Moreno v. State, 72--1308
| Decision Date | 01 May 1973 |
| Docket Number | No. 72--1308,72--1308 |
| Citation | 277 So.2d 81 |
| Parties | Miriam Caridad MORENO, a/k/a Miriam Espino, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Max B. Kogen, Miami, for appellant.
Robert L. Shevin, Atty. Gen., and Peter F. LaPorte, Asst. Atty. Gen., for appellee.
Before CHARLES CARROLL and HENDRY, JJ., and McCAIN, DAVID L., Associate Judge.
Appellant was informed against for unlawful possession of a narcotic drug and possession of implements for drug use. She was tried and found guilty of both charges and sentenced to one year imprisonment in the Dade County Stockade with an additional period of probation for three years.
The record on appeal shows that similar charges were filed on January 20, 1972, against appellant as a result of an earlier search and seizure made at her home. An arrest warrant was issued as a result of those charges. Thereafter, narcotics officers drove by appellant's home from time to time after the arrest warrant was issued but no effort was made to serve it until March 24, 1972, at which time four officers were passing appellant's home and saw an automobile, thought to be owned by appellant, parked in front of her house.
Two of the officers went to the front door and the other two went to the back door. They knocked, shouted, 'Police officers,' and waited about ten minutes. Then, having heard no response, the officers forced their way into appellant's home. They found appellant in bed, fast asleep. Near her bed they found narcotics and narcotic implements. Appellant was awakened and placed under arrest. She was charged and convicted of unlawful possession of a narcotic drug and possession of implements for drug usage based upon the evidence found and seized in appellant's bedroom.
Appellant was arraigned and entered a plea of not guilty. Prior to trial her motion to suppress the evidence was heard and denied. Upon trial she was convicted under both counts of the information.
One of the points urged by appellant 1 for reversal is that the trial court erred in refusing to suppress the evidence seized since it was obtained as a result of an invalidly effectuated arrest. We find merit in appellant's contention and reverse.
Fla.Stat., § 901.19(1), F.S.A., 2 provides:
'if a peace officer fails to gain admittance After he has announced his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, he may use all necessary and reasonable force to enter any building or property where the person to be arrested is or is reasonably believed to be.' (Emphasis supplied.)
In the instant case, the evidence clearly shows that the arrest was not made in accordance with the provisions of § 901.19(1), Fla.Stat., F.S.A., in that the officers did not announce the purpose for their being at appellant's home.
In the case of Benefield v. State, Fla.1964, 160 So.2d 706, our Supreme Court portrayed the correct manner in which an arrest under the statute 3 should be effectuated. The court stated: (160 So.2d 709)
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