Petitionccccccccccccccccccccccc — Busch v. Florida

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IN THE SUPRETIE COURT OF THE UNITED STATES

OCTOBER TERM, 1978

case No. 2¥-S YOS

RECE, vED

SEP 21 1973

OF rice OF THE CLERK

Supreme Court, us,

VINCENT ANTHONY BUSH,

PETITIONER,

Vv.

STATE OF FLORIDA,

RESPONDENT.

OTe OM

MICHAEL J. MINERVA » MAR

PE can ao

ALLAHASSEE, FL 32302 uk Fr. FL 32304

COUNSEL FOR PETITIONER COUNSEL FOR RESPONDENT

TABLE OF CONTENTS

igi

TABLE OF CONTENTS

AUTHORITIES CITED

JURISDICTION

QUESTION PRESENTED

CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CERTIFICATE OF SERVICE

Pee Lie O ae nes Aa tnd eat Ant tte amcsraraaltagal

AUTHORITIES CITED

CASES

Agnello v. United States, 269 U.S. 20, 70 L.Ed.2d

Beck v. Ohio, 379 U.S. 89, 96, 13 L.Ed.2d 142, 147

Brown v. Illinois, 422 U.S. 490, 45 L.Ed.2d 416 (1975)

Cardwell v. Lewis, 417 U.S. 583, 41 L.Ed.2d 325 (1974)

Carroll v. United States, 267 U.S. 132, 69 L.Ed.2d

543 (1925)

Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2da 419 (1970)

Chimel v. California, 395 U.S. 752, 770-783, 23 L.Ed.2d

’ - ) (White, J., dissenting)

soos v. New Hampshife, 403 U.S. 443, 29 L.Ed.2a

cooper v. California, 386 U.S. 58, 59, 17 LeEd.2a

’

Davis v. Mississippi, 394 U.S. 721, 22 L.Ed.2a 676

Dorman v. United States, 435 Fed.2d 385 (D.C. Cir. 1970)

Gerstein v. Pugh, 420 U.S. 103, 43 L.Ed.2a 54 (1975)

Johnson v. United States, 333 U.S. 10, 92 L.Ed. 436

Jones v. United States, 357 U.S. 493, 2 L.Ed.2d 1514

(1958) ~

Katz v. United States, 389 U.S. 347, 19 L.Ed.2d 576

(1967)

Mapp _v. Ohio, 367 U.S. 643, 6 L.Ed.2d 1081 (1961)

Marshall v. Barlow's a U.S. , 56 L.Ed.2a

Michigan v. Tyler, U.s. , 56 L.Ed.2d 486 (1978)

~maneey v. Arizona, U.S. » nO. 77-5353 (June ~ ay

Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2da 694 (1966)

People v. Payton, NE2d » N.Y. Ct. Appeals, case

no. 259, July 11, 1978, 23 Cr. L. Rp. 2419

South Dakota v. 0 erman, 428 U.S. 364, 367, 368, 49

.Ed. 2d 1000, 1004 (1976)

Stanley v. Georgia, 394 U.S. 557, 22 L.Ed.2a 542 (1969)

- ii -

6,8

6,8,14,18

2,8

6,14

aan ce tc

CASES (cont’p) PAGES IN THE SUPREME COURT OF THE UNITED STATES

State v. Perez, 277 So.2d 778 (Fla. 1973), cert. =H OCTOBER TERM, 1978

den. 414 U.S. 1064 5,6,8,21 CASE NO

Stovall v. Denno, 388 U.S. 293, 18 L.Ed.2da 1199 (1967) 21

United States v. Chadwick, 53 U.S. 538, 53 L.Ed.2d

538 (1977) 6,14,15

United States v. Killebrew, 560 Fed.2d 729 (6th Cir.

1977) 20

United States v. Reed, 572 Fed.2d 412 (2d Cir. 1978) 20

VINCENT ANTHONY BUSH,

United States v. Santana, 427 U.S. 38, 49 L.Ed.2d

ane ee 6,11519,48 | PETITIONER,

United States v. United States District Court, 407 | V.

UsSes ; L.Ed. 6,14,15,18

STATE OF FLORIDA,

United States v. Watson, 423 U.S. 41l, 46 L.Ed.2a

Soe TST 6,10,11,12,13 RESPONDENT,

Vale v. Louisiana, 399 U.S. 30, 26 L.Ed.2da 409 (1970) 6,14

STATUTES AND CONSTITUTIONS

§ 901.15(3), Fla. Stat. (1975) 5,8

Fourth Amendment, United States Constitution 2,5,8,18,20 ID LED lf amen ae

Fifth Amendment, United States Constitution 19 ret D o ap I A

Fourteenth Amendment, United States Constitution 2 ee 2

Petitioner moves that the Court grant a writ of

28 U.S.C., Section 1257(3) 1 ; , ;

certiorari to review the judgment of the District Court

Art I, §12, Fla. Const. 5

of Appeal, First District of ‘Florida, dated February 27,

1978, and reported in 355 So.24 488. A copy of this de-

cision is included in the record submitted in support of

this petition at pages 1 and 2.

Other documents in the record will be designated in

this petition by the abbreviation "R" followed by the ap-

propriate page number.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. Section 1257(3). The grounds for asserting juris-

diction are that the petitioner was convicted and sentenced

for the offense of robbery by the State of Florida on the

= iii - *le

basis of evidence derived, in part, from an illegal

seizure of his person in violation of the Fourth Amend-

ment to the United States Constitution made applicable

to the stafes by the Fourteenth Amendment. Mapp v. Ohio,

367 U.S. 643, 6 L.Ed.2d 1081 (1961).

The judgment of the District Court of Appeal sought

to be reviewed was entered on February 27, 1978. A timely

notice of certiorari was filed in the Florida Supreme Court

on March 23, 1978 (R-3). Certiorari was denied on juris-

dictional grounds by the Florida Supreme Court June 30,

1978 (R-4).

QUESTION PRESENTED

WHETHER THE FOURTH AMENDMENT PERMITS

LAW ENFORCEMENT OFFICERS TO ARREST

SUSPECTS IN THEIR HOMES WHEN NO WAR-

RANT HAS BEEN OBTAINED AND THERE ARE

NO EXIGENT CIRCUMSTANCES DEMONSTRATED

EXCUSING THE ABSENCE OF AN ARREST WAR-

RANT.

CONSTITUTIONAL PROVISIONS INVOLVED

The constitutional provision involved in this case

is the Fourth Amendment to the United. States Constitution,

made applicable to the states through the Fourteenth, which

provides:

"The right of the people to be

secure in their persons, houses,

papers, and effects, against un-

reasonable searches and seizures,

shall not be violated, and no war-

rants shall issue, but upon pro-

bable cause, supported by oath or

affirmation, and particularly de-

scribing the place to be searched,

and the persons or things to be

seized."

STATEMENT OF THE CASE

The petitioner was charged with robbery in the Circuit

Court of Duval County, Florida (R=5). Prior to trial a

ae — ee ree ee

motion and an amended motion were filed seeking to suppress

a written statement given by petitioner to law enforcement

officers (R-6-8). The amended motion alleged in part as

follows:

"{A]nd for grounds for said

Motion would show that the De-

fendant was arrested on January

llth, 1977, without a warrant at

approximately 9:30 O'Clock A.M.,

that morning. That he was asleep

in his home when officers entered

and on being awakened, there were

two (2) officers of the Jacksonville

Sheriff's Office with guns pointed

directly at his head at a distance

of less than two yards. That he

was taken from his home to the

Duval County Jail by these and

other officers and at 1:20 O'Clock

P.M., that afternoon, signed a

statement which was written for

him by one of the officers who

had been questioning him.

1. The statement was illegally

obtained without a warrant.

2. There was no probable cause

for his arrest,

3. The officers should have

taken him to a magistrate or other

judicial officer.

4. There was no crime com-

mitted in the presence of the

officers nor did they have prob-

able cause to believe that the

Defendant had committed a crime,

5. Said arrest and written

Statement was unlawful, void and

in violation of Defendant's con-

stitutional and legal rights."

(R-7,8) .

At the hearing on the motion to suppress Deputy J.W.

Terry testified that he was told by Detective Kearney that the

petitioner had been involved in the Heart of Jacksonville

Hotel robbery (R-13). Kearney's information had come from

another participant in the robbery, Johnny Winters (R-33-38).

At approximately 10:30 a.m. on January 1l, 1977, Detectives

Terry, Kearney, and Bradley went to the petitioner's house to

arrest him. They knocked on the door, were admitted to the

home, and found the petitioner asleep on a sofa. Ata

distance of approximately three feet from petitioner,

the officers drew their guns, pointed them at petitioner

and arrested him. Petitioner was taken immediately to

the Sheriff's Office and gave the incriminating statement

sought to be suppressed.

The officers making the arrest did not have a war-

rant and had not attempted to obtain one. When asked

why an arrest warrant had not been sought Detective Terry

said:

"I don't know, Mr. Reese. It's

like I stated before, I had just

received this information possibly

a day or so before and due to the

lack of leads that I had at the

time working the robbery, I had

suspended the case and at this

time due to the information that

had been received by Detective

Kearney and Bradley, they reopened

the case and I don't know why they

" did not request a warrant. I

don't know that they didn't."

(R-34).

The petitioner testified that he had been at home

asleep when the officers woke him. Their guns were pointed

at him. Petitioner was told he was under arrest for rob-

bery and murder.

One of the grounds asserted by petitioner's counsel

in support of the motion to suppress was that the officers

"Had a chance to get a -- to

go before a Court and get a

warrant which they did not

Go. . « -” (R40).

The trial judge denied the motion to suppress and

the statement was ruled admissible (R-53,55).

The petitioner was convicted and sentenced (R-56).

In the District Court of Appeal the petitioner pre-

sented the Fourth Amendment issue as follows:

"WHETHER THE TRIAL JUDGE SHOULD

HAVE SUPPRESSED THE APPELLANT'S

[PETITIONER'S] CONFESSION BECAUSE

IT WAS THE RESULT OF AN ARREST

OF THE APPELLANT [PETITIONER]

IN HIS HOME WITHOUT A WARRANT

AND WITH NO SHOWING BY THE STATE

OF EXIGENT CIRCUMSTANCES THAT

WOULD HAVE EXCUSED THE ABSENCE

OF AN ARREST WARRANT" (R-57).

In support of this point it was argued that petitioner's

confession had been made within two hours of his arrest and

was the direct result of unconstitutional custody; the war-

rantless arrest of the petitioner in his home was claimed to

have violated his right to be secure in his person and in

his home against unreasonable seizures as guaranteed by both

the Fourth Amendment to the United States Constitution and

by Art. I, § 12 of the Florida Constitution. It was also

urged that the taint of the illegal custody had not been

dissipated by any intervening cause, since the giving of

warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 16

L.Ed.2d 694 (1966), do not automatically break the chain of

illegal custody. Brown v. Illinois, 422 U.S. 590, 45 L.Ed.2a

416 (1975); Davis v. Mississippi, 394 U.S. 721, 22 L.Ed.2a

676 (1969).

In the District Court brief petitioner recognized

that the Florida Supreme Court had refused to anticipate a

ruling by this Court that warrantless arrests in the home

might violate privacy interests protected by the Fourth Amend-

ment and had therefore held that a warrantless arrest of a

Suspect in his home was lawful under § 901.15(3), Fla. Stat.

(1975), in State v. Perez, 277 So.2d 778 (Fla. 1973), cert.

den. 414 U.S. 1064.

Despite Perez, petitioner argued that the Fourth

Amendment ultimately would be interpreted as prohibiting

warrantless arrests of a suspect who was within the pro-

tected area of the privacy of his home in the absence of a

showing of exigent circumstances to justify a warrantless

arrest. Petitioner relied upon the decisions of this Court

which had construed the Fourth Amendment to hold that the

Warrant Clause requires obtaining of a search warrant

for premises even though probable cause unquestionably

exists. Agnello v. United States, 269 U.S. 20, 70 L.Ed.

145 (1925); Johnson v. United States, 333 U.S. 10, 932

L.Ed. 436 (1948); Jones v. United States, 357 U.S. 493,

2 L.Ed.2d 1514 (1958).

Petitioner also relied upon the trend of decisions

protecting privacy interests with the Warrant Clause when

there was a reasonable expectation of privacy, especially

in the home. Katz v. United States, 389 U.S. 347, 19

L.Ed.2d 576 (1967); Vale v. Louisiana, 399 U.S. 30, 26

L.Ed.2d 409 (1970); Stanley v. Georgia, 394 U.S. 557, 22

L.Ed.2d 542 (1969); see, Coolidge v. New Hampshire, 403

U.S. 443, 29 L.Ed.2d 564 (1971); United States v. Chadwick,

53 U.S. 538, 53 L.Ed.2a 538 (1977); United States v. United

States District Court, 407 U.S. 297, 32 L.Ed.2d 752 (1972).

Petitioner also argued that the validity of warrantless

arrests in the home had been reserved in prior decisions but

that when the Court would decide that issue it would be re-

solved in favor of the, citizen rather than the state. Jones

v. United States, supra, 357 U.S. 493, 2 L.Ed.2d 1514;

Coolidge v. New Hampshire, supra, 403 U.S. 443, 29 L.Ed.2d

564; Gerstein v. Pugh, 420 U.S. 103, 43 L.Ed.2da 54 (1975);

United States v. Watson, 423 U.S. 411, 46 L.Ed.2d 598 (1976);

United States v. Santana, 427 U.S. 38, 49 L.Ed.2d 300 (1976).

The resolution of this issue by the District Court of

Appeal was based on the Florida Supreme Court decision in

State v. Perez, supra, 277 So.2d 778, which held that as a

matter of state law a warrantless arrest in the home was

valid even without a showing of exigent circumstances.

(Petitioner's brief on this point in the First District

Court of Appeal is made a part of the record accompanying

this petition at pages 57 through 81).

aL ee,

Se ee, ee

The Florida Supreme Court refused to consider

petitioner's request for certiorari review, finding

that it lacked jurisdiction (R-4). The cause is here

to review the decision of the First District Court,

finding that it was not necessary to either obtain a

warrant or demonstrate exigent circumstances for the

arrest of petitioner in his home.

REASONS FOR GRANTING THE WRIT

THE ISSUE OF WARRANTLESS ARRESTS WITHOUT

EXIGENT CIRCUMSTANCES IN NON-PUBLIC

PLACES HAS BEEN EXPRESSLY RESERVED BY

THIS COURT AND HAS GENERATED CONSIDERABLE

CONFUSION AMONG STATE AND FEDERAL COURTS.

PETITIONER'S CASE PRESENTS THIS VITAL

FOURTH AMENDMENT QUESTION IN A STRAIGHT-

FORWARD MANNER CAPABLE OF DECISIVE RE-

SOLUTION.

The facts of the petitioner's arrest are virtually

uncontradicted. The officers had talked with an alleged

perpetrator of the crime who confessed his involvement

and implicated the petitioner. This information was

learned by the officers at least one day prior to the

arrest. No effort was made to obtain an arrest warrant.

The officers went to the petitioner's home where several

persons were present, they entered the home after identi-

fying themselves, they found the petitioner asleep on a

sofa, they woke him with guns drawn, and then Placed him

under arrest.

The petitioner's counsel challenged the admissibility

of the statement obtained two hours after the arrest by

appropriate pre-trial motion and by argument at the hearing.

The State offered no evidence that a warrant had been ob-

tained and no justification for the failure to seek a warrant.

