Kraemer v. State

• Decision Date: 26 August 1952
• Citation: 60 So.2d 615
• Parties: KRAEMER et al. v. STATE.
• Court: Florida Supreme Court

Page 615

60 So.2d 615

KRAEMER et al. v. STATE.

Supreme Court of Florida, Division A.

Aug. 26, 1952.

Rehearing Denied Oct. 16, 1952.

M. H. Jones, Milton D. Jones, Clearwater, and Atkinson & Atkinson, Tallahassee, for appellants.

Richard W. Ervin, Atty. Gen., and William A. O'Bryan, Asst. Atty. Gen., for appellee.

HOBSON, Justice.

This appeal is from a final judgment of conviction of the appellants on the charge of possession of tickets in a lottery that had not yet been played.

Is is disclosed by the evidence that Officer Dietrich received an anonymous telephone call on the evening of July 26, 1950. He was informed by the person who called him that two unidentified cars had been habitually meeting each other at night for approximately one month in the vicinity wherein the informant resided. Officer Dietrich was also told that these cars would usually approach one another from opposite directions, blink lights, stop opposite each other and then drive on. On the evening of the day upon which Officer Dietrich received the aforementioned telephone call he and Officer Nutt parked two police cars in a private driveway in the middle of the twenty-five hundred block on Second Avenue, North, in the City of St. Petersburg, Florida. The officers waited until about 8:30 or 8:45 o'clock when they observed a car coming eastbound on Second Avenue which stopped and turned off its lights about a block from where the officers were stationed. Shortly thereafter another car came from the opposite direction on Second Avenue, North. As this car approached, the eastbound car started up and met the westbound car at or near the intersection of 24th or 25th Street and Second Avenue. Neither officer recognized the eastbound car or the driver thereof and they did not get its license number; nor did either get the license number of the westbound car or recognize it or its occupants.

When the two cars stopped both officers ran to their automobiles but by the time Officer Nutt had driven his car out of the driveway the westbound car, which it was pre-arranged he was to follow, had disappeared. He attempted to locate the westbound car but admittedly could not identify it. However, when he saw a car on 25th Street approaching Central Avenue about two blocks away from him, he 'took a chance' that it was the car he was intending to apprehend and followed it. After turning on to Central Avenue the car which he was following then went north on 26th Street. When it reached Burlington Avenue Officer Nutt drove alongside of the car and ordered the driver to stop.

It is clear that no probable cause existed to justify the officer in stopping the car or in making a search, which we are convinced he did make, for contraband. Not only does the record disclose the fact that the officer examined the driver's license of appellant Walter Kraemer, flashed his light into the interior of the car, conversed with Kraemer and inquired about a package that he saw on top of some clothes in a clothes basket on the back seat of the car, but, according to officer Nutt's own testimony, at the time he asked Kraemer what the package was he 'sort of lifted it up.' When asked the question whether he picked the package up his answer was 'I did not take it out; I picked it up and laid it back.' Officer Nutt was asked if he looked under it, meaning under the package. His answer was, 'Yes, sir.' The foregoing testimony convinces us that an illegal search was commenced at that point and that the packages which the appellant Atilia Kraemer later attempted to push under the car with her foot, one of which was subsequently found to contain lottery numbers and the other a sum of money, were seized as contraband consequent upon such illegal search.

The mere fact that officer Nutt, after halting the car in which appellants were riding without probable cause, inquired as to what was in the package on the back seat and flashed his light in the car might not be said to have amounted to a search but when he went further, reached into the car, picked up the package and looked under it he was, without doubt making a search. Moreover, it cannot be said that the search was incident to a lawful arrest because the arrest had not up to that time actually been made, nor would it have been lawful had it been made. It is also extremely doubtful that the arrest when made was lawful because, although the officers looked into the packages after retrieving them from the street and saw money and some sealed envelopes, it was not until the officers had arrested the appellants and had taken them to the police station that the sealed envelopes were opened to ascertained their contents. They were found to contain lottery tickets. Up to that point no contraband distinguishable as such had been seen in the possession of these appellants by either officer. No law was violated by the appellants in the presence of the officers and they were not armed with a search warrant. A search must be lawful in toto and one that is unlawful ab initio is not made lawful by what is found in consequence thereof. See Cornelius on Search and Seizure, 2nd Ed., Sec. 31, page 86, and cases therein cited.

'If a seizure is based on a mere suspicion, and the facts do not justify an arrest, the subsequent discovery by an examination of the evidence secured by the seizure that the suspicion was well founded is not sufficient to make what was unlawful at its commencement a lawful search.' Garske v. United States, 8 Cir., 1 F.2d 620, 621.

'It was against such prying, on the chance of discovery, that the constitutional amendment was intended to protect the people. Neither is the discretion of the officer, however good and well-intentioned, a substitute in law for a search warrant issued by a proper magistrate.' United States v. Slusser, D.C., 270 F. 818, 819.

We are not unmindful of the fact that many upright citizens are apparently righteously indignant when they feel that a criminal has evaded punishment for his transgression upon what they consider to be a legal technicality. These same citizens are strengthened in the oft-expressed lay view that 'It is all law and no justice' and are at times hypercritical of the courts. It might be stated in all fairness that our courts in some instances may by strained or tenuous constructions have invited criticism of this character, which fact merely serves to demonstrate that judicial officers are after all only human. Upon sober reflection it should be obvious to everyone that all of us as citizens are responsible for the existence of the Fourth Amendment to the Federal Constitution, as well as Section 22 of the Florida Declaration of Rights, F.S.A. Moreover, the protection afforded by the Fourth Amendment, supra, and Section 22 of our Declaration of Rights, as was said by Mr. Justice Butler of the United States Supreme Court in the case of Agnello v. United States, 269 U. S. 20, 46 S.Ct. 4, 6, 70 L.Ed. 145, '* * * extends to all equally--to those justly suspected or accused, as well as to the innocent.'

The fundamental difference between our form of government and that of the totalitarian states lies in the fact that our constitution provides for and protects the rights, privileges and immunities of the individual. 'The right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches * * *' is certainly one of our most cherished personal rights. Should the courts fail to recognize and invoke the protection afforded by the Fourth Amendment to the Federal Constitution and Section 22 of our Declaration of Rights they would surely lend a helping hand to those who patently desire to bring to this Continent the oppressive and iniquitous form of government which would change this Nation of free people...