State v. Leveson

• Decision Date: 20 March 1963
• Docket Number: No. 31809,31809
• Parties: The STATE of Florida, Petitioner, v. Harris LEVESON, Jr., Respondent.
• Court: Florida Supreme Court

Page 283

151 So.2d 283

The STATE of Florida, Petitioner, v. Harris LEVESON, Jr., Respondent.

No. 31809.

Supreme Court of Florida.

March 20, 1963.

Richard W. Ervin, Atty. Gen., David U. Tumin and Leonard R. Mellon, Asst. Attys. Gen., for petitioner.

Manners & Amoon and John Charter Reed, Miami, for respondent.

THORNAL, Justice.

We consider the State's petition for a writ of certiorari pursuant to District Court certification that the decision below passes upon a question of great public interest. Article V, Section 4, Florida Constitution, F.S.A.

We must determine whether the respondent Leveson had sufficient standing to challenge the validity of a search and seizure.

The decision submitted for review is Leveson v. State, Fla.App., 138 So.2d 361. The matter came to us originally by a petition for a writ of certiorari alleging a direct conflict between the decision of the District Court and prior decisions of this Court. Our initial examination of the decision below revealed that it actually consisted of three separate opinions reflecting the individual views of the three District Judges. We returned the cause to the District Court of Appeal, Third District. We requested that, if possible, the Judges reconcile their somewhat divergent views and adopt a majority opinion reflecting the basis upon which the judgment of the trial court was being reversed. State v. Leveson, Fla., 147 So.2d 524. When the cause was returned to the District Court the Judges of that Court made a diligent and earnest effort to arrive at a majority accord. Because of the differences between them conscientiously held, they have found it impossible to arrive at a majority agreement on the reasons for the reversal of the trial Judge. The District Court has, however, now certified the decision in this Court stating that it is one which passes upon a question of great public interest. Leveson v. State, Fla.App., 149 So.2d 80. Our jurisdiction to review the matter is now grounded upon the certification by the District Court. Article V, Section 4(2), Florida Constitution. Carraway v. Revell, Fla., 116 So.2d 16.

The factual background is reflected by the opinion of the District Court. Leveson v. State, Fla.App., 138 So.2d 361. Leveson was convicted of violating various aspects of the lottery laws. Section 849.09, Florida Statutes, F.S.A. Prior to the trial he moved to quash a search warrant and to suppress certain evidence obtained thereunder. The motions were denied and the evidence was allowed at the trial which resulted in conviction.

On the motions to quash and suppress the state contended that Leveson did not have sufficient standing to assault the validity of the search warrant. The seized property when allowed in evidence, produced the conviction. The question of standing arises out of the nature of Leveson's occupancy of an apartment which was searched pursuant to the warrant. Leveson was present at the time of the search. It appears that Leveson had arranged for the occupancy of the apartment by his 'girl friend.' Although the lease was technically taken in the name of the 'girl friend' it is perfectly obvious that the arrangement was made for the convenience and accommodation of Leveson, as well as the technical lessee. Leveson had full-time possession of a key to the apartment and occupied the same at will. He kept articles of clothing there and frequently spent the night. On occasions he had occupied the apartment for as many as five nights consecutively. He paid the rent for the first and last months, as well as for intervening periods. The execution of the lease in the name of the 'girl friend' was merely to accommodate his meretricious arrangement to the fact that he had a wife and a home at another location. By a strange quirk he now benefits from his marital infidelity.

The trial judge ruled that under earlier decisions of this Court, Leveson had no standing to contest the search. His conclusion apparently was based upon the view that in order to attack a search warrant one must be the owner, lessee or permanent occupant of the premises. On appeal the District Court reversed. It is this reversal which produces our instant problem. Judge Hendry of the District Court held that searches in Florida are now governed by the rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. He decided that under Jones any person legally on the premises searched has standing to question the validity of the search. Inasmuch as this Court has consistently followed the decisions of the Supreme Court of the United States on the exclusion of evidence obtained pursuant to an illegal search, Judge Hendry concluded that Jones v. United States, supra, now governs in Florida. Judge Carroll of the District Court was of the view that the rule of Jones does not necessarily apply in Florida. Nevertheless, he felt that Leveson had standing because for all practical purposes he was the lessee of the premises and met the requirements of the Florida rule. Judge Pearson agreed that the Jones rule does not govern in Florida. He felt that Leveson had no standing under any rule.

In summary, two District Court Judges concluded that the search warrant was fatally defective. For different reasons they concluded that Leveson had standing to question the search. One of these Judges felt that the rule of Jones is not applicable in Florida. A dissenting Judge agreed to this conclusion but held that under no rule did leveson have standing to attack the search. The consequence was that two...