Petitioner contends that his confession, made within

two hours of his arrest, was the direct result of unconsti-

tutional custody and the trial judge erred in failing to

- 7 -«-

—

ment's argument that federal officers had the right to

Suppress it. Brown v. Illinois, Supra, 422 U.S. 590,

arrest a suspect upon probable cause in his home without

ie ee ee

45 L.Ed.2d 416. The custody was unconstitutional because

a warrant and said:

the warrantless arrest of the petitioner in his home vio-

"These contentions, if open

lated his right to be secure in his person and in his to the Government here, would

{ confront us with a grave consti-

home against unreasonable seizures h Fpetgnal question, namely, whether

. a Pee ay tie the forceful n ghttime entry into

Fourth Amendment to the United States Constitution made Son ET Beret a Person rea-

sonably Lieved within, upon pro-

applicable to the states by the Fourteenth. Mapp v. Ohio, bable cause that he had committed

a_felony, under circumstances where

367 U.S. 643, 6 L.Ed.2d 1081 (1961). . VOTESRE COG ee ees eer

warrant could not have en sought,

The issue is whether a warrantless arrest in the is consistent with the Fourth Amend-

ment. But we do not consider t s

home violates privacy interests r tected by the prohi- Soe tha seat presented by this case,

P Y P Y prohi for the record fails to support the

bition against unreasonable searches and seizures. There seat Mow advances by the Govern-

ment." (Emphasis added).

has never een a resolution of th . :

' n of that issue by this Court This same issue was again addressed, but not decided,

The Florida Supreme Court has held that a w.

P a warrantless arrest in a porti6n of the majority opinion in Coolidge v. New

of a suspect in his home is lawf . ’ i

P awful pursuant to § 901.15 (3) Hampshire, 403 U.S. 443, 29 L.Ed.2a4 564 (1971). Justice

Fla. Stat. (1975). State v. Perez, 277 So.2d 778 (Fla.

Stewart noted in Coolidge that it had been argued in dis-

1973), cert. den. 414 U.S. 1064.

, sent that police have the right to arrest upon probable

This Court has construed the Four n ; :

urth Amendment to cause without a warrant and without demonstrating exigent

mean that the Warrant Clause requires a search warrant , ;

circumstances and said:

prior to law enforcement agents searching premises even :

"If we were to agree with Mr.

though probable cause unquestionably exists. Agnello v. shunivens thee 3 nee ail dy

United States, 269 U.S. 20, 70 L.Ed. 145 (1925); Johnson v. | make a warrantless entry for the

purpose of making an arrest, and

United States, 333 U.S. 10, 92 L.Ed. 436 (1948); Jones v. | sehen ont esi ee

United States, 357 U.S. 493, 2 L.Ed.2a 1514 (1958). Ex- | aie can oo care

ceptions to the requirement of a warrant for searching | eet a ae Bt agen eo Bee

remises are limited to "onl = have read the Fourth Amendment out

3 St CONRAD ental of the Constitution. Indeed, if

lished and well-delineated exceptions". Katz v. United Mr. Justice White is correct that

it has generally been assumed that

States, 389 U.S. 347, 357, 19 L.Ed.2d 576, 585 (1967). phe Fourth Amendment is not violated Fourth Amendment is not violated

y the warrantless entry of a man's

Petitioner here presents the question whether a warrant house for purposes of arrest, it

might wise to re-examine the as-

should likewise be required, or an exigency demonstrated, when sumption.

a person is arrested in his home. This issue was mentioned, but , r :

not decided, in Jones v. United § .S. None of the cases cited by Mr.

fates, supra, 357 U.S m7 ay, 499, Justice White disposes of this

500, 2 L.Ed.2d 1514, 1519, when the Court responded to the govern- "grave constitutional question. '

The case of Warden v Hayden, supra,

where the Court elaborated a

"hot pursuit' justification

for the police entry into the

efendant‘s house without a war-

rant for S arrest, certain

stands by negative in lication

for the pro Sition that an arrest

warrant Fs required in the absence

of exigent circumstances. See

also Davis v Mississippi, 394 US

721, 728, 22 L Ed 2d 676, 681,

89 S Ct 1394; Wong Sun v United

States, 371 US, at 481-482, 9 L

Ed 2d, at 451." (Emphasis added)

403 U.S. at 480, 481, 29 L.Ed.2a

at 591.

This Court again took up the issue of warrantless

arrests in Gerstein v. Pugh, 420 U.S. 103, 43 L.Ed.2d 54

(1975), stating:

"Maximum protection of indi-

vidual rights could be assured

by requiring a magistrate's review

of the factual justification prior

to any arrest, but such a require-

ment would constitute an intoler-

able handicap for legitimate law

enforcement. Thus, while the

Court has expressed a preference

for the use of arrest warrants

when feasible, Beck v Ohio, supra,

at 96, 13 L Ed 2d 142; Wong Sun v

United States, 371 US 471, 479-

482, 9 L Ed 2d 441, 83 S Ct 407

(1963), it has never invalidated

an arrest supported by probable

cause solely because the officers

failed to secure a warrant." 420

U.S. at 113, 43 L.Ed.2d at 64, 65.

In a footnote to that passage, however, the Court

distinguished the general question of warrantless arrests

from the more specific issue present here of a warrantless

arrest in the home and said:

"The issue of warrantless arrest

that has generated the most con-

troversy, and which remains un-

settled, is whether and under

what circumstances an officer may

enter a suspect's home to make a

warrantless arrest." Gerstein v.

Pugh, supra, 420 U.S. at ’

tba. 24 at 65, fn. 13.

In United States v. Watson, 423 U.S. 411, 46 L.Bda.2a

598 (1976), five members of the Court held that a warrant-

less arrest was permissible, without exception, when the

~'30-e

arrest occurred in a public place. The limited scope

of the holding in Watson is emphasized by this comment

in the majority opinion:

"In the case before us the

Court of Appeals relied heavily,

but mistakenly, on Coolidge v New

Hampshire, 403 us 443, 480-481, 29

L Ed 2d 564, 91S Ct 2022 (1971),

for as we noted in Gerstein v Pugh,

420 US, at 113 n 13, 43 ZL Ed 2d 54,

95 S Ct 854, the still unsettled

question posed in that part of the

Coolidge opinion was ‘whether and

under what circumstances an officer

may enter a suspect's home to

make a warrantless arrest. ' Watson's

midda ublic arrest does not pre-

sent that question.” (Emphasis

added) 423 U.S. at 418, 46 L.Ed.2a4

at 605.

Although concurring in the Majority opinion, Justice

Powell took care to comment on what was not included in

the decision, saying:

"(Wle do not today consider or de-

cide whether or under what circum-

stances an officer lawfully may

make a warrantless arrest ina

private home or other Place where

the person has a reasonable ex-

pectation of privacy." 423 U.S.

at 432, 433, 46 L.Ed.2a at 614,

Justice Stewart noted in a concurring opinion that

Since the arrest in Watson was made with probable cause

"in a public place in broad daylight" the Court did not

decide "whether or under what circumstances an officer must

obtain a warrant before he may lawfully enter a private

place to effect an arrest." 423 U.S. at 433, 46 L.Ed. 2d

at 614.

Justices Marshall and Brennan dissented and Justice

Stevens did not participate.

The most recent pronouncement by this Court on this

issue again left open the question whether a warrant is

required to make an arrest of @ suspect at home in the

absence of exigent circumstances. United States v. Santana,

427 U.S. 38, 49 L.Ed.24 300 (1976). Seven justices joined

- ll -

“

in the opinion holding that a warrant was not necessary

under the facts presented. Again the Court reserved the

question of a warrantless arrest of a suspect in his |

home saying:

"While it may be true that

under the common law of property

the threshold of one's dwelling is

‘private,’ as is the yard surrounding

the house, it is nonetheless clear

that under the cases interpretin

the Fourth Amendment Santana was in

a ‘pu c* place. She was not in an

area where she had any expectation of

privacy. ‘What a person knowingly

exposes to the public, even in his

own house or office, is not a subject

of Fourth Amendment protection. '

Katz v United States 389 US 347,

351, 19 L Ed 2d 576, 88 S Ct 507

(1967). She was not merely visible

to the public but was as exposed to

public view, speech, hearing, and

touch as if she had been standing

completely outside her house. Hester

v United States, 265 US 57, 59, 68 L

Ed 898, 44 S Ct 445 (1924). Thus,

when the police, who concededly had

probable cause to do so, sought to

arrest her, they merely intended to

perform a function which we have

approved in Watson." (Emphasis

added) 427 U.S. at 42, 49 L.Ed.2a

at 305.

There were concurring and dissenting opinions, em-

phasizing the still undecided status of warrantless ar-

rests made in the home. Justice Stewart joined the con-

curring opinion of Justice Stevens, who pointed out that

the arrest was justified because of either exigent circum-

Stances or harmless error. Significant was the appearance

of Ms. Santana in the doorway of her home, an area not

considered within the ambit of reasonable expectation of

privacy. United States v. Santana, supra, 427 U.S. at 44,

45, 49 L.Ed.2d at 306 (Stevens, J., concurring).

Justice Brennan joined Justice Marshall's dissent,

reiterating the protest to the Court's earlier blanket

acceptance of warrantless arrests in public places an-

nounced in Watson. United States v. Santana, supra, 427

- 12 -

U.S. at 45-49, 49 L.Ed.2a at 396-309 (Marshall, Je,

dissenting).

Therefore, it appears that the Court has not

reached a majority decision on the right of police to

make a warrantless arrest of a suspect in his nome

absent a showing of exigent circumstances. Of the five

justices who concurred in the majority opinion in Watson,

Only Justice White has consistently maintained a position

allowing all arrests to be warrantless. Chimel v. Cali-

fornia, 395 U.S. 752, 770-783, 23 L.Ed.2d 685, 698-706

(1969) (White, J., dissenting) ; Coolidge v. New Hampshire,

Supra, 403 U.S. at 511-512, fn.1,29 L.Ed. 2a at 609-610.

(White, J., concurring and dissenting). Justices Marshall

and Brennan (as noted in dissents registered in Watson and

Santana) have consistently taken the contrary position.

Justice Stewart has expressed serious doubts about the

validity of warrantless arrests in the home, Coolidge v.

New Hampshire, Supra, 403 U.S. at 480-481, 29 L.Ed.2d at

591, and made Clear that the issue was not before the Court

in either Watson or Santana. Justice Stevens announced

@ position of neutrality on this point in Santana (and

took no part in Watson). Justice Powell has likewise

taken care to note specifically that the issue was not

being decided by Watson. Justices Blacknun, Rehnquist,

and the Chief Justice joined the Majority opinions in

both Watson and Santana, in which the question was reserved,

but have not otherwise expressed a preference.

It seems unquestioned, therefore, that eventually

this Court will have to decide if the Warrant Clause

applies to arrests in the home. Petitioner submits that

this case presents the Opportunity to make that choice.

By the momentum of prior decisions, and out of

respect for the legitimate privacy interests of the

-13-

citizenry, this Court should require police to obtain

warrants when making arrests in a home, absent exigent

circumstances. The Werrant Clause should apply in the

same fashion as if it were to be a search of other pro-

tected areas of privacy. Compare, e.g., Katz v. United

States, 389 U.S. 347, 19 L.Ed.2d 576 (1967) (warrant re-

quired to intercept private telephone conversations made

from a telephone booth); United States v. United States

District Court, 407 U.S. 297, 32 L.Ed.2d 752 (1972) (warrant

required for electronic surveillance of conversations even

though the purpose was "national security"); Vale v.

Louisiana, 399 U.S. 30, 26 L.Ed.2a 409 (1970) (warrant

required for search of home); Coolidge v. New Hampshire,

Supra, 403 U.S. 443, 29 L.Ed.2d 564 (warrant required to

search car on private property); United States v. Chadwick,

433 U.S. 1 , 53 L.Ed.2d 538 (1977) (warrant required to

search double locked footlocker seized at time of valid

warrantless arrest); Marshall v. Barlow's Inc., U.S

» 56 L.Ed.2d 305 (1978) (warrant required to search

business premises for safety hazzards notwithstanding act

of Congress authorizing warrantless searches); Michigan v.

Tyler, U.S. , 56 L.Ed.2d 486 (1978) (warrant required

to reenter and search arson scene after original phases

of investigation terminated) ; Mincey v. Arizona, U.S.

» no. 77-5353 (June 21, 1978) (rejecting an automatic

exigency based on an asserted "murder scene exception" to

the warrant requirement) ; c.f., Stanley v. Georgia, 394

U.S. 557, 22 L.Ed.2d 542 (1969) (the State has no power to

seize obscene material from the privacy of the home); with,

e.g., Carroll v. United States, 267 U.S. 132, 69 L.Ed.2d

543 (1925) (warrant not required to seize contraband from

moving vehicle); Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d

419 (1970) (warrant not required to search vehicle at police

= 14 «

Station after its seizure on the highway, a decision

Whach did not obviate the neceagity for a Warrant to

Search the more privately held possession of a foot locker

seized under Similar circumstances in Chadwick); Cardwell

Vv. Lewis, 417 U.S. 583, 41 L.Ed.2d 325 (1974) (warrant not

required to search exterior of car parked on public pro-

perty).

It is evident from this comparison that as the ex-

pectation of privacy increases, there is a corresponding

increase in the need to apply thé Warrant Clause as an

adjunct to probable cause by requiring advance judicial

permission for the intrusion.

Moreover, the explicit language of the Court in

prior decisions evinces a recognizable tendency to offer

greater protection from police interference to persons

in their homes and other private areas (as opposed to

more public places) by the insulation of the Warrant Clause.

For example, in Agnello v. United States, 269 U.S. 20,

33, 70 L.Ed. 145 (1925), the Court said:

"Belief, however well founded,

that an article sought is con-

cealed ina dwelling house,

furnishes no justification for

a search of that place without

a warrant. And such searches

are held unlawful notwithstanding

facts unquestionably showing

probable cause."

In Cooper v. California, 386 U.S. 58, 59, 17 L.Ed.2ada

730, 731 (1967), the Court said:

"Searches of cars that are

constantly movable may make the

search of a car without a warrant

a reasonable one although the re-

sult might be the Opposite inthe

search of a home, a store, or

other fixed piece of property."

In United States v. United States District Court, supra,

407 U.S. 297, 32 L.Ed.2d 752, the Court stressed the import-

ance of the Warrant Clause in these terms:

-15-

"Though the Fourth Amendment

speaks broadly of ‘unreasonable

searches and seizures,' the defini-

tion of 'reasonableness' turns, at

least in part, on the more specific

commands of the warrant clause.

Some have argued that '[t]he rele-

vant test is not whether it is

reasonable to procure a search

warrant, but whether the search

was reasonable,' United States v

Rabinowitz, 399 US 56, 66, 94 L

Ed 653, 660, 70 S Ct 430 (1950).

This view, however, overlooks the

second clause of the Amendment.

The warrant clause of the Fourth

Amendment is not dea anguage.

Rather, it has been ‘a atest

part of our constitutional law

for decades, and it has determined

the result in scores and scores of

cases in courts all over this coun-

try. It is not an inconvenience

to be somehow "we against

the claims of lice efficiency.

It is, or shoals be, an important

working part of our machinery of

government, operating as a matter

of course to check the "“well-

intentioned but mistakenly over-

zealous executive officers" who

are a part of any system of law

enforcement.'" (Emphasis added)

Id. at 765. (Footnote omitted).

* * *

"The Fourth Amendment does not

contemplate the executive officers

of Government as neutral an s-

interested magistrates. Their duty

and reaponktet ites is to enforce

the laws, to investigate, and to

prosecute. Katz v United States,

supra, at 359-360, 19 L Ed 2d at

586, 587 (Douglas, J., concurring).

But those charged with this inves-

tigative and prosecutorial duty

should not be the sole judges of

when to utilize constitutionally

sensitive means in pursuing their

tasks. The historical judgment,

which the Fourth Amendment accepts,

s that unrev executive dis-

cretion ma leld too readily to

ressures to obtain incriminating

evidence and overlook potentia. os

invasions of privac rotect

speech." (Emphasis addsd) Wectnetes

omitted) Id. at 766.

