Harding v. StateHarding v. State
McNULTY, Chief Judge.
We grant appellant‘s petition for rehearing, withdraw our former opinion affirming his conviction and substitute the following reversal in its stead.
Now, on the merits, we are persuaded that this case is governed by O‘Neil v. State,7 Stanley v. State8 and by the caveat of Judge Sherman Smith in Prather v. State9, wherein he ordained that: “Law enforcement officers may not make a valid search by entering premises ostensibly for the purpose of making an arrest but in reality for the purpose of conducting a general exploratory search for evidence of crime.”
The operative facts here are that a few vice squad deputy sheriffs were whiling away the time one evening when a call came to one of them from a confidential informant stating that a man named Hardison could be found that evening at Harding‘s home. The officers were not particularly looking for Hardison that night but they had had previous experience with his involvment in the local drug scene and, as one of the officers testified, if Hardison were around “it would be a good bet” there would also be drugs. In any case, the informant advised that Hardison had two minor traffic arrest warrants outstanding against him which were issued by the City of St. Petersburg, a fact verified thereafter by the deputy. The deputy did not then advise the city police that Hardison could be found within their jurisdiction at a particular address on that night but instead used the information as the basis of a trip by him and three other deputies to Harding‘s home where they announced their purpose to be the arrest of Hardison. After the officers had gained entry into the house by this means and arrested Hardison, who was indeed present, Harding, previously absent, walked in through his own back door carrying in plain sight the bag of marijuana which is the subject matter of this proceeding. The officers then arrested Harding.
None of the deputies involved was normally engaged in executing municipal traffic warrants. Moreoever, they testified that it was most unusual, if not unheard of, that deputy sheriffs in Pinellas County ever served a city traffic warrant, and certainly never within the boundaries of the issuing city. In short, the arrest cannot be described as one which would have been accomplished by any Pinellas County deputy sheriff routinely acting in reasonable pursuit of his usual and normal duties, a criterion applied in State v. Holmes.10
To summarize: (1) The arrest was made within city limits by state officers executing city warrants for minor traffic violations; (2) the execution of such warrants was outside their normal routine duties;
On a closing note, and lest our holding herein be otherwise misunderstood, we do not suggest that the arrest herein was illegal in the strictest sense. While it may be said that all illegal arrests are per se unreasonable, it doesn‘t necessarily follow that all legal arrests are reasonable for purposes of supporting a subsequent search or seizure. We merely say here that, conceding the strict legality of the arrest herein, under the circumstances the seizure from Harding was unreasonable.
Accordingly, the judgment and sentence appealed from should be, and they are hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.
MANN, J. (Ret.), concurs.
HOBSON, J., dissents with opinion.
HOBSON, Judge (dissenting):
In addition to the facts set forth in the majority opinion the officers testified that the sole purpose for going to Harding‘s house was to arrest Hardison on the outstanding warrant.
The lower court as trier of the facts found that at the time of Harding‘s arrest the officers were executing a valid outstanding warrant for Hardison, and the arrest under the warrant was valid. The officers were lawfully in appellant‘s home and while there observed the marijuana in clear view in Harding‘s possession.
Under the plain view doctrine, it has been held that it is not a search to observe, and to seize, what is so placed where it may be seen by an officer who is where he has a legal right to be. State v. Parnell, Fla. 1969, 221 So.2d 129; State v. Ashby, Fla. 1971, 245 So.2d 225; State v. Cash, Fla.App. 1973, 275 So.2d 605; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).
I would affirm.