Jetmore v. State

• Decision Date: 16 March 1973
• Docket Number: No. 71--705,71--705
• Parties: David JETMORE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 61

275 So.2d 61

David JETMORE, Appellant, v. STATE of Florida, Appellee.

No. 71--705.

District Court of Appeal of Florida, Fourth District.

March 16, 1973.

Charles W. Musgrove, Public Defender, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Nelson E. Bailey, Asst. Atty. Gen. West Palm Beach, for appellee.

REED, Chief Judge.

The issue on this appeal is whether or not the trial court properly denied a pretrial motion to suppress a written confession given by the defendant.

The defendant, David Jetmore, was charged by an information filed in the Circuit Court for Osceola County, Florida, with breaking and entering a building on 15 April 1971 with the intent to commit a misdemeanor. About one month after Jetmore more was arrested the public defender on behalf of Jetmore filed a motion to suppress certain tangible items of evidence and the written confession. The items of tangible evidence were obtained by a police search of Jetmore's automobile trunk at the time of his arrest.

A hearing was held on these motions on 18 June 1971 at which time the arresting officer, Jetmore, and several other persons testified. At the conclusion of the hearing, the trial judge reserved ruling. He later denied the motion to suppress the confession and granted the motion to suppress the items of tangible evidence. ¹

After the hearing on the motions to suppress, Jetmore was arraigned on 1 July 1971. At arraignment, Jetmore, represented by the public defender, pleaded nolo contendere to the lesser included offense of attempted breaking and entering with intent to commit a misdemeanor. This plea was made in accordance with the rules announced by the Florida Supreme Court in State v. Ashby, Fla.1971, 245 So.2d 225, and reserved the right to appeal the ruling of the trial judge on the motion to suppress the confession. Following the plea of nolo contendere the defendant was sentenced on 3 August 1971 to two and one-half years imprisonment, and this appeal followed.

The pertinent evidence taken most favorably to the trial court's order on the motion to suppress indicates that at about 1:00 a.m. on 15 April 1971 a Mr. William Bouton was driving through the middle of the City of St. Cloud when he noticed a broken window at the Handy Food Store on 13th Street. Mr. Bouton drove up a side street by the store and saw a white Chrysler with the trunk lid open and no lights on. As he drove around the corner he saw a man coming out through the broken window pulling a grocery cart. Thereupon Mr. Bouton called his wife on a telephone which was installed in his automobile. He directed her to call the St. Cloud Police Department.

As a result of Mr. Bouton's alert response to the situation, a dispatcher with the St. Cloud Police Department radioed Patrolman Robert Anderson who was cruising in the area of the Handy Food Store. Officer Anderson was told to proceed to the area of the store because a breaking and entering was in progress at the store and to secure the area around the city limits in the area of the store. Almost immediately after Anderson received this call he saw a vehicle traveling at a high rate of speed toward the city limits. He stopped the vehicle which contained the defendant. Officer Anderson told Jetmore that he was investigating a breaking and entering which had occurred at the Handy Food Store. Jetmore appeared to be nervous and made an intriguing response to the effect that Officer Anderson was picking on Jetmore because he (Jetmore) was an 'ex-con.' Officer Anderson observed on or about the front seat of Jetmore's car a transistor radio tuned to a police band and several innocuous items. The officer told Jetmore to get out of the automobile and place his hands on its roof. As Jetmore did this, he was observed by Officer Anderson to attempt to hide under his palm a key to the trunk of the vehicle. Officer Anderson asked Jetmore if he would permit a search of the trunk, but he refused. Nevertheless at the scene of the detention the officer took the key and opened the trunk and revealed the groceries which had been stolen from the food store. Jetmore was then arrested and taken to the police station in St. Cloud where he was advised in detail of his Miranda rights. He personally testified that he understood the rights advisory, having been given one on a prior occasion. Thereafter Jetmore a confession because, according to him, he had come to the conclusion that the police had sufficient evidence to convict him anyway.

