State v. Holmes

Decision Date10 December 1971
Docket NumberNos. 69--450,s. 69--450
PartiesSTATE of Florida, Appellant, v. Jimmy Jack HOLMES, Appellee. STATE of Florida, Appellant, v. Jimmy Jack HOLMES and William Stafford Allison, Appellees. STATE of Florida, Appellant, v. Jimmy Jack HOLMES and William Stafford Allison, Appellees. to 69--452.
CourtFlorida District Court of Appeals

E. J. Salcines, County Sol., and Robert H. Mackenzie, Asst. County Sol., Tampa, for appellant.

Mark Hawes and Britt Whitaker, Tampa, for appellees.

MANN, Judge.

This case presents one question of inordinate intricacy and one suggesting inordinate ingenuity of counsel. First the facts:

Shortly before two o'clock one wet morning Detective Cloud, responding to a reported breaking and entering, saw a car he believed to be Holmes' going 'too fast for conditions,' sliding around a corner and running with lights out. A chase ended in Holmes' front yard. Holmes got out of his car. He had a pistol in his hand. Cloud grabbed a shotgun, placed his microphone through the window and ordered Holmes to drop the pistol. Holmes didn't. Cloud cocked the shotgun. Holmes dropped the pistol. Holmes, Allison and Vess were arrested for possession of burglary tools plainly visible in the back seat of the car. 1 Holmes was also charged with careless driving and possession by a felon of a firearm. The burglary tools were seized, and this appeal is taken from an order granting a motion to suppress this evidence.

The trial judge was requested to assign reasons but declined to do so.

Although only two possibilities are considered by appellant, it is conceivable that the trial judge did not credit the officer's testimony. He viewed the scene and heard evidence from a surveyor that the street jogged 114 feet, making it arguably impossible for Holmes to have driven as fast as Cloud said he did. We tend to discount this as a rational alternative, however, since the judge did not specifically determine that the officer was stretching the facts and the essential allegations of the traffic offense are not contradicted. True, Cloud testified on cross-examination that he thought Holmes was doing thirty or thirty-five miles per hour, but he wasn't charged with speeding. It is unrealistic to expect an officer to make precise estimates of speed under these circumstances. Cloud, alone in a car late at night, was following a man he thought to be a burglar. He also thought--rightly, as it turned out--that the man might be armed. His testimony on direct examination was that Holmes was driving too fast for the wet condition of the pavement, was skidding around corners and was driving with his lights out. Not one of these allegations is disputed by any witness, including Holmes and Allison, who testified. Cloud testified at first as though the jog in the street were slight, but admitted on cross-examination that it might be as much as a hundred feet. Skillful counsel made the most of the discrepancies in Cloud's testimony, but when we consider all the circumstances we doubt that the order was based on a finding that Cloud's testimony was essentially untrue.

I

When will a traffic arrest support seizure of evidence of serious crime in plain view after a motorist is stopped?

The question before us is not that in Chambers v. Maroney, 2 in which the Supreme Court of the United States upheld searches of occupants of vehicles where the officer had probable cause to arrest on the felony charge. Nor have we the question of a search which extends beyond limits appropriate to the traffic offense charged; e.g., the trunk of the car. 3 Nor is the case one in which a search is conducted without a warrant while the car and driver are in police custody and a warrant is obtainable. 4 Nor is it one in which the police, for their own protection against claims of missing property, have, in accordance with standing procedure, conducted an inventory of the contents of an automobile taken into custody. 5 It is the more common case of a seizure of plainly visible evidence of felony after a motorist is stopped for a traffic violation, 6 except that here the arresting officer was not a traffic officer.

It is frequently stated that 'an arrest may not be used as a pretext to search for evidence.' 7 Pretext is the problem word. It is our dissatisfaction with it which causes us to devote more than ordinary attention to the question.

