Gildrie v. State

• Citation: 113 So. 704,94 Fla. 134
• Parties: GILDRIE et al. v. STATE.
• Decision Date: 09 July 1927
• Court: Florida Supreme Court

113 So. 704

94 Fla. 134

GILDRIE et al. v. STATE.

Florida Supreme Court

July 9, 1927

En Banc.

Error to Criminal Court of Record, Hillsborough County; W. Raleigh Petteway, Judge.

Lester Gildrie and John Kennie, alias John Kenney, were convicted of breaking and entering with intent to commit a felony, and of receiving and concealing stolen goods, and they bring error.

Reversed.

Whitfield and Terrell, JJ., dissenting.

Syllabus by the Court

SYLLABUS

Search warrant and oath or affirmation supporting it must conform strictly to Constitution and statutes. (Bill of Rights, §§ 12, 22). When searches and seizures are made pursuant to the command of a search warrant, both the search warrant and the prerequisite oath or affirmation required for it must conform strictly to the constitutional and statutory provisions authorizing their issue.

Protection against improper searches and seizures and use of improper evidence extends to suspected or accused as well as to innocent; search of private dwelling without warrant is unreasonable and abhorrent to law (Declaration of Rights, §§ 12, 22; Const. U.S. Amends. 4, 5). The protection of sections 12 and 22 of the Declaration of Rights, Constitution of Florida, extends to all equally--to those justly suspected or accused as well as to the innocent. The search of a private dwelling without a warrant is, in itself, unreasonable and abhorrent to our laws.

Evidence obtained by unlawful search of dwelling should be excluded on timely objection; in prosecution for breaking and entering and for receiving and concealing stolen goods, admitting over timely objection evidence obtained by searching dwelling where neither warrant nor affidavit described objects to be seized, held reversible error (Declaration of Rights, §§ 12 22; Const. U.S. Amends. 4, 5). Evidence obtained by the unlawful search of a dwelling house is not admissible to prove the occupant of such dwelling house guilty of a criminal offense, when such evidence is obtained in violation of and contrary to the provisions of sections 12 and 22 of the Declaration of Rights of the Constitution of Florida and, on timely objection being made, such so-called evidence should be excluded.

COUNSEL

Bassett & Hunter, of St Augustine, for plaintiffs in error.

J. B. Johnson, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

BUFORD J.

The record in this case shows that the plaintiffs in error, together with one Albert House and one Teresa House, were informed against in the criminal court of record of Hillsborough county for breaking and entering a store building in Tampa, Fla., the property of Knight & Wall Company, a corporation, with intent to commit a felony, and also for the offense of receiving and concealing stolen goods, knowing the same to have been stolen; that Albert House pleaded guilty; that the plaintiffs in error pleaded not guilty, were convicted, and sentenced to serve a period of 20 years in the state prison. The evidence shows that the store of Knight & Wall Company had been broken in and certain articles stolen therefrom. A number of these articles were identified at the trial and were shown to have been found in a dwelling house which was occupied at the time of the search by the persons named in the information, including the plaintiffs in error. The record shows that the search was made under the pretended authority of a search warrant, which search warrant is shown to have been based on affidavit made by a deputy sheriff in the following language, to wit:

'In the County Judge's Court.

'State of Florida, County of Hillsborough.

'Before me, Julian L. Hazard, county judge of said county, personally came Haston Taylor, who, being duly sworn, says that on the 17th day of March, A. D. 1925, in the county aforesaid, one -----, this affiant, has reason to belive and does believe that there is now within that certain building situated on Central avenue, and being No. 5110, in the city of Tampa, Hillsborough county, Fla., various and sundry stolen goods, a further description thereof being to affiant unknown; that the owner of said building is unknown to affiant; that affiant is informed and believes that the name of the person living in or in charge of said building, is George Ross; that said stolen goods are being stored, held, and possessed in said building contrary to law; that the facts tending to establish probable cause for this affiant believing the stolen goods are being stored, secreted, held, and possessed in said building in violation of law are the reports of reliable citizens handed to affiant. Wherefore, this affiant who is an officer of Hillsborough county, Fla., to wit, a deputy sheriff, prays a warrant to enter said building and the premises upon which the same is situated, and there to search for said stolen goods, pursuant to statute in such case made and provided, and to arrest the said George Ross and any other occupants of said builidng.

