State v. Perez

277 So. 2d 778
CourtSupreme Court of Florida
DecidedMay 16, 1973
Docket42981
StatusPublished
Cited by24 cases

This text of 277 So. 2d 778 (State v. Perez) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Perez, 277 So. 2d 778 (Fla. 1973).

Opinion

277 So.2d 778 (1973)

STATE of Florida, Petitioner,
v.
Pedro Antonio PEREZ, Respondent.

No. 42981.

Supreme Court of Florida.

May 16, 1973.

*779 Robert L. Shevin, Atty, Gen., and Reeves Bowen, Asst. Atty. Gen., for petitioner.

W. DeHart Ayala, Jr., of Few & Ayala, Tampa, for respondent.

ROBERTS, Justice.

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 *780 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,

"... . . We simply cannot accept the blanket assertion that probable cause to arrest a person for felony justifies intrusion into his home during the nighttime two or three days after the probable cause arose, at least one day after a warrant was sought unsuccessfully, and in the absence of any single fact showing need for action before the facts could be submitted to a magistrate. If the Fourth Amendment means anything, it must protect citizens against the sort of intrusion shown here. Should our Supreme Court review this case, we would hope that their expression in Falcon would be limited to exclude arrests in dwelling houses in the nighttime."

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,

"To the extent that Carter purports to impose requirements other than those set out in Chapter 901, Florida Statutes, F.S.A., for a valid arrest without a warrant, it is erroneous. A similar contention has been rejected by the Federal Courts.[2]"
[2] United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Odom v. United States, 403 F.2d 45 (C.C.A. 5th 1968).

This Court thus held that Chapter 901, Florida statutes, F.S.A., lays down the only requirements for a valid arrest without a warrant.

*781 Section 901.15, Florida 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.

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Bluebook (online)
277 So. 2d 778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-perez-fla-1973.