Suiero v. State

• Decision Date: 30 April 1971
• Docket Number: No. 70--541,70--541
• Citation: 248 So.2d 219
• Parties: Guillermo SUIERO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 219

248 So.2d 219

Guillermo SUIERO, Appellant, v. STATE of Florida, Appellee.

No. 70--541.

District Court of Appeal of Florida, Fourth District.

April 30, 1971.

Rehearing Denied June 8, 1971.

Harold Mendelow, Manners & Amoon, Miami, Charles Snowden, North Miami, for appellant.

Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, Robert L. Shevin, Atty. Gen., Tallahassee, for appellee.

MAGER, Judge.

Appellant was convicted of conspiracy to violate the gambling laws and with setting up and promoting an unlawful lottery for money in Palm Beach County. Appellant seeks reversal on the basis that the trial below subjected him to double jeopardy; that the trial court erred in denying his motion to suppress evidence alleged to have been illegally obtained; and that the trial court was in error in placing the venue of the crime in Palm Beach County.

From a careful examination of the record of the proceedings and the law applicable to the facts sub judice we are of the opinion that the contentions of the appellant are without merit and the judgment of the trial court should be affirmed.

An amended information naming the appellant and others was filed in the Criminal Court of Record of Palm Beach County on December 17, 1968. On January 6, 1969, appellant filed a motion to suppress 'any and all evidence whatsoever in the possession of the state' alleging that such evidence was obtained and seized in violation of the appellant's rights under the Florida and federal constitutions. Appellant, in his brief, predicates his claim of double jeopardy upon actions taken by the trial court in a criminal proceeding previously conducted in the Criminal Court of Record in and for Dade County, Florida. Appellant contends that the actions taken by the trial court in Dade County allegedly suppressing certain evidence collaterally estopped the state from introducing the same evidence in the trial below; that the utilization of such evidence below constituted double jeopardy.

It is fundamental that appellate review is confined to the record on appeal, Sheldon v. Tiernan, Fla.App.1962, 147 So.2d 593. A review of the record on appeal in the case sub judice reveals that the record is devoid of any evidence pertaining to the Dade County proceedings. Nor does the record contain a transcript of the proceedings before the trial court either corroborating or substantiating appellant's factual allegations in his brief. The motion to suppress, filed below, is also devoid of any reference to the Dade County proceedings. Accordingly, this court is precluded from considering appellant's allegation of double jeopardy based upon these prior proceedings. ¹ Moreover, the record on appeal reflects the appellant's failure to raise the issue of double jeopardy or collateral estoppel in the trial court below. Such failure amounts to a waiver of that defense. Robinson v. State, Fla.App.1970, 239 So.2d 282, and Robinson v. Wainwright, Fla.App.1970, 240 So.2d 65. We observe, however, that even had this defense been properly raised, based upon the weight of authority, the contentions of the appellant are without merit. State ex rel. Larkins v. Lewis, Fla.1951, 54 So.2d 199; see also Kennick v. State, Fla.App.1958, 107 So.2d 59, citing Burnes v. State, 1925, 89 Fla. 494, 104 So. 783; 9 Fla.Jur., Criminal Law, § 199, p. 227; 21 Am.Jur.2d, Criminal Law, § 176, citing People v. Jackson, 20 N.Y.2d 440, 285 N.Y.S.2d 8, 231 N.E.2d 722, cert. den. 391 U.S. 928, 88 S.Ct. 1815, 20 L.Ed.2d 668. See also United States v. Oppenheimer, 1916, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161, 3 A.L.R. 516.

The second contention raised by the appellant and properly before this court for consideration is that the trial court below erred in failing to suppress certain evidence in possession of the state. Appellant asserts that the evidence was seized in violation of his constitutional rights. The basis of appellant's contentions is the lack of probable cause in the affidavits giving rise to the issuance of certain search warrants.

Under Section 12 of the Declaration of Rights, Florida Constitution F.S.A., and the Fourth Amendment to the Constitution of the United States, no search warrant is issuable except on 'probable cause'. Probable cause cannot be based on mere suspicion, it must be based on facts known to exist; and the test of what constitutes probable cause is not whether the evidence would be admissible for the purpose of proving guilt at a trial but rather whether the information would lead a man of prudence and caution to believe that the offense has been committed. Aguilar v. State of Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Draper v. United States, 1959, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; 29 Fla.Jur., Search and Seizure, § 18. In Draper (upon which decision the Supreme Court of the United States relied in Aguilar, supra, and Spinelli v. United States, 1969, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, cited by appellant), the Supreme Court in discussing 'probable cause' observed:

"In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Brinegar v. United States, supra, 338 U.S. 160, at page 175, 69 S.Ct. 1302, at page 1310, 93 L.Ed. 1879. Probable cause exists where 'facts and circumstances within their (the arresting officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543.'

The appellant relies upon the United States Supreme Court decision in Spinelli v. United States, supra, in support of his contention that the affidavits in the case sub judice giving rise to the search warrants are insufficient to meet the constitutional objectives of 'probable cause'. A reading of Spinelli clearly reflects that appellant's reliance is misplaced since the affidavit under consideration in Spinelli is distinguishable from the affidavit in the case sub judice. This distinction is poignantly revealed in the very recent decision by the Supreme Court of Florida, in State v. Smith, Fla.1970, 233 So.2d 396. In the Smith case the Supreme Court was called upon to determine the sufficiency of a search warrant issued pursuant to an affidavit of police officers which affidavit was based in part on certain Personal observations as well as information from a 'reliable confidential informer.' The Supreme Court in upholding the validity of the search warrant observed in part:

'We have carefully reviewed the decisions of the United States Supreme Court in Spinelli v. United States and Aguilar v. Texas. The affidavits held insufficient in those cases were based almost entirely on reports received from informers Without supporting factual allegations showing reliability and 'underlying circumstances.' The interpretation of Spinelli and Aguilar urged by respondents herein, would require the striking of a search warrant based on affidavits referring to tips from confidental informers not meeting Aguilar's test, Even though the affidavit contained sufficient independent statements based on personal knowledge of the affiant. We are unwilling to adopt such a rule and do not believe Aguilar and Spinelli require it. An affidavit which is otherwise sufficient is not tainted by reference to a confidential tip, even though that tip be inadequate in itself under the Aguilar and Spinelli cases.

'The United States Supreme Court concluded its opinion in the Spinelli case with the following statement:

'(W)e do not retreat from the established propositions that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause * * *; that affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial * * *; that in judging probable cause issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense * * *; and that their determination of probable cause should be paid great deference by reviewing courts * * *. " (Emphasis ours.) ²

The affidavits in the case sub judice are based almost entirely on the Personal observations of the police officers who were the affiants, such observations and surveillances of the activity of appellant and others having been undertaken: (1) as a result of information received from a 'reliable informant' and (2) as a result of information received from a person specifically named in such affidavit as having been previously convicted of lottery violations. Based upon the information the police officers received, they did Not seek the issuance of a search warrant but Rather undertook a surveillance observation at which time the officers observed various meetings where 'slips of paper' were...