Urquhart v. State, 67--216

• Decision Date: 29 May 1968
• Docket Number: No. 67--216,67--216
• Citation: 211 So.2d 79
• Parties: William URQUHART, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 79

211 So.2d 79

William URQUHART, Appellant, v. STATE of Florida, Appellee.

No. 67--216.

District Court of Appeal of Florida, Second District.

May 29, 1968.

Rehearing Denied June 20, 1968.

Henry Gonzalez, Tampa, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.

LILES, Chief Judge.

The defendant seeks reversal of a judgment and sentence entered pursuant to a jury verdict finding defendant guilty of buying, receiving or aiding in the concealment of stolen property in violation of Florida Statute § 811.16, F.S.A.

On appeal the defendant raises several points, one of which challenges a jury instruction given by the trial judge. The instruction complained of is as follows:

'If you find from the evidence, beyond a reasonable doubt, that the articles listed in the Information, or any of them, were stolen from Mr. and Mrs. Kent McKinley and the said articles, or some of them, were found in the possession of the defendant, The unexplained possession thereof by the defendant may be regarded by you as some evidence that the defendant knew they were stolen. In such case, the guilty knowledge, if any, of the accused does not follow as a presumption of law from the unexplained possession of the property recently stolen. That is to say, there is no conclusive presumption and you are not required to find that the person accused did have such knowledge. The presumption is one that the Jury may infer as a matter of fact, of which you are the sole judges, and which is to be considered by you in connection with all the other circumstances in the case. The circumstance of one being found in possession of recently stolen property is one which may be considered as showing a tendency toward guilt.' (Emphasis ours.)

It appears from the record that the police upon confronting the defendant immediately placed him under arrest. In Young v. State, Fla.App.1967, 203 So.2d 650, 652 the Fourth District Court of Appeal when presented with a similar instruction said:

'The instruction given to the jury had the effect to demand of the defendant an affirmative explanation for the reason the stolen goods were in his possession. At the same time defendant being in police custodial interrogation within the meaning of Miranda would have had the privilege to remain silent. The privilege to remain silent would be a hollow privilege if that silence would create an inference of guilt at the trial. The fact that the defendant remained silent was used against him at trial in the form of the aforementioned jury instruction in violation of the defendant's Fifth Amendment privilege under the Miranda decision.'

We followed Young in Gamble v. State, Second District Court of Appeal, 210 So.2d 238, Opinion filed May 8, 1968, stating:

'The rule in this regard is that if the prisoner is alone and indicates in any manner that he does not wish to be questioned the police may not interrogate him. When the prisoner herein refused to talk any more and remained silent, he had claimed the 'privilege' within the meaning of Miranda and his failure to completely explain possession of the stolen T-V set could not thereafter create an inference of guilt at his trial.' ¹

Under the authority of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Gamble, v. State, supra, and Young v. State, Supra, we hold that the trial court committed reversible error by giving the instruction in question. ² It should be noted, however, that the trial court did not have the benefit of Gamble and Young as they were filed subsequent to the trial of this cause.

On appeal defendant also complains of the admission into evidence of seven exhibits. These exhibits were admitted into evidence despite defendant's objections and despite his motion to suppress which was denied without opinion. Since the defendant may be tried again, we feel obligated to pass upon his contentions concerning the admissibility of these exhibits.

Although there is much conflict in the record the essential facts surrounding the seizure of the exhibits in question appear to be as follows:

Peace officers of several agencies had been checking on the activities of defendant and had been keeping under surveillance the home of one Mrs. Yolanda Salgado, from whom defendant rented a room.

On the afternoon of March 11, 1966, an arrest warrant for an alleged breaking and entering in Pinellas County was delivered to an officer at the Tampa Police Department. At approximately 8:30 that evening this same officer observed the defendant driving an automobile about two blocks from the home of Mrs. Salgado. The officer, who was also in a car, followed the defendant to the home of Mrs. Salgado, however, the officer made no attempt to arrest defendant at this time even though he had the arrest warrant in his possession. The officer than summoned other peace officers from the Pinellas County Sheriff's Department, the Tampa Police Department, and the Hillsborough County Sheriff's Department. In all a total of eleven officers assembled across the street from the home of Mrs. Salgado. ³ Five or six of the officers went to the front door of the Salgado home and the remainder went to the back door. When asked what then ensued, Inspector Salla ⁴ of the Hillsborough County Sheriff's Department testified as follows on direct examination:

'Q Now, were you the officer that knocked on the door before anybody entered the house?

