Miller v. State, 2525

• Decision Date: 31 January 1962
• Docket Number: No. 2525,2525
• Parties: Amos Honor MILLER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 21

137 So.2d 21

Amos Honor MILLER, Appellant, v. STATE of Florida, Appellee.

No. 2525.

District Court of Appeal of Florida, Second District.

Jan. 31, 1962.

Richard W. Ervin, Atty. Gen., and Robert R. Crittenden, Asst. Atty. Gen., for appellee.

ALLEN, Judge.

This appeal seeks review of a judgment of conviction for possession of lottery tickets or shares in violation of the state's gambling laws and a one year prison term, plus $2,000 fine.

On January 28, 1961, defendant-appellant was involved in an automobile accident in Clearwater. The investigating police officer found him unconscious and saw in defendant's open glove compartment a large amount of money and adding machine tapes bundled together with paper clips and rubber bands. The officer had these taken into custody and defendant was hospitalized.

Defendant's car was towed to a garage and impounded. The investigating officer then went to the hospital and placed defendant under arrest for making an improper turn. Said arrest is not germane to this appeal since it was not a valid arrest without a warrant under § 901.15, F.S.A. Roberts v. Dean, 1939, 133 Fla. 47, 136 Fla. 421, 187 So. 571; Malone v. Howell, 1939, 140 Fla. 693, 192 So. 224. Later, said investigating officer and his superior went to the garage where the car was impounded and upon looking inside of it noticed something protruding from a torn place in the floor mat. The mat was lifted up and another bundle of adding machine tapes rolled around lottery tickets was found. No search warrant had been issued for this purpose, nor was this search made as an incident to a valid arrest.

Defendant was informed against for aiding and assisting in the conduct of a lottery and with illegal possession of lottery tickets. He was tried and found guilty of the possession charge. The lottery tickets were admitted into evidence over defendant's objection. It is questionable whether conviction would have resulted without the lottery tickets having been admitted into evidence. The question raised by this appeal is: was the aforedescribed search for and seizure of the lottery tickets a reasonable search and seizure so as to justify their admission into evidence?

The general rule concerning vehicular searches made without a warrant and not as part of a valid arrest is to the effect that such a search will be deemed reasonable if the searching officer, prior to making the search, had probable cause to believe that the contents of the automobile offended against the law. Section 933.19, F.S.A., adopting as the statute law of Florida the decision by the United States Supreme Court in Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790.

In the Carroll case, federal prohibition agents were engaged in a patrol along a highway for the purpose of stopping automobiles and seizing illicit liquor being transported in them. The defendants' automobile was stopped and searched without a search warrant. The search revealed illicit liquor which was seized and later introduced in evidence at the trial in which the defendants were convicted of violating the National Prohibition Act. The Court held that the search and seizure were reasonable and evidence seized admissible because the agents had probable cause to believe that the automobile in question was carrying contraband goods. Probable cause for this belief was found to exist because of facts made known to the agents two months beforehand convincing them that the defendants were bootleggers. The rationale of the decision is partially disclosed by the following statement in the opinion of the Court written by Mr. Chief Justice Taft:

'We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.' (Emphasis supplied.)

The aftermath of the Carroll case in Florida has been what one court opinion and one text writer have called a trend to narrow the concept of immunity against searches and seizures involving automobiles. Cameron v. State, Fla.App.1959, 112 So.2d 864; 29 Fla.Jur., Search and Seizure, § 12. Cameron v. State is cited for the proposition that less compelling facts and circumstances than were formerly required are accepted as constituting 'probable cause' for a search of a vehicle and seizure of contraband found therein without a supporting warrant. A reading of the Cameron case discloses, however, that the defendants therein did not rightfully possess the automobile searched, having misappropriated it from the lawful owner in Wisconsin. Thus, the Cameron case comes under the rule that immunity against unlawful searches and seizures is not available to one in wrongful possession of the property searched. Alexander v. State, Fla.App.1958, 107 So.2d 261; 47 Am.Jur., Searches and Seizures, § 11. In addition, there are many other detailed evidentiary factors relating to 'probable cause' which distinguish Cameron from the instant case.

In Collins v. State, Fla.1953, 65 So.2d 61, the evidence on which a bolita conviction was based had been uncovered by a search and seizure without a warrant of defendants' automobile as an incident to an arrest which the Court held to be an invalid arrest. The Court then narrowed the question facing it to whether the facts justified the search without either a warrant or a legal arrest. The circumstances relied on by the state to show that the officer had probable cause to believe that the searched vehicle contained contraband were that said officer had information that one of the defendants, whom he had been investigating for a month, was involved in the bolita racket and had gambling paraphernalia in his car. The Court held that the probable cause requirement was not met.

Before doing so, however, the Court adopted the rule that where it is impossible or impracticable to secure a search warrant, the officer making the search and seizure must be prepared to convince the Court that the information he possessed was sufficient basis for the issuance of a warrant had he applied for one. The Court went on to conclude that the grounds relied on to justify the search in the case before it would have been insufficient to prompt a magistrate to issue a warrant had application for same been made.

The Collins case was followed in Byrd v. State, Fla.1955, 80 So.2d 694, which held that a tip that a truck was carrying moonshine whiskey did not amount to 'probable cause' justifying a search and seizure without a warrant. The Court saw fit to quote the following portion of the opinion in the Collins case, supra:

"Putting together the decisions of the Supreme Court of the United States and the decisions of this court, which we think are harmonious, we reach the conclusion that it is safer procedure to secure a search warrant preliminary to stopping a motorist and searching his car; that if halting, searching and seizing are accomplished without such a warrant the officer must be prepared to show that he had 'probable cause' for his acts or 'reasonable belief' or 'trustworthy information' that the car was engaged in the transportation of contraband."

In the case of Kraemer v. State, Fla.1952, 60 So.2d 615, a conviction for a possession violation of the lottery laws was reversed on the basis of an illegal search and seizure. The searching officers had received an anonymous phone call that two cars habitually met at a given place under suspicious circumstances. The officers waited near the locale described to them and observed two cars approach and meet from opposite directions. Before the officers could reach the scene, the two cars drove off, again in opposite directions and evaded apprehension. One of the officers later saw what he thought was one of the cars at the observed meeting. He 'took a chance' that it was one of the cars he had intended to apprehend and followed, stopped and searched it, unconvering the evidence which helped to convict the Kraemers. In holding that no probable cause existed to justify the officer in stopping the car and making a search, the Court noted at p. 617:

'* * * Even law enforcement officers should not be allowed to invade constitutional rights upon nothing more than suspicion, although ultimately justified; nor should suspicion be substituted for known facts which alone can form a lawful basis for probable cause. * * *' (Emphasis supplied.)

In the case of Gaskins v. State, Fla.1956, 89 So.2d 867, a search and seizure without a warrant resulted in a conviction of a violation of the lottery laws which was affirmed. In that case, the officers searched the defendant's unattended truck after finding it parked at a darkened intersection, in the nighttime, without lights, its left wheels over on the pavement, with its windows open. The search which recovered the incriminating evidence was upheld as reasonable, the Court holding that the officers were performing a duty incident to their...