State v. Clarke
| Decision Date | 06 November 1970 |
| Docket Number | No. 70-382,70-382 |
| Citation | 242 So.2d 791 |
| Parties | STATE of Florida, Appellant, v. John Ordway CLARKE, Alfred L. Deptula, Barbara L. Homberger, Judith Englehardt Picheral, Jana Rankin, William T. Tyson, Larry Eugene Van Horn and Harry Thomas Waters, Jr., Appellees. |
| Court | Florida District Court of Appeals |
Earl Faircloth, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellant.
Louis R. Bowen, Jr., Public Defender, and William C. Gridley, Asst. Public Defender, Orlando, for appellee John Ordway Clarke.
James C. Dauksch, Jr., Orlando, for appellee Alfred L. Deptula.
Alexander C. Mackinnon, Orlando, for appellee Barbara L. Homberger.
Peter M. deManio, Orlando, for appellee Judith E. Pickeral.
Andrew Welch, Orlando, for appellee William T. Tyson.
F. Hartselle Baker, Orlando, for appellee Larry Eugene Van Horn.
Michael Sigman, Orlando, for appellee Harry Thomas Waters, Jr.
This is an interlocutory appeal by the State of Florida from an order of the trial court suppressing evidence in a criminal proceeding against the appellees charged by information with possession of marijuana and barbiturates. We reverse.
On the evening of November 22, 1969, the manager of an apartment complex telephoned the police department of the City of Orlando and requested that an officer be sent to investigate possible illegal use of drugs in one of the apartments. After a brief telephone discussion with the apartment manager, two officers of the vice squad proceeded to the apartment complex.
Upon arriving at the apartment complex the police sergeant ascended the outside fire escape, which served as a common escape route for tenants on the second floor of the apartment complex, and assumed a position outside a window of the apartment in question. The other officer ascended the inside staircase and assumed a position outside the apartment in a common hallway on the second floor of the apartment complex. From his position on the fire escape the police sergeant observed through the window of the apartment the appellees, two of whom he recognized as prior drug violators and one of whom had in his hand a hypodermic syringe. The sergeant also observed on a table a clear plastic bag containing what he believed to be marijuana and a number of spoons containing a white powder thought by the sergeant to be barbiturates or drugs being prepared for injection.
The sergeant then descended the fire escape and joined the other officer in the hallway, at which time the two officers entered the apartment without knocking and without announcement of authority or purpose. The appellees were thereupon arrested and the contraband seized.
Thereafter by motion the appellees moved to suppress the evidence obtained as the result of the seizure. The trial court granted the motion and suppressed the evidence. Hence this appeal by the state.
First for our determination is whether or not there was an actual intrusion into a constitutionally protected area by peering in at the window. A person has a right to have his own home or residence reasonably secure from invasion, visual or otherwise, by the police or anyone else.
The law of search and seizure is no longer governed by the doctrine of curtilage. It is People who are protected, not simply Areas. Katz v. United States, 1967, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. And what constitutes an unreasonable invasion varies with the character of the residence as was stated in Ponce v. Craven, 9 Cir. 1969, 409 F.2d 621:
'The occupant of a motel room is entitled to the same protections as the owner of a house against unreasonable searches and seizures. * * * However, the very nature of a motel residency distinguishes the scope of that protection from that possessed by a person in his own house. As the court stated in Marullo v. United States, 328 F.2d 361, 363 (5 Cir. 1964):
To observe that which is open to view is not generally considered a 'search'. Miller v. United States, 5 Cir. 1966, 356 F.2d 63. Objects which fall within plain view of a police officer are subject to seizure and may be introduced into evidence. Harris v. United States, 1968, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067. The major consideration in applying this rule is whether the observing officer had a right to be in the position to have that view. United States v. Davis, 5 Cir. 1970, 423 F.2d 974.
In the case sub judice, the fire escape of the apartment complex was a common escape route for use by any persons. If the fire escape was not primarily in the control of the landlord, it was at least coextensively in his control with the tenants. By summoning the officers and remaining on the premises during the arrest, the apartment manager at least impliedly granted permission for the police sergeant to ascend the fire escape, making his presence there legal and proper. People v. Hailstock, Crim.Ct.N.Y.City 1967, 54 Misc.2d 952, 283 N.Y.S.2d 492.
Since the fire escape was open to use by others, the occupants of the apartment in question had no reasonable right to expect any privacy with relation to what they did inside the window within easy view of any person on that fire escape. They had no yard surrounding the premises which they could reasonably expect to protect their windows from visual intrusions by strangers. Those inside the apartment must be held to an expectation that those using the common facilities of the building would come across the window and look inside. 1 Under these circumstances, looking in at the window can hardly be considered a 'search'. What the police sergeant lawfully observed through the window gave the officers the right and duty to arrest the persons inside without a warrant on grounds that they believed a felony was being committed and that the persons inside were committing it. 2
We now turn to the issue of whether the lawfulness of the arrest was vitiated by the means used to enter the apartment.
Section 901.19(1), Florida Statutes, F.S.A., 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.'
It is generally accepted that...
To continue reading
Request your trial
-
State v. Rauch
...compliance would place the officer in peril. See People v. Tribble, 4 Cal.3d 826, 94 Cal.Rptr. 613, 484 P.2d 589 (1971); State v. Clarke, 242 So.2d 791 (Fla.Ct.App.1970). State v. Mitchell, supra, had the factor of a small amount of narcotics which could have been disposed of easily. In Sta......
-
Pomerantz v. State
...245 So.2d 225 (Fla.1971); State v. Parnell, 221 So.2d 129 (Fla.1969); Fletcher v. State, 65 So.2d 845 (Fla.1953); State v. Clarke, 242 So.2d 791 (Fla. 4th DCA 1970); Boim v. State, 194 So.2d 313 (Fla. 3d DCA 1967). Such plain sight seizures have been treated either as an exception to the se......
-
State v. Alexander
...surveillances in other jurisdictions have used a standard of expectation of privacy rather than the curtilage doctrine. State v. Clarke, 242 So.2d 791 (Fla.D.Ct.App.1970), Cert. den. 246 So.2d 112 (Sup.Ct.1971); Cohen v. Superior Court, 5 Cal.App.3d 429, 85 Cal.Rptr. 354 (D.Ct.App.1970). Ac......
-
State v. Robinson, 89-02133
...the police need not comply with the knock-and-announce requirements. Benefield v. State, 160 So.2d 706 (Fla.1964); State v. Clarke, 242 So.2d 791 (Fla. 4th DCA 1970), cert. denied, 246 So.2d 112 (Fla.1971). In this case, however, the state did not present evidence which established any Two ......