State v. Cook
| Decision Date | 30 July 1968 |
| Docket Number | No. 67--897,67--897 |
| Citation | 213 So.2d 18 |
| Parties | The STATE of Florida, Appellant, v. Ollie COOK, Appellee. |
| Court | Florida District Court of Appeals |
Richard E. Gerstein, State Atty., and Charles D. Edelstein, Asst. State Atty., for appellant.
Irwin Gars, Miami, for appellee.
Before PEARSON, BARKDULL and SWANN, JJ.
The trial court entered an order quashing a form search warrant and suppressing evidence of a lottery. The state has taken this appeal.
The pertinent portions of the search warrant are:
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'These presents * * * are to command you * * * to search said building painted green and white, this being 2050 N.W. 68 Terrace, Dade County, Florida, And the person or all persons therein who shall be connected with, or suspected of being connected with the operating or maintaining of said gaming or gambling games, devices, equipment, paraphernalia. * * *' (Emphasis added.)
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In quashing the search warrant, the trial court held that the description failed to describe the persons to be searched with sufficient particularity and was, therefore, a general warrant. In addition the court held that by allowing a search to be made on suspicion, the warrant vested unlimited discretion in police officers executing the warrant and consequently violated both the letter and spirit of Fla.Stat., § 933.05, F.S.A. The trial court went on to hold that a search warrant which is void in part, is void in toto and the void portions cannot be severed or treated as surplusage.
The record on appeal does not indicate whether the suppressed evidence was seized as a result of the search of the premises or the search of a person or persons inside the premises.
As to the search of the premises, no argument is made that the search warrant was not issued upon an affidavit showing probable cause. See Fla.Stat., §§ 933.04 and 933.05, F.S.A. The premises were described with sufficient particularity in both the affidavit and the search warrant. Church v. State, 151 Fla. 24, 9 So.2d 164 (1942). We hold, therefore, that the search of the premises was proper.
With regard to the persons involved, the affidavit stated that a lottery ticket had been purchased inside the premises from an unknown Negro female. Ordinarily, in Florida, the name of the person or persons to be searched should be stated, but if the name(s) are not known it is not fatal to the validity of the search warrant. Harvey v. Drake, Fla.1949, 40 So.2d 214; Church v. State, supra; Brown v. State, Fla.App.1966, 184 So.2d 691, 79 C.J.S. Searches and Seizures §§ 75 d and 81 b(3).
Appellee relies primarily on Crossland v. State, 266 P.2d 649 (Okl.Cr.App.1954) for affirmance. In Crossland, the court said:
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(Emphasis added.)
The Oklahoma Court said that this was a case of first impression and stated:
'It has been held that a general warrant, or 'blanket' warrant, which the law condemns and which the cited constitutional and statutory provisions were intended to prevent, is a warrant to search all places without describing them or to search a number of properly described places which are shown, on the face of the warrant or by the evidence on a motion to suppress, to be occupied by different owners or lessees * * *'
'In Bowman v. State, supra (73 Okl.Cr. 248, 120 P.2d 373), this court held: 'Where a search warrant is issued for the purpose of searching a person, such person should be particularly described, and if his name is known it should be stated in the warrant.''
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The warrant in that case directed the search of:
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'It is contended that the command to search 'each and every person' without naming the persons or describing them constituted a general warrant.'
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The record of that case discloses that at case discloses that the whisky seized was found in the kitchen of the premises. The court concluded:
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'The conclusion is inescapable that the warrant is a general or 'blanket' search warrant, which would authorize the indiscriminate search of a large number of people without naming or describing any of them. We think the issuance of a search warrant to search a large number of persons without naming them is subject to the same objections that are made to a general warrant which authorizes the search of premises occupied by two or more families. If the warrant had been directed to search 'John Doe and any and all persons found in his company,' it would have been considered a general warrant for the reason that the persons in his company were not particularly described in the warrant. The same defect would be apparent in a warrant directing a search 'of any and all persons' without naming or describing them.' (Emphasis added.)
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We do not disagree with Crossland but do not find it applicable to the facts herein.
The State relies on a series of cases from Maryland. These cases are cited and summarized in Saunders v. State, 199 Md. 568, 87 A.2d 618, 621 (1952) which states:
'It may be noted that in the Asner case the warrant commanded the search of a filling station and all persons found on or about the premises as well as the search of an automobile and all persons found therein. In the Lucich case (Lucich v. State, 194 Md. 511, 71 A.2d 432) the warrant commanded the search of all buildings in a tourist court and all persons found on the premises. * * *
* * * (I)t was held in State v. Moore, 125 Iowa 749, 101 N.W. 732, that the erroneous inclusion of a command to search the person as well as the premises of the owner did not vitiate the warrant but could be rejected as surplusage. * * *
(7) In the light of our decisions and the trend of the decisions in other jurisdictions, we conclude that the warrant in this case can be sustained as to the search of the premises and all persons participating in the crime, even though we assume that it is invalid as to innocent visitors. We base our decision on the fact that, although the warrant authorized the search of 'all persons found in the premises or who may enter the premises,' whether or not such persons were participating in the crime, nevertheless it did not violate the constitutional rights of appellant, and he cannot complain that the constitutional rights of other persons may have been violated.'
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The search warrants in the Maryland cases go farther than the instant warrant, in that they generally commanded a search of all persons found in the described premises, or building, etc.
Here, the command is to search the person or persons found in the premises who are connected with or who are suspected of being connected with the operation or maintenance of a lottery.
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'* * * There can be no objection to a warrant which, directed mainly at a building, requires the search of all persons found therein who are engaged in the suspected criminal activities. We have held that a...
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Schmitt v. State
...requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. State v. Cook, 213 So.2d 18 (Fla. 3d DCA 1968), citing United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). The facts constituting cause need not meet t......
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Samuel v. State
...F.S.A., and the Constitution, § 22, Declaration of Rights, of this state. Relying on its previous decision in State v. Cook, Fla.App.1968, 213 So.2d 18, the appellate court upheld the validity of the search warrant. We As used in the warrant, the words 'suspected of being connected with' th......
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Samuel v. State
...the search warrant was lawful?' The question presented here was ruled upon by this court in the recent case of the State of Florida v. Cook, Fla.App.1968, 213 So.2d 18, filed July 30, 1968. In the Cook case, we approved the legality of similarly worded search warrant. We are of the opinion ......