Rodriquez v. State

• Court: Florida District Court of Appeals
• Writing for the Court: SWANN; BARKDULL; PEARSON; PER CURIAM
• Citation: Rodriquez v. State, 189 So.2d 656 (Fla. App. 1966)
• Decision Date: 29 June 1966
• Docket Number: 65-60,65-257 and 65-258,65-256,Nos. 65-59,s. 65-59
• Parties: Onelio Garcia RODRIQUEZ, Efrain T. Suarez, Julieta Maria Calleiro, Abigail Margarita Calleiro Casanueva and Yolanda Venegas Calleiro, Appellant, v. The STATE of Florida, Appellee.

Page 656

189 So.2d 656

Onelio Garcia RODRIQUEZ, Efrain T. Suarez, Julieta Maria Calleiro, Abigail Margarita Calleiro Casanueva and Yolanda Venegas Calleiro, Appellant, v. The STATE of Florida, Appellee.

Nos. 65-59, 65-60, 65-256, 65-257 and 65-258.

District Court of Appeal of Florida, Third District.

June 29, 1966.

On Denial of Rehearing in No. 65--60 Sept. 20, 1966.

Walter E. Gwinn, Miami, for appellants.

Earl Faircloth, Atty. Gen., and Arden M. Siegendorf, Asst. Atty. Gen., for appellee.

Before PEARSON, BARKDULL and SWANN, JJ.

SWANN, Judge.

This is a consolidated appeal from judgments and sentences entered following a jury trial in the Criminal Court of Record of Dade County, Florida.

Essentially, the facts are that two policewomen from Tampa, Florida were enlisted by the City of Miami Police Department and the State Attorney's Office of Dade County, Florida, to try to get into the Ayala Clinic and make arrangements for an abortion. Policewoman Williams called the Ayala Clinic about an abortion and talked to a person who identified himself as Dr. Ayala. The policewoman made an appointment for the following day and was quoted a price of One Thousand Dollars for the operation. On the appointed day, Policewoman Williams and Policewoman Ellison entered the clinic and consulted with a man later identified as the appellant Suarez. At the same time, other police officers were watching the front and back of the clinic. Policewoman Ellison waited in the reception room while Policewoman Williams was taken into an examination room, where a pelvic examination was conducted by the appellant Suarez. There were no instruments used in the examination and there was a conflict in the testimony as to whether there were any instruments in the examining room at the time of the examination. Policewoman Williams remained fully clothed at all times, with the exception of her panties, which were removed during the examination. Following the examination, appellant Suarez explained the procedure by which he was to bring about the abortion. At this point, Policewoman Williams told Suarez that the money required for the operation was in her purse which Policewoman Ellison was holding in the waiting room. Policewoman Ellison brought the money into the examination room and it was given to Suarez. She then left the building and informed the officers outside that Policewoman Williams was supposed 'to get a needle'.

The police officers entered the clinic through the public front door, which was left open by Policewoman Ellison, and proceeded into the clinic. Upon reaching the waiting room door, the officers knocked and announced that they were police officers and from the State Attorney's office. After waiting approximately fifteen to thirty seconds, the officers kicked down the door. They had no search warrant for the premises nor warrants for arrest. No announcement of purpose was made prior to kicking down the door. The officers proceeded down a hallway and came upon another door, which was also kicked down without announcement of authority or purpose. There was testimony that approximately five doors were kicked down without an announcement of their purpose.

The officers met Suarez in the hallway coming toward them from the direction of the first door that was kicked down. He was placed under arrest for conspiracy to commit an abortion and attempted abortion on Policewoman Williams. The other appellants were arrested when found in various parts of the clinic.

The appellants were tried for attempted abortion and conspiracy to commit abortion. All of the appellants were convicted of conspiracy to commit abortion, and in addition, Suarez was convicted of attempted abortion. This appeal followed.

