the circumstances. Gispert v. State, Fla.App.1960, 118 So.2d 596, cert. denied, Fla.1960, 122 So.2d 782."

In Casso v. State, Fla.App.1966, 182 So.2d 252, this Court upheld legality of an arrest without a warrant under the facts therein found to exist, and we laid down the rule as follows (text 182 So.2d 257):

'* * * (t)he arrest, with its consequent search and seizure, was legal. The arrest of suspected felons without a warrant is justified, and evidence obtained by search of their persons or effects upon the arrest, will not be suppressed, where the arresting officers had probable cause, in view of their prior investigation, to believe that such persons were then engaged in violating the law. And in determining whether the officers had such probable cause to believe that a felony was being committed so as to justify the arrest without warrant, sufficiency of the known facts on the part of the officers must be determined, not by an analysis of the effect of each known circumstance in isolation, but By a conclusion as to what a reasonable man, knowing all the facts which the officers knew from their prior investigation, would have believed under all the circumstances. Rogers v. State, 1947, 158 Fla. 582, 790, 30 So.2d 625.

As an incident to an arrest made under these conditions, the arresting officer has the powr, indeed it is his duty, to search the person...