Tribue v. State
| Decision Date | 16 July 1958 |
| Docket Number | No. 376,376 |
| Court | Florida District Court of Appeals |
| Parties | Macon TRIBUE, Appellant, v. STATE of Florida, Appellee. |
Sam E. Murrell & Sons, Orlando, for appellant.
Richard W. Ervin, Atty. Gen., and Odis M. Henderson, Asst. Atty. Gen., for appellee.
An information consisting of four counts, each of which charged a violation of the lottery laws of the State of Florida, was filed against the appellant. The jury found him guilty on counts two, three, and four. Counts two and three charged a felony offense and count four a misdemeanor offense. The court sentenced him only on counts two and three. Count two charged that appellant did unlawfully aid and assist in the setting up, promoting and conducting of a lottery for money, the lottery being commonly known as 'Bolita' and 'Cuba'; and count three charged that he was unlawfully interested in and connected with a lottery for money, commonly know as 'Bolita' and 'Cuba'. On count two the trial judge sentenced appellant to the state penitentiary for a period of three years and ordered him to pay costs of court taxed at $78.88, or in default of payment to be imprisoned for an additional thirty days. On the third count the court sentenced appellant to the state penitentiary for a period of three years and provided that this sentence run concurrently with the sentence entered on count two. The charges were laid and the penalty imposed under section 849.09, Florida Statutes, F.S.A. Naturally being discontented with the verdict of the jury and the sentences imposed, the appellant has instituted this appeal.
The appellant has grounded his appeal for reversal on three propositions, (1) whether the trial court erred in denying appellant's motion to suppress evidence seized during the search, which was conducted without a search warrant, (2) whether a certain statement made by the county solicitor and one by a state's witness with reference to the accused and a statement made by the state's witness with reference to defense counsel constitute reversible error, and (3) whether the sentences were properly imposed.
As to proposition number one, appellant filed a motion to suppress certain evidence relating to a quantity of bolita paraphernalia obtained by police officers without a search warrant from a room in a dwelling house where, at the time of the search and seizure, appellant was present. Appellant asserts that the search and seizure was unlawful in that it was made without a search warrant and therefore violated his constitutional rights guaranteed to him by both the state and federal constitutions. F.S.A.Const. Declaration of Rights, § 22; Const. U.S.Amend. 4.
The safeguarding of the private security of one's person and property and the preservation of his right to the sanctity of his home against unlawful encroachments or invasions by officers operating under governmental authority constitute the underlying tenet and aim of the guaranty contained in the constitutional provisions against wrongful search and seizure. The immunity derived from this constitutional source against unreasonable search and seizure is a personal one and can be claimed only by him whose rights are invaded. This immunity, however, cannot be invoked to protect one in the commission of a crime but serves only as a guarantee against unreasonable searches and seizures.
A hearing on the motion to suppress was held prior to the trial of the case. The issue involved was whether the appellant was a tenant legally possessed of the premises searched. The house was the property of one Winnie Guest, and the arresting officers forcibly entered the house without a search warrant but with the written consent of Winnie Guest, the owner. At the time the officers entered the premises, the appellant was making a telephone call; certain bolita materials were present on the table, together with an adding machine, pencils, and various slips of paper.
The basis upon which appellant relies to sustain his position is that he was a tenant legally possessed of the premises searched. The testimony of police officers was that the search was made through written consent given to them by Winnie Guest, the owner of the premises. The appellant contends that the written consent was obtained by threats and duress on the part of the police officers and was therefore involuntarily given by Winnie Guest. Contrarily, the testimony of the state was to the effect that the written consent was given voluntarily with the understanding by Winnie Guest that its purpose and use was to authorize a search of the...
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