State v. Parnell, 37136
| Citation | 221 So.2d 129 |
| Decision Date | 02 April 1969 |
| Docket Number | No. 37136,37136 |
| Parties | The STATE of Florida, Petitioner, v. Hiram Cazes PARNELL, Respondent. |
| Court | Florida Supreme Court |
Earl Faircloth, Atty. Gen., and Harold Mendelow, Asst. Atty. Gen., for petitioner.
Richard Barest, Miami, and Joe N. Unger, Miami Beach, for respondent.
We have before us for review on petition for conflict certiorari a decision of the District Court of Appeal, Third District, in Parnell v. State, Fla.App.1968, 204 So.2d 910, reversing a judgment convicting the defendant, respondent here, of breaking and entering with intent to commit grand larceny and of petit larceny.
The residence which the defendant was charged with, and convicted of, breaking and entering was the property of one Garwood. On the day following the Garwood burglary, an officer posing as a 'fence' met defendant at a downtown motel and learned that he was the perpetrator of several unsolved burglaries in the Dade County area. He had in his possession credit cards belonging to, and stolen the night before from, the Garwoods and a fur coat answering the description of one stolen from the Meek residence about a month before. He was arrested for possession of stolen goods and jailed. Following defendant's arrest, one of the officers obtained a search warrant to search his home for other items stolen from the Meek residence. However, the affidavit in support thereof failed to set forth the facts outlined above upon the basis of which the search warrant was obtained, as required by § 933.18, Fla.Stat., F.S.A., so it was technically invalid. While waiting for his partner to arrive with the search warrant, the other officer kept the defendant's house under surveillance with binoculars and observed the defendant's wife place upon the dining room table several items fitting the description of other items stolen from the Garwoods. Upon being admitted to defendant's home by his wife, the officers served the defendant's wife with the search warrant and inquired about the Garwood property, still upon the dining room table. The defendant's wife said that the items belonged to her husband and that he had got them the day before. She was informed that the goods were stolen and that she was under arrest for possession of stolen goods, whereupon she became hysterical. Because defendant's wife had five small children, one of which was a two-week-old breastfed infant, the officers did not at that time (late at night) take her down to the police station for booking. They did, however, take possession of the goods stolen from the Garwoods and a bag containing burglar tools lying upon the table. They also took a shotgun stolen from the Garwoods which was found in a search of the bedroom. They returned the next day and took defendant's wife into custody, having in the meantime obtained a warrant for her arrest.
Upon these facts, the appellate court concluded that the trial judge committed reversible error in admitting into evidence against defendant the stolen Garwood property found in defendant's house. The court intimated that, by leaving the defendant's wife with no restrictions on her liberty, there was no arrest to form the basis for a search; and it held, unequivocally, that the search of the dwelling of the defendant was not incident to the arrest of his wife but, on the contrary, 'the arrest of the defendant's wife on the day of the search, if such was an arrest, was incident to the search.' Parnell v. State, supra, 204 So.2d at page 912.
In this petition, the State contends that insofar as the appellate court's decision may be interpreted as holding that there was no arrest of the defendant's wife, it is in direct conflict with the decisions of this court in Melton v. State, Fla.1954, 75 So.2d 291, and Giblin v. City of Coral Gables, Fla.1963, 149 So.2d 561. These cases stand for the proposition that an arrest is legally made when there is a purpose or intention to effect an arrest, an actual Or constructive seizure or detention is made by a person having present power to control the person arrested, and such purpose or intention is communicated by the arresting officer to, and understood by, the person whose arrest is sought. In Melton, this court said that all of these elements were present and an arrest effected when, after finding a cache of illicit whiskey, the officer informed the defendant of his intention to take her to the county jail and lodge a charge against her for violation of the liquor laws. Melton v. State, supra, 75 So.2d at page 294. In Giblin, it was held that the appellant was legally arrested within the city limits of Coral Gables when the car she was driving was stopped for speeding by an officer of that city, even though her husband then took control of the car and drove away and the car was not overtaken and the appellant re-apprehended until outside the city limits of Coral Gables. We said in the Giblin case that 'The sufficiency of constructive rather than manual apprehension is, of course, well established.' Giblin v. City of Coral Gables, supra, 149 So.2d at page 562.
From the facts stated in the decision here reviewed, as summarized above, it is clear that all the elements of an arrest were present in the instant case. It is well settled that the fact that an accused is not taken into Actual custody at the time of an arrest does not diminish one whit the legal effect of the arrest at that time. See Giblin v. City of Coral Gables, supra, 149 So.2d 561. Can it be seriously contended that, had the arresting officers been armed with a warrant of arrest, their humanitarian act in allowing the defendant's wife to remain at home overnight with her helpless children would have nullified the arrest by virtue of such warrant? We do not think so. And an arrest without a warrant for a crime being committed in the presence of the arresting officers has, as it must have, exactly the same efficacy and legal effect as an arrest by means of a warrant based on probable cause. It might be noted that, although perhaps not technically a release of the defendant's wife on her own recognizance, the officers' humanitarian act, in the constraining circumstances then and there present, had the same practical effect as, and was equivalent to, such a...
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...cause for arrest of appellant pursuant to Section 901.15, Florida Statutes. State v. Perez, 277 So.2d 778 (Fla.1973); State v. Parnell, 221 So.2d 129 (Fla.1969); Lindsey v. State, 184 So.2d 437 (Fla.App.1966); Beacham v. State, 175 So.2d 796 (Fla.App.1965); Cf. Alexander v. State, 108 So.2d......
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