The appellant's contention here is that his arrest and the subsequent search of his vehicle were illegal under the fourth amendment to the United States Constitution. ² As a result the tangible objects gained through the search were inadmissible and rendered inadmissible the confession which, so says the appellant, resulted from the unlawful seizure of the tangible items of evidence. For support the appellant relies on Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. In Wong Sun there were two petitioners, Wong Sun and James Wah Toy. Both were convicted in a federal district court for possession and transportation of heroin. The evidence in this somewhat puzzling case (referred to by the dissent therein as a Chinese puzzle) indicates that federal narcotics agents arrested one Homway and found him in possession of heroin. Homway advised the arresting agents that he had bought the heroin from 'Blackie' Toy, a laundry proprietor. Shortly thereafter the federal agents broke into Toy's place of business and arrested him, but found no heroin on his person or within his premises, although a search for the same was conducted. Toy told the agents that one Johnny Yee had possession of heroin and directed the agents to Johnny's house. The agents searched Johnny Yee's house and found that Johnny was in possession of one ounce of heroin, which he told the agents he had bought from Wong Sun. The agents then went to Wong Sun's house, arrested him, and searched his home but found nothing. All arrests and searches were made without warrants. Within several days after the arrest Wong Sun and James Wah Toy voluntarily submitted to police interrogation and made certain incriminating admissions. One of the issues presented by Wong Sun was whether or not the trial court had properly ruled admissible Wong Sun's pretrial inculpatory statement to the police. As to Wong Sun, the Supreme Court held that his arrest was illegal, but that his post-arrest statement was not sufficiently related to the illegal arrest that it should be excluded from evidence. The court pointed out that the statement was voluntarily given several days after the arrest and a lawful arraignment. For purposes of our decision in the present case the following language from Wong Sun is pertinent:

(page 417)

'. . . We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' . . .'

(page 419)

'. . . For Wong Sun's unsigned confession was not the fruit of that arrest, and was therefore properly admitted at trial. On the evidence that Wong Sun had been released on his own recognizance after a lawful arraignment, and had returned voluntarily several days later to make the statement, we hold that the connection between the arrest and the statement had 'become so attenuated as to dissipate the taint.' . . .'

On the assumption that the arrest of the appellant and the subsequent search and seizure were illegal, we take the same view with respect to his confession as did the Supreme Court with respect to Wong Sun's oral statement. The present statement, although given only forty-five minutes after the arrest, was quite obviously given freely and voluntarily and after a full and complete Miranda warning which the defendant expressly stated he understood. Thus it seems to us that the trial court had a factual basis before it from which it could reasonably have found that defendant's statement was the result of a voluntary exercise of free will and independent of the illegal search and seizure. We, therefore, uphold the trial court on that ground. See Reynolds v. State, Fla.App.1969, 222 So.2d 246. See also State v. Oyarzo, Fla., 274 So.2d 519, opinion filed 2--21--73.

There is an alternative basis for affirmance even though it rests on a theory not adopted by the trial court. It is well settled that a person may be detained by an investigating police officer on something less than probable cause, where there exists a reasonable ground for detaining the citizen to make inquiry of him. See Gustafson v. State, Fla.App.1971, 243 So.2d 615, 619; State v. Gustafson, Fla.1972, 258 So.2d 1, and State v. Padilla, Fla.App.1970, 235 So.2d 309. The first stage of the police conduct with respect to Jetmore, i.e., the initial stopping, could be considered as a legal detention inasmuch as a reasonable ground for stopping Jetmore could be found in the dispatcher's report to Officer Anderson, the late hour, and the high speed driving of the defendant in the direction of the city limits.

After the officer stopped Jetmore and told him about the breaking and entering, the officer observed a display of nervousness on the part of Jetmore and heard Jetmore's spontaneous response which could have done nothing but arouse the curiosity of a reasonable man. Additionally, when Jetmore was ordered out of the vehicle the officer observed Jetmore's attempted concealment of the key to the automobile trunk. While the totality of the information in the officer's possession at this time might not have been sufficient to equate with the 'probable cause'...