Grant v. State

• Decision Date: 21 August 1979
• Docket Number: No. 77-1407,77-1407
• Parties: Gennie GRANT, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 630

374 So.2d 630

Gennie GRANT, Appellant, v. The STATE of Florida, Appellee.

No. 77-1407.

District Court of Appeal of Florida, Third District.

Aug. 21, 1979.

Bennett H. Brumer, Public Defender and Howard Blumberg, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.

Before HAVERFIELD, C. J., and KEHOE and SCHWARTZ, JJ.

SCHWARTZ, Judge.

Grant appeals from his conviction, after a jury trial, on four separate counts of possession of a firearm by a convicted felon. We affirm as to three of the counts and reverse as to the other.

On February 11, 1977, the defendant became involved in an altercation with his 19-year old son Earl in the living room of their apartment in the City of Miami. As a result, the son, who was allegedly holding a .32 pistol at the time, was killed by a blast from a shotgun fired by Grant. After the defendant, who had been previously convicted of a felony, called the police to the scene, they entered the apartment. Acting of course without a warrant, they discovered the shotgun and the .32 in plain sight in the living room near the body of the decedent. In an adjacent bedroom, two .22 rifles were found under a bed and two .22 pistols were located in a closed dresser drawer. Along with several other alleged offenses, all of which were disposed of prior to their submission to the jury, Grant was charged with the second degree murder of his son. The jury acquitted him of that charge. He was found guilty, however, on four counts of possession of a firearm by a felon. Count V of the information alleged the possession of "A SHOTGUN;" Count VI, of "A RIFLE;" and Counts VII and VIII, of "A PISTOL" with no further description of the particular firearm in question. The trial judge sentenced Grant to consecutive county jail sentences as to Counts V and VI, and concurrent five year periods of probation on Counts VII and VIII.

The appellant's primary point on appeal concerns the trial judge's denial of his pre-trial motion to suppress all six guns seized from the apartment. The motion was based upon the claim that the warrantless search was constitutionally unjustified. The lower court denied the motion in its entirety on the ground that since the apartment was a "murder scene," the search was wholly permissible. In so holding, the trial judge was only partly correct. Issues of the propriety of the search of a "murder scene" and the extent to which such a search may be upheld are controlled by the Supreme Court's recent decision in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). The Mincey decision rejected the notion of a blanket so-called "murder scene exception" to the warrant requirements of the Fourth Amendment, which was the basis of the ruling below. Instead, the court held that the well-accepted "exigency" doctrine, along with its limitations, were applicable to such a situation. At 437 U.S. 392-393, 98 S.Ct. 2413-2414, 57 L.Ed.2d 299-300, the court held:

The State's second argument in support of Arizona's categorical exception to the warrant requirement is that a possible homicide presents an emergency situation demanding immediate action. We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Similarly, when the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. Cf. Michigan v. Tyler, supra, 436 U.S. (499), at 510, 98 S.Ct. (1942), at 1950-1951 (56 L.Ed.2d 486.) 'The need to protect or preserve life or avoid serious injury is justification for what would otherwise be illegal absent an exigency or emergency.' Wayne v. United States, 115 U.S.App.D.C. 234, 241, 318 F.2d 205, 212 (opinion of Burger, J.). And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. Michigan v. Tyler, supra, 436 U.S., at 510, 98 S.Ct., at 1950-1951; Coolidge v. New Hampshire, 403 U.S. (443), at 465-466, 91 S.Ct. (2022), at 2037-2038 (29 L.Ed.2d 564).

But a warrantless search must be 'strictly circumscribed by the exigencies which justify its initiation,' Terry v. Ohio, 392 U.S. (1), at 25-26, 88 S.Ct. (1868), at 1882 (20 L.Ed.2d 889) (44 Ohio Ops.2d 383) and it simply cannot be contended that this search was justified by any emergency threatening life or limb. . . . And a four-day search that included opening dresser drawers and ripping up carpets can hardly be rationalized in terms of the legitimate concerns that justify an emergency search.

Applying these tests, which are in full accordance with the earlier Florida decisions on the subject, Long v. State, 310 So.2d 35 (Fla.2d DCA 1975) and Webster v. State, 201 So.2d 789 (Fla.4th DCA 1967), it is clear that the motion to suppress was properly denied as to the shotgun and the .32 pistol, which were in the officers' "plain view" as they entered the room in which the body was found. We reach the same conclusion concerning the two .22 rifles found under the bed. Looking under the bed in a room a few feet away from the scene of a homicide is surely a proper part of the "prompt . . . search of the area to see if there are other victims or if a killer is still on the premises . . . " deemed permissible by the court in Mincey, supra. ¹ The two .22 caliber pistols found in the drawer, however, should have been suppressed. As Mincey specifically states, 437 U.S. at 98 S.Ct. at 2414, 57 L.Ed.2d at 300, "a . . . search that included opening dresser drawers . . . can hardly be rationalized in terms of the legitimate concerns that justify an emergency search." ²

Since the shotgun was the subject of Count V, and one of the two rifles from under the bed was clearly involved in Count VI, Grant's motion to suppress contentions as to those counts are clearly without merit. The application of our holdings to Counts VII and VIII, however, presents a far more difficult and perhaps unique appellate problem. The issue arises because it is simply impossible to tell from the record whether, as to one of these counts, the defendant was charged with and convicted of possession of the .32 pistol found in the living room, which was properly not suppressed, or with one of the .22 pistols in the...