* * *

"It is true that there have been

some exceptions to the warrant re-

o jé.«

a nn a re a at

quirement. Chimel v California,

395 US 752, 23 L Ed 2d 685, 89 §

Ct 2034 (1969); Terry v Ohio, 392

US 1, 20 L Ed 24 889, 88 S Ct 1868

(1968); McDonald v United States,

335 US 451, 93 L Ed 153, 69 S Ct

191 (1948); Carroll v United States,

267 US 132, 69 L Ed 543, 45 $ Ct

280, 39 ALR 790 (1925). But those

exceptions are few in number and

carefully delineated, Katz, supra,

at 357, t5 L Ed 2a at 585; in

eneral, they serve the legitimate

needs of law enforconnet ope

to protect their own well-bein

and preserve evidence from destruc-

tion.

Even while carving out those

exceptions, the Court has reaffirmed

the principle that the ‘police must,

whenever practicable, obtain ad-

vance judicial approval of searches

and seizures through the warrant

procedure,' Terry v Ohio, supra,

at 20, 20 L Ed 2d at 905; Chimel v.

California, supra, at 762, 23 L

Ed 2d at 693." (Emphasis added)

Id. at 767.

In Cardwell v. Lewis, supra, 417 U.S. 583,

key to the warrant requirement, saying:

"Rather than property rights, the

primary object of the Fourth Amend-

ment was determined to be the

protection of privacy. Id., at

305-306, 65 L Ed 647. And it had

been said earlier, 'The decisions

of this Court have time and again

underscored the essential purpose

of the Fourth Amendment to shield

the citizen from unwarranted in-

trusions into his privacy.'" Id.

at 334.

* * *

"At least since Carroll v United

States, 267 US 132, 69 L Ea 543,

45 S Ct 280, 39 ALR 790 (1925),

the Court has recognized a dis-

tinction between the warrantless

search and seizure of automobiles

or other movable vehicles, on the

one hand, and the search of a home

or office, on the other. Generally,

less stringent warrant requirements

have been applied to vehicles." Id.

at 334.

* * *

"There is still another distin-

-17«

41 L.Ed.

325, the Court again noted the priority of privacy as a

guishing factor. 'The search of

an automobile is far less intru-

sive on the rights protected by the

Fourth Amendment than the search

of one's person or of a building.'

Almeida-Sanchez v United States,

413 US 266, 279, 37 L Ed 24 596,

93 S Ct 2535 (1973) (Powell, J.,

concurring). One has e lesser

expectation of privacy in a motor

vehicle cause its function is

transportation and it seldom

serves as one's residence or as

the repository of personal effects."

Id. at 335 (Emphasis added).

In South Dakota v. Opperman, 428 U.S. 364, 367, 368,

49 L.Ed.2d 1000, 1004 (1976), the Court said:

"This Court has traditionally

drawn a distinction between auto-

mobiles and homes or offices in

relation to the Fourth Amendment.

Although automobiles are '‘effects'

and thus within the reach of the

Fourth Amendment, Cady v Dombrowski,

413 US 433, 439, 37 L Ea 2a 706, 93

S Ct 2523 (1973), warrantless ex-

aminations of automobiles have been

upheld in circumstances in which

a search of a home or office would

not.

ca * *

Besides the element of mobility,

less rigorous warrant requirements

govern because the expectation of

privacy with respect to one's

automobile is significantly less

than that relating to one's home

or office." (Footnotes omitted).

Therefore, although the point has not been explicitly

decided by the Court, petitioner contends that he was pro-

tected by the Fourth Amendment from being arrested in his

home by police who failed to obtain a warrant or explain

why they did not. "Physical entry of the home is the

chief evil against which the wording of the Fourth Amend-

ment is directed. . .." United States v. United States

District Court, supra, 407 U.S. at 313, 32 L.Ed.2d at 764.

The twin concepts stressed in Katz v. United States, supra,

389 U.S. 349, 19 L.Ed.2a4 576, that the Amendment protects

people not places and that it applies when there is a

- 16 «

reasonable expectation of privacy, coalesce to shield

petitioner from the unilateral action taken by the

police here.

A better example of abuse could hardly be im-

agined as the officers here, acting only on hearsay

from an accomplice, invaded a private dwelling, awakened

the sleeping petitioner with drawn guns, and spirited

him away for questioning without bothering first to seek

the authority and neutral judgment of a magistrate.

This bypassing of the judiciary when making such a sub-

stantial assault on the Privacy of a person in his home

is intolerable, and should be found to violate the right

to be free from unreasonable searches and seizures.

To underscore the need for a warrant here, it is

Significant that after the arrest the police first brought

the petitioner to the Sheriff's Office for questioning,

rather than bringing him directly to a magistrate for the

determination of probable cause and the advisement of

rights. This action undercuts the assumption made in

Chimel v. California, Supra, 395 U.S. 752, 23 L.Ed.2da

685, by Mr. Justice White in arguing that warrants were

unnecessary when he said that a warrantless arrest "demands

the prompt bringing of the person arrested before a judi-

cial officer, where the existence of probable cause is to

be inquired into" and that the arrested person would be

provided "almost immediately with a lawyer and a judge".

Id. at 782, 783, 23 L.Ed.2d at 705, 706. %

Furthermore, the absence of prior judicial approval

for the arrest here casts serious doubt on whether the

police really had probable cause. The only evidence

against petitioner at trial was his own confession. The

supposed "informer" took the Fifth Amendment at trial

(R-54).

o- 10s

Under these circumstances it is virtually impossible

to assess after the fact the actual information, and the

indicia of its reliability, known by the police prior to

petitioner's arrest and confession. The floundering testi-

mony of Officer Terry in explaining the facts known by him

and other officers highlights the need for judicial deter-

mination of probable cause before, and not after, the

arrest. In Beck v. Ohio, 379 U.S. 89, 96, 13 L.Ed.2d 142,

147 (1964), the Court commented on this same point, saying:

"An arrest without a warrant by-

passes the safeguards provided by

an objective predetermination of

probable cause, and substitutes in-

stead the far less reliable proce-

dure of an after-the-event justi-

fication for the arrest or search,

too likely to be subtly influenced

by the familiar shortcomings of

hindsight judgment."

Because the police in the case now before the Court

failed to obtain prior judicial approval before arresting

petitioner in his home, when there was no showing of an

excuse for not obtaining an arrest warrant, the arrest was

invalid under the Fourth Amendment. Petitioner's confes-

sion was the direct result of this unconstitutional arrest

and should have been suppressed.

Finally, petitioner urges this Court to accept juris-

diction because of the importance of the issue and the need

for its authoritative resolution. Several circuit court

of appeals’ opinions have favored the rule that warrants

should be required for arrests in non-public areas. E.g.,

United States v. Reed, 572 Fed.2d 412 (2a Cir. 1978);

United States v. Killebrew, 560 Fed.2d 729 (6th Cir. 1977);

Dorman v. United States, 435 Fed.2d 385 (D.C. Cir. 1970)

(en banc). The New York Court cf Appeals recently has

taken a contrary position, -nus engendering conflict be-

tween the state and federal ccurts within the jurisdiction

of the Second Circuit. Peonle v. Payton, NE2d ’

- 20 «

N.Y. Ct. Appeals, case no. 259, July 11, 1978, 23 cr.

L. Rp. 2419. The Florida Supreme Court's decision in

State v. Perez, supra, places this State's rule at odds

with that being followed in some federal courts. With

the passage of time other jurisdictions will have to

decide the question, anticipating the inevitable ruling

by this Covit. Those jurisdictions not aligning them-

selves with the side ultimately to prevail will be af-

fected adversely by adoption of a rule which overthrows

theirs. Assuming that the rule adopted requires a warrant,

reasonable arguments for retroactivity could be made,

since the holding should certainly have been anticipated.

Cf., Stovall v. Denno, 388 U.S. 293, 18 L.Ed.2d 1199 (1967).

Some convictions might be lost because of the passage of

time. To avoid the attendant detrimental consequences of

uncertainty, this Court should take jurisdiction here to

answer the question which has so often been reserved;

whether a warrant is constitutionally required for the

arrest of a suspect in his home, absent exigent circum-

stances.

Respectfully submitted,

Counsel for Petitioner

wo Ma

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

cAsE NO. “W-SYO3 | RECEIVED |

SEP 2 1 1978

OFFICE OF THE CLERK

SUPREME COURT. U.S

VINCENT ANTHONY BUSH,

PETITIONER,

STATE OF FLORIDA,

RESPONDENT,

PETITION FOR WRIT OF CERTIORARI

eT RST OTS A er Bee Bhi

On cw I ln

COUNSEL FOR PETITIONER COUNSEL FOR RESPONDENT

Se oe |

INDEX TO RECORD

ITEM

OPINION OF THE FIRST DISTRICT COURT OF APPEAL,

STATE OF FLORIDA

NOTICE OF CERTIORARI TO THE SUPREME COURT OF FLORIDA

ORDER OF THE SUPREME COURT OF FLORIDA DENYING

CERTIORARI

INFORMATION FILED IN THE CIRCUIT COURT OF DUVAL COUNTY

MOTION TO SUPPRESS STATEMENT

AMENDED MOTION TO SUPPRESS

EXCERPTS FROM TRANSCRIPT OF TRIAL

ORDER OF THE CIRCUIT COURT DENYING MOTION TO SUPPRESS

JUDGMENT AND SENTENCE OF THE CIRCUIT COURT

EXCERPTS FROM BRIEF OF APPELLANT FILED IN THE

FIRST DISTRICT COURT OF APPEAL, STATE OF FLORIDA

CERTIFICATE OF SERVICE

evidence. Appe* tant cites Mairnest v. State, So. 2d ’

er,

2 ey

FIRST DESTRICT, STATE OF PLORIDA

i Fla. Supreme Court Case No. 51,49), opinion filed August 31, 1977

JANUARY ‘ICRM, A. D. 1978 ; L

rehearing denied December 6, 1977. There, the Supreme Court con-

VINCENT ANTHONY BUSCH, ) , Strned §775.037(2), Florida Statutes (1975), which provides hat

Appellant, ) NOT FINAL UNTIL TINE EXPIRES TO any person who is convicted of robbery and who had in his posses-

FILE RENEARING PETITION AND : ;

vs. ) DISPOSITION THGREOF IF FILED. Sion a firearm shall be sentenced to a minimum tern of inprisonnent

STATE OF FLORIDA, ) CASE NO. GG--445 of three years. The court held that the three-year minimum term

Appellee. ) under the statute applied only to physical possession of a firearm

SE Nt IPRA 0 Nia i i Sia: by a defendant rather than constructive possession. Here, as in

Opinion filed February 27, 1978. EFarnest, the appellant, who did not have a firearm, was convicted

An Appeal from the Circuit Court of Duval County. as an aider and abettor of the crime in which he participated--

Dorothy H. Pate, Judge.

robbery in which the offender carried a firearm or other ceadly

Michael] J. Minerva, Public Defender, for Appellant.

weapon (§312.13(1) and (2) (a), Florida Statutes (1975)], rather

Robert I. Shevin, Attorney General; and ‘Raymond L. Narky,

Assistant Attorney General, for Appellee. than robbery in which the offender carried no firearm, deadly

weapon, or other weapon (§312.13(1) and (2) (c), Florida Statutes

. (1975)}. iiere, unlike in Earnest, appellant was not sentenced to

t minimum three-year term of imprisonment; thus, we are not concerned

with §775.087(2).

F The Supreme Court in Earnest did not in any way abrogate

§777.9011, Florida Statutes (1975), dealing with principals in the

first degree. ‘That statute provides that whoever aids, abets,

counsels, hires or otherwise »wrocures an offense to be comniitea

McCORD, Chief Judge.

and such offense is committed is a principal in the first Gegree

Appellant contends first that the trial judge should have

and may be charged, convicted and punished as such whether he is

Suppressed his confession because it was the result of an arrest

Pi ‘

Or is not actually or constructively present at the comnission

of appellant in his home without a warrant and with no showing by

ef such offense. That statute makes an aider and abettor a

the state of exigent circumstances that would have excused the

principal in tle first degree to the crime he aids and abets.

absence of an arrest warrant. The trial court was correct in

ere, the evicence clearly shows that appellant was present aiding

denying appellant's motion to suppress. See State v. Perez,

/ g ie a . . . . . . .

and abetting his accomplice in the accomplice's comnaission of the

277 So.2d 778 (Fla. 1973). Appellant next contends that the

| crime of robbery with a firearm. Thus, appellant is guiity as a

trial court erred by instructing the jury that he could he found

principal in the first deyree of that crime rather than the crime

guilty of rebbery committed while carrying a firoarm when the

ef robbery in which the offender carried no firearn, deadly weapon,

evicence conclusively estabiisheé that the firearn was in the - :

Or other weapon.

possession of appellant's accomplice and that the Judgment ane

: APPLIED.

sentence for armed robbery are, therefore, not supported by the /

BOYER, J., and McLANE, RALPH M., Associate Judge, CONCUR.

— an

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT OF FLORIDA

VINCENT ANTHONY BUSH,

Petitioner,

Vv. DCA DOCKET NO. GG-445

STATE OF }LORIDA, SUPREME COURT CASE NO.

Respondent.

NOTICE

NOTICE IS HEREBY GIVEN that Vincent Anthony Bush,

petitioner, invokes the certiorari jurisdiction of the

Supreme Court to review the decision of this Court rendered

February 27, 1978.

The decision is in direct conflict with a decision of

the Supreme Court of Florida on the same question of law.

Jurisdiction of the Florida Supreme Court is invoked pursuant

to Article V, Section 3(b) (3) of the Florida Constitution

“and Florida Rule of Appellate Procedure 9.030(a) (2) (A) (iii).

Petitioner has been adjudged insolvent and is represented

_ by appointed counsel.

Respectfully submitted,

Vi4 be ca Le

| oA c — a

MICHAEL J. MINERVA

Public Defender /

Second Judicial Circuit

Attorney for Petitioner

CERTIFICATE OF SERVICE

I KEREBY CERTIFY that a copy of the foregoing has been

hand delivered to Mr. Raymond L. Marky, Assistant Attorney

General, The Capitol, Tallahassee, Florida, and a copy has

been mailed to the petitioner, Mr. Vincent Anthony Bush,

#054109, Cross City Correctional Institution, P.O. Box 1500,

a i .

Gay of March, 1978.

* p

ALLL ill.

MICHAEL J. “MINERVA 7 ~~~

, Fa

Cross City, FL, this A

nee gee —_ser nee eRe ee oe

IN THE SUPREME COURT OF FLORIDA

FRIDAY, JUNE 30, 1978

VINCENT ANTHONY BUSH, ae

iti **

Petitioner, CASE NO. 53,689

— District Court of Appeal,

STATE OF FLORIDA, ae First District

Respondent. ae GG-445

on jurisdictional briefs and portions of the record deemed necessary

to reflect jurisdiction under Fla.

to the

This cause having heretofore been submitted to the Court

Court that it is without jurisdiction, it is ordered that

certiorari is denied.

No Mction for Rehearing will be entertained by the Court.

See Fla. R. Apo. P. 9.330(d).