To focus attention on the question whether the arrest was a 'pretext' for the seizure is to misdirect the court's attention to the motive of the arresting officer when, in our view, it is more appropriate to examine the conduct of the accused. This is a case in which the difference may be crucial. No one here pretends that Cloud was uninterested in arresting Holmes in connection with the reported burglary. Nor does anyone pretend that Cloud was making a traffic arrest to help another division of the police department. He thought the man in the car was Holmes. He suspected Holmes of burglary. Therefore to ask whether Cloud used the traffic arrest as a Pretext 8 is virtually to invite the conclusion that he did.

If we suppose an unsuspected person arrested for a traffic violation of such gravity that any citizen would be stopped for it, can we deny that contraband in plain view of the officer may lawfully be seized? Suppose, on the other hand, an equally grave violation by a person suspected of more serious crime. Is he immune from lawful arrest? Certainly he should not be. Is he then immune from lawful seizure of the evidence of the serious crime if it is then in plain view? We think not, provided that the gravity of the traffic offense is such that any citizen would routinely be stopped for it if seen committing the offense by a traffic officer on routine patrol. The circumstance that the arrest is made by one not normally engaged in the enforcement of the traffic laws is a factor which may tend to discredit the claim that any citizen would be apprehended under the circumstances, but it is wrong to say that because the person arrested is suspected of serious crime a traffic offense will not subject him to detention, and evidence to seizure, merely because the arresting officer's motive is to secure evidence of the more serious offense.

We conclude that at the bottom of the pretextual arrest doctrine is an unarticulated application of Yick Wo v. Hopkins: 9 'Though the law itself be fair on its face, and impartial in appliance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.' This interpretation of the Equal Protection Clause 10 suggests that the real evil of searches and seizures incident to a traffic arrest is not that the arrest is a pretext for the search, but that the arrest is one which would not have been made but for the motive of the arresting officer. The facts in this case suggest the strong possibility that the arrest Was one which would have been made by a traffic officer on routine patrol, against any citizen driving as Holmes drove.

Measured by this standard, the person under suspicion acquires no immunity from seizure which would be denied the unsuspected citizen. Thus we avoid the nonsensical consequence of the logical extension of the pretextual arrest doctrine. 11

II

May the court take judicial notice of municipal traffic ordinances under the circumstances of this case?

Counsel's ingenious argument is that the order suppressing evidence is supported by the failure of the State to introduce at the hearing the Tampa ordinance forbidding careless driving. The cases suggest that Florida courts cannot take judicial notice of municipal ordinances. Yet we have looked through the records of several cases involving arrests on municipal traffic ordinances, and find none in which the State has proved, or the defense has demanded proof of, the ordinance. We find in our records no evidence that ordinances are being proved as facts on motions to suppress.

That courts of general jurisdiction do not notice municipal ordinances has become a reflexive incantation. Florida initially recognized the rule in Freeman v. State, 1882, 19 Fla. 552, and it has since been frequently recited. 12 The few courts undertaking an explanation of the rule beg the question: 'The rationale of the rule as stated in some of the cases is that such ordinances and regulations stand upon the same footing as private laws, the laws of other states and of foreign countries, which must be averred and proven like other facts.' 13 Explanations in secondary authority have also been deficient: 'The reason for the rule is that municipal ordinances are regarded by courts of superior or general jurisdiction as private laws.' 14 The private law rationale has been undercut by the enactment of the Uniform Proof of Statutes Act, Fla.Stat. § 92.01 (1969), F.S.A. providing that printed copies of acts, statutes and resolutions of the state legislature Shall be admitted as sufficient evidence, whether of a public or Private nature. Furthermore, the Uniform Judicial Notice of Foreign Law Act, Fla.Stat. § 92.031 (1967), F.S.A. requires every court in the state to notice the common law and statutes of every state, territory and other jurisdiction of the United States. We think that a Tampa judge, sitting on the Criminal Court of Record for Hillsborough County, who Must take judicial notice of the statutes of Guam, May take judicial notice, in hearings on motions to suppress, of the ordinances of Tampa.

Prior to the enactment of the Uniform Judicial Notice of Foreign Law Act, when 'foreign' law was treated as municipal ordinances are today, Wigmore observed: 'The judges manipulate an esoteric logical dream-machine which has caused them to...

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