Urso v. State, 2406
| Decision Date | 01 November 1961 |
| Docket Number | No. 2406,2406 |
| Citation | 134 So.2d 810 |
| Parties | Henry URSO, alias Rico, and Albert Aionzo, Appellants, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
John D. Menas and Manuel M. Garcia, Tampa, for appellants.
Richard W. Ervin, Atty. Gen., and Robert R. Crittenden, Asst. Atty. Gen., for appellee.
The appellants were convicted of violating the State lottery laws and sentenced to three years' imprisonment. It is contended on appeal that the convictions were based upon evidence obtained through wrongful arrest and illegal search and seizure and that the judgment should be reversed.
Four police officers with a search warrant went to a multiple apartment building wherein the appellants occupied an apartment. Two of the officers searched apartment 'D', an upstairs apartment designated in the search warrant. Apartment 'D' was found vacant. The other officers were stationed in the yard of the building and saw the appellants emerge from apartment 'C', a downstairs apartment. The appellants ran, but the officers overtook and arrested them and conducted them into apartment 'C'. The officers, after reading to the appellants the search warrant with reference to apartment 'D', proceeded to search apartment 'C' and found certain lottery records, tickets and other paraphernalia.
On August 2, 1960 the appellants filed a praecipe for witness subpoena duces tecum 'regarding affidavit and issuance of search warrant', and upon testimony taken at the hearing thereon the appellants were granted a ruling that anything seized under the search warrant would not be admissible in evidence. This ruling apparently was acceptable to the State. The State has contended, however, that the articles in question were rendered inadmissible only as to the defective search warrant and not with respect to a search and seizure incident to the arrest of the appellants.
On August 22, 1960 the appellants moved to suppress the evidence on the ground that the arrest was unlawful and that the evidence seized at the time of the arrest was without benefit of valid process. The court entered an order pursuant to this motion deferring ruling until the trial. At the trial the articles were admitted in evidence over the appellants' objections and renewal of their motion to suppress. There appears no specification of the basis of admission, but apparently it was grounded on the inferential finding that the search and seizure were properly incident to a valid arrest. The State contends that the record discloses that the appellants were validly arrested and that the law sanctions reasonable searches incident to valid arrest. The proposition of the law is correct, and the converse is also true. As stated in 29 Fla.Jur., Search and Seizure, Section 13:
(Emphasis added.)
Section 22 of the Declaration of Rights of the Florida Constitution, F.S.A. was designed to safeguard the people against unreasonable searches and seizures, whether pursuant to warrant or incident to arrest without warrant, and the extent to which the courts generally protect this right is reflected in the statement of Justice Thomas in De Lancy et al. v. City of Miami, Fla.1950, 43 So.2d 856, 857, 14 A.L.R.2d 602:
'We are not unaware that guilty persons may go free where convincing evidence against them is held inadmissible because obtained by defective search warrants. But our paramount concern is for the guaranty in the organic law against unreasonable searches. We have spoken on this subject, too, in Cooper v. State, supra [106 Fla. 254, 143 So. 217], where we approved Judge Cooley's comment that 'It is oftentimes better that crimes should go unpunished than that citizens should be liable to have their premises invaded * * *'.'
It is both elementary and fundamental that ...
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