OVERTON, C.J., ENGLAND, SUNDBERG and ALDERMAN, JJ., Concur

ADKINS, BOYD and HATCHETT, JJ., Dissent

A True

Sid J. White

Clerk,

Copy Cc

cc: Hon. Raymond E. Rhodes, Clerk

Hon. S. Morgan Slaughter, Clerk

Hon. Dorothy H. Pate, Judge

Michael J. Minerva, Esquire

Raymond L. Marky, Escuire

Supreme Court

JUL 7 ~ 1978

R. App. P. 9.120, and it apvearine

+ du oh: Gi. . Gonet

af the Fanriis Audi Circuit af 2

im can fag

Che Gounty of Rival, State af Florida

Fall Term, seventy-six

STATE OF FLORIDA

vs ROBBERY

TONY RICIIARD MILLER, ood

VINCENT ANTHONY Bus’ li, also known as

Vincent Anthony Bush

ComnOs "PP PPLE

Slarida DIVISION:

S - CF

INFORMATION FOR

IN THE NAME OF AND RY ALi? HORITY OF THE STATE OF FLORIDA.

ED AUSTIN, State Attorney for the Fourth Judicial Circuit of the State of Florida, in and for Duval

County charges that TONY RICHARD MILLER and VINCENT ANTHONY BUSCH, also known

as Vincent Anthony Bush, on the 27th day of June, 1976, in the County of

Duval and State of Florida, did by force, violence, assault or putting

in fear, take away from the person or custody of MAE CATES, certain

property, to-wit: money of the value of more than One Hundred Dollars

($100.00), the property of Dr. William Frank McNabola, trading and

doing business as HEART OF JACKSONVILLE MOTOR HOTEL, INC., a corporation,

and in the course of committing said Robbery, carried a firearm, to-wit:

a pistol, and while ; rpetrating the offense or attempting to perpetrate

the offense had in their possession a firearm or destructive device,

to-wit:

a pistol, cont:ary to the provisions of Sections 812.13 and

775.087, Florida Statutes.

STATUTE NO; 812.13 & 775.087

STATE OF FLORIDA

COUNTY OF DUVAL

Personally appeared before ne,

F. Joseph DuSray a

Assistant State Attor ney, for the Fourth Judicial

Circuit of the State of Florids jp and for Duval

County, who being first duly swors, says that the

aleyations as set forth in the fo: reyeing informas 7

tion are based upon facts that have bora eworr i to

‘s true, and whieh, if truce, would oo: stitere the

offense therein char; ged, and that Proscention

Ss instituted in ood faith ard | * certifies

hat testimony under oath bh. ved from

ve Fecaceabie Witness(. s S) for t) ooffonse Sworn to

Pabseribed be i) me this. et day of

js “naar . oe ‘7. :

) 4, ahs pice 7 Oe

vw Pee °

ED AUSTIN, STATE ATTORNi-Y

FOURTH JU DIC IAL CIRCUIT OF $ “LORIDA

IN AND FOR DUVAI NG ae

ai et 22 @e

. SUAU GHP eh ck of ut

Cour), Fourth Judn ul Cireuit of Plorid lis cd

Ooval County, and Clerk o the Couaty

Court, Daval County, Florida. :

MILEDTHIS J N a) Ms

i a PNG -

oY DEPUPY OLEnK YO PoOMmaa2.

RW rc The P= EOL

kt AD VARs: 77--858--1

TRMs 1/24/77

Cun YO Bnd eSTEes

VAB: 1/24/77

Q-\

Q-7 IN THE CIRCUIT COURT, IN

AND FOR DUVAL COUNTY,

IN THE CIRCUIT COURT, IN FLORIDA,

AND FOR DUVAL COUNTY, 3

FLORIDA, CASE NO: 77-2$9-Cr

DIVISION: S-CF

CASE NO: 77-299-CF

DIVISION: S-C STATE OF FLORIDA,

STATE OF FLONIDA, Plaintiff TFILED

FILE

Plaintiff, vs

a! ai 1b waren APR 2 ]

aeaacenial TONY RICHARD MILLER and ! i. heii

TORY RIGHARD alebaie al We aaa a goign BUSCH, — ony (mn cmene Hey eA

VINCENT ANTHONY BUSCH, I COs! VIER SOO REONS HS VINCENT ANTHONY boi carve | POS, a so ey

Also Known As, VINCENT ANTHON shane ey

BUSH

) Defendants.

a nck cccnmece ence munmecoceemee me ecenincnecas

wn ksi th aoe Ao enn meme nn enn manne cnmnnemnccee | AMENDED MOTION TO SUPPRESS

MOTI |

ON TO SUPPRESS Comes now the Defendant, VINCENT ANTHONY BUSCH, Also Known

Comes now the Defend | y

e endant, VINCENT ANTHONY BUSH, by and As, VINCENT ANTHONY BUSH, by and through his undersigned Attorney,

through hi $j : ,

rough his undersigned Attorney, and moves the Court to Suppress the pursuant to the applicable Rules of Criminal Procedure and moves the

statement signed by the Def t

g y the Defendant, VINCENT ANTHONY BUSH, on Court to suppress the written statement and for grounds for said Motion

January lth, 1977, and f : ,

y nd for grounds for said Motion would show that would show that the Defendant was arrested on January lith, 1977, without

said statement is unconstitutional and was not freely and voluntarily a warrant at approximately 9:30 O'Clock A.M,, that morning. That he was

given nor is the staterfient

: erment a complete and accurate resume of the asleep in his home when officers entered and on being wakened, there were

statement of the Defendant, VIN

” CENT ANTHONY BUSH. two (2) officers of the Jacksonville Sheriff's Office with guns pointed directly

at his head at a distance of less thantwo yards. That he was taken from his

home to the Duval County Jail by these and other officers and at 1:20 O'Clock

I DO HEREBY CERTIFY that a f i

copy of the foregoing has been P.M,, that afternoon, signed a statement which was wriiten for him by one’

furnished to Michael R. Weatherby, Esquire, State Attorney's Office, 3 of the officers who had been questioning him

Duval County Courthouse, Jacksonville, Florida, by Hand Delivery on | 1. The statement was illegally obtained without a warrant.

thi . f April, 1

1s. ~~ Gay of April, 1977.

ff, 2. There was no probable cause for his arrest.

3. The officers should have taken him to a magistrate or other

sites oe ) judicial officer.

° "at

“FL EL ARin w i. Gato 4. There was no crime committed in the presence of the officers

Attorney for ond ER Vincent i ;

Anthony Bush nor did they have probable cause to believe that the Defendant had committed

137 E. Forsyth Street ~ Suite 316

Jacksonville, Florida 32202

Telephone: (904) 355-2931

a crime.

5. Said arrest and written statement was unlawful, void and in

violation of Defendant's constitutional and legal rights.

Attorney for Defendant,

Vincent Anthony Bush

137 E. Forsyth Street, Suite 316

, Jacksonville, Florida

Telephone:

I HEREBY CERTIFY that a copy of the foregoing Amended Motion

to Suppress has been furnished to Michael Weatherby, Esquire, State

Attorney's Office, Duval County Courthouse, Jacksonville, Florida, by

va cea ia

*Hand Delivery, onthisOY day of April, 1977.

(04) 355-2931

FY CLYDE REESE

Attorney for Defendant,

Vincent Anthony Bush

137 E. Forsyth Street, Suite 316

Jacksonville, Florida 32202

Telephone: (904) 355-2931

bee —

THE COURT: All right, court will be

in recess until 1:30.

(Noon recess.)

(Jury absent.)

THE COUrT: Bring Mr. Busch out.

(Defend: 1t present.)

THE COUR:: The Jury was excused until

2:30 so I wou’d not anticipate they wv auld

be back.

All right, Gentlemen, the Jury, of

course, is in recess until 2:30 and at this

time it would be appropriate to heve ‘he

motion to suppress.

MR. REESE: I think so.

MR. WEATHERBY: I think thet \."1d be

the thing to do at this time, yes, ~:'«.

MR. REESE: Your Honor, we hed a witness

on the stand. It seems to me his tevil tony

should be coupleted. I don't know whit be

is going to say, but subject to the “ourt's

ruling, it seems to me we ought to fisish it |

and have hia testify or not.

MR. WEATHERBY: Well, we don't have a

Juxy at the moment, Jucge.

MR. REESE: True, but I was coing to

MARIE SPLANE

FE CIAL COUR? RLPORTER

JACHSONVALE FLOR@DE 322202

ask for a proffer on his testimony. I

don't know if I have got the right to do it.

THE COURT: As to Mr. Winters?

MR. REFSE: Yes, to see what he's guing

to testify t>. There's such a conflict

here, it secs to me, outside the province

of the Jury «hat we ought to find out whethe

or not there was an agreement, what it was

and all that kind of business.

MR. WEATHERBY: Your Honor, I don't

intend to ask Mr. Winters any further

questions, I don't. think.

THE COURT: You don’t intend to ask

him any questions?

MR, WEATHERBY: Any further than what

has transpired already, at this point,

anyway.

THE COURT: All right, it would appear

to the Court that the basis has been laid

sufficient for the motion to suppress to be

teken up at this time.

All right, Mr. Weatherby, on the notion

to suppress do you have some evidence to

present? ~*

MR. VEATHCORBY: Yes, Your Fonor.

MARIE SPLANE

CRFICIAL COUR” RLPOCRTER

JACHKSONVALE FLORIDA b0202

R-10

~ ss

Detective Terry ones S Yoir Howor,

Detective Terry has not been sworn, but I

have advised him that the rule of secrecy

has been invoked.

THE COURT: Fine.

I know that you are familiar with that

rule, right?

MR. TERRY: Yes, ma‘am.

THE COURT: Would you raise your right

hand and be sworn by the Clerk?

(Witness sworn by Clerk.)

THE COURT: You may proceed.

MR. WEATHERBY: Thceak you, Your ionor.

J. W. TERRY, JR.,

was called as a witness on behalf of the State, and

after having been first duly sworn, then testified

as follows:

DIRECT EXAMINATION

BY MR. WEATHERBY:

Q Would you state your name and place of

eoployment?

A J. W. Terry, Jr., employed by the Office

of the Sheriff, Duval County.

MARIE SPLANE

OFFICIAL, COURT REPORTER

JACKSONVILLE FLOMIDA 37207

$93 |

ors ~—

Q And how long have you been so employed,

A Approximately seven and a half years.

Q What is your present duty assignment, sir?

Investigator in detective division.

Q Consistent with those duties, did you have

occasion -- well, let me ask you this: Were you so

employed in that division on or about the lith of

January, 1977, sir?

A Yes, sir, I was.

Q In what particular division were you

assigned at that time?

A I was assigned to robbery detail.

Q On that date, Detective Terry, did you have

occasion to come in contact with a one Vincent Anthony

Busch?

A Yes, I did.

Q Do you see that person in the Courtrooa

today?

A Yes, sir.

Q Where is that person, sir? Would you

describe what he’s wearing?

4 Sitting right at the table out there

(indicating). He has on a white shirt.

MR. WEATHERBY: Could the record

MARIE SPLANE

OFFICIAL COURT REPORTER |

ACRSONVILLE FLORIDA 37202

R-12

ae. oem

Ro ————

x ee ; 34

~ P

reflect he has identified the defend int,

Your Honor?

THE COURT:

BY MR. WEATHERBY:

Q What were the circumstances you firs’ came

into contact with Mr. Busch on that day, Detec ive

Terry?

A IT assisted Detective Kearney of robb: -y

detail and Bradley of the homicide detail going to

pick Mr. Busch up in the morning. I think it was ia

the late morning hours, 10:30, 11:00 o'clock, .«.1e-

where around there.

Q All right, sir. And where were you * ooking

for Mr. Busch?

A I _was advised by Detective Kearney that

they had information that the defendant vas favolved

oo oo

———

OTRO Naas s

LL CL tact 4 tl

ina A cobbery of the Heart of Jacksonville Motel.

Q And did you come in contact vith Mr. Tusch

at chat time?

A Yes, sir, I did.

Q Where was that, sir?

A He was at a residence. I don't recall the

exact address without referring to a form that I kad

obtained — Mr. Busch later, but he was asleep on

the couch in the living room and ve arrested Mr. Busch

MARIE SPLANE

CFEIC AL COURT SEE CKTER

ACASONVILE FL Ome YD

R-13

The record will so -eflect. .

ee | | 56

at this time. He was transported to the robbery 1 advised him he was under arrest,

office. . 2 Q Did you at any time have occasion to use

Q Would you describe the circumstances of i 3 your weapons while at that residence?

the arrest, Detective Terry? What happened? | 4 A I believe the weapons were drawn.

A What do you mean? | 5 Q Why was that?

Q Well, what happened? You went to the 6 A Well, due to the nature of the arrest. It

house, you knocked on the door. What happened next? | 7 was a serious felony.

A We went to the house. We identified our- | 8 Q Did you have occasion to return your werpons |

selves. We were admitted to the house, went in -- | 9 | to the holsters?

I assume it was the living room. 10 A Yes, sir.

Q Vho answered the door? | nN Q Approximately at what point?

A I don’t recall who it was, sir. There was | 12 A After we saw there would be no x is). -2

a nucber of people there in the house. | 13 | to the arrest and which there wasn't. At tits i's

Q All right, sir. How did you identify 4 | Mr. Busch was taken to the <= or brought down to the

yourselves? 15 Courthouse to the robbery office.

A By showing our badges, told them that we 16 Q Did you place him in handcuffs?

were police officers from the Sheriff's Office. 17 A Yes, sir.

Q Gin you in uniform or in civilian clothing? 18 Q And how was he transported to the robbery

A We were in civilian clothes. | 19 | office?

Q Did you have a uniformed officer with you? 20 | A I believe Detective Kearney and I tvauas-

A Yes, sir, we did. I'm not sure whether 2 | ported him in our vehicle.

he was at the front door or not, but we went into the 22 | Q And at some point that morning -- do you

house and Mr. Busch was, like I say, asleep on the 23 | renember approximately what time you arrived at the

couch. We woke him up, advised him who we vere, 24 | robbery office?

identified ourselves to him in the ease manner, | 25 A It was shortly after 11:00 o'clock, sir.

ya | Boesye tt ocon

R=14

R-15

~ ‘eal

Q And where is the robbery office, Detective

A It’s on the fifth floor of the Courthouse.

Q Will you describe that office, sir?

A Yes, s’r. You enter the main room and

there are two ot'er rooms. One is a room occupied

by the supervisors, lieutenant and the sergeant, and

the other is an ‘nterview room.

Q Approximately how large a room is it?

The interview room?

Yes.

I'd say approximately twelve by fiftecn.

I'm sorry?

Twelve by fifteen, approximately.

Co > & > £& >

What is the nature of the light in that

room, Detective Terry?

A It's average room lighting. The lights

are in the ceiling. You have windows in the room.

Q Fluorescent or incandescent like we hive

in the Courtroon?

A Yes, sir.

Q All right. When you arrived in the Courte-

house, did you go immediately to the robbery office

with Mr. Busch?

A Yes, sir.

MARIE SPLANE

CPFICIA. COURT REPORTER

SSONVILLE FLONIDA 22202

Q Did you make any stops on the way?

A No, sir.

Q When you got to that office -- well, let

me ask you this: Did you accompany Mr. Busch?

A Detective Kearney and I both. I also

believe Detective Bradley was present.

Q All right, sir. And you went to that office,

During the trip from the residence where you appre- |

hended Mr. Busch till the time you got to the Court-

house, were you in Mr. Busch's presence?

A Yes, sir.

Q I mean, did you ride in with hia?

A Yes, sir, to the best of my knowlcd, i, I

believe that Detective Kearney and I transported hia

in our vehicle so we were with him all the time.

Q All right, sir. And the three of you then

went up or came up to the robbery office after you

got to the Courthouse, is that right?

A Yes, sir.

Q All right. What first transpired when

you arrived at the interview room?

A Mr. Busch was advised of his constituticral

rights, Miranda warnings, a standard rights form, and

he admitted or he stated that he understood his

rights, and the rights form was witnessed by myself,

MARIE SPLANE

fe Cay COURT ALPORTER

ACHRSEONV LAE FLOM De s2rce

Detective Kearney and Detective Bradley.

