Church v. State

• Decision Date: 07 July 1942
• Citation: 9 So.2d 164,151 Fla. 24
• Court: Florida Supreme Court
• Parties: CHURCH et al. v. STATE.

9 So.2d 164

151 Fla. 24

CHURCH et al. v. STATE.

Florida Supreme Court

July 7, 1942

Rehearing Denied July 28, 1942.

Appeal from Circuit Court, Dade County; George E. Holt Judge.

Aronovitz & Goldstein, of Miami, for appellants.

J. Tom Watson, Atty Gen., Millard B. Conklin, Asst. Atty. Gen., and Robert R. Taylor, Co. Sol., and Glenn C. Mincer, Asst. Co. Sol., both of Miami, for Appellee.

TERRELL, Justice.

In November, 1941 a Deputy Sheriff of Dade County made the following affidavit before one of the Circuit Judges:

'Before me George E. Holt, Judge of the Circuit Court of the Eleventh Judicial Circuit of Florida in and for the County of Dade personally appeared Jeff D. Gautier, a Deputy Sheriff of Dade County, Florida, who being by me first duly sworn, deposes and says that he believes and has good reason to believe that in a certain building known as 3012 N.W. 27th Ave., in the City of Miami, Dade County, Florida, gambling is being conducted by a person or persons whose names are to affiant unknown, contrary to the laws of the State of Florida; and that the said premises are being used for the operation of a gambling room contrary to the laws of this State; and that affiant's reason for his belief is that he has learned from an investigation conducted by him as a Deputy Sheriff that there is in said building at said address numerous telephones and telephone equipment such as is commonly used by bookmakers in taking and making unlawful bets and wagers on horse races conducted at different points and that in said building there is certain telephone equipment connected with other places known by affiant to be operated and conducted as book making places and that affiant has information from other persons making undercover investigation that unlawful wagering and betting is actually being conducted within said building.

'Wherefore, affiant prays that a search warrant be issued according to law commanding the Sheriff of Dade County, Florida, or his deputies, with proper and necessary assistance, to search said premises and seize as evidence the gambling implements, apparatus and devices used for the purpose of gambling in order that the evidence may be procured to be used in the prosecution of such persons unlawfully operating said premises.'

On the basis of said affidavit, the Circuit Judge issued the following search warrant:

'Whereas, Jeff. D. Gautier, has this day made oath before me, that he has probable cause to believe and does believe that a certain building known as 3012 N.W. 27th Avenue, in the City of Miami, Dade County, Florida, is being unlawfully used for the purpose of gaming and gambling, contrary to the laws of the State of Florida.

'These, therefore, are to command you, with proper and necessary assistance, either in the day time or in the night time as the exigencies of the occasion may demand or require, in the said building known as 3012 N.W. 27th Avenue, in the City of Miami, Dade County, Florida, there to diligently search for the same gambling implements and devices used for the purpose of gaming and gambling, and any part thereof, and if the same shall be found upon such search, that you bring the said goods so found and also the bodies of the persons found to be operating said place, before me to be disposed of and dealt with according to law.'

A motion to quash the affidavit and search warrant were overruled and this appeal was prosecuted.

It is first contended that the motion to quash should have been granted because the affidavit is fatally defective in that it fails to describe the parties or goods to be seized, that it does not contain facts to support the affidavit and that such facts as are alleged are secondary and based on information and belief.

Section twenty-two of our Declaration of Rights and the Fourth Amendment to the Federal Constitution are relied on to support this contention. They are almost identical in wording and require that the person to be seized be described if known. The affidavit alleges that 'gambling is being conducted by a person or persons whose names are unknown'. Such a description has been pronounced sufficient. Cornelius on Search and Seizure 315; 56 C.J. 1226.

The place was described in the affidavit as a 'certain building known as 3012 N.W. 27th Avenue in the City of Miami, Dade County, Florida'. Such a description was ample. The property was described as 'telephones and telephone equipment such as is commonly used by bookmakers in taking and making unlawful bets and wagers on horse races'. These allegations were sufficiently predicated and proof of them is sufficient to constitute the place described prima facie a gambling house and cast the burden on defendants of proving to the contrary. Section 7661, Compiled General Laws of 1927. This holding is not in conflict with Sections 8507 and 8513, Compiled General Laws of 1927, relied on by appellants.

The general current of authority supports the view that if the name of the person is known it should be given, but if not known, the name or description is not required. It is also permissible to recite that the owner of the property is unknown. If it is not in the possession of the party arrested, he cannot complain. United States v. Kaplan, D. C., 286 F. 963; Sherwood v. State, Okl.Cr.App., 290 P. 1112; United States v. Camarota, D. C., 278 F. 388. In this case appellants do now show or contend that the premises searched was their dwelling, that they owned it or rented it or that they were in possession of it. Where this is the...