Opinion
July 1, 1952.
Appeal from the Criminal Court of Record, Polk County, R.H. Amidon, J.
D.C. Laird, Lakeland, for appellant.
Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.
The appellant was adjudged guilty of selling a lottery ticket possessing devices for the conduct of a lottery, and having a connection with such illegal venture. From the judgment he appealed, presenting for our determination the validity of a search by the officers and the sufficiency of the evidence to support the verdict.
A deputy sheriff, Willard Williamson, who had served for a considerable period under a newly appointed sheriff and that sheriff's predecessor, and who was known to appellant, drove at night to a point near appellant's place of business where he alighted sending a lately appointed deputy, Munsey Smith, and a man named Barker, whom appellant did not know, on to attempt to get evidence to establish appellant's transgression of the lottery laws.
Smith gave a detailed account of what occurred after he and Barker left Williamson. They drove to appellant's door, and Barker, taking a five dollar bill furnished by Smith, went into the appellant's establishment. Smith watched Barker come out, accompanied by appellant, and enter "a little bedroom." The door was closed, and in "a couple of minutes" they emerged, appellant entering his tavern, Barker returning to the car. Barker then gave Smith what was supposedly a "Cuba" ticket with the laconic comment, "Here." The two then rejoined Williamson. At this point it seems appropriate to note that Williamson and Smith knew nothing at all about any transaction between appellant and Barker, and to say that Barker was not produced as a witness at the trial.
The next morning Smith returned to appellant's place with another deputy, Guy Harrell. Appellant's wife was there but appellant was away. She was asked if she minded if they looked "around a little bit," and replied: "No sir, help yourself; look anywhere and everywhere you want to look. Just help yourself." The officers roamed over the premises, and presently Harrell found a paper sack with figures on it, resembling a tally sheet, and a pad bearing notations of certain dates. These were located inside a little house where the appellant and his wife lived. Just here it is important to record that the remarks attributed to appellant's wife were made in the business place which was entirely separate from the residence, located thirty or forty feet away.
Actually the officers were armed with a search warrant when they appeared at the tavern the first time, but admittedly they never executed it.
We have often remarked upon the procedure to be followed if searching is to be done that does not violate the positive guaranty in Section 22 of the Declaration of Rights of the Florida Constitution, F.S.A. There seems to be no need to comment on the matter again here, especially as the actions of the officers detailed in this record bear small resemblance to a legal search.
We do not find a copy of the search warrant in the record, so we do not know, and obviously the appellant never knew, as there was no service, what premises were described.
The prosecutor seems to have relied on the statement of appellant's wife as dispensing with the need for a warrant, but her words did not constitute carte blanche to look wherever on appellant's property deputies chose. Such could not have been the effect of her language. Carlton v. State, 111 Fla. 777, 149 So. 767.
No justification for entering the residence of appellant and his wife could have been got from the provisions of Section 562.03, Florida Statutes 1949, and F.S.A., because licensees, by being privileged to sell beverages, agreed to searches without a warrant only of their places of business and their store rooms. It will be remembered that the wife extended her supposed invitation to search while she and the officers were in the place of business and that the evidence relied upon was taken from a separate building occupied as a residence.
The arrest of the appellant was made later at another place, so the search could not have been made in connection with that. There was no contention that the officers observed the appellant committing a crime, or that they had a warrant for his arrest when the abortive search was made.
And, finally, the evidence obtained on the first visit was gathered by a man who didn't appear at the trial to identify it.
All this demonstrates to us that the conviction was invalid; so the judgment of the court is, consequently,
Reversed.
SEBRING, C.J., and TERRELL and HOBSON, JJ., concur.