Q All right, sir. Was Mr. Busch still in

handcuffs at this tiae?

A To the best of ay kno ledge, the handcufts

were removed once he was in the interview room.

Q All right. Detective Terry, you said you

advised hia of his rights using : particular form and

that that was signed. What did you do with that form

after Mr. Busch signed it?

A The form was placed in a case file that

Detective Kearney had filed concerning the case.

Q All right, sir. Pursuant to instructions

from me, did you have occasion to bring that fora

with you today?

A Yes, sir, I did.

Q Would you please produce it?

(Witness producing document.)

Q All right. This is the form that you

utilized on the llth of January?

A Yes, sir.

Q And what you just told the Court about?

A Yes, sir.

Q How do you know that this is the same fora,

sir?

A I recognize the form by my signature at the

MARIE SPLANE

OFFICIAL COURT REPORTER

JACKBEONVIALE FL OMIDA B2702

y 100

bottom, Detective Kearney's signature in the middle,

and Detective Bradley's signature as witnesses to

the form.

Q All right. Will you please describe to

the Court how the rights were administer. d or how

Mr. Busch was advised of his rights, con istent with

the use of this form?

A The rights were read from the form verbatim

pursuant to the Miranda decisions and after each

right was read to Mr. Busch, he was asked if he

understood it.

Q All right. And did he indicate -~ «at

was his response?

A He indicated he understood his rights.

Q All right. Would you please read for the

record the statement there that you have?

A Ic's, "Your constitutional rights." It's,

“place advised, robbery office." The date is the

llth, January, 1976. Time 11:40 a.m.

"You have the following rights under the

United States Constitution. You don’t have to make

a@ statement or say anything. Anything you say can

be used against you in court.

"You have the right to talk to a lawyer

for advice before you make a statement or before any

MARIE SPLANE

OFFICIAL COURT REPORTER

JAC CBONVILLE. FLOBIDS A2202

R-19

& es 101

questions are asked of you and to have the lawycr

with you during any questioning. If you cannot

afford to hire a lawyer, one will be appointed for

you before any questioning if you wish. If you

decide *o answer questions now without a lawyer

present you still have the right to stop answering

at any t’me. You may also stop the questioning at

any time and consult with your appointed or privately

employed lawyer."

The bottom of the rights form is, "Waiver

of rights.” It says, "I have read the above state-

ment of my rights and understand the stateicent end

understand what my rights are and I'm willfny to make

a statement and answer questions. I do not want to

talk to a lawyer at this time. I have not been

promised anything in exchange for a statement. I

have not been threatened and there has been no

pressure to get me to make a statement or answer

questions.” It's signed Vincent Anthony 3usch. It's

witnessed by Detective J. A. Bradley, Detective

P. H. Kearney and Detective J. W. Terry.

Q And did you inquire if he understood those

rights?

4 Yes, sir.

Q And his response?

MARIE SPLANE

OF PICIAL COURT REPORTER

JACKSONVALE FOROS 32702

R-20

102

That he did understand his rights.

Did he ever indicate to you that he wanted

to talk to a lawyer?

No, sir.

MR. WEATHERBY: Your Honor, the State

would o“fer this into evidence as the

State's “xhibit A.

TH COURT: A for identification?

MR. WEATHERBY: Yes, ma‘am, if you

would, A for identification.

THE COURT: All right, Mr. Reese, you

are now looking at that exhibit?

MR. REESE: Yes, ma‘am. Could I have

just a moment?

THE COURT: Certainly.

(Mr. Reese examining document.)

MR. REESE: Your Honor, could I ask

some questions of the witness? I would

object to the introduction.

THE COURT: All right.

only for identification at this time.

MR. REESE: I'm sorry.

THE COURT: This is a proffer at this

stage of the trial.

probably has a few more questions that he'd

MARIE SPLANE

OFFICIAL COURT @EPORTER

JACKSONVILLE FLORIDA 32702

R-21

This is marking |

I believe Mr. Weatherby |

ww ~/

like to ask.

MR. WEATHERBY: Yes.

BY MR. WEATHERBY:

Q Is that the form that Mr. Busch signed?

Did he sign that form in your presence?

A Yes, sir.

Q All right. After you advised Mr. Busch of

his constitutional rights by using that form, did

you talk to hia?

A Yes, sir.

Q Did he make any statements to you?

A Yes, sir. A short time later Mr. Busch

geve a statement concerning the robbery wi:itch I

wrote. It was not verbatim which was explained to

Mr. Busch, that it would not be verbatim or word-

for-word. After the statement was made, he looked

at the statement and agreed basically with what was

in the statement.

Q You read the statement to hia?

A Yes, sir.

Q And you say he basically agreed with the

facts in the statement?

A Yes.

Q All right. Where did you get those facts

from, Detective Terry?

MARIE SPLANE

OFFICIAL COURT REPORTER

ACKSONVILLE FLORIDA 32702

" R=22

diy 104

~ —

Mr. Busch.

You had an oral conversxtion with him then

relating to the robbery?

Yes, sir.

And would you say that :7u substantially

recorded in this statement the facts that he had

given you, obviously not verbatim?

Yes, sir.

It pretty well included everything that he

had told you ia the statement?

Yes, sir.

Detective Terry, was anyone else present

while Mr. Busch was giving this statement?

oOo >» © >

Yes, sir, Detective Kearney was present.

Just the two of you then?

Yes, sir.

During the time -- do I conclude that you

were still in the robbery office?

Yes, sir, in the interview room.

In the interview room?

Yes, sir.

During the time that you and Detective

Kearney were with Mr. Busch in the interview rooa,

did you

ever have occasion to draw your weapon?

No, sir.

MARIE SPLANE

OFFICIAL COURT REPORTER

JAC KSONVULE FLORIDA 322702

4Ve

~ —

Q Did you ever observe Officer Kearney do

that?

A No, sir.

Q During that time, did you ever have

occ ssion to threaten Mr. Busch?

A No, sir. |

Q Did you or did Detective Kearney while you

wer? present?

A No, sir.

Q Either physically or verbally?

A No, sir.

Q Did you offer him any form of physical

abuse?

A No, sir.

Q Did you offer him any hope of reward if

he gave his statement?

A No, sir. We are not authorized to do that.

Q Did you promise hia that you would

recommend any light sentence to the State At s:.cy's

Office or the Court if he gave a statement?

A No, sir. think what was told to Mr. Busch

is that we would tell the State ey or his

om: oe —_——— + +.

ettorney chat he had cooperated, but ve could not

_——_—— ow - oMSE OED» .* cay. an ote SOEEEP"?

promise hia ony chien. |

Q Did you make ‘any other kind of statezents

MARIE SPLANE |

OFFIC 4A COURT REPORTER |

ACKSONVILLE FLORIDA 32202

R-24

106

like that to Mr. Busch?

A No, sir.

Q During the interview in this room, Detective.

Terry, did anyone else ever come in?

A To the best of my knowledge, they didn't.

Q Did Mr. Busch ever indicate an uaowilling-

mess to give you the statement once the interview

had started?

A No, sir.

Q After you had -- let me ask you this: Why

did you write the statement rather than him?

A It's just standard procedure. Thxt's the

only reason I did it.

Q But you did read the statement to hin?

A Yes, sir.

Q After you read it, did you give him a chance

to look at it?

A Yes, sir.

Q And did he make any coments?

A Except that it was basically what he said.

Q Did you give him an opportunity to sign it?

A Yes, sir.

Q And did anyone else sign that fora?

A Did anyone else sign the form?

Q Yes.

MARIE SPLANE

OFFICIAL COURT REPORTER

4SCRSONVILLE FLOMIDS 322702

4Vve

—

A I witnessed the form and Detective Kearney

also witnessed it.

Q He signed it in your presence then?

A Yes, sir.

Q What, if anyrfhing, happened to that state-

ment after that date, :ir?

A It was also pt in the same case file as

I mentioned before with the rights fora.

Q All right. Did you have occasion to bring

that today?

A Yes, sir, I did.

Q Pursuant to ay instructions?

A Yes, sir.

Q Would you take it out, please?

(Witness producing document.)

Q You have a document here which appears to

be handwritten on both sides. It's a one-page sheet.

I ask you is there anything out of the ordinary that

you recognize about this particular document that

comes to your memory or how do you recognize it?

A Well, I recognize it by my handwriting aad

also by the fact that ay signature is on the bottom

of it as a witness and also that of Detective Kearney.

Q All right. And this is the same document

that you took from Mr. Busch that day?

MARIE SPLANE

OFFICIAL COURT REPORTER

JACKSONVILLE FLOR. DS S2202

R-26

108

A Yes, sir.

Q All right. Would you please read the

information that's at the top there in the text of

that statement?

THE COURT: Mr. Reese, I assume you

have received a copy of this statement?

MR. REESE: Yes.

MR. WEATHERBY: Oh, yes.

THE WITNESS: This is a standard

statement form and the top of the statement

is, “Name, Vincent Anthony Busch."

is 834 East 6th Street.

BY MR. WEATHERBY:

Q Detective Terry, is that the address that

you arrested Mr. Busch at?

A Yes, sir.

Q Please go on. I'm sorry.

A The telephone number is none. Age twenty-

four. Occupation is welder. The statement was made

at the robbery office, hour 1:20 p.m. The date is

1/11/77.

Q Please go on.

A Do you want me to read the whole statement?

MR. WEATHERBY: Well, actually at chis

point I think that would be necessary

MARIE SPLANE

OFFICIAL COURT REPORTER

JACHBONVILLE FLOMOA 32202

Address

< a 109

unless Mr. Busch -- I mean Mr. Reese --

the question before the Court right now is

the voluntariness of the statement and I

would ask that the Court mark this for

identification.

THE COURT: It will be so marked as

State's Exhibit B for identification only.

(Whereupon, the foregoing document was

marked as State's Exhibit B for identifi-

cation sididunlian only.)

BY MR. WEATHERBY:

Q Detective Terry, might I inquire »s to how

you came to be called to go to Mr. Busch's —«sidence

on the morning of the 1lith of January?

A Yes, sir. I went to assist Detective

Kearney.

Q This statement pertains to a robbery at the

Heart of Jacksonville --

A Yes.

Q -- on June -- well, the statement says

June of 1976. Do you have any personal knowledge or

did you have any knowledge of that crime?

A Yes, I did.

Q And what was that?

A There was a robbery in June of ‘75 at the

MARIE SPLANE

OFFICIAL COURT REPORTER

JACKSONVILLE FLORIDA 32202

110

= ~~

Heart of Jacksonville where a police officer who

was working off duty as a security guard was present

at the time the robbery was committed and his gun

was taken from hia.

Q Who was the detective assigned to that case?

a I was.

Q All right, sir. That then is ore reason

why you were called to participate in intcrviewing

Mr. Busch?

A Yes.

MR. WEATHERBY: I have no further

questions at this time, Your Honor.

THE COURT: Do you wish to inquire as

to the voluntariness of this statement?

CROSS EXAMINATION

BY MR. REESE:

Q Mr. Terry, do you know what time of day

you got to Mr. Busch's house?

A I would say it's sometime later than the

morning, Mr. Reese, sometime around between 10:00

and 11:00 o'clock, somewhere around there, mid-

morning hour.

Q And do you know when you all had learned

of Mr. Busch's alleged involvement in this robbery?

MARIE SPLANE

OFFICIAL COURT REPORTER

JACKSONVILLE FLORIDA 32202

A T was advised by Mr. Kearney either a ony

or so befcre. I don’t know when. “He had obtained

_—-~_—

the information on it that --

Q Do you know whether anybody had ever applicd

for a warrant for his arrest?

A No, sir, I don't.

Q Was one acquired?

A At the time he was arrested, I don't bel‘ -ve

there was one outstanding.

Q Has one been acquired since? |

A I don’t know, Mr. Reese.

Q To your knowledge, has a warrant ever been

requested? !

A To my knowledge, it hasn't. Like I say, I

don't know.

Q Were you ever told that Mr. Winters had

identified Mr. Busch as a participant on January the --

Januray the 3rd or sometime in there?

A The only thing I was told, Mr. Reese, is

, STS ee

—_—— —

—

there had beea a Cenverention with Mr. Winters, but

I wasn't advised what ‘in conversation was. |

ec neg oe ee re ORE eee we seca.

ee OS ee mens ee

Q ‘You were not advised Mr. Busch had been |

-—-

~— ee — i ee

identified at that time?

A Ko, ete.

Q Oxay. When you went to the house and went

MARIE SPLANE

OFFICIAL COURT REPORTER

JACKSONVILLE FLORIDA 32202

ee 112

~——

inside, did you and wade Kearney both have your guns

out?

i WR ee SE PO aR ve new enee

—

A +S know Mr. Kearney had his out. I believe

IT had mine out, _ I'a Mot sure right now. ip

Q And did you point them at hin when you

woke hia up? A

A Yes, sir.

Q And where did you point it at him? Head?

Foot?

A No particular -- I mean it wasn't pointed

at his foot.

Q I wouldn’t think so, but --

A No.

Q At his body?

A At his body, yes.

Q And how far from his body would you say the

gun was when you -<«

A We were standing approximately two to three

feet from hina.

Q And your gun would have been closer yet,

is that true?

A Not necessarily, no, sir.

Q Well, was it, in fact, closer to hia?

A I'd say the gun was about three feet from

hia,

MARIE SPLANE

OFFICIAL COURT REPORTER

ACKSONVILLE FLOM DA 32202 |

R=-31

Wy 113

Q And was Mr. Kearney in the same location

and the same distance?

A Yes, sir.

Q On opposite sides of the bed or together

A We were standing side by side.

Q In any event, Mr. Busch offered no resistanc

is that correct?

A That's correct.

Q And when he was handcuffed and taken down,

do you know where in the process his handcuffs were

taken off?

A I believe they were taken off in the futer-

view room of the robbery office.

Q At what time?

A Shortly after we got there.

Q Are you quite sure that the unifo::ed

officers didn't transport Mr. Busch there?

A I said before I'm not sure they ¢1d not,

to the best of my knowledge. It’s been socc tte ago.

To the best of my knowledge, Kearney and I probably

transported hia.

Q And in the interview room itself, did you

and Officer Kearney and Officer Bradley have your

weapons with you?

MARIE SPLANE

OFFICIAL COURT REPORTER

JACKSONVILLE FLORIDA 32202

R-32

114

a Yes, sir.

Q And were they visible?

A They could have been, I imagine.

Q All right. Excuse me for interrupting y-cu.

Where were you wearing then? Where were they on

your body?

A In a holster.

Q And where was th- holster?

A On the side. Mine was.

Q And was your coat on or off?

A I assume the coat was off. I'm not real

sure whether it was or not.

Q And would the same be true of Mr. Fe: suey?

A Yes.

Q If you recall, how about Mr. Bradley?

A I believe the same would be true of him also.

Q Did anybody else ever come in the room other |

than uniformed officers? I mean -- not uniformed --

officers and Mr. Busch?

ment?

No, sir.

Did anybody appear to take a written state-

I took a written statement.

Was it taken electronically?

No, sir.

MARIE SPLANE

UFFICIAL COURT REPORTER

JACHBEONV LE FLOR DA 322707

R-33

ts i 115

Q Any video tape made of it or anything like

that?

A No, sir.

Q No recording? And where in the process

did Mr. Bradley leave?

A I think Mr. Bradley left hortly after he

was advised of his rights.

Q Can I ask you why nobody :sked for a warrant?

co al

A I don't know, Mr. Reese. It's like I

stated before, I had just received this information

possibly a day or so before and due to the lack of

leads that I had at the time working the robbery, I

had suspended the case and at this time due to the

information that had been received by Detective

Kearney and Bradley, they reopened the case and I

TS eee oe

een tee —_

don't know _why they did not request « a warrant. 1

—_

ee ETE» ee

“emer 6

don't know that they didn't.

