Outten v. State

• Decision Date: 17 March 1967
• Docket Number: No. 6970,6970
• Citation: 197 So.2d 594
• Parties: William A. OUTTEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 594

197 So.2d 594

William A. OUTTEN, Appellant, v. STATE of Florida, Appellee.

No. 6970.

District Court of Appeal of Florida, Second District.

March 17, 1967.

Rehearing Denied April 25, 1967.

Robert E. Jagger, Public Defender, Carleton L. Weidemeyer, Asst. Public Defender, Clearwater, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.

PIERCE, Judge.

Appellant William A. Outten appeals to this Court from a judgment entered against him by the Pinellas County Circuit Court after a trial and finding of guilt by the Court without a jury upon an information charging him with larceny of a Dodge automobile.

Represented by the public defender, Outten in open Court waived a trial by jury and consented to trial by the Court. At the outset of the hearing a stipulation of counsel was dictated into the record to the effect that a certain described Dodge automobile had been taken from a parking lot on the night of November 26, 1965, in St. Petersburg, without the authority of the owner. In addition, only two witnesses testified for the State, E. R. Peterson and R. Abreu. After adjudication of guilt by the Court, defendant Outten was sentenced to a term of imprisonment in the State Prison.

From the evidence, it appears that on the early morning of November 27, 1965, E. R. Peterson, a State Highway Trooper, was parked on the median between the two highways on Interstate 4 near Orient Road in Hillsborough County. Pursuant to a call from the Highway Patrol Station, he was watching for a blue Dodge automobile headed east on Interstate 4 toward Gainesville. He was to stop the car and inform the occupants thereof that they had left their football tickets back home in Pinellas County. While so parked, he noticed a two-toned blue Dodge automobile pass in an easterly direction on the highway. He then caught up with the Dodge car, followed along behind it, and noticed it was occupied by two young men. The car pulled off Interstate 4 and went down an exit road to a stop sign, at which point trooper Peterson to the rear blew his horn, jumped out of his car, walked up to the Dodge, looked in at the driver and asked to check his driver's license. The driver was one David Lee Polumbo, and his passenger sitting in the car was defendant Outten. Polumbo could not produce a driver's license, whereupon the officer ordered them both out of the car and began to question Polumbo. He got no 'satisfactory answers' from Polumbo except that the Dodge belonged to Polumbo's brother. The trooper checked with headquarters by radio and ascertained the license tag was 'not wanted' although it had actually been issued 'on a 1957 Ford.' The trooper got no further identification or 'satisfactory information' from Polumbo and then turned and had conversation with Outten, but stated 'I don't remember the exact conversation with Mr. Outten. I just remember that I got Mr. Outten out of the car, and I did question him and he could give me no satisfactory answers. Neither one of the boys could give me satisfactory answers.'

He thereupon arrested Polumbo and Outten for 'suspicion of auto theft', searched them, and then transported them in his own car in handcuffs to the Hillsborough County Jail. Inside the jail, after conference with the jailer, Outten was charged with 'vagrancy'. ¹ A few minutes later, according to trooper Peterson, 'Outten made an admission to me * * * at one of the divider gates,' stating that 'the car had been stolen'.

About that time, at approximately 9 A.M., Hillsborough deputy sheriff Abreu appeared on the scene and in company with trooper Peterson took Outten 'up-stairs' to the interrogation room where, according to Abreu, 'I made him aware of his constitutional rights, that he didn't have to tell me anything he didn't want to, and he could have the benefit of the presence of a lawyer, an attorney, if he wanted'. Abreu then continued: '(a)fter we had told him did he want to talk to us about it, he said yes he would. He told us where he had gotten the car. From this car lot in St. Petersburg. And that the car was parked next to a restaurant. And he related to us, to me how he had come from Norfolk, Virginia in a bus to Jacksonville, and from Jacksonville to St. Petersburg. And that he had gotten off the bus in St. Petersburg and stayed there all day Friday, and how at night they had gone over there and gotten the car on the used car lot.' Abreu was asked as to Outten's attitude during this interrogation session, which incidentally lasted only about twenty minutes, and Abreu replied 'he was very cooperative and readily talked to us', that he had 'no difficulty in obtaining this admission from him'.

