State v. Perez
| Citation | 277 So.2d 778 |
| Decision Date | 16 May 1973 |
| Docket Number | No. 42981,42981 |
| Parties | STATE of Florida, Petitioner, v. Pedro Antonio PEREZ, Respondent. |
| Court | Florida Supreme Court |
Robert L. Shevin, Atty, Gen., and Reeves Bowen, Asst. Atty. Gen., for petitioner.
W. DeHart Ayala, Jr., of Few & Ayala, Tampa, for respondent.
This cause is before this Court on conflict certiorari granted to review the decition of the District Court of Appeal, Second District, in Perez v. State of Florida, reported at 267 So.2d 33 (Fla.App.1972) which purportedly conflicts with Falcon v. State, 226 So.2d 399 (Fla.1969). We have considered the case cited for conflict and have determined that we have jurisdiction pursuant to Florida Constitution, Article V, § 3(b)(3), F.S.A.
Respondent was charged by information with the possession of lottery tickets. Before trial respondent filed a motion to quash and suppress evidence which included lottery tickets seized in his home. This motion was denied and subsequently respondent was found guilty as charged by a jury verdict. His conviction by the Criminal Court of Record was affirmed by the Circuit Court of Hillsborough County which found that there was ample evidence in the record to justify conviction of respondent, that the officers had probable cause to make an arrest (on another charge) without a warrant and the lottery materials were in plain view of the officers who were engaged in performance of their lawful duties, and that if there was any search, it was incidental to a valid arrest. Upon petition for writ of certiorari to the District Court of Appeal, Second District, the District Court quashed the order of the Circuit Court and remanded the cause with directions that respondent be discharged. The District Court of Appeal determined that where an officer who knew the circumstances on which he intended to arrest the defendant for several days for receiving stolen property waited outside defendant's home until the lights went out and then at nearly midnight, went to his door, knocked on it and placed him under arrest, such arrest was unlawful and lottery tickets seen in defendant's home by police officers who had unlawfully entered same and which formed the basis of the charge on which defendant was convicted should have been suppressed. It is this decision which petitioner seeks this Court to review upon the grounds of conflict certiorari.
Pertinent to the cause presently before us are the following facts. Accompanied by several other police officers, Detective Napoli went to the house of respondent Perez shortly after midnight the night of March 22, 1967. He was prompted to go there by information to the effect that respondent had stolen property that came from a burglary Napoli was investigating, a 23-inch RCA color television. This information was received some two or three days previously from a confidential informer who Napoli had known for several years and who had on previous occasions given very reliable information. Napoli did not obtain an arrest warrant or a search warrant before going to respondent's house. The officers knocked on the door and identified themselves to respondent and immediately arrested respondent on probable cause telling him he was being arrested for possession of stolen property, to-wit: the RCA television which Napoli could visibly see from the front porch when respondent opened the door.
After having invited the officers into his house, respondent turned on the lights in the living room and dining room. While one of the officers read respondent his constitutional rights, Napoli along with several officers, saw bolita and gambling paraphernalia on the dining room table which was located approximately five feet from the television.
For the purpose of deciding this case, the District Court of Appeal credited the trial court's finding that the officers had probable cause to make an arrest without a warrant, but reversed respondent's conviction upon the admitted fact that the officers had ample time to obtain a warrant and for the additional following reason,
By imposing additional requirements to those set out in Chapter 901, Florida Statutes, F.S.A., the instant decision of the District Court is in direct conflict with our holding in Falcon v. State, 226 So.2d 399, wherein appellant contended that the trial court erred in overruling the motion to suppress evidence taken from him without a warrant and cited Carter v. State, Fla.App., 199 So.2d 324, in support of his contention. In Falcon v. State, supra, this Court quoted the following language from the Carter opinion.
'We therefore hold that where an arrest or search is made by an officer without a warrant, the State must be prepared to show, not only the factual existence at such time of probable cause, but also that the officer or officers had no reasonable opportunity to previously apply for and be issued an arrest or search warrant; otherwise the evidence as to the fruits of the search goes out.'
and then went on to overrule the doctrine explicated in Carter, by stating,
2'
This Court thus held that Chapter 901, Florida statutes, F.S.A., lays down the only requirements for a valid arrest without a warrant.
Section 901.15, Florids Statutes, F.S.A., provides,
'When arrest by officer without warrant is lawful.--A peace officer may arrest a person without a warrant when:
(1) The person has committed a felony or misdemeanor or violated a municipal ordinance in the presence of the officer. Arrest for the Commission of a misdemeanor or violation of a municipal ordinance shall be made immediately or in fresh pursuit.
(2) A felony has been committed and he reasonably believes that the person committed it.
(3) He reasonably believes that a felony has been or is being committed and reasonably believes that the person to be arrested has committed or is committing it.
(4) A warrant for the arrest has been issued and is held by another peace officer for execution.'
and Section 901.17 provides,
'Method of arrest by officer without warrant.--A peace officer making an arrest without a warrant shall inform the person to be arrested of his authority and the cause of arrest except when the person flees or forcibly resists before the officer has an opportunity to inform him or when giving the information will imperil the arrest.'
Applying the principles announced in Falcon, the District Court of Appeal, Third District, declared in Reis v. State, 248 So.2d 666 (Fla.App.1971) cert. den. 252 So.2d 798 (Fla.1971), that the absence of an arrest warrant does not necessarily invalidate an arrest based on reasonable grounds to believe that a felony has been committed even though there may have been sufficient time to have obtained an arrest warrant.
In the instant cause, there is no question that the arresting officers had probable cause to make a valid arrest. Probable cause with reference to a warrantless arrest and subsequent search and seizure of defendant's person and his automobile incident to the arrest, was recently discussed by the Supreme Court of the United States in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) wherein that court succinctly stated,
'Probable cause to arrest depends 'upon whether, at the moment the arrest was made . . . the facts and circumstances within (the arresting officers') knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense.' Beck v. Ohio, 379 U.S. 89, 91 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). In the present case the policeman found Williams in possession of a gun in precisely the place predicted by the informant. This tended to corroborate the reliability of the informant's further report of narcotics, and together with the surrounding circumstances certainly suggested no lawful explanation for possession of the gun. Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction. See Draper v....
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