Diaz v. State

• Decision Date: 15 December 1965
• Docket Number: No. 6096,6096
• Citation: 181 So.2d 351
• Parties: Savino DIAZ, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 351

181 So.2d 351

Savino DIAZ, Appellant, v. The STATE of Florida, Appellee.

No. 6096.

district Court of Appeal of Florida, Second District.

Dec. 15, 1965.

Rehearing Denied Jan. 13, 1966

G. Richard Christ, Tampa, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Robert G. Stokes, Asst. Atty. Gen., Lakeland, for appellee.

HOBSON, Judge.

This is an appeal by the appellant-defendant from a judgment of guilty for the crime of possession of a narcotic drug, towit: marijuana.

The sole question involved in this appeal is whether it was within the court's province to determine if the arrest of the defendant was legal, thereby making the subsequent search and seizure valid when there was a conflict in the testimony as to whether the arrest resulted from 'fresh pursuit.'

There is no dispute as to the fact that the defendant violated a municipal ordinance in the presence of the arresting officer. However, a conflict of testimony arises between the arresting officer's version of the facts occurring subsequent to the violation of the municipal ordinance and the version of other witnesses. The arresting officer testified that the defendant, after running a stop sign in the City of Tampa, Florida, was continually in his visual presence during the time that he chased the defendant and the defendant entered the White Way Bar where he was subsequently arrested. The conflict arises through the testimony of the defendant's ex-father-in-law, Mr. Acosta, who testified that the arresting officer was in the vicinity of his front yard when the defendant violated the municipal ordinance and that the arresting officer and another officer pursued the defendant and in 'about 10 minutes, they came back and they said they had lost him.' The father of the defendant testified that he was in the White Way Bar when his son entered and that it was 15 to 20 minutes after his son entered the White Way Bar that the arresting officers and other law enforcement personnel entered the White Way Bar.

Immediately after the arrest the defendant was searched and a vial containing a substance later identified as marijuana was found on the defendant's person.

The defendant filed a motion to suppress the vial and its contents as evidence against him on the grounds that it resulted from an illegal search and seizure due to the fact that there was an invalid arrest because the arresting officer had lost 'fresh pursuit .' Further, in order for evidence to be admissible that is obtained by a search and seizure following an arrest for the violation of a municipal ordinance in the presence of the arresting officer, such arrest must be made on 'fresh pursuit.' The trial court denied the defendant's motion to suppress as well as overruling the defendant's objection to the intorduction of the vial and marijuana contained therein into evidence at the trial.

Our Supreme Court in the case of Johnson v. State, 1946, 157 Fla. 685, 27 So.2d 276, on page 282, held as follows:

'Aside from the challenge of the sufficiency of these documents there was two allegations of fact going to the legality of the search and seizure. The first of these allegations was that the dwelling house authorized to be searched by the warrant was broken and entered by the sheriff without his first having given notice that he was armed with a search warrant and intended to search the house for gambling paraphernalia. The other was that he made the search and seizure without serving the warrant on Marion F. Johnson. The court heard testimony pro and con as to...