Earman v. State

• Decision Date: 02 August 1972
• Docket Number: No. 41771,41771
• Citation: 265 So.2d 695
• Parties: John Robert EARMAN, Jr., Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 695

265 So.2d 695

John Robert EARMAN, Jr., Petitioner, v. STATE of Florida, Respondent.

No. 41771.

Supreme Court of Florida.

Aug. 2, 1972.

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

Robert L. Shevin, Atty. Gen., and Nelson E. Bailey, Asst. Atty. Gen., for respondent.

PER CURIAM.

We have for review on petition for writ of certiorari a decision of the District Court of Appeal, Fourth District, upholding Petitioner John Robert Earman's convictions of conspiracy to commit a felony, sale of marijuana, and possession of marijuana. Earman v. State, Fla.App.1971, 253 So.2d 481. Because that decision conflicts with this Court's decision in Benefield v. State, Fla.1964, 160 So.2d 706, and the decision of the District Court of Appeal, Second District, in Urquhart v. State, Fla.App.1968, 211 So.2d 79 we accepted jurisdiction to consider the cause.

The salient facts in this case are as follows: One Randy Burger named Petitioner John Robert Earman and Jimmy Rasimowicz as his marijuana sources. Cooperating with the police Burger telephoned Petitioner's parents' home and learned Rasimowicz would soon return with marijuana. Later the same day, Burger called the Earman home and made arrangements with Rasimowicz to purchase one-half pound of the narcotic from him for $175. West Palm Beach Police Officer Foster listened to these conversations from an extension telephone. The police then searched Burger and gave him $175 in marked money. Burger went to the Earman residence, met Rasimowicz, went inside with him, and shortly thereafter left alone. After driving one block he was stopped by the police who searched him and found on his person one-half pound of marijuana but none of the money. Then, according to the District Court opinion being reviewed,

'Burger stated that while in the residence he had purchased the marijuana from Rasimowicz with (petitioner) looking on. Det. Foster with other Officers immediatlely took Burger back to the residence where he entered a side door and called for Rasimowicz and (petitioner). In response to the call, (petitioner) 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 (petitioner) 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. (Petitioner) was placed under arrest and searched but none of the marked money was found. After being advised of his rights (petitioner) 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 (petitioner) had been seated, a large shoe box containing one-half pound of marijuana in plastic bags.'

Prior to his trial, Petitioner moved to suppress the evidence. The motion was denied, and he was convicted by a jury. On appeal to the District Court of Appeal, Fourth District, he assigned as error the trial court's denial of the motion and set forth certain reasons in support of his position that the evidence was illegally seized and therefore should have been suppressed. The only point on appeal material to our review of the District Court's decision is Petitioner's contention that the evidence taken from his parents' home should not have been admitted at trial because it was the fruit of an illegal arrest made without warrant or compliance with the provisions F.S. Section 901.19(1), F.S.A. The District Court said this contention was without merit and the evidence was admissible for two alternative reasons: first, it was seized pursuant to a consent search rather than a search following an arrest and, secondly, even if it had been taken pursuant to an arrest, the arrest was valid under the applicable statutes, making the search valid. We shall review both of these conclusions, beginning with the second.

Arrests without warrant are permissible under certain circumstances enumerated in F.S. Section 901.15, F.S.A. Applicable to this cause is subsection (3) of the statute which states that a police officer may arrest without a warrant when 'He reasonably believes that a felony has been or is being committed and reasonably believes that the person to be arrested has committed or is committing it.' If the suspected felon is within a building, however, strict...