McNamara v. State

Decision Date31 March 1978
Docket NumberNo. 51647,51647
Citation357 So.2d 410
PartiesLuther Judson McNAMARA, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

M. E. Cullom of Cullom & Cullom, Orlando, for appellant.

Robert L. Shevin, Atty. Gen., and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.

KARL, Justice.

This cause is before us on direct appeal from the judgments of the Circuit Court, in and for Seminole County. We have jurisdiction because the trial court, in denying appellant's motion to suppress evidence obtained by wiretap or intercepted wire communications, construed Article II, Section 5, Florida Constitution, thereby vesting jurisdiction in this Court. Article V, Section 3(b)(1), Florida Constitution.

Although it is unnecessary to the disposition of this cause to resolve the constitutional question and, therefore, we will not do so, this does not divest us of jurisdiction to dispose of the other issues involved sub judice. P. C. Lissenden Co., Inc. v. Board of County Commissioners of Palm Beach County, 116 So.2d 632 (Fla.1959).

Appellant was informed against for carrying a concealed firearm in violation of Section 790.01, Florida Statutes (1975), and was indicted by the Statewide Grand Jury for two counts of bookmaking, which were stated in the indictment to have occurred in Seminole County, Florida. The trial court denied appellant's motion to dismiss the charge of carrying a concealed weapon, which motion alleged that appellant came within the exception contained in Section 790.25(3)(i), (m) and (n), Florida Statutes (1975), since the weapon found on appellant's person was found as a result of a search of his place of residence, and denied appellant's motion to suppress the pistol found on his person.

Appellant also filed a motion to suppress evidence taken by wiretap or intercepted wire communications and related to the bookmaking charges, and contended that the authorization for wire interception stated that the interception was in Seminole County while the applicant was a deputy sheriff of Orange County and, as such, was not one of the persons authorized to make application for the interception of wire or oral communications. The trial judge denied this motion to suppress and found that Officer Calamia, the deputy sheriff in question, could lawfully be a deputy sheriff of Seminole County, Florida, and, at the same time, be a deputy sheriff of Orange County, Florida. Reserving his right to appeal the pretrial rulings made by the trial court prior to entry of his pleas, appellant entered pleas of nolo contendere to one count of bookmaking and to carrying a concealed weapon. Initially, we find that petitioner was properly permitted to plead nolo contendere conditioned on reservation of the questions as to legality of the seizure of evidence to be used against him. This Court, in State v. Ashby, 245 So.2d 225 (Fla.1971), held that the trial court did not err in permitting Ashby to plead nolo contendere conditioned on reservation of a question of legality of evidence seized since the question reserved was a question of law. The plea of nolo contendere waives all defects in a criminal proceeding with the exception of jurisdictional ones, and in order to reserve the right to appeal a question of law, appellant must expressly reserve the same by conditioning his plea on the reservation of the specific, narrowly-drawn question of law. Cameron v. State, 291 So.2d 222 (Fla. 4th DCA 1974), writ disch. 338 So.2d 817 (Fla.1976).

Sub judice, appellant reserved the right to appeal the denial of his motion to suppress the pistol and his motion to dismiss the information based on the fact that the pistol was found in his place of residence. He now argues before this Court that the state failed to show probable cause to believe the appellant was armed, and he abandons his argument made in the motion to dismiss the information that he came within the exception of Section 790.25(3)(i), (m) and (n), Florida Statutes (1975).

The facts relating to the seizure of this pistol, as they appear in the hearing on the motions to suppress and to dismiss and the plea hearing, reveal that pursuant to the execution of a search warrant, not contested to be invalid, several officers, including Officers Calamia and Cook, were present in appellant's apartment in Seminole County, Florida, when he returned home on the afternoon of November 1, 1975. The search warrant described the material sought to be obtained as being kept in violation of the laws which prohibit maintaining a gambling house, unlawful wagering and bookmaking. Having heard noise outside the apartment and believing someone to be just outside the apartment door, Officer Calamia opened the door and observed appellant, wearing slacks and a shirt, in the hallway. Appellant testified that he had his hand in his pocket when the door was thrust open. Calamia ordered appellant to come into the apartment and to place his hands against the wall. Calamia testified that from the rear, he could see a bulge in appellant's back pocket. He then proceeded to frisk appellant for a weapon. A four-inch, blue, R.G. 22-caliber, snubnose pistol was found in appellant's right, rear pocket. Officer Cook testified that he had information that appellant was supposed to be armed with a weapon on his person and advised Calamia to expect that appellant would be armed.

