Garcia v. State

• Decision Date: 03 April 1959
• Docket Number: No. 625,625
• Citation: 110 So.2d 709
• Parties: Gus GARCIA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 709

110 So.2d 709

Gus GARCIA, Appellant, v. STATE of Florida, Appellee.

No. 625.

District Court of Appeal of Florida, Second District.

April 3, 1959.

G. Richard Christ, Tampa, for appellant.

Richard W. Ervin, Atty. Gen., and George R. Georgieff, Asst, Atty, Gen., for appellee.

KANNER, Chief Judge.

Appellant, having been found guilty of violation of the lottery laws of the State of Florida, has instituted appeal from this judgment and the sentence imposed by the trial court. Appellant questions, in effect, whether there was authority, under the circumstances of this case, for an arrest to have been made without a warrant, pursuant to the provisions of section 901.15, Florida Statutes, F.S.A.

A summary of the proceedings in the trial court and of the events leading to appellant's arrest and conviction will set forth the basic components of this cause. Appellant was brought to trial under four counts of an information charging that he had violated the lottery laws. He was found guilty under the first three counts; new trial was denied and sentence was imposed.

Testimony of the two officer witnesses and of the captain of the Hillsborough County vice squad discloses that the two officers had kept the home of appellant's mother under surveillance for several weeks prior to the arrest because they had been informed by the chief of the vice squad that this residence was being used as what is known as a 'bolita calling house.' They had been instructed by the vice squad captain that they should arrest anyone leaving this particular house shortly before two o'clock on any Saturday afternoon carrying a brown paper bag. This instruction, according to testimony of the vice squad captain, emanated from certain information which he had gleaned and which gave him reasonable cause to believe that in this manner a felonious act involving bolita operations and transportation and possession of bolita paraphernalia would be committed.

The testimony reveals that a confidential informant had apprised the vice squad captain, Ellis Clifton, that the particular house was a bolita calling house, that Clifton had personally watched the house as he testified 'I had been observing the house myself three weeks previous to this and I had checked out the information that I had received and verified it to the extent I believe we had reason to believe to make an arrest', and further that Clifton had made phone calls to the phone listed at that address. There is testimony that bolita pickups were always made shortly before two o'clock on Saturday afternoon at about which time the winning number in the Cuba national lottery is announced. On the Saturday afternoon one week prior to the appellant's arrest, a man in a yellow shirt was observed leaving the house with a paper bag at approximately this time. There is also testimony that shortly prior to the time of the arrest, a woman was seen to come out of the house onto the porch several different times, where she stood around and looked up and down the street before going back into the house. On the Saturday afternoon of appellant's arrest one of the two officers watching the house saw appellant enter the residence at about 1:12 p. m. and saw appellant leave about five minutes thereafter carrying a brown paper bag. The officer observing this signaled to and was joined by the other officer. The two proceeded in a car to the place where appellant was walking and one of them approached him and asked what the bag contained; whereupon appellant started to hand the bag to the officer, who then told him he was under arrest. The bag was then examined and found to contain bolita tickets.

It is appellant's contention that his arrest was barred under Florida law on the basis that no search or seizure can be made without a warrant, except as may be allowed by law incident to a lawful arrest, Haile v. Gardner, 1921, 82 Fla. 355, 91 So. 376, and that illegally obtained evidence should be disallowed if proper objection is made, Gildrie v. State, 1927, 94 Fla. 134, 113 So. 704. He insists that, had the lottery tickets not been introduced into evidence over his objections, there would have been no evidence against him.

Section 901.15(3), Florida Statutes, F.S.A., provides that an arrest may be made by an officer 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. Under section 901.21(1), Florida Statutes, F.S.A., any law enforcement official is authorized to make a lawful search if it is incident to a lawful arrest.