Cnaptin — res ~~

Q Did anybody make inquiry as to whether

Mr. Busch -- what his mental condition was, whether

he was sick, anything like that?

A From the appearances of Mr. Busch and the

way he reacted and talked, he didn't appear to have

any wental condition.

Q Would you answer my question? Do you know?

A No, sir.

MARIE SPLANE

OFFICIAL COURT REPORTER

JACKSONVILLE FLORIDA 32202

R-34

ee ay 116

Q What led you te to believe eve that you hid

probable cause to arrest Mr. Busch?

eo" On the information that Detective itearney

and Bradley had obtained and it was relayed ‘o me

and <--

ow”

Q And what was that?

A They said they had obtained informacion |

from a reliable source he had Sain involved za “the

~~ — ag

robbery at the Heart of Jacksonville Motel ond eabee

SOO CE A SOS SS SE ETS ae

——s

if I would assist them in going to arrest hi2, which |

I did.

Q Did they identify the reliable scu~-ce? |

A No, sir, not at the time.

—

Se ee +.

Q And you don't know right now who it was,

the reliable source was? .

A I know now who it is. I didn't at the time.

Q Johnny Winters?

_—

A Yes, sir.

Q Did he strike you as being a reli >le

source?

A I don't know.

—_

I've never had any dealings

with Johnny Winters. Sah

Q Are you familiar with his record?

A No, sir, not that much.

Q Do you know that he's been convicted of

MARIE SPLANE

OFFICIAL COURT REPORTER

JACKSONVHKLE ©.ORIDa 22202

R-35

- ~

several felonies, admitted to some sixty-odd

robberies?

: A I know that now. I didn't know it at the |

time.

C Had you known at the time -- had you known

it, wc:ld you have thought he was @ reliable witness?

é I wouldn’t say. I wouldn't know. I don't

know t'.e dealings. I don't know how well Mr. Kearney

knew Mr. Winters or Mr. Bradley. I don’t know whether

they had any dealings with him before or not. I

couldn't establish his reliability without having

talked to the man myself.

Q My question is: Do you think he's a

reliable witness with what you have learned of him

since?

A I don't really know, Mr. Reese. I couldn't

answer that yes or no.

Q You have learned since that he's killed

somebody?

A Yes, sir.

Q He's threatened to kill a police officer?

A I didn’t know he had threatened to kill

a police officer.

Q At the Heart of Jacksonville, dida‘t

Officer Bramlett say he said, "Don't move or I'll

MARIE SPLANE

OFFICIAL COURT REPORTER

JACKSONVILLE FLORIDA 32702

R-36

~~" a

kill you"?

A Yes, he said that.

Q And he has admitted some fifty or sixty

robberies?

A I would -- like I say, I don’t think I could

answer it yes or ao. The only thing I could say is |

if he had knowlege of the crime and could put this

man in the crime, then I would say he would be

reliable. |

Q Would it be true to say that Mr. Busch |

talked to you all for some period of time and you |

synthecized what has been said or what your under- |

standing of the nature of the conversation wes and |

that some things that he said were left out? |

A Like I say, the statement was not a verbatin

statement, Mr. Reese. I explained that to Mr. Busch

before I read the statement and I'm sure that some

minor things he said were probably left cut because

it was not written word for word.

Q I understand that.

A Yes, sir.

Q In other words, you -- I'm not questioning

you right now, but what you have here is what he said? |

A Yes, sir.

Q I’m asking you if he said things that were

MARIE SPLANE

OFFICIAL COURT REPORTER

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R-37

i119

eo —Y

not in here.

A Probably, yes, sir.

MR. REESE: Your Honor, I have no

further questions.

REDIRECT EXAMINATION

BY MR. WEATHERBY:

Q Mr. Terry, is there anything in the state-

ment that he did not tell you?

A Pertaining to the robbery?

Q Right.

A No, sir.

Q Are you aware that or did you becene aware

or were you aware at the time of the arrest that

the sourc at Detective Kearney was talking about

~~ Anwar - —"

who you have found out later was Johany Winters was

————— eS oe ~e

Serr ene =

the person involved in the Heart of Jacksonville

robbery?

as sae I knew it after he was arrested and I

talked to hia.

Q But you went along to assist Officer

Kearney in the arrest?

A Yes, sir.

Q And it was your understanding that it was

Officer Kearney's -- that he had the probable cause

MARIE SPLANE

OFFICIAL COURT REPORTER

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R-38

a ee Se ee ee es

120

- ~—

to make the arrest, is that correct?

Yes.

All right. Now, subsequent to thet you

<r e

have found, I believe, that i it was Johnay Winters

emt A 8 eee a

‘ae made the statement to Detective Kearney?

—_—o

Yee, sir.

That Johnny Winters, in fact, confessed

oo te eee

his participation in the Heart c of “Jackecavilie

robbery, is that correct?

Yes.

And, in fact, during that statement he

implicated Mr. Busch?

Yes, sir.

And it has subsequently eras -- has come

eee

—— mee woe

to your attention that that is the reasoa 1 thet

- —

SO eee oe —

Detective Kearney went out looking for Mr. lusch;is

_—+- ~~ =

that correct?

LO ON,

Yes, sir.

MR. WEATHERBY: All right, I have no

further questions, Your Honor.

Your Honor, I would offer the state-

ment as having been voluntarily given.

THE COURT: All right, Mr. Reese.

MR. REESE: Your Honor, I would object

to the statement.

MARIE SPLANE

OFFICIAL COURT PEPORTER

JAC AKSONVKALE FLORIDA 327202

R-39

a an

121

— ~~

THE COURT: Certainly.

MR. REESE: First, there has been no

showing of a chain of possession. Secondly,

there is no probable cause to arrest because

-- well, then, third, that they had a

chance to get a -- to go before a Court and

eee A ss

get a warrant which they did not do; that

ne a

= ee A ee

oe,

Mr. Busch was arrested at close gunpoint,

6 OO Re oe

——_a Beemer tn ns

taken in handcuffs to a station and in a

room with three officers who had guns and

was not forcibly coerced, but was scared

and that there is no showing it is volun-

tary and, under the circumstances, it

could not have been voluntary.

THE COURT: And I assume that you do

not wish to present any evidence yourself

on this matter?

MR. REESE: I would like Mr. Busch

to testify on this. He's not going to

testify at the trial.

THE COURT: Well, I think he certainly

can on the nature of voluntariness.

Can we excuse Detective Terry?

MR. WEATHERBY: Are we at the point

of arguing or is Mr. Busch going to testify?

MARIE SPLANE

OF FICIAL COURT REPORTER

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122

THE COURT: Well, I think if there is

further evidence to come before the Court

we need that.

MR. WEATHERBY: Your Honor, I woula

reserve the right to recall Detective Terry

after Mr. Busch testifies.

THE COURT: You may step outside.

(Witness excused.)

MR. WEATHERBY: Your Honor, may we

have just a moment?

THE COURT: Yes, sir.

(Mr. Weatherby conferring with

Mr. Reese.)

MR. WEATHERBY: Your Honor, we'd be

ready to hear from Mr. Busch at this point.

THE COURT: All right, Mr. Busch, do

you want to come forward and be sworn in,

please?

(Defendant sworn by Clerk.)

THE COURT: You can have a seat in

the witness stand.

VINCENT ANTHONY BUSCH,

was called as a witness in his own behalf, and after

having been first duly sworn, then testified as

MARIE SPLANE

OFFICIAL COURT REPOMTER

JACHSONVILLE FLORIDA 32202

R-41

4e7

follows:

DIRECT EXAMINATION

BY MR. REESE:

Q Could you give me your name, please, 81:17

A Vincent Anthony Busch.

THE COURT: Mr. Busch, you are going

to have to speak out a little louder.

BY MR. REESE:

Q And how old are you, Mr. Busch?

a Twenty-four.

Q And where do you live?

A 434 East Sixth Street.

Q And were you living there on January 11th,

19777?

A Yes, sir.

Q Do you remember officers coming to the

house?

A Yes, I do.

Q Tell us what was the first thing you

remember.

aA Well, I was half asleep and somebody

knocked on the door and ay sister answered the door.

They just knocked on the door and came on in. Then

I asked them -- my brother was standing on the

staircase and I saw him keep poicting like this

MARIE decane

OFFICIAL COURT REPORTER

JACRSONVILLE FLORIDA 32202

R-42

ean

here (sabkeatten). I didn't know if they had a gun

pointed at him or not, which I found out later they

had mistaken him for me.

Q Okay. And what did the officers do?

A They came around into the living room and

pointed a gun at we. I just looked at them and told

them I got to be dreaming and covered back up.

Q And how many officers were there?

A Three.

Q And were they pointing guns at you?

A Yes, sir.

Q And how close were they?

A ‘About from here -- from where I am to

where she is now (indicating).

And where were the weapons pointed?

In the vicinity mostly of my head and

chest.

Q Did you offer any resistance?

A Uh-uh (negative).

Q All right. What happened next?

“ Well, he told me to come from under --

bring my arms from under the covers slowly and don't

try no false movements or anything. So, I did what

they asked and after I did this, then he kind of

removed the pillows off the sofa and went to

MARIE SPLANE

OFFICIAL COURT REPORTER

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a aay 125

searching and I asked him what he was searching for.

Ne told me he was searching for an officer's gun

that was taken in a robbery.

Q Did anybody ever show you a warrant for

e*ther a search or arrest?

A No. I asked him what I was being -- what

wos the nature of this arrest. He said for murder.

Q For murder?

(Nodding head affirmatively.)

Who said that? Do you remember?

One of the officers said it.

eo Fr 2 Pb

Okay. What happened then?

A So, they got up -- well, got up and started

-- well, I went to put on my clothes and shoes and

before I could do that they just handcuffed me. My

sister threw a jacket over me and they took me down

the street to a police car, put me in and they trans-

ported me from where I lived at to the Courthouse

cown here,

Q And who transported you?

A Uniformed officers.

Q Was Mr. Terry who just testified -- did he

transport you down here?

A No.

Q All right. What happened next?

MARIE SPLANE

OFFICIAL COURT REPORTER

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A I went up to the robbery office and they

were sitting down talking. They say, "Well, we know

all about the robberies you were in with Winters." |

I said, "How you know? I don’t know about that |

myself." E> said, "Well, we talked to Winters and

we made a t:pe.” And I asked him could I listen to

some of it, so they started playing the first part

saying, well, there was something about I was

supposed to have been mixed up in the murder, when

the bellhop came out of the elevator or something

I was standing by the elevator and shot him. Then

they stopped the tape.

Q All right. What happened then?

A Then they went outside and talked for a

few minutes. One of them came back and started

reading my rights and I signed that and one of thea

left out again and one would leave out and one would

come in.

Q Would the officers -- did the officers

have their guns on? Were they visible to you?

A Yes. They was hanging up under their

shoulder. One of the officers got in a conversation

about weapons and I told hia I didn't know the

difference between a .38 or a .357.

And did you tell the officers

MARIE SPLANE

OFFICIAL COURT REPORTER

JACHKEONVALE FLORIDA 87202

Qs All. right.

R-45

Gir eo? 127

the things that were in this statement?

A Yes, I did.

Q And did you tell them other things?

A I cold them some of the things that was in

the statement.

Q What did yc: tell them that's not in here?

A Well, he asied me about -- he say, "Do

you know anything abo:t the Heart of Jacksonville?"

I say, "Yes, I do." He asked me what. I say, "Well,

on that particular day we and Johnny Winters was

sitting where -- Johnny Winters was across the street

to a friend of his house and he saw me and came over.

We were sitting on the porch talking. Johnny Winters

told me, say, ‘I have got to go deliver a package.

If you want to come along you can make forty or fifty

So, we went to the

dollars.’ " I told hia, "Okay."

hotel. He say, "I got to go up here and check with

this man. I'11 be right back." I went upstairs

walking around and he say, "Well, the man must not

Okay. I went

be in." He walked around the desk.

around the other side of it. I walked around the

side of the desk and when I came back Johnny Winters

already had a gun on the people and everything.

Q All right.

A So, at this point he said -- he told me to

MARIE SPLANE

OFFICIAL COURT REPORTER

JACKSONVILLE FLORIDA 32202

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os tg 128

come back and tie everybody up and I hesitated for

a few minutes and he told me again so I just went

on and did what he asked.

Q Why did you do that?

A Well, one reason, if I had ran I don't

know what would have happened. If I had left there

at that time, there is no tellixg what might have

happened.

Q Did you tell them all this at the office?

A Yes.

Q Did you tell them that you did not par-

ticipate willingly?

A Yes, I did.

Q When did they tell you what you had been

arrested for?

A After they got me down to the office they

say, "Well, you was" -- they didn't -- they just kept

telling me I was arrested for murder and after I got

over here to the jailhouse, then they booked me.

Then I saw I was arrested for robbery and murder.

MR. REESE: I have nothing further.

THE COURT: Mr. Weatherby.

CROSS EXAMINATION

BY MR. WEATHERBY:

MARIE SPLANE

OFFICIAL COURT REPORTER

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‘SP So ie ~ 129

Q Mr. Busch, I would remind you thac you are

under oath to tell the truth.

Did either of the detectives that were in

the office with you ever threaten you with those

weapons?

A Not that I know of.

Q Did they ever strike you with the weapons?

A No.

Q Did they ever hit you with their hands?

A No. 53

Q As a matter of fact, they were pretty

gentlemanly about the whole thing, weren't they?

A Yeah.

Q And it's your testimony here this morning

that you never told the officers what is in that

statement?

A I said I didn't ever tell them. I told

them some of the things that was in there, but some

of the things that I told them they did not put in

there.

Q I'm sorry. I misunderstood. But you at

least acknowledge that some of the stuff that is

in the statement is true?

A Right.

MR. WEATHERBY: I have no other

MARIE SPLANE

OFFICIAL COURT REPORTER

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R-48

cee a 130

questions, Your Honor.

MR. REESE: I have nothing further.

THE COURT: Mr. Busch, do you recall

about how long you were up in the offic.”

THE WITNESS: Let me see. They picked

me up that morning sometime between 9:30

and 10:00 and I didn't get over to the

jailhouse until that evening sometime, a

little after 2:00 or 1:30, somewhere in

there. I can't be certain for sure,

because there wasn't no clock around.

THE COURT: All right. I don't have

any further questions.

MR. WEATHERBY: Your Honor, I have

no other questions.

THE COURT: You may step down,

Mr. Busch. Resume your seat out there.

MR. WEATHERBY: Your Honor, to save

the Court some time and perhaps answer

some questions the Court might have, I'd

like to state certain facts and I think

possibly Mr. Reese might be willing to

stipulate to them. As to your last

question, the time involved, what Officer

Terry did not testify to was that other

MARIE SPLANE

OFFICIAL COURT REPORTER

JAC KBEONVULE FLORIDA 32202

R-49

ee 3 131

statements were taken from Mr. Busch. I

had not mentioned this since we're on a

proffer.

THE COURT: I realized after I askea

that question I was probably getting into

that area.

MR. WEATHERBY: That I think explains

the time period. I do not intend to ask

Officer Terry of any other statements

during the presentation of evidence. The

other thing is that I believe that Mr. --

(Mr. Weatherby conferring with

Mr. Reese.)

MR. WEATHERBY: All right, Your Honor,

the stipulation is Mr. Busch was, in fact,

arrested for murder and I believe that we

would both stipulate that that charge was

-- he was, in fact, booked for that charge.

That was based on information that Winters

had given them that also pertained to

another case, the Ambassador robbery, and

the policy being to simply book for the

highest charge.

MR. REESE: That's correct. If ve

might have just a ainute.