The foregoing sums up the evidence for the State before the trial Judge. Thereupon defense counsel made motion for a finding and adjudication of not guilty, which the Court denied. Motions were then made for the Court to disregard or not consider the admissions or confessions of the defendant, principally upon the grounds of an original unlawful arrest and also failure on the part of the officers to fully or adequately advise the defendant of his constitutional rights before questioning him. As to the 'confessional offering' to officer Abreu in the upstairs room the trial Judge dismissed the objection without comment, but as to the statements by the boys to trooper Peterson at the time of arrest and later by Outten to trooper Peterson at the jail 'divider gate', the Judge had some interesting comments. He voiced his conclusions in the following language:

'Now there were actually two arrests made. An arrest on the highway for auto theft, because the officer was suspicious, or as he put it, on suspicion of auto theft. You may get into a question of semantics there. And then the arrest at the Hillsborough County Jail for vagrancy.

'There was not sufficient advice to this man by the arresting officer to make valid any admissions this man might have made to Officer Peterson. The full scale predicate was not laid for the constitutional advisory by him, which brings up this point, that in any event any admission made by this man at the divider gate before going upstairs to the interrogation room is inadmissible evidence, so that admission shall be stricken.'

Thus the Judge held invalid on constitutional grounds any statements made by Outten at the time of the arrest and also his admission as to the car being stolen made right after being booked at 'the divider gate'. So the only issue before this Court is as to the validity of the incriminating statements made at the 'cooperative get together' in the upstairs interrogation chamber at the Hillsborough jail to deputy Abreu.

Defendant contends here that Outten's arrest on the highway without a warrant was in its inception illegal, and that therefore any inculpatory statements or confessions thereafter made by Outten were tainted with illegality and therefore inadmissible. In analyzing this contention, we must consider two propositions in logical sequence, first, was the arrest illegal, and secondly, if so, what is the legal status of incriminating statements thereafter made by Outten while in such illegal custody?

Outten was 23 years old, and the driver of the car, Polumbo was 18, although he first told the trooper he was 16. The trooper neither knew nor recognized either one of them. In fact, he was on the alert for another car entirely. He stopped them and made them get out of their car solely on suspicion, which he very candidly admitted. He had no report on their car. The license tag checked out as not having been stolen, they were not speeding or driving recklessly, and in fact the trooper admitted that so far as he knew they were 'not violating the law' at all. He had never seen the boys before. He had no 'call out' for their arrest. He searched them and found nothing incriminating. He didn't ask them where they were employed or whether they even had a job. He stated they had no driver's license (although Polumbo did have a draft card), gave no other identification, had no local addresses, and generally gave no 'satisfactory answers.' So he summarily arrested them on the spot for 'suspicion of auto theft', searched them, handcuffed them, and bundled them into his own car and took them to the Hillsborough jail, where Outten was arrested a second time, booked for 'vagrancy', and then led upstairs to the 'interrogation room'. Up to this time they had been in no way advised of their constitutional rights, of their right to remain silent upon interrogation, their right to counsel, to have counsel present at any interrogation, etc.

There can be no doubt that the original arrest by trooper Peterson was unlawful, particularly as to Outten, who was only a passenger in the car. In fact, he had no conversation with Outten at that time that he could remember. We have had occasion recently, in the case of Carter v. State, Fla.App., 199 So.2d 324 filed March 17, 1967, to review somewhat extensively the legality of an arrest without a warrant. The facts here do not begin to make out a case of 'probable cause' which we held in the Carter case was a necessary prerequisite to a lawful arrest without warrant.

But the ultimate question in Carter and the cases therein cited was the legality of a search and seizure of personal articles made consequent upon an illegal arrest and admission of such articles later at the trial of the person arrested. It was held that if the original arrest was illegal the resulting search and seizure were likewise illegal and the property obtained thereby inadmissible as evidence.

Here we have a different contention based upon the same premise. There was no property or articles seized or taken from Outten that was of any significance. The only evidence obtained by the offiders as a consequence of Outten's arrest were the incriminating statements obtained from him in the upstairs jail room.

The...