Romanello v. State, E-106
| Decision Date | 04 February 1964 |
| Docket Number | No. E-106,E-106 |
| Parties | Mike ROMANELLO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
A. K. Black, Lake City, for appellant.
Richard W. Ervin, Atty. Gen., and A. G. Spicola, Jr., Asst. Atty. Gen., for appellee.
The appellant, Mike Romanello, was jointly indicted with one John Aaron Peacock upon a charge of breaking and entering the dwelling of another with intent to commit grand larceny. He was separately tried by jury, convicted and adjudged guilty, hence this appeal. We affirm.
Between 2:00 and 7:20 p. m. on May 8, 1962, the home of Mr. and Mrs. Ashley Holton, located 100 to 150 yards west of U. S. Highway No. 19 at a point about six miles north of Perry, Florida, was burglarized. The property taken included several thousand dollars in money, a 12-gauge shotgun, some papers, and two pillowcases.
Appellant and his co-defendant, Peacock, were apprehended in consequence of the alertness of one James Raker, a Florida Highway Patrolman who shortly prior to 7:00 p. m. on the day of the burglary first had his attention attracted to a 1958 two-door Ford convertible with a metal top due to the fact that it was traveling at a slow speed. At that time his patrol car and the Ford were both traveling southerly on said Highway No. 19 at a point near the Holton home. He noted the Ford's color as yellow and white, that it was occupied by two white males riding in the front seat, and that part of its license tag number was '14-W.' He overtook and passed the Ford at a point approximately a quarter of a mile south of the Holton home and then, upon looking in his rearview mirror, noticed it make a left turn off of the highway in an easterly direction and onto a graded road and proceed across railroad tracks paralleling the highway at that point, thence continue along the graded road into a wooded area east of the Holton dwelling. The next time he noticed this car was shortly after 7:00 p. m. when, at a point about two miles further south on said highway where he had stopped a speeding car, it passed traveling in a southerly direction.
Patrolman Raker then went home to supper and returned to work at 8:24 p. m., at which time he received information that the Holton residence had been broken into. He immediately proceeded there and found Mrs. Holton who informed him that several thousand dollars and two pillowcases were missing. She described the latter as being white in color with a pink flower design at the open end. He observed that a window had been forced open and that two filing cabinets had been pried open. He returned to his patrol car and radioed the Highway Patrol Station at Perry, Florida, a description of the Ford car he had seen under the mentioned circumstances and a description of the missing pillowcases.
The next time Patrolman Raker saw the Ford car was the early morning of May 9, 1962, at Gainesville, Florida, where the appellant and Peacock were taken after being arrested by other officers of the Florida Highway Patrol. He identified it as the previously described automobile which he first saw on the highway near the Holton home. At the Florida Highway Patrol Station in Gainesville he was shown two pillowcases, later admitted in evidence as a state exhibit, which he identified as part of the burglarized property as described to him by Mrs. Holton. At that time he was also shown several thousand dollars in United States currency said to have been retrieved from the Ford car and the persons of the accused.
The actual arrest was made by three officers of the Florida Highway Patrol at a point near Gainesville, Florida. Among them was patrolman C. C. Winburn who, being on duty the night of the burglary, around 9:00 p. m. received a report from the patrol station at Gainesville informing him of the robbery and describing the Ford automobile in which the robbers were believed to be and in which they actually were traveling. He was informed, inter alia, that money had been taken and was probably being carried in two pillowcases. He came upon the subject car at a point on the highway about ten miles north of Gainesville and followed it south until Florida Highway Patrol officers Beach and Clifton, whom he had notified by radio, came up behind him. He then signalled and stopped the Ford car, whereupon Romanello and Peacock emerged therefrom, the former with his hands raised. Officer Winburn then approached the Ford and saw through the window that lying on the back seat and floor thereof were two pillowcases as described to him by the radio report, together with a substantial amount of silver money. Meantime officers Beach and Clifton emerged from their patrol car and came up to the Ford, whereupon officer Winburn informed them that the Ford was the car in question. Officer Clifton then advised Romanello and Peacock that they were under arrest, and thereafter the search of the car and their persons and the seizure of the subject property that was later admitted in evidence took place. Upon arresting the defendants the officers first searched their persons to see if they had guns on them. Finding none, officer Beach then asked where the guns were and Peacock stated they were in the trunk of the car, which was opened and found therein were a shotgun, a rifle, two pistols, and a sack of tools. All these transactions took place in Romanello's presence and hearing. Upon later searching defendant Romanello at the Gainesville Highway Patrol Station, located about a quarter of a mile north of the point of arrest, there was found between $200 and $300 in United States currency in each of his shoes and a like amount in his right rear pocket.
The evidence conclusively shows that appellant was arrested prior to the search and seizure herein. In Melton v. State, 75 So.2d 291 (Fla.1954), our Supreme Court said that the elements of an arrest consist of a purpose or intention to effect an arrest under a real or pretended authority, an actual or constructive seizure or detention of the person to be arrested by persons having present power to control the person arrested, a communication by the arresting officer to the person whose arrest is sought of a purpose or intention then and there to effect an arrest, and an understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him. Each of these elements was present and completed prior to the search and seizure in question and it was lawful, therefore, to make the same--the arrest being proper--and present its fruit in evidence.
Appellant Romanello's points on appeal are:
(1) That the said search and seizure of said Ford car and admission in evidence of the articles found therein violated his rights under Sections 12 and 22 of the Declaration of Rights of the Florida Constitution, F.S.A., and also violated his rights under the Fourth and Fifth Amendments and Section 1 of the Fourteenth Amendment of the Federal Constitution, in that the same was unreasonable and not based on probable cause.
(2) That the trial court unduly restricted counsel for appellant in his examination of witnesses at a pre-trial hearing on appellant's motion to suppress said evidence.
(3) That appellant's rights under Section 901.23, Florida Statutes, F.S.A., were violated by failure of the custodial officers to present him before a magistrate during the period between the time of his arrest on the night of May 8, 1962, until 2:00 p. m. on May 12, 1962, and that such failure rendered all admissions, confessions and events transpiring during said period incompetent as evidence on the trial.
(4) That the trial court erroneously charged the jury with respect to the rule of evidence as to the effect of the failure of one found in possession of recently stolen goods to make a plausible explanation of how the same came into his possession.
(5) That the verdict is not supported by substantial competent evidence.
Appellant's first and primary contention is without merit. The facts first observed by Patrolman Raker, when considered in the light of the time and place of the robbery, were ample to produce in his mind a reasonable belief that the crime had been committed by one or more of the occupants of the Ford car, and these circumstances when communicated to other officers of the Highway Patrol were sufficient to vest in the latter lawful power without warrant for arrest to intercept the Ford car on the highway and make a...
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