MARIE SPLANE

OFFICIAL COURT REPORTER

JACKSONVILLE FLORIDA 32202

R-50

132

—— =

(Mr. Reese conferring with

Mr. Weatherby.) —

MR, WEATHERBY: The murder charge is

not pending, was never filed against

Mr. Busch, Your Honor.

THE COURT: All right.

MR. WEATHERBY: Did we have a stipu-

lation?

MR. REESE: Yes, that is agreeable.

THE COURT: All right, fine. Thank

you.

All right, any further evidence as to

the motion to suppress?

MR. REESE: No, aa‘aa.

MR. WEATHERBY: I think not, Your Honor J

THE COURT: Then I'd be happy to’ hear

from Counsel as to any argument. I know

that you have made a portion of your argu-

ment which I remember.

MR. REESE: I would just renew that

and again say that he was alone in a roos

and he said some things and some things are

not in there. I would stand on the other

things that I have said.

THE COURT: All right, thank you,

MARIE SPLANE

OFFICIAL COURT REPORTER

JACKSONVILLE FLORIDA 32202

R-51

we ey 133

Mr. Reese.

Mr. Weatherby.

MR. WEATHERBY: Your Honor, that, of

course, is the defendant's position, bur I

don't think that goes to the voluntariness

of the confession. lr. Busch hiaself

acknowledged on the stand that the officers

were quite gentlemanl~ and he was never

threatened into giving « statement which

is consistent with what Officer Kearney

said -- excuse me -- Detective Terry said.

Speaking to the motion to suppress, Your

Honor, I would suggest to the Court the

Florida Statutes that provide that an

arrest warrant is not necessary where a

police officer has probable grounds or

probable cause to believe that a person

is committing or about to commit a felony

somewhere in the state and the statement

from Detective Kearney -- from Detective

Terry pertaining to the information which

was available to Detective Kearney at that

time was certainly sufficient probable

cause to believe that Mr. Busch had involve-

ment in it; therefore, there was sufficient

MARIE SPLANE

OFFICIAL COURT REPORTER

JACKSONVALE FLORIDA 32202

R-52

—

grounds for arrest, notwithstaading the

134 |

lack of the issuance of an arrest warrant.

THE COURT: All right. Anything

further before I rule as to the voluntari- |

ness of the statement? |

MR. REESE: Your Honor, of course, I |

think we said earlier we would «ay that |

there was no probable cause. |

THE COURT: Right. All right. con- |

sidering all the evidence, including |

Mr. Busch's testimony, the Court would find |

that the statement was freely and volun-

tarily made and that would be therefore

admissible.

All right, Gentlemen, we have the Jury,

I think, all present. Would you all like |

a few minutes before we call the Jury in or--

MR. WEATHERBY: I'd like just a moment

with Mr. Carlisle, Your Honor, and I believe

we could commence as soon as the Jury gets |

back. I feel we should take them back into |

the room first.

THE COURT: All right, let's recess |

then for ten minutes.

(Recess.)

MARIE SPLANE

OFFICIAL COURT REPORTER

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R-53

—_ ~/

(Jury absent.)

THE COURT: We need to recall the

witness, Mr. Winters.

MR. WEATHERBY: Your Honor, Mr. Cariisl

is in the process of acquiring him, I tt itnk. |

Here he is.

THE COURT: All right, Mr. Winters,

if you will take your seat in the stand

again.

All right, Mr. Weatherby, anything

before we bring the Jury out?

MR. WEATHERBY: Wo, Your Honor. I

request that we brirg the Jury out.

(Jury present.)

THE COURT: All right, Mr. Weatherby,

you may proceed.

¥ MR. WEATHERBY: Your Honor, at the

last juncture of the trial Mr. Winters had

exercised his Fifth Amendment right to

remain silent and I have no questions.

MR. REESE: We have no questions.

THE COURT: All right, Ladies and

Gentlemen, the witness has exercised a

constitutional right to remain silent and

at this time, Mr. Winters, you are excused

MARIE SPLANE

OFFICIAL COURT REPORTER

JACKSONVILLE FLORIDA 322702

R-54

IN THE CIRCUIT COURT, FOURTII

JUDICIAL CIRCUIT, IN AND FOR

DUVAL COUNTY, FLORIDA

CASE NO.__77-239 CF A

DIVISION: S cd

STATE OF FLORIDA

—Y¥g——

__(A)TONY RICHARD MILLER

(B) VINCENT ANTHONY BUSCH

‘tS. also known as, VINCENT ANTHONY BUSH

ORDER

This cause coming on before the Court upon the (Defendant’s) (Stmxxx mn

filed herein on the ____19th__ day of ____APRIL._---»_-»»»-S>E,«&197_7_, and the

Court having heard arguments of the State’s attorney and of counsel for defense, and

being fully advised in the premises, it is thereupon

ORDERED AND ADJUDGED that the aforesaid _MOTION

canine oar te diferent (6) Vartonst-

shall be and the same is hereby

DONE AND ORDERED in Open Court at Jacksonville, Duval County, Florida,

this 20>. day of Opole ess A

Circuit Judge

Ethie Ore, IN THE CIRCUIT GOULOF DUVAL COUNTY, FLORIDA — - Kage Tee ~ | ~

3 ® -Sb 77-A3P? CF

; Case Number —

vo. 4444 » 343 sae ae

Division V ARGUMENT

OFFICIAL RECORDS IN THE CIRCUIT COURT OF DUVAL COUNTY, FLORIDA

STATE OF FLORIDA --- POINT I

‘ : ‘

ve ae LED THE TRIAL JUDGE SHOULD HAVE SUPPRESSED

4 C 3 THE APPELLANT'S CONFESSION BECAUSE IT

aK 7 ee JUN 22 1977 WAS THE RESULT OF AN ARREST OF THE

= Wfendent APPELLANT IN HIS HOME WITHOUT A WARRANT

—0o fe AND WITH NO SHOWING BY THE STATE OF

A. Mec Diver EXIGENT CIRCUMSTANCES THAT WOULD HAVE

JUDGMENT AND SENTENCE L__ercenvcr- war | EXCUSED THE ABSENCE OF AN ARREST

WARRANT (This point arises from assign-

ment of error no. 5).

(STATE PRISON)

mey , C. Leese The facts of the appellant's arrest are virtually

and you

being now before this Court, attended by your

uncontradicted. The officers had talked with an alleged

been tried and found guilty of the crime of

having yim O perpetrator of the crime who confessed his involvement

7 =} ae | cal dn a

free eth cru and implicated the appellant. This information was learned

4 by the officers at least one day prior to the appellant's

The Court adjudges you guilty of said offense. Do you have any cause to show why sentence of the law arrest. No effort was made to obtain an arrest warrant.

Should not be pronounced upon you, or anything to offer in mitigation of sentence? Saying nothing sufficient,

it is the sentence of the law and judgment of the Court that you be committed to the custody of the Division

of Corrections of the State of Florida, to be imprisoned at hard labor for the term of

‘ At, Chobe Aow L602 Boge frat Firm - people were present, they entered the home after identifying

themselves, they found the appellant asleep on a sofa, and

The officers went to the appellant's home where several

in the institution in the State Coirectional System to which said Division may cause you to be confined .

The Sheriff of Duval County, Florida, is hereby ordered and directed to deliver you to said Division at

Lake Butler, Florida, with a copy of this judgment and sentence. In addition thereto, you shall pay the they woke him with guns drawn and placed him under arrest.

f $1.00 for the use of the Florida Police Academy. The Court now advises you that it is your right

in obad from this julebent and sentence within 30 days from this date. You are further advised that you The appellant's counsel challenged the admissibility

are entitled to assistance of counsel in taking an appeal. Upon your request, and showing that you are

entitled to an attorney at the expense of the State, the Court will appoint one for you. 2 2 of the statement obtained two hours after the arrest by

‘E AND ORDERED in Ofen Court at Jacksonville, Duval County, Florida this ———__ day appropriate

pre-trial motion and argument at the hearing.

of mL. / AD. 1977 ; by g

The State offered no evidence that a warrant had been ob-

et ‘ A Or hay tained and no justification for the failure to seek a warrant.

THIS INSTRIET Sais J

vt cOrPUTER t FINGERPRINT WS udge Appellant contends that the confession made by the

ae e ere daianee appellant within two hours of his arrest was the direct result

1, R. Thumb “ER. Index _| 3. R. middie 4. R. Ring SR. Little |

’ = oo oF "Fey me om

R-57

S -“- ‘. sk reese ze

: sate eal : “= aa a i ay * ‘

i 3 , ’ ° é ;

; |

a 3 ; t

Hr | Saabs WORE My eee ieee GEO ao

I HEREBY CERTIFY that t jpove and fi ina fingerytints on Foes o Sentence

are the fingerprints of the defendant , — tarlinth Contes oi

and thetthey were placed thereon by said defendant in ae inPpen Court this AZ. day

at. ;

(ae ——____— . 1923

Fyre fats then yy pe eT ae’

of unconstitutional custody and the trial judge erred in

failing to Suppress the statement. The basis of the argu-

ment that the custody was unconstitutional is the conten-

tion that the warrantless arrest of the appellant in his

home violated the appellant's right to be secure in his

person and in his house against unreasonable seizures as

guaranteed by the Fourth Amendment to the United States

Constitution and Article I, Section 12 of the Florida

Constitution.

By case decision under federal law, and by express

Provision in the Florida Constitution, an exclusionary rule

is applied to evidence obtained in violation of the pro-

hibition against unreasonable searches and seizures.

Specifically as to statements or other evidence resulting

from an unlawful seizure of the person the United States

Supreme Court has held that evidence, including statements,

which is tainted by an illegal arrest Canpet be used by

the State to prove guilt. Brown v. Illinois, 422 u.s. 590,

45 L.Ed.2d 416 (1975); Davis v. Mississippi, 394 U.S. 721,

22 L.Ed.2d 676 (1969),

Even the giving of the warnings required by Miranda v, vs

Arizona, 384 U.sy" 436, 16 L.Ed.2a 694 (1966) cannot automatically

dissipate the taint of an illegal arrest because, as the Court

noted in Brown, supra, 422 U.S. at 601-603, 45 L.Ed.2d at 426,

427:

R-58

ee te

"If Miranda warnings, by them-

selves, were held to attenuate the

taint of an unconstitutional arrest,

regardless of how wanton and purposeful

the Fourth Amendment violation, the

effect of the exclusionary rule would

be Substantially diluted. See Davis

Vv. Mississippi, 394 U.s. 721, 726-727,

22 L.Ed. 2d 676, 89 S.ct. 1394 (1969).

Arrests made without warrant or

without probable cause, for question-

ing or ‘investigation’, would be

encouraged by the knowledge that

evidence derived therefrom hopefully

could be made admissible at trial by

the simple expedient of giving Miranda

warnings. Any incentive to avoid

Fourth Amendment violations would be

eviscerated by making the warnings,

in effect, a ‘cure-all’, and the

constitutional guarantee against

un'awful searches and seizures could

b» said to be reduced to 'a form of

words' See Mapp v. Ohio, 367 U.S., at

468, 6 L.Ed. 24 1081, 81 S.ct. 1684,

84 A.L.R. 2d 933," (Emphasis added)

422 U.S. at 601-603, 45 L.Ed.2a at

426,427.

This Court has held that when illegal custody is

Closely followed by the giving of an incriminating Statement

the Fourth Amendment violation renders the statement in-

admissible. R.L.J. v. State, 336 So.2a4 132 (Fla. 1 DCA

1976) certiorari pending, cuse no. 50,253 Florida Supreme

Court.

The primary issue, however, i8 whether the warrantless

arrest of the appellant in his home violated Privacy interests

Protected by the Prohibitions against unreasonable searches

and seizures. This issue has never been squarely resolved

R-59

by the United States Supreme Court. The Florida Supreme

Court has refused to anticipate the evenutal holding cf the

Federal Supreme Court on this point and has consequently

held that a warrantless arrest of a suspect in his home is

lawful pursuant to Section 901.15(3), Florida Statutes (1975).

State v. Perez, 277 So.2d 778 (Fla. 1973) cert. den. 414 a8,

1064.

It is appellant's contention that despite the contrary

indications by the Florida Supreme Court in Perez, supra,

the Fourth Amendment to the United States Constitution ul-

timately will be held to prohibit the warrantless arrest of

a suspect in his home in the absence of a showing of exigent

circumstances. Since this issue was properly raised in the

court below it is preserved for appellate review by this

Court.

The Fourth Amendment provides:

“The right of the people to be

secure in their persons, houses,

papers, and effects, against un-

reasonable searches and seizures,

shall not be violated, and no

warrants shall issue, but upon

probable cause, Supported by oath

or affirmation, and particularly

describing the place to be searched,

and the persons or things to be

seized."

Article I, Section 12 of the Florida Constitution con-

tains similar wording.

The provisions of both the federal and state constitutions

R-60

contain a reference to obtaining warrants which is commonly

known as the Warrant Clause. The United States Supreme

Court has construed the Fourth Amendment to mean that the

Warrant Clause requires the obtaining of a search warrant

prior to law enforcement agents searching premises even

though probable cause unquestionably exists. Agnello vy.

United States, 269 U.S. 20, 70 L.Ed. 145 (1925); Johnson Vv.

United States, 333 U.S. 10, 92 L.Ed. 436 (1948); Jones v.

United States, 357 U.S. 493, 2 L.Ed.2d 1514 (1958). Exceptions

to the requirement of a warrant for searching premises are

limited to "only a few specifically established and well-

delineated exceptions" Katz v. United States, 389 U.S. 347,

357, 19 L.Ed.2a 576, 585 (1967). The Florida Supreme Court

has recently reiterated this Principle in Hornblower v.

State, (not yet reported) case no. 49,568 Florida Supreme

Court opinion filed October 27, 1977.

The issue now before the Court, however, raises

the question of whether a warrant should Likesise be required,

or an exigency demonstrated, when a person is arrestéd in his

home. This issue was mentioned, but not decided, in Jones yv.

United States, Supra, 357 U.S. 493, 499, 500, 2 L.Ed.24 1514,

1519 when the Court responded to the government's argument

that @deral officers had the right to arrest a Suspect upon

Probable cause in his home without a Warrant and said:

R-61

"These contentions, if open

to the Government here, would

confront us with a grave consti-

tutional question namel whether

the Forcefal nighttime entry into

a dwelling to arrest a rson rea-

sonably believed within, upon pro-

bable cause that he had Committed

a felony, under circumstances where

no reason appears why an arrest

warrant Soutl not have been sought,

iS _ consistent with the Fourth Amend-

ment. But we do not consider this

issue fairly presented by this case,

for the record fails to support the

theory now advanced by the Govern-

ment." (Emphasis added).

This same issue was again addressed, but not decided,

in a portion of the majority opinion in Coolidge v. New

Hampshire, 403 U.S. 443, 29 L.Ed.2d 564 (1971). Justice

Stewart noted in Coolidge that it had been argued in dissent

that police have the right to arrest upon probable cause

without a warrant and without demonstrating exigent cir-

cumstances and said:

"If we were to agree with Mr.

Justice White that the police may,

whenever they have probable cause,

make a warrantless entry for the

purpose of making an arrest, and

that seizures and searches of auto-

mobiles are likewise per se rea-

sonable given probable Cause, then

by the same logic any search or

seizure could be carried out with-

out a warrant, and we would simply

have read the Fourth Amendment out

of the Constitution. Indeed, if

Mr. Justice White is correct that

it has enerally been assumed that

the Fourth imantnent is not violated

R-62

by the warrantless entry of

a_man's house for purposes of

arrest, it might ~ en to

re-examine the assumption.