Prior to the trial, the appellants moved to suppress the evidence seized in the raid and the trial court denied the motion. The appellants have assigned this as error and assert as authority for reversal Section 901.19(1), Florida Statutes, F.S.A., and Benefield v. State, Fla.1964, 160 So.2d 706.

Section 901.19(1) provides:

'An officer, in order to make an arrest either by virtue of a warrant, or when authorized to make such arrest for a felony without a warrant, may break open a door or window of any building in which the person to be arrested is or is reasonably believed to be, if he is refused admittance After he has announced his authority and purpose.' (Emphasis supplied)

The State concedes that the arresting officers did not announce their purpose before breaking open the doors in the building.

In Benefield, supra, the Supreme Court of Florida set forth the requirements for entry of a building to make an arrest:

'* * * When an officer is authorized to make an arrest in any building, he should first approach the entrance to the building. He should then knock on the door and announce his name and authority, sheriff, deputy sheriff, policeman or other legal authority and What his purpose is in being there. * * * If he is refused admission * * * he may then break open a door or window to gain admission to the building and make the arrest. * * *' (Emphasis supplied.)

'* * * The law forbids the law enforcement officers of the state or the United States to enter before knocking at the door, giving his name and the Purpose of his call. * * *' (Emphasis supplied.)

The appellee counters that the court in Benefield, supra, clearly sets forth four specific exceptions to this rule on page 710 as follows:

'As we interpret the common law authorities in relation to § 901.19(1), Florida Statutes, F.S.A., we conclude that even if probable cause exists for the arrest of a person, Our statute is violated by an unannounced intrusion in the form of a breaking and entering any building, including a private home, except (1) where the person within already knows of the officer's authority and purpose; (2) Where the officers are justified in the belief that the persons within are in imminent peril of bodily harm; (3) if the officer's peril would have been increased had he demanded entrance and stated the purpose, or (4) where those within made aware of the presence of someone outside are then engaged in activities which justify the officers in the belief that an escape or destruction of evidence is being attempted. Time and experience will no doubt suggest other exceptions * * *.' (Emphasis supplied)

It is contended by the appellee that under the second exception set forth above the officers were justified in their actions since they believed that the policewoman within the clinic was in imminent peril of bodily harm.

The only possible evidence to justify such a belief was the statement made by Policewoman Ellison to the arresting officers that 'he is going to stick her with a needle.'

The arresting officers knew and the policewoman testified that if any attempt was made to begin an abortion that she should place him (Suarez) under arrest. The testimony further reveals that there was never any indication that a needle was about to be given to Policewoman Williams in the presence of Policewoman Ellison or that Suarez attempted to give her a shot.

None of the officers testified that they believed Policewoman Williams was in 'imminent peril of bodily harm'. Under the particular facts in this case, there appears to be no valid reasons to justify such a belief; therefore, the general rule of Benefield should apply, and not the exception.

Since Section 901.19(1) was not complied with the fruits of the subsequent search should have been excluded by the trial court upon proper motion.

While the appellee concedes that appellant Suarez had standing to challenge the validity of the search and seizure, they contend that there was no showing of the requisite possessory interest in the premises by the other appellants so as to allow them to object. There is no need to determine whether the other individual appellants had standing, since we find merit in the appellant's contention that the evidence is legally insufficient to sustain a conviction for the crime of conspiracy to commit an abortion on Policewoman Williams.

The testimony indicates that all occurrences and transactions between Policewoman Williams and Suarez were done outside the presence of the other appellants. None of the other appellants ever saw or talked to Policewoman Williams. There is no evidence that any of the other appellants knew her; or that they knew she was even in the clinic at the time of the alleged attempted abortion; or that they participated in any way in the actions toward Policewoman Williams.

While there was some testimony about medical services rendered to other persons in the clinic by some of the appellants, they were not tried for any other offense, except as to the alleged conspiracy to commit an abortion on Policewoman Williams.

As there was no direct testimony to link the other appellants to the attempted abortion of Policewoman Williams, any inferences of a conspiracy to commit an abortion on her would be by purely circumstantial evidence.

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