Houston v. State

• Decision Date: 09 July 1959
• Docket Number: No. B-16,B-16
• Citation: 113 So.2d 582
• Parties: Emory HOUSTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 582

113 So.2d 582

Emory HOUSTON, Appellant, v. STATE of Florida, Appellee.

No. B-16.

District Court of Appeal of Florida, First District.

July 9, 1959.

T. J. Jennings, Jr., and James T. Norton, Greencove Springs, for appellant.

Richard W. Ervin, Atty. Gen., and Odis M. Henderson, Asst. Atty. Gen., for appellee.

FUSSELL, CARROLL W., Associate Judge.

The appellant Houston was tried by a jury and convicted of violation of the beverage laws in Clay County, Florida, and thereafter sentenced to imprisonment for a period of two years. He questions the legality of a search of his barn without a valid search warrant and the admission into evidence of the fruits of such search.

Under the facts of this case three beverage agents and a deputy sheriff were making a routine search on foot for moonshine stills in the unfenced wooded territory behind appellant's residence during the morning of this day. They went to the site of a still which they had discovered some two years before, but found no still. No criminal charges against anyone were made with regard to that still.

The Houston residence was located 1.1 mile west of highway 220, accessible only by a dirt road running south from highway 220. There was no other residence on this dirt road, which dead-ended at the Houston residence. Enclosed with appellant's home was a barn, about 40 feet south of it, and another small building, all being within the curtilage. The premises were not fenced on the side next to the road. There was a fenced field behind the barn and between the barn and the wooded territory where the still had formerly been found.

The agents during this morning crossed into this field and while in it smelled mash, wort and wash, and one of the agents went up to the field fence, which was about 6 feet to the rear of appellant's barn, and could distinctly smell the odor of mash, wort and wash coming from the barn. There was an open window on this side of the barn, but it was too high for the agent to see inside the barn or what was in it. The officers then left to obtain a search warrant, but were unable to find the County Judge immediately or a Justice of the Peace in the district where the Houston residence and barn was located, but did find a Justice of the Peace from another District, and secured from him a search warrant. Four beverage agents, three deputy sheriffs, and a movie photographer then went back to the premises, and two of the officers went to the front door of the residence and knocked. In his testimony, the officer said:

'Q. What did you do?

'Q. I went up to the front door with Duputy Sheriff Smart and knocked on the door and no one answered his knock; he knocked several times even after establishing the fact there was no one here, and then we went around the house and came to the barn.

'Q. All right. And then did you go in the barn?

'A. Yes, sir, I went around to the south side of the barn. And immediately upon getting near the barn the odor was so strong * * *.'

This officer then went to the south side of the barn next to the fence and pulled himself up into the window where he could see this still and fermenting mash. An officer from the other car testified that he went to the northwest corner of the barn, and that he did smell a strong odor of fermenting mash coming from the barn, but could not see in the barn, so he went to the other side and saw the still from this barn door. The latches on the barn doors were then lifted and the officers went inside. They did not find the required signs posted on the walls as provided by law for the operation of a licensed distillery. They found in a separate enclosed room in the barn a number of 5-gallon bottles and cans covered with a burlap, which contained 295 gallons of unstamped moonshine liquor. The still, the bottles, except one 5-gallon bottle, and cans holding the moonshine liquor and the vats and barrels holding the mash were then destroyed with axes, and the mash and moonshine liquor was poured onto the ground. The appellant was arrested the following day when he voluntarily went to the Sheriff's office.

The information filed against the appellant contained three counts. Count one charged him with possession of 295 gallons of moonshine whiskey; count two with possession of an unlicensed still; and count three with possession of unlicensed mash, wort and wash.

The Circuit Judge entered an order quashing the search warrant and suppressing the evidence upon a motion therefor by the appellant, the State having admitted that the Houston residence and its curtilage were not located within the district of the Justice of the Peace who issued the search warrant. Yet, at the trial the beverage agents were permitted to testify, over the repeated objections of the appellant, that they found the still, the mash, wort and wash and the bottled moonshine liquor in the barn of the appellant. Also, over the objection of the appellant, the court admitted into evidence one 5-gallon bottle of moonshine whiskey which was found and seized during the search.

The Circuit Judge granted a motion for new trial as to court one of the information, and denied it as to counts two and three.

The evidence is undisputed that: (1) The officers did not have a valid search warrant; (2) there was no one on the premises at the time of the search except the seven officers and a movie photographer; (3) no one was arrested prior to or at the time of the search; (4) the appellant was the only one arrested in connection with this offense and he was not arrested until the next day; (5) this was not a routine search and investigation of a licensed distillery under authority of the Statutes; and (6) the search was not made by voluntary consent of anyone.

The sole question, therefore, is: Was the search reasonable under the circumstances? Unreasonable searches in Florida are prohibited under Section 22, Bill of Rights, Florida Constitution, F.S.A.:

' § 22. Searches and seizures.--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, supported by oath or affirmation, particularly describing the place or places to be searched and the person or persons, and thing or things to be seized.'

The 4th Amendment to the Constitution of the United States, and Section 22 of the Bill of Rights of the Florida Constitution are the same in meaning and almost identical in wroding. For this reason the ruling of the United States Courts on unreasonable searches is generally accepted as authority for a similar ruling in Florida.

Florida, the same as the United States, follows the exclusionary rule which, simply stated, means that if the search and seizure is unreasonable the evidence seized is inadmissible. Melton v. State, Fla., 75 So.2d 291; University of Florida Law Review, Vol. 8, No. 3, page 288. See also Alexander v. State of Florida, Fla.App., 107 So.2d 261, 263, which quotes with approval from 79 C.J.S. Searches and Seizures § 51, p. 809, as follows:

'A search and seizure illegal in its inception cannot be purified into legality by nature of the fruit which it produces, for the products of the wrongful search carry the taint of the illegal search and therefore cannot be used as evidence against the victim.'

Practically the identical principles of law involved in this case has been ruled upon in the very recent case of Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 1256, 2 L.Ed.2d 1514. In this case the beverage agents received information that an illicit distillery was being operated in defendant's farm house. They checked and found spent mash in a hollow behind the house. The mash came from a rubber hose which led towards the farm house. The officers then left and obtained a day-time search warrant. Under the federal law, however, search under this type of warrant could not be made in the night-time. The officers came back during the afternoon and checked again and saw the mash coming from the hose. They smelled the hot mash coming from the direction of the house and heard voices and a blower burner of the type used in distilleries coming from the direction of the house and heard the moving of heavy objects from within the house. They kept waiting, however, and made no attempt to search the premises during the day-time, and about 9:00 o'clock P.M. after dark they arrested two men in a truck which was coming from the farm yard and which had mired itself in the mud, and upon search of this vehicle discovered in it 414 gallons...