Melton v. State
| Decision Date | 26 October 1954 |
| Citation | 75 So.2d 291 |
| Parties | Lucille MELTON, Appellant, v. The STATE of the Florida, Appellee. |
| Court | Florida Supreme Court |
Branch & Goff, Tampa, for appellant.
Richard W. Ervin, Atty. Gen., and Mark R. Hawes, Asst. Atty. Gen., for appellee.
This is an appeal from a final judgment of conviction in the Criminal Court of Record for Hillsborough County, on a charge of unlawful possession of monshine whiskey and the concealment of the same.
According to the record the arresting officer obtained information as to the defendant's activities by sending a representative to her home to buy monshine whiskey. Several days after the purchase of a bottle of monshine liquor by the representative, the arresting officer obtained a search warrant, went to the home of the defendant, informed her of his mission, and asked her and another person then present in the house to come with him to the kitchen. There, he read the warrant to the defendant. After this, the arresting officer pulled aside a rug and strip of linoleum laying under the kitchen table, which disclosed a hole cut in the floor under which was cached several jugs of moonshine whiskey. After making this discovery, the arresting officer took possession of the whiskey and frove the defendant to the county jail, where she was duly charged with the felony upon which the judgment appealed from was rendered.
Prior to the trial on the charge a motion to quash the search warrant was granted by the trial court at the instance of the defendant. At the trial, however, the court refused to suppress the evidence that was discovered by the arresting officer and held it admissible on the theory that it was obtained by a lawful search made incident to a lawful arrest.
One this appeal three questions arise, which may be stated, in substance, as follows: (1) Was a lawful arrest effected by reason of the service of the invalid search warrant upon the defendant? (2) Was there probable cause for the arrest independent of the invalid search warrant in question? (3) Was the search and seizure of the moonshine whiskey within the proper limits of a search incident to a lawful arrest?
We think it quite clear that no lawful arrest was effected merely by the service of the invalid search warrant upon the defendant. A search warrant is an order in writing issued by a judge having jurisdiction within the district where the place, vehicle or thing to be searched may be, directed to a peace officer, commanding him to search for personal property and bring the same before said judge or some court having jurisdiction of the offense. Sections 923.11, 923.12, 933.01, 933.02, 933.06, 933.07, Florida Statutes 1951, F.S.A. 47 Am.Jur., Searches and Seizures, Sec. 3; Cornelius, Search and Seizure, 2nd ed., Sec. 150. While contained within the search warrant is an order for the arrest of the person named in the warrant in whose custody, control or possession the personal property may be found, it is plain from an inspection of the statute that the order for arrest is not absolute in terms, but is expressly conditioned on the peace officer first finding the personal property described in the warrant and then arresting the person named in the warrant in whose custody, control or possession the property is found. See section 923.12, Florida Statutes 1951, F.S.A.; also see section 923.16, Florida Statutes 1951 F.S.A., for a form of warrant of arrest. Such being the nature of the search warrant, and the limitation of authority contained therein to make an arrest, it seems obvious that where the search warrant is wholly invalid, as is the case here, there can be no valid search and seizure by virtue of its provisions alone and consequently there can be no valid arrest by virtue of a secizure of property thereunder. Davis v. State, 113 Fla. 713, 152 So. 6.
As to the second question raised on appeal, it is settled that a peace officer may arrest without warrant when he has reasonable grounds to believe and does believe that a felony has been or is about to be committed in his presence and that the preson to be arrested has committed, or is the one committing, it. Section 901.15, Florida Statutes 1951, F.S.A.; Longo v. State, 157 Fla. 668, 26 So.2d 818; Brown v. State, Fla., 46 So.2d 479. We think that under the facts of the case at bar the peace officer was warranted in believing that a felony had been, or was being, committed by the defendant and therefore was authorized to make an arrest without a warrant.
The third question is whether or not the search and seizure of the moonshine whiskey after the search warrant was read was within the proper limits of a search incident to the arrest of the defendant.
It is uniformly held...
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Gustafson v. State
...the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him. Melton v. State, Fla.1954, 75 So.2d 291. In certain circumstances an arrest is effectuated when the vehicle in which the person to be arrested is riding is stopped, s......
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Canney v. State
...person who is to be arrested that it is the intention of the arresting officer then and there to arrest and detain him. See: Melton v. State, Fla.1954, 75 So.2d 291.4 A case directly in point and resulting in the same holding as the case sub judice is a Missouri case, State v. Briggs, 1968,......
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...authority and an actual or constructive seizure or detention of his person, so understood by the person arrested.' See Melton v. State, Fla., 75 So.2d 291; Thompson v. Boston Pub. Co., 285 Mass. 344, 189 N.E. 210; Gold v. Bissell, 1828, 1 Wend.N.Y., 210, 215; Davis & Allcott Co. v. Boozer, ......
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Dixon v. State, 76--1103
...by facts constituting probable cause to arrest which are within the arresting officer's knowledge prior to the search. See Melton v. State, 75 So.2d 291 (Fla.1954); 2 68 Am.Jur.2d Searches and Seizures §§ 35, 37 (1973). The validity of a warrantless search conducted subsequent to the establ......
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Pretrial motions and defenses
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