Perez v. State

• Decision Date: 21 September 1955
• Parties: Eloy PEREZ, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 201

81 So.2d 201

Eloy PEREZ, Appellant, v. The STATE of Florida, Appellee.

Supreme Court of Florida, Special Division B.

Sept. 21, 1955.

Manuel M. Garcia, Tampa, for appellant.

Richard W. Ervin, Atty. Gen., Bart L. Cohen and John S. Lloyd, Asst. Attys. Gen., for appellee.

THOMAS, Justice.

In an information filed in the Criminal Court of Record of Hillsborough County the appellant, Eloy Perez, and his wife, Teresa, were charged with four violations of the statutes denouncing lotteries.

Before the trial commenced they challenged the search warrant in the execution of which evidence was procured that the state proposed to use to establish their guilt. The judge denied the motion to quash the warrant and overruled an objection offered on behalf of Perez and his wife to the introduction of evidence insisted by them to have been illegally obtained.

The appellant was convicted of the crimes charged in three counts of the information, his wife was convicted of the crimes charged in two counts. The husband alone appealed.

The heart of the appellant's first question, constituting an assault on the judgment because of the introduction of evidence procured in the search, is a certain statement in the affidavit forming the basis for the warrant. We quote it: '* * * the facts tending to establish the grounds for this application and the probable cause of affiant believing that such facts exist are as follows: That affiant, on December 11th, 1953, personally observed a confidential informant dial a telephone number, being the same number listed in the telephone directory for Tampa, Florida, under the name Eloy Perez of 1850 Rivera Court, and while listening on an extension of said telephone, affiant heard said confidential informant talk to a worman who answered to the name of Teresa, and purchase from said woman over the telephone an interest in a lottery commonly known as Bolita or Cuba, and that affiant believes and has reason to believe that unlawful gambling and a lottery are actually being operated within said building.'

We think the position of the appellant may be succinctly stated: (1) information gained by the affiant in the manner shown in the affidavit was not admissible in evidence because of the inhibitions of Sec. 822.10, Florida Statutes 1953, and F.S.A., and Sec. 605 of the Federal Communications Act of 1934, 47 U.S.C.A. § 605, (2) this court has held that evidence to support a search warrant must be of such quality as would render it competent in a trial; and (3) the information was not sufficient to establish probable cause that crime was being committed. Therefore, reasons the appellant, the affidavit should fall and carry with it the warrant as well as the evidence the officers obtained in the search.

We deal first with the second proposition which arises from the opinion prepared by this writer in DeLancy v. City of Miami, Fla., 43 So.2d 856, 14 A.L.R.2d 602, and two allied cases, and followed in Borrego v. State, Fla., 62 So.2d 43. In the affidavit described in the DeLancy case an affiant had stated his belief that gambling was being conducted by unknown persons, and gave as reason for the belief that he had learned about the gambling from an investigation. That was about as near no reason as one could imagine and we said so, in effect, quoting from Cooper v. State, 106 Fla. 254, 143 So. 217, in which case we condemned similar language as amounting to no more than belief based on information and belief. We said further that the decision harmonized with those of a majority of courts on the subject and as an example cited Grau v. United States, 287 U.S. 124, 53 S.Ct. 38, 40, 77 L.Ed. 212, where the court held that a search warrant could 'issue only upon evidence which would be competent in the trial * * * and would lead a man of prudence and caution to believe that the offense (had) been committed.' (Our italics.)

Now the appellant relies upon our statement as an endorsement of evidentiary value as a criterion of the sufficiency of information to support a search warrant, while the state calls to our attention the fact that the statement in the Grau case was repudiated in Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879, as, indeed, it was. In the latter case the Supreme Court of the United States recognized the 'difference between what (evidence) is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search.'

Our choice of the Grau case was unfortunate and, actually, unnecessary for we were holding in the DeLancy case that the affidavit wholly failed to establish probable cause, much less contained intelligence introducable in evidence. Inasmuch as the Supreme Court of the United States has receded from the pronouncement in the Grau case, we do not hesitate to recede from anything written in the DeLancy and Borrego cases which would appear to commit us to the rule that information forming the basis of a search warrant must be gauged by its admissibility as evidence in a trial. In justice to ourselves, or to this writer, we add, in conclusion, that the Brinegar decision was not cited to us either...