Leveson v. State
| Citation | 138 So.2d 361 |
| Decision Date | 01 March 1962 |
| Docket Number | No. 61-512,61-512 |
| Parties | Harris LEVESON, Jr., Appellant, v. STATE of Florida Appellee. |
| Court | Florida District Court of Appeals |
John Charter Reed for Reed, Manners & Amoon, Miami, for appellant.
Richard W. Ervin, Atty. Gen., B. Clarke Nichols, and David U. Tumin, Asst. Attys. Gen., for appellee.
Before PEARSON, TILLMAN, C. J., and CARROLL and HENDRY, JJ.
The appellant, Harris Leveson, Jr., was tried in the Criminal Court of Record, Dade County, on charges of (1) operating a gambling room, (2) aiding in the setting up, promoting or conducting a lottery, (3) bookmaking and (4) possession of lottery tickets. See § 849.09, Fla.Stat., F.S.A.
The jury found him guilty of three of these charges, notwithstanding his plea of not guilty. A verdict of not guilty was directed as to the first charge. Thereafter he was sentenced to confinement in the county jail for eighteen months on the charge of aiding in the setting up, promoting or conducting a lottery, and he was sentenced to similar confinement for one year on each of the other two charges; these sentences to run concurrently with the first and longer one.
The appellant has assigned numerous errors as grounds for reversal of his conviction. The first and basic issue on this appeal is whether the appellant was accorded his constitutional rights in the trial court as guaranteed to him under the Fourth Amendment of the Constitution of the United States and Section 22 of the Declaration of Rights of the Florida Constitution, F.S.A., when the court permitted evidence to be introduced and used against him which was obtained under color of a search warrant.
This case presents an important question in the administration of criminal justice, especially a defendant's standing to challenge the legality of a search and seizure in the circumstances of this case.
The appellant was arrested and certain gambling paraphernalia were seized by officers of the law, who being armed with a search warrant forcibly entered an apartment in which the appellant and the gambling paraphernalia were found.
Prior to trial the appellant duly moved to quash the search warrant and to suppress the evidence obtained thereunder. The motion, among other things, alleged that the search involved was an 'unreasonable search, violating the constitutional rights of the defendant as guaranteed to him by the provisions of Section 22 and Section 12, Declaration of Rights, Florida Constitution and Fourth Amendment to the Constitution of the United States'; 1 that such violation occurred under color of a search warrant at a time when the defendant had a direct interest and/or was a lawful occupant of the premises searched; that the said search also violated the defendant's rights as guaranteed by § 933.18, Fla.Stat., F.S.A.
In support of the appellant's motions to quash the search warrant and suppress the evidence the appellant and his 'girl friend', Barbara Clelland, the full-time occupant of the apartment, took the witness stand and offered uncontroverted testimony to the effect that at the time of the search and seizure of the articles of gambling paraphernalia from the apartment and from the appellant's person the appellant had a lawful right to be in the apartment; that the appellant had full-time possession of a key for the apartment and spent considerable time therein; that on occasions he had stayed there as long as five nights and had certain articles of clothing in the apartment at the time of the search; that he and Barbara Clelland directly negotiated with the landlord for the rental of the apartment; and that he paid the rent for the first and last months as well as other months, but the lease was taken in the name of Barbara Clelland, his 'girl friend' because of the appellant's marital situation--he had a wife and a home at another location. The landlord was called as a witness on behalf of the appellant and corroborated their testimony relating to the rental arrangement and to the appellant's customary visits to the apartment.
The state challenged the appellant's right to make the motions on the ground that the appellant did not have sufficient standing to contest the validity of the search warrant and the seizure of which he complains because he had failed to prove himself to be either the owner, occupant or lessee of the premises searched, or to be in possession of or have an interest therein.
The right to immunity from unreasonable searches and seizures being personal the state contended that it could not be asserted by one unless he could prove himself to be the owner, lessee or tenent or the lawful occupant of the premises searched. Mixon v. State, Fla.1951, 54 So.2d 190; Alexander v. State, Fla.App.1958, 107 So.2d 261; Tribue v. State, Fla.App.1958, 106 So.2d 630. As will be seen from these and many other decisions the Supreme Court and the Courts of Appeal of our state have uniformly held that such a showing was necessary to entitle one to claim such immunity.
Recognizing this well-settled rule the trial judge denied the motions on the ground of appellant's lack of standing to make it.
During the course of the trial the evidence obtained by means of the search warrant was admitted under appellant's objections to its admissibility.
The appellant contends that the evidence clearly shows that he had sufficient interest in the apartment searched and the property seized to entitle him to object to an unreasonable search and seizure. In support of his contention he relies on the case of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed. 697, decided in 1960 by the United States Supreme Court, wherein the court construed the constitutional provisions involved in the instant case, under very similar facts and circumstances. In the Jones case it was said at page 259:
'Prior to trial petitioner duly moved to suppress the evidence obtained through the execution of the search warrant on the ground that the warrant had been issued without a showing of probable cause. The Government challenged petitioner's standing to make this motion because petitioner alleged neither ownership of the seized articles, nor an interest in the apartment greater than that of an 'invitee or guest.' The District Court agreed to take evidence on the issue of petitioner's standing. Only petitioner gave evidence. On direct examination he testified that the apartment belonged to a friend, Evans, who had given him the use of it, and a key, with which petitioner had admitted himself on the day of the arrest. On cross-examination petitioner testified that he had a suit and shirt at the apartment, that his home was elsewhere, that he paid nothing for the use of the apartment, that Evans had let him use it 'as a friend', that he had slept there 'maybe a night,' and that at the time of the search Evans had been away in Philadelphia for about five days.
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'As a second ground sustaining 'standing' here we hold that petitioner's testimony on the motion to suppress made out a sufficient interest in the premises to establish him as a 'person aggrieved' by their search. That testimony established that at the time of the search petitioner was present in the apartment with the permission of Evans, whose apartment it was. The Government asserts that such an interest is insufficient to give standing. The Government does not contend that only ownership of the premises may confer standing. It would draw distinctions among various classes of possessors, deeming some, such as 'guests' and 'invitees' with only the 'use' of the premises, to have too 'tenuous' an interest although concededly having 'some measure of control' through their 'temporary presence', while conceding that others, who in a 'realistic sense, have dominion of the apartment' or who are 'domiciled' there, to have standing. Petitioner, it is insisted, by his own testimony falls in the former class.
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There is no rule of procedure or law that requires our state courts to follow such decisions of the United States Supreme Court. However, they have been generally accepted as authority for similar rulings on constitutional questions relating to searches and seizures since the Fourth Amendment of the Constitution of the United States and Section 22 of the Declaration of Rights of the Constitution of Florida are the same in meaning and almost identical in wording. Houston v. State, Fla.App.1959, 113 So.2d 582.
In the Houston case, the court stated 113 So.2d at page 584:
While it is perfectly clear that the courts of this state are under no compulsion to follow the federal decisions as to unreasonable searches, there is no valid reason why this court should not continue the prevailing custom as set forth in the Houston case.
Viewing the question herein presented in light of the decisions of the United States Supreme Court in the Jones case and the District Court of Appeal, First District, in Houston v. State, it is concluded that the...
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