It may be observed that both officers involved in the arrest episode and the captain of the vice squad who had instructed them are men experienced and trained in the ways of bolita operators and aware of the manner in which bolita processes are conducted, that they were upon notice that the house under observation was being used as a bolita calling house, and that they were aware of the time and manner in which a felonious act involving bolita operations and the transporting and possession of lottery paraphernalia from the particular house involved, should take place.

In the case of Rodriguez v. State, Fla. 1952, 58 So.2d 164, certain officers, having reason to believe that a felony involving violation of the lottery laws had been or was being committed at a particular place, proceeded there and arrested the appellant when they saw him with a pencil in his hand and pads on the counter before him, although they made no search nor seizure until after the arrest had been made. The court concluded that the officers, being thoroughly familiar with lottery operations, had reasonable grounds, including the information they had received, to believe that a felony was being committed when they observed the appellant in the attitude above described. It was determined that the arrest made and the search and seizure that transpired were legal.

Of similar effect is the decision of the Supreme Court and the material elements of the case as seen in Mitchell v. State, Fla. 1952, 60 So.2d 726. In that case, a certain bolita operator, whom the officers had been following and watching because of information they had received, was seen to throw away a package when he observed the officers approaching him; whereupon the officers arrested him, later determining that the package contained bolita paraphernalia. The court ruled that this paraphernalia, later introduced into evidence, did not comprise unlawfully obtained evidence. See also the case of Diaz v. State, Fla.1949, 43 So.2d 13.

In the case of Pflegl v. State, Fla.1957, 93 So.2d 75, the factual situation involved a series of filling station robberies which had occurred. After this an informant told two police officers that he had seen a certain automobile, which he identified by its license number, stop near a filling station and that a man wearing gloves and carrying a crowbar got out of the car. Upon receiving this information, the police officers, knowing of the robberies, proceeded to the filling station and observed an automobile such as had been described and having the same license number drawing away. They stopped the automobile and required its driver to get out. They observed a glove sticking out of the driver's pocket, 'frisked' him for weapons, and observed an adding machine, one of which had been reported stolen, in the car. It was held that in this situation the arrest without a warrant was justified.

In determining whether there existed reasonable ground to believe that a felony was being committed and reasonable ground to believe that the person to be arrested was committing it so as to authorize arrest without a warrant, the Supreme Court in Rogers v. State, 1947, 158 Fla. 582, 30 So.2d 625, pointed out that sufficiency of the knowledge of an officer of the law must be determined, not by an analysis of each known circumstance in isolation, but by a conclusion of what a reasonable man, knowing all the facts which such officer had within his ken, would have believed under all the circumstances. Recognition had been given to the qualifications which appertain to officers of the law experienced and trained in the making of bolita investigations and their specialized knowledge of the various phases of its operation. See Fletcher v. State, Fla. 1953, 65 So.2d 845.

Subject to certain limitations, it is the rule, based on sound public policy, that the identity of an informant who gives information concerning the commission of a crime is privileged. Wigmore on Evidence, Third Edition, section 2374; and Harrington v. State, Fla.App., 110 So.2d 495. The identity of any informant in the present case was not within any exception to the general rule nor determinative of the issue, nor was it raised.

Under the circumstances of this case and in view of the decisions of the Florida Supreme Court with reference to somewhat similar situations, it is the opinion of this court that appellant's contention that he was unlawfully arrested and that evidence thus seized was unlawfully obtained is without foundation. The arrest and subsequent inspection of the contents of the paper bag carried by appellant was within the logical and reasonable sequence of what patently was a careful surveillance and investigation of a particular house for a particular occurrence to be carried out in a specified manner according to specific information received and bolstered by the investigation.

The judgment and sentence of the trial court is accordingly affirmed.

SHANNON, J., concurs.

FARRINGTON, OTIS, Associate Judge, dissents.

OTIS FARRINGTON, Associate Judge (dissenting).

This is an appeal from the judgment and sentence imposed on appellant following his conviction of violations of the lottery laws of the State of Florida. Appellant contends that the trial court erred in denying appellant's pre-trial motion to suppress certain...