Earman v. State, 70--1082

• Decision Date: 05 October 1971
• Docket Number: No. 70--1082,70--1082
• Citation: 253 So.2d 481
• Parties: John Robert EARMAN, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 481

253 So.2d 481

John Robert EARMAN, Jr., Appellant, v. STATE of Florida, Appellee.

No. 70--1082.

District Court of Appeal of Florida, Fourth District.

Oct. 5, 1971.

Rehearing Denied Nov. 10, 1971.

Joseph D. Farish, Jr., of Farish & Farish, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Appellant, charged in a three-count information with (1) conspiracy to commit a felony, (2) sale of marijuana, and (3) possession of marijuana, was convicted and sentenced on all counts. On this appeal he assigns error only to the denial of his pretrial motion to suppress certain evidence, the denial of his motion for new trial, and the trial court's transferring the cause to another division of the court for ruling on the pretrial motion to suppress.

The essential facts are as follows: Randy Burger was arrested by the West Palm Beach Police when he sold marijuana to an undercover officer. Burger named appellant and one Jimmy Rasimowicz as his source of supply. In cooperation with the police, Burger made a series of phone calls to the residence of appellant's parents where appellant was staying while his parents were out of town on vacation. Officer Foster, listening to the calls on an extension phone, learned that Rasimowicz had gone to Miami for another supply of marijuana and would return later in the day. Later that day Foster overheard arrangements made between Burger and Rasimowicz to rendezvous for the purpose of enabling Burger to buy one-half pound of marijuana for $175. After being carefully searched, Burger was supplied with $175 in marked currency and released from custody. He went directly to the rendezvous with Rasimowicz, from where the two of them proceeded to the Earman residence, all under surveillance. They remained inside for a short period of time, following which Burger emerged alone. He drove away and was stopped within one block by the police who immediately searched him and found one-half pound of marijuana but none of the marked currency. Burger stated that while in the residence he had purchased the marijuana from Rasimowicz with appellant looking on. Det. Foster with other Officers immediately took Burger back to the residence where he entered a side door and called for Rasimowicz and appellant. In response to the call, appellant appeared on an upstairs landing, at which time Officer Foster and other members of the police, without either knocking or announcing their authority or purpose, rushed into the house. At least one of the officers had gun drawn and ordered appellant to stand still. Rasimowicz appeared briefly on the upstairs landing, then ran and made good an escape from the premises in spite of the fact that officers immediately went upstairs and made a search of the upstairs area. Appellant was placed under arrest and search but none of the marked money was found. After being advised of his rights appellant was taken into an upstairs bedroom where he signed a written consent to a search of the premises. After the consent had been signed, the officers found in the same bedroom in plain view on the bed where appellant had been seated, a large shoe box containing one-half pound of marijuana in plastic bags. At a hearing on appellant's pretrial motion to suppress this evidence, appellant testified (and parenthetically, so testified at the trial in his own defense) that he did not know the marijuana was there, that he had never seen the shoe box full of marijuana nor known of its presence in the house prior to the time it was seized by the officers, that he had never possessed nor sold marijuana to Randy Burger or anyone else, and in fact had never seen Randy Burger until the moment the latter was in the house calling to him immediately prior to the time the police officers came in.

In support of his contention that the court erred in denial of his pretrial motion to suppress the evidence, appellant has set forth in the brief numerous reasons why the motion should have been granted. Although we conclude that the court did not err in denying the motion to suppress, some of the assertions of appellant in support of this point require brief comment.

Appellant first contends that the police use of an informant to purchase the marijuana under the circumstances we have described constituted entrapment as a matter of law. This contention is without merit. In the first place, the defense of entrapment presupposes that the accused committed the offense charged, and such a defense is totally unavailable to the one who denies any participation in the criminal act. Pearson v. State, Fla.App.1969, 221 So.2d 760. Furthermore, even if the defense of entrapment had been available to appellant, under the evidence adduced at the hearing on the motion to suppress the issue would have been a question for the jury and not for the court as matter of law. See State v. Rouse,...