'Haston Taylor.'

The warrant issued thereon was in the following language, to wit:

'In the County Judge's Court.

'State of Florida, County of Hillsborough.

'To All and Singular the Sheriffs of the State of Florida:

'Whereas, Haston Taylor has this day made oath before me that on the 17th day of March, A. D. 1925, in the county aforesaid, one -----, this affiant, has reason to believe and does believe that there is now within that certain building situated on Central avenue, and being numbered 5110, in the city of Tampa, Hillsborough county, Fla., various and sundry stolen goods, a further description thereof being to affiant unknown; that the owner of said building is unknown to affiant; that affiant is informed and believes that the name of the person living in or in charge of said building is George Ross; that said stolen goods are being stored, held, and possessed in said building contrary to law; that the facts tending to establish probable cause for this affiant believing the stolen goods are being stored, secreted, held, and possessed in said building in violation of law are the reports of reliable citizens handed to affiant. Wherefore this affiant who is an officer of Hillsborough county, Fla., to wit, a deputy sheriff, prays a warrant to enter said building and premises upon which the same is situated, and there to search for said stolen goods, pursuant to statute in such case made and provided, and to arrest the said George Ross and any other occupants of said building.

'These are therefore to command you then and there to diligently search the above-described premises, with proper and necessary assistant in the daytime, and, if the aforesaid goods and property or any part thereof are found, to seize the same, arrest the body of the said George Ross and any other occupants of the said building, and bring him or them before me to be disposed of and dealt with according to law.

'Given under my hand and official seal this 17th day of March A. D. 1925.

'[Signed] Julian L. Hazard [Seal]

'County Judge.'

The only question of any importance presented in this case is whether or not evidence, obtained by the searching of a dwelling house, which search is made without the consent of the occupant of the dwelling house and without a valid search warrant authorizing the search of such dwelling house and the seizure of the goods or other things constituting such evidence, is admissible to prove the commission of the criminal act.

The courts of the country are not in harmony upon the question of the admissibility of such testimony. In this case neither the affidavit nor the search warrant sufficiently complies with the provisions of section 22 of the Bill of Rights of the state of Florida, nor the statutes in such cases provided, in that no description of the things to be seized is found either in the affidavit or in the warrant. 24 R. C. L. 714. The warrant therefore was not authority of law for searching the place described therein and was not authority of law for the seizure of any articles found in that dwelling house.

In the case of Jackson v. State, 87 Fla. 262, 99 So. 548, Mr. Justice Terrell, speaking for the court, said:

'When searches and seizures are made pursuant to the command of a search warrant both the search warrant and the prerequisite oath or affirmantion required for it must conform strictly to the constitutional and statutory provisions authorizing their issue. This is true because there is no process known to the law the execution of which is more distressing to the citizen or that actuates such intense feeling of resentment on account of its humiliating and degrading consequences. As thus enunciated the law is in line with and is no doubt the child of our Anglo-Saxon spirit of liberty which holds every man's house or dwelling as his castle, and which declares that it must not be invaded or subjected to an uninvited search except by a duly qualified officer, and then only in pursuance of a valid writ commanding it. White v. Wagar, 185 Ill. 195, 57 N.E. 26, 50 L. R. A. 60.

'As was said in Smith v. McDuffee, 72 Or. 276, text 284, 142 P. 558, 143 P. 929 [Ann. Cas. 1916D, 947], such searches are usually made without the consent of the occupant of a domicile and the investigation being a proceeding in invitum, the statute authorizing it is to be strictly construed, and no presumptions of regularity are to be invoked in aid of the process under which a proper officer obeying its commands undertakes to justify.

'Section 22, Bill of Rights, Constitution of Florida, is as follows 'The right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches, shall not be violated, and no warrants issued but upon probable cause,...