Italiano v. State
| Decision Date | 05 January 1940 |
| Citation | 193 So. 48,141 Fla. 249 |
| Court | Florida Supreme Court |
| Parties | ITALIANO et al. v. STATE. |
Rehearing Denied Jan. 26, 1940.
Error to Criminal Court of Record, Hillsborough County; John R Himes, Judge.
Joe Italiano was convicted of maintaining a gaming house and conducting a lottery known as Cuba bolita, while Sam Italiano was convicted of maintaining a gaming house, conducting a lottery known as Cuba bolita, and of operating a lottery known as New York bond; and they bring error.
Affirmed.
McKay, Macfarlane, Jackson & Ferguson, of Tampa, for plaintiffs in error.
George Couper Gibbs, Atty. Gen., and Thomas J. Ellis, Asst. Atty Gen., for defendant in error.
The plaintiff in error Joe Italiano was convicted of maintaining a gaming house and conducting a lottery 'known as Cuba bolita' as charged in the first and second counts of the information, respectively. The jury having designated in their verdict that guilt had been proven under these charges the effect was to find this defendant not guilty under the third count which charged operation of a lottery 'known as New York bond'. The plaintiff in error Sam Italiano was found guilty under all counts of the information.
It is stated by plaintiffs in error that two questions are involved in the appeal, first, the legality of the search of Joe Italiano and the competency of testimony obtained from him following his arrest without warrant; second, the propriety of the action of the judge in refusing to withdraw the trial jury, thereby allowing them to hear the arresting officer's testimony offered to show his authority for arresting without a warrant, hence, the admissibility of the evidence he obtained pursuant to his apprehension of Joe Italiano.
Taking the questions up in their order we must first decide whether this particular defendant's rights guaranteed him under Sections 12 and 22 of the Declaration of Rights of the Constitution of the State of Florida, have been violated.
Substance of Section twenty-two of our Declaration of Rights, which resembles in its guaranties the Fourth Amendment to the Constitution of the United States, U.S.C.A. is that the people shall be secured in their persons against unreasonable searches and seizures and that warrants shall not issue but upon probable cause and supported by oath or affirmation describing with particularity the place to be searched and the things to be seized.
Gist of Section twelve of the Declaration of Rights, which is similar to the Fifth Amendment of the Constitution of the United States, U.S.C.A., so far as this case is concerned, is that no one can be forced to testify against himself in a criminal case.
The rule appears established in this State that search and seizure is not unreasonable if accomplished without a warrant but as an incident to lawful arrest. State ex rel. Stillman v. Merritt, 86 Fla. 164, 99 So. 230, 235. It was there pointed out that where the law authorizes arrest without warrant a reasonable search and seizure may be made incident thereto and appropriate 'to the reasonable requirements for making effective a lawful arrest'.
The statute empowering officers to arrest without warrant, Section 8323, C.G.L.1927, makes it the officer's duty to take into custody without warrant any one believed by him upon reasonable ground to have perpetrated a felony.
On this score then, if the officer believed that Joe Italiano had committed a felony and grounds for his conviction were reasonable, an incidental search would have been justified.
The testimony of the arresting officer, a constable, was that the plaintiffs in error were known to him as the operators for several years of Olympic Bar, situated in his district. He arrested them in their place of business. He had arranged with one of the witnesses to go to the Olympic Bar and buy 'numbers' and the constable was to enter while he was making the purchase. Plaintiff in error Joe Italiano left the booths where testimony showed trading in bolita was done and crossed the room to the bar. As the officer entered he started from the bar to the back of the room with a book and pencil in his hand. He was then seen to give warning, or as the witness described it, 'to Sh--h, Sh--h'. Upon being told he was under arrest he was asked to produce the pad which the officer had seen him place in his pocket. At first he denied having it, then raised it from his pocket, then replaced it and finally surrendered it. A bill folder, containing a ticket, was also handed the officer.
What we have related developed from the direct examination. At this point counsel for defendant asked permission to examine the witness and that the jury be withdrawn. This request was denied and the propriety of the court's ruling will be discussed later. Upon cross examination on the matter of the competency of the proffered evidence, the following facts appeared: The 'pads' were taken against Joe Italiano's will after he was advised that he was under arrest and after the officer had been leave a booth with pencil and a pad in his hand. The witness was '* * * familiar with the way they sell bolita and bond, and the kind of pads they use, and what I saw I was convinced that he was selling numbers'. He stated also that he knew that people were buying numbers in the place of plaintiffs in error, and that one of them was the witness Sawyer with whom he made the plan to which we have alluded.
The pad was filed in evidence over the objection of Joe Italiano. It is described in the record as being 2 3/8 inches in width and 3 3/4 inches in length. There was also introduced over objection of the same defendant a sheet of paper of the same size with the following...
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...to the extent conducted in the instant case is not unreasonable. See, e.g.: Argetakis v. State, 24 Ariz. 599, 212 P. 372; Italiano v. State, 141 Fla. 249, 193 So. 48, certiorari denied, 310 U.S. 640, 60 S.Ct. 1088, 84 L.Ed. 1408; State v. Conner, 59 Idaho 695, 89 P.2d 197; State v. Carenza,......
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Gustafson v. State
...test for reasonableness became merely a determination of whether the search was incident to a lawful arrest. E.g., Italiano et al. v. State, 1940, 141 Fla. 249, 193 So. 48; Self v. State, Fla.1957, 98 So.2d 333. The decisions still iterate that the determination of the reasonableness of the......
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...committed and he has reasonable grounds to believe that the person to be arrested has committed it or is committing it. Italiano v. State, 141 Fla. 249, 193 So. 48. Under the first count of the information it is charged that all of the appellants 'did unlawfully aid and assist in the settin......
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