A Yes, sir, I was.

Q Who came to the door?

A I knocked at the door and a young lady came to the door, was later identified as being Mrs. Butts, and I told her who I was and I wanted to see Bill Urquhart. She turned around and at that time told Bill Urquhart, 'Someone here at the door wants to see you.' As she did, I pushed it completely open and walked in. At that time, I tole Bill that we had a warrant for his arrest and I walked into the living room and I was followed there by several other officers. I believe one of them was Don Anderson, Lt. Frazier and there was two or three other officers behind me.'

On cross-examination the following colloquy took place:

'Q Did anyone give you permission to go into that house?

A Well, we had a warrant for his arrest. That gave us permission to go in there and arrest him. Based on that, the warrant indicates anywheres where he was found. He was found in this house. As she, as Mrs. Butts partially opened the door, I looked over to the left of the living room and I could see him sitting there at the end of the settee there. So, I walked in and at that time instructed him that we had a warrant for his arrest.

Q Inspector Salla, are you telling us that you actually could see a man sitting inside and you are outside, to the side? Did you poke your head inside the house?

A I looked in through the door. I just did like this. The door was partially open and he was sitting there ans she, when I asked her about Bill Urquhart, she said, she turned around, said, 'Well, Bill, there is someone here wants to see you.'

Q And you went right in?

A I pushed the door in and looked over there and there he was.

Q Then, you instructed Mr. Frazier, Lt. Frazier, to serve this warrant on him, is that correct?

A Yes, sir.'

Immediately after entering the house one of the officers with Inspector Salla went to the back of the house and unlocked the back door thereby allowing the remaining officers to enter. So, in a matter of moments, a total of eleven law officers were inside the home. Some of the officers were in uniform, at least one was carrying a shotgun. One officer testified that he was holding his firearm in his hand when he entered the home. The defendant was then removed to a bedroom of the home and the arrest warrant was read to him. Shortly thereafter the defendant left in the presence of several officers, including Inspector Salla, and was taken to the Hillsborough County jail. At the jail while defendant was being booked an envelope was found on his person. This envelope contained three rings which were later identified as stolen and which served as the basis for the State's complaint. These rings were labeled as State's Exhibit No. 1. Exhibits Nos. 2--7 consisted of personal property taken from the home of Mrs. Salgado following defendant's arrest. All these exhibits were admitted into evidence over defendant's objection that they were unlawfully seized.

Florida Statute § 901.19(1), F.S.A., provides:

'An officer, in order to make an arrest either by virtue of a warrant, or when authorized to make such arrest for a felony without a warrant, may break open a door or window of any building in which the person to be arrested is or is reasonably believed to be, if he is refused admittance after he has announced his authority and purpose.'

Inspector Salla's actions in pushing open the door constituted a breaking within the meaning of Section 901.19(1). Cf. Benefield v. State, Fla.1964, 160 So.2d 706; Boynton v. State, Fla.1953, 64 So.2d 536; Dickens v. State, Fla.1952, 59 So.2d 775. From his above-quoted testimony it is clear that Inspector Salla did not announce his purpose and he did not wait until he was refused admittance before pushing open the door. Therefore, Inspector Salla failed to comply with the provisions of 901.19(1). Such failure, unless, justified, makes the subsequent arrest and incidental search invalid and any evidence seized as a result thereof is inadmissible. Benefield v. State, supra. In Benefield the Florida Supreme Court listed four justifications ⁵ for not complying with 901.19(1), stating at 160 So.2d page 710:

'As we interpret the common law authorities in relation to § 901.19(1), Florida Statutes, F.S.A., we conclude that even if probable cause exists for the arrest of a person, our statute is violated by an unannounced intrusion in the form of a breaking and entering any building, including a private home, except (1) where the person within already knows...