State v. Gibson

• Decision Date: 25 July 1978
• Docket Number: No. 78-257,78-257
• Court: Florida District Court of Appeals
• Parties: The STATE of Florida, Appellant, v. Delroy GIBSON, Appellee.

Page 41

362 So.2d 41

The STATE of Florida, Appellant, v. Delroy GIBSON, Appellee.

No. 78-257.

District Court of Appeal of Florida, Third District.

July 25, 1978.

Rehearing Denied Sept. 27, 1978.

Janet Reno, State's Atty. and George Volsky, Asst. State's Atty. and Howard Blumberg, Legal Intern, for appellant.

Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender, for appellee.

Before PEARSON, NATHAN and KEHOE, JJ.

PER CURIAM.

By this interlocutory appeal, the State brings for review an order of the trial court which suppressed evidence contained in an address book belonging to the defendant. The trial judge has given us a full statement of the facts in her order. They are as follows:

"1. On September 3, 1977, the Defendant was arrested for the crime of first degree murder.

"2. On November 23, 1977, the Defendant was incarcerated in the Dade County Jail.

"3. For approximately two weeks prior to November 23, 1977, one Lloyd Plummer had been the Defendant's roommate. Mr. Plummer appeared for deposition at the Metropolitan Justice Building pursuant to a subpoena issued by defense counsel.

"4. In order to verify his time for appearance, Mr. Plummer searched the dresser he had shared with the Defendant to find the subpoena. He came upon various personal belongings of the Defendant, among which was an address book.

"5. The Defendant did not give Mr. Plummer permission to read the contents of the address book.

"6. In seeking to deliver certain personal belongings, including the address book, to the Defendant, Mr. Plummer voluntarily without any request from the Defendant brought them with him to the Metropolitan Justice Building on the date scheduled for his deposition to deliver them to the Defendant's attorney.

"7. While en route to the office of defense counsel, Mr. Plummer met the prosecutor in the case, Assistant State Attorney Darby.

"8. Mr. Plummer informed the prosecutor that he possessed personal belongings of the Defendant and wished to deliver them to the appropriate person, whereupon the prosecutor obtained the address book with the consent of Mr. Plummer, leafed through the pages and came upon a statement written by the Defendant which incriminated him in this cause.

"9. Upon learning that the prosecutor sought to use said statement against the accused, defense counsel filed a motion seeking the suppression of the statement on the grounds that: (1) the search and seizure of the address book by the prosecutor was unreasonable and thereby in violation of the Fourth Amendment to the Constitution of the United States and Article 1, Section 12 of the Constitution of the State of Florida; (2) the introduction of the statement into evidence would be violative of the privilege against self-incrimination as guaranteed by the Fifth Amendment to the Constitution of the United States and Article 1, Section 16 of the Constitution of the State of Florida."

The trial court, in an earnest effort to follow this court's decision in State v. Kircheis, 269 So.2d 16 (Fla. 3d DCA 1970), held as follows:

"10. This Court finds State v. Kircheis, 269 So.2d 16 (Fla. 3d DCA 1970) to be dispositive of the Defendant's self-incrimination claim. In Kircheis, the Defendant, while in jail, requested that his briefcase be brought to him. Prior to delivering the briefcase to the Defendant, a police officer searched the briefcase and found a written incriminatory statement of the Defendant, to wit: 'I killed Ivy Prather.' (the victim of the alleged homicide.) In affirming the order suppressing the statement, the Third District Court of Appeal held:

' . . . evidence (lawfully) seized which is 'testimonial' or 'communicative' in nature, the introduction of which would amount to compelling the Defendant to become a witness against himself, is subject to be suppressed because in violation of the fifth amendment. This exception was pointed out by the Supreme Court of the United States in Maryland Penitentiary v. Hayden, (387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782) supra, citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. For that reason . . . the order suppressing the 'testimonial' or 'communicative' statement found in the briefcase was not error.' Id. at 17.

The same holding would control the case at bar, there having been no waiver by the Defendant of his privilege against self-incrimination.

"The Kircheis holding squarely comports with the principles espoused in Miranda v. Arizona, 384 U.S. 436, 460 (86 S.Ct. 1602, 16 L.Ed.2d 694) (1966) wherein the Court noted:

'Thus we may view the historical development of the privilege as one which groped for the proper scope of governmental power over the citizen. As a 'noble principle often transcends its origins,' the privilege has come rightfully to be recognized in part as an individual's substantive right, a 'right to a private enclave where he may lead a private life. That right is the hallmark of our democracy.' (Citation omitted)

"This Court finds that the Defendant possessed a reasonable expectation that the privacy of his writings in his address book would not be invaded. This brings the Court to the search and seizure question.

"11. The Court finds that the facts support the conclusion that the Defendant sought to preserve his writings as private; the Defendant did not consent to a search of his address book nor knowingly expose it to the public. It cannot be disputed that the Defendant's writings in the address book were constitutionally protected under the search and seizure clauses of the state and federal constitutions.

"As such, an unreasonable search and seizure by a state officer was conducted when the prosecutor seized the address book and searched its contents with the knowledge that said book was a personal belonging of the Defendant, the custodian of which sought to deliver it to the Defendant's attorney.

"The Fourth Amendment protects people and not simply places; a Defendant's reasonable expectation of privacy must not be invaded by unreasonable state action. Katz v. United States, 389 U.S. 347 (88 S.Ct. 507, 19 L.Ed.2d 576) (1967). No viable justification is offered for the prosecutor's obtaining and examining the Defendant's address book. No probable cause existed to believe that the book contained evidence of a crime. Even if probable cause had existed, the search warrant requirement was not fulfilled. Cf. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476 (53 L.Ed.2d 538) (1977)."

As an additional ground upon which the motion to suppress was granted, the...