Gispert v. State, 1206
| Decision Date | 19 February 1960 |
| Docket Number | No. 1206,1206 |
| Citation | 118 So.2d 596 |
| Parties | Manuel M. GISPERT, III, Vincent Labarbera and Raymon Benitez, Appellants, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Mark R. Hawes, Fred C. Barksdale, and John B. Minardi, Tampa, for appellants.
Richard W. Ervin, Atty. Gen., and Leonard R. Mellon, Asst. Atty. Gen., for appellee.
MORROW, R. O., Associate Judge.
The three appellants in this case were each convicted of breaking and entering and of grand larceny, and were sentenced to a term of years in the State Prison. The trial court denied the appellants' motion to suppress evidence on grounds that it had been obtained through an unlawful search and seizure. The questions presented here are, One: Was there sufficient probable cause to justify a search of an automobile belonging to one of the appellants without a warrant? And, Two: Can the other two appellants raise the question of unlawful search and seizure?
The salient facts are as follows: About 2:40 o'clock a. m., two deputy sheriffs of Hillsborough County were patrolling a certain area of the county, and at or near the intersection of Highway 301 and Balm Road, they observed a car in which were three men approaching and passing them from the opposite direction. There was a heavy drizzle and the road was wet, and the deputies noticed that the automobile turned north on Highway 301, and was proceeding at a high rate of speed. The driving deputy turned his car around and pursued the other vehicle. During the course of the pursuit, they clocked the other vehicle as traveling between 65 and 70 miles per hour. The deputies pulled alongside and signaled the other car to stop. Immediately on stopping, the appellants got out of their car and came back to the deputies' car, which had stopped to the rear of the other car. The officers identified themselves as deputies, and informed the appellants that they had been stopped for speeding. While one deputy was checking a driver's license, the other deputy walked to the appellants' car and shined his flashlight through the window of the car and saw several boxes on the back seat and some metal boxes and envelopes on the floor. The deputy then opened the car door and saw a metal box with what appeared to be fire clay and money in it. This deputy then called to the other, saying that these men were 'safe men' and to watch them. At this time two of the appellants attempted to leave, but were halted by the deputy. At this point the appellants were placed under arrest. After the appellants were placed under arrest, further search was made and papers were found which indicated they had come from the V. M. Ybor School. A search of the trunk compartment revealed a sledge hammer, crow bar, and tire iron. A search of the glove compartment produced a loaded .32 caliber pistol. Subsequent to the arrest it was determined that there had been a breaking and entering at the School above referred to during the previous night, and that the contents on the back seat and floor of appellants' automobile were from said School. The car belonged to the appellant Gispert, and was being driven by the appellant Benitez. The appellants did not consent to the search, and some of the incriminating evidence was found prior to the time the appellants were placed under arrest.
Since it is undisputed that Gispert was the owner of the car, the first question to dispose of is whether the other two appellants come within the purview of the law on unlawful search and seizure. Under the facts and circumstances of this case, we think they do not. In the case of Alexander v. State, Fla.App.1958, 107 So.2d 261, 263, this Court stated:
In the use of the term 'lawfully occupy' it has been held as not including those who are merely invitees or whose presence is only 'lawful' because they are not trespassers. Lambert v. State, 196 Md. 57,...
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