Appellant contends that the trial court erred in denying his motion to suppress the pistol seized from his person and argues that there was no probable cause to believe that he was armed. We cannot agree with appellant that the trial court erred in denying his motion to suppress. The ruling of the trial court on a motion to suppress, when it comes to the reviewing court, is clothed with the presumption of correctness, and the reviewing court will interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustain the trial court's ruling. Cf. Glas v. State, 329 So.2d 341 (Fla. 3rd DCA 1976), Rodriguez v. State, 189 So.2d 656 (Fla. 3rd DCA 1966), cert. den. Suarez v. Florida, 389 U.S. 848, 88 S.Ct. 66, 19 L.Ed.2d 116. We find that under the circumstances present in the instant cause, the officers had probable cause sufficient to justify the frisking of appellant for their own safety. Cf. Wilson v. State, 324 So.2d 700 (Fla. 4th DCA 1976), Williams v. State, 294 So.2d 37 (Fla. 3rd DCA 1974), cert. den. 299 So.2d 602 (Fla.1974), State v. Brooks, 281 So.2d 55 (Fla. 2d DCA 1973), State v. Woodard, 280 So.2d 700 (Fla. 2d DCA 1973). In determining the reasonableness of the governmental search of a citizen's person, the Supreme Court of the United States, in Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), emphasized that the facts of the search and seizure should be judged against the objective standard of whether the facts available to the police officer at the time of the seizure "warrant a man of reasonable caution in the belief" that the action was appropriate. Applying the principles enunciated in Terry v. Ohio, supra, the District Court of Appeal, in Ingram v. State, 264 So.2d 109 (Fla. 4th DCA 1972), concluded:

"By applying the principles expressed in Terry v. State of Ohio, we conclude that under the facts of the present case, the police officer had a reasonable ground under the circumstances of his encounter with the defendant to believe the defendant to be armed and dangerous and made a reasonably limited search for the purpose of neutralizing such danger. For us to hold that the officer was required to disregard the reports he had received because they were of a hearsay nature is not reasonable. Prudent people act on 'hearsay' in countless matters.

"What gives reasonableness to the forcible seizure of Ingram is the fact that the encounter was not the result of an intentional effort to confront an armed and dangerous man. Officer Pagano was pursuing a proper investigative function in the performance of the duty of his office. . . ."

The police officer in Ingram v. State, supra, while investigating an abandoned automobile, approached the defendant for the purpose of inquiring whether he had any information...

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189 cases
  • State v. Avery, 87-0270
    • United States
    • Florida District Court of Appeals
    • 3 Agosto 1988
    ...that the ruling of the trial court on a motion to suppress comes to the appellate court with a presumption of correctness. McNamara v. State, 357 So.2d 410 (Fla.1978). However, that burden is overcome in this case by the showing that there was no evidence of misconduct. See State v. Champio......
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    ...that the people found in Savides' apartment might be armed, or might have access to weapons outside the apartment. Cf. McNamara v. State, 357 So.2d 410 (Fla.1978). Therefore, the police officers had valid interests in protecting their own safety, and in preventing possible flight if Pace or......
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    • Florida Supreme Court
    • 10 Abril 2013
    ...reasonable inferences and deductions derived therefrom in a manner most favorable to sustain the trial court's ruling.” McNamara v. State, 357 So.2d 410, 412 (Fla.1978). Thus, we “accord a presumption of correctness to the trial court's rulings on motions to suppress with regard to the tria......
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