None of the cases cited by

Mr. Justice White disposes of

this 'grave constitutional

question." The case of Warden v

Hayden, supra, where the Court

elaborated a hot ursuit’ justi-

fication for the lice entry into

the defendant's house without a

warrant for his arrest, certainl

Stands by ne ative implication for

the proposition that an arrest

warrant is require n the absence

of exigent circumstances. See also

Davis v Mississippi, 394 US 721,

728, 22 L Ed 2d 676, 681, 89 S Ct

1394; Wong Sun v United States,

371 US, at 481-482, 9 L Ed 2d, at

451." (Emphasis added) 403 U.S.

at 480, 481, 29 L.Ed.2d at 591.

The Court again took up the issue of warrantless

arrests in Gerstein v. Pugh, 420 U.S. 103, 43 L.Ed.2d

54 (1975) in stating:

"Maximum protection of

individual rights could be

assured by requiring a magis-

trate's review of the factual

justification prior to any ar-

rest, but such a requirement would

constitute an intolerable handicap

for legitimate law enforcement.

Thus, while the Court has expressed

a preference for the use of arrest

warrants when feasible, Beck v Ohio,

Supra, at 96, 13 L Ed 2d 142; Wong

Sun v United States, 371 US 471,

R-63

479-482, 9 L Ed 2d 441, 83 S Ct

407 (1963), it has never invalidated

an arrest supported by probable

cause solely because the officers

failed to secure a warant." 420 U.S.

at 113, 43 L.Ed.2d at 64,65.

In a footnote to that passage, however, the Court

distinguished the general question of warrantless arrests

from the more specific issue present here of a warrantless

arrest in the home and said:

"The issue of warrantless arrest

that has generated the most con-

troversy, and which remains un-

settled, is whether and under

what circumstances an officer may

enter a suspect's home to make a

warrantless arrest." Gerstein v.

Pugh, supra, 420 U.S. at 113, 43

L.Ed.2d at 65 fn. 13.

In United States v. Watson, 423 U.S. 1411, 46 L.Ed.2da

598 (1976) five members of the Court held that a warrantless

arrest was permissible, without exception, when the arrest

occurred in a public place. The limited scope of the

holding in Watson is emphasized by this comment in the

majority tpiniéns

"6. In the case before us the

Court of Appeals relied heavily,

but mistakenly, on Coolidge v New

rm. Hampshire, 403 US 443, 480-481; 29

L Ed 2d 564, 91 S Ct 2022 (1971),

for as we noted in Gerstein v Pugh,

420 US, at 113 n 13, 43 L Ed 24 54,

95 S Ct 854, the still unsettled

question posed in that part of the

Coolidge opinion was ‘whether and

under what circumstances an officer

may enter a suspect's home to

make a warrantless arrest.'

Watson's midda ublic arrest

does not present that question."

(Emphasis added) 423 U.s. 4

at 418,

46 L.Ed.2d at 605

Although concurring in the majority opinion, Justice

Powell took care to comment on what was not included in

the decision, Saying:

"(W]e do not today consider or

decide whether or under what

circumstances an officer lawfully

may make a warrantless arrest in

a private home or other place where

the person has a reasonable ex-

pectation of privacy." 423 U.S.

at 432, 433, 46 L.Ed.2d at 614.

Justice Stewart noted in a concurring opinion that

Since the arrest in Watson was made with probable cause

"in a public place in broad daylight" the Court did not

decide “whether or under what circumstances an officer must

obtain a warrant before he may lawfully enter a private

place to effect an arrest." 423 U.S. at 433, 46 L.Ed. 2d

at 614.

Justices Marshall and Brennan dissented and Justice

Stevens did not participate.

The most recent pronouncement by the Court on this

issue again left open the question whether a warrant is

required to make an arrest of a@ suspect at home in the

absence of exigent circumstances. United States v. Santana,

R-65

427 U.S. 38, 49 L.Ed.2d 300 (1976). Seven justices

joined in the opinion holding that a warrant was not

necessary under the facts presented. A narcotics officer

had made a buy with marked money from a suspected seller

and after the seller was arrested within a few blocks of

the home of defendant Santana the officers returned to

Santana's dwelling for the purpose of recovering the

marked money. They saw Santana standing in the doorway

of the house with a brown paper bag in her hand. As they

pulled to within 15 feet of her and got out of their van

shouting "Police" Santana retreated into the vestibule of

her house. The officers followed through the open door,

catching her in the vestibule. Police recovered two bundles

of heroin that fell from the paper bag and $70 of marked

money from Santana's pockets. On Santana's motion the

District Court suppressed the evidence finding that a Warrant

Should have been obtained either for Santana's arrest or for

a search to recover the marked money. Nevertheless the

District Court found that the police acted under extreme

emergency conditions. The Court of Appeals affirmed the

decision of the District Court but the United States Supreme

Court reversed because the arrest had been "set in motion in

a public place." 427 U.S. at 43, 49 L.Ed.2d at 306. Again

the Court reserved the question of a warrantless arrest of

a suspect in his home saying:

R-66

"While it may -be true that

under the common law of property

the threshold of one's dwelling is

‘private’, as is the yard surrounding

the house, it is nonetheless clear

that under the cases interpretin

the Fourth Amendment Santana was in

a ublic ace. She was not in an

area where she any expectation of

privacy. "What a person Sautaely

exposes to the public, even in his

own house or office, is not a subject

of Fourth Amendment protection. '

Katz v United States, 389 US 347,

351, 19 L Ed 2d 576, 88 S Ct 507

(1967). She was not merely visible

to the public but was as exposed to

public view, speech, hearing, and

touch as if she had been standing

completely outside her house. Hester

v United States, 265 US 57, 59, 68 L

Ed 898, 44 S Ct 445 (1924). Thus,

when the police, who concededly had

probable cause to do so, sought to

arrest her, they merely intended to

perform a function which we have

approved in Watson." (Emphasis

added) 427 U.S. at 42, 49 L.Ed.2d

at 305.

Again, however, there were concurring and dissenting

opinions, emphasizing the still undecided status of warrant-

less arrests made in the home. Justice Stewart joined the

concurring opinion of Justice Stevens, who pointed out that

the arrest was justified because of either exigent circum-

Stances or harmless error. A significant fact was the

appearance of Ms. Santana in the doorway of her home, an

area not considered within the ambit of reasonable expectation

of privacy. United States v. Santana, supra, 427 U.S. at 44,

45, 49 L.Ed.2d at 306 (Stevens, J., concurring).

Justice Brennan joined Justice Marshall's dissent.

reiterating the protest to the Court's earlier blanket

acceptance of warrantless arrests in public places

announced in Watson. United States v. Santana, supra,

427 U.S. at 45-49, 49 L.Ed.2d at 306-309 (Marshall, J.,

dissenting).

Therefore it appears that the presently constituted

Supreme Court has not reached a majority decision on the

right of police to make a warrantless arrest of a suspect

in his home absent a showing of exigent circumstances.

Of the five justices who concurred in the majority opinion

in Watson, only Justice White has consistently maintained

a position allowing all arrests to be warrantless. Chimel v.

California, 395 U.S. 752, 770-783, 23 L.Ed.2d 685, 698-706

(1969) (White, J., dissenting); Coolidge v. New Hampshire,

supra, 403 U.S. at 511-512, fn.1,29 L.Ed.2d at 609-610.

(White, J., concurring and dissenting). Justices Marshall

and Brennan, as noted in dissents registered in Watson and

Santana, have consistently taken the contrary position.

Justice Stewart has expressed serious doubts about the

validity of warrantless arrests in the home, Coolidge v.

New Hampshire, supra, 403 U.S. at 480-481, 29 L.Ed.2d at

591 and made clear that the issue was not before the Court

R-68

in either Watson or Santana. Justice Stevens maintained

a position of announced neutrality on this point in Sautana

- (and took no Part in Watson). Justice Powell has likewise

taken care to note specifically that the issue was not

being decided by Watson. Justices Blackmun, Rehnquist,

and the Chief Justice joined the majority opinions in both

Watson and Santana, in which the question was reserved,

and have not otherwise expressed an opinion.

It seems clear, therefore, that eventually the Court

will have to decide if the Warrant Clause applies to arrests

in the home. Appellant submits that the trend of decisions

leads inexorably to the conclusion that it does, and that

the Court will so hold. There are several reasons for this

prediction.

First, the Court has taken great care to isolate

this issue in its two recent decisions otherwise allowing

warrantless arrests. Each time there have been justices

concurring specifically to stress the reservation of the

question, very likely indicating that had the majority not

limited the scope of its holding to public places there

might not have been a majority.

Second, just last term all members of the Court

joined opinions chastizing the government for taking an

extremely narrow view of the Warrant Clause in the context

R-69

of a post-arrest search of a footlocker. United States v.

Chadwick, U.S. , 53 L.Ed.2d 538 (1977); Blackmun.

'J., (joined by Rehnguish, J.) dissenting, 53 L.Ed.2d at

552; Brennan, J., concurring, Id. at 55l.

Third, in slightly different contexts the Court has

drawn a sharp distinction between interests which are more

deserving of the protection of the Warrant Clause, depending

on the degree of the individual's expectation of privacy.

Compare, e.g. Katz v. United States, 389 U.S. 347, 19 L.Ed.2d

576 (1967) (warrant required to intercept private telephone

conversations made from a telephone booth); United States v.

United States District Court, 407 U.S. 297, 32 L.Ed.2d 752

(1972) (warrent required for electronic surveillance of

conversations even though the purpose was "national

security'); Vale v. Louisiana, 399 U.S. 30, 26 L.Ed.2d 409

(1970) (warrant required for search of home); Coolidge v.

New Hampshire, supra, 403 U.S. 443, 29 L.Ed.2d 564 (warrant

required to search car on private property); United States v.

Chadwick, supra, U.S. , 53 L.Ed.2d 538 (warrant

required to search double locked footlocker seized at time of

valid warrantless arrest); cf. Stanley v. Georgia, 394 U.S.

$37, 22 L.Ed.2d 542 (1969) (the state has no power to seize

obscene material from the privacy of the home); with, e.g.,

Carroll v. United States, 267 U.S. 132, 69 L.Ed.2da 543 (1925)

R-70

ong

(warrant not required to seize contraband from moving

vehicle); Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d

419 (1970) (warrant .not required to search vehicle at

police station after its seizure on the highway, a decision

which did not obviate the necessity for a warrant to

search the more privately held possession of a footlocker

seized inder similar circumstances in Chadwick); Cardwell v.

Lewis, 417 U.S. 583, 41 L.Ed.2d 325 (1974) (warrant not

required to search exterior of car parked on public property).

Based on this analysis and comparison of decisions,

a persuasive argument can be made that as the expectation of

privacy increases, there is a corresponding increase in the

Court's willingness to apply the Warrant Clause by requiring

advance judicial permission as an adjunct to probable cause.

Moreover, the explicit language of the Court in prior

decisions evinces a strong tendency to protect persons in

their homes and other private areas (as opposed to more public

places) from direct police intrusion by the insulation of

the Warrant Clause.

For example, in Agnello v. United States, 269 U.S. 20,

33, 70 L.Ed. 145 (1925) the Court said:

“Belief, however well founded, that an

article sought is concealed in a

dwelling house, furnishes no justi-

fication for a search of that place

without a warrant. And such searches

are held unlawful notwithstanding

R-71

facts unquestionably showing

probable cause.:

In Cooper v. California, 386 U.S. 58, 59, 17 L.Ed.2d

730, 731 (1967) the Court said:

"{Slearches of cars that are

constantly movable may make the

search of a car without a warrant

a reasonable one although the re-

sult might be the opposite in a

search of a home, a store, or

other fixed piece of property.:

This view, however, overlooks the

second clause of the Amendment.

The warrant clause of the Fourth

Amendment is not dead lan uage.

Rather, it has been ‘a Gatuel

part of our constitutional law for

decades, and it has determined the

result in scores and scores of

cases in courts all over this

country. It is not an inconvenience

to be somehow "we against the

Claims of olice efficienc «’ £e a8,

or should = an important working

part of our machinery of government,

operating as a matter of course to

check the “well-intentioned but

mistakenly overzealous executive

officers" who are a part of any

System of law enforcement. '"

(Emphasis added) Id. at 765.

In United States v. United States District Court, supra,

407 U.S. 297, 32 L.Ed.2d 752, the Court stressed the impor-

tance of the Warrant Clause in these terms;

"Though the FourthAmendment e * *

speaks broadly of ‘unreasonable

searches and seizures,’ the defini-

tion of 'reasonableness' turns, at

"The Fourth Amendment does not

contemplate the executive officers

of Government as neutra an s-

least in part, on the more specific

commands of the warrant clause. interested magistrates. Their uty

Some have argued that '[t]Jhe rele- and responsibility is to enforce the

vant test is not whether it is laws, to investigate, and to pro-

reasonable to procure a search war- secute. Katz v United States, supra,

rant, but whether the search at 359-360, 19 L Ed 2d at 586, 587

(Douglas, J., concurring). But those

was reasonable,’ United States v

Rabinowitz, 339 US 56, 66, 94 L 1

Ed 653, 660, 70 S Ct 430 (1950). 6

charged with this investigative and

prosecutorial duty should not be the

sole judges of when to utilize consti-

tutionally sensitive means in pur-

suing their tasks. The historical

judgment, which the Fourth Amendment

395 US 752, 23 L Ed 2d 685, 89 S Ct 2034 (1969), the Court con- tive discretion me repos execu SitonS that unreviewed execu-

sidered the Government's contention that the search be judged Eo PreSsuree Ce oeay pa too, Eeadily

on a general ‘reasonableness’ standard without reference to the evilence set Soe ee minat ing

warrant clause. The Court concluded that argument was ' founded VasIGhe OF pri vee eorential in-

| vasions o pr vacy and protect speech,17»

Emphasis adde Id. at ° ‘

16. This view has not been accepted. In Chimel v. California,

on little more than a subjective view regarding the acceptability

of certain sorts of police cenduct, and not on considerations

relevant to Fourth Amendment interests. Under such an unconfined

analysis, Fourth Amendment protection in this area would approach

the evaporation point.' Id., at 764-765, 23 L Ed 2d at 694, 695. ‘7. H. Lasson, The History and Development of the Fourth

. Amendment to the United States Constitution 79-105 (1937).

R-72 R-73

* * *

"It is true that there have been

some exceptions to the warrant re-

quirement. Chimel v California,

395 US 752, 23 L Ed 2d 685, 89 S

Ct 2034 (1969); Terry v Ohio, 392

US 1, 20 L Ed 2d 889, 88 S Ct 1868

(1968); McDonald v United States,

335 US 451, 93 L Ed 153, 69 S Ct

191 (1948); Carroll v United States,

267 US 132, 69 L Ed 543, 45 S Ct

280, 39 ALR 790 (1925). But those

exceptions are few in ni r an

carefully delineated, Katz, supra,

at 357, t5 L Ed 2d at 585; in general,

they serve the legitimate needs of

law enforcement officers to protect

their own well-being and preserve

evidence from destruction. Even

while carving out those exceptions,

the Court has reaffirmed the prin--

ciple that the ‘police must, when-

ever practicable, obtain advance

judicial approval of searches and

seizures through the warrant proce-

dure,' Terry v Ohio, supra, at 20,

.20 L Ed 2d at 905; Chimel v. Califor-

nia, supra, at 762, 23 L Ed 2d at 693.

(Emphasis added) Id. at 767.

ee oe nat nN

* * “

“At least since Carroll v

United States, 267 US 132, 69 L

Ed 543, 45 S Ct 280, 39 ALR 790

(1925), the Court has recognized

a distinction between the warrant-

less search and seizure of auto-

mobiles or other movable vehicles,

on the one hand, and the search of

a home or office, on the other.

Generally, less stringent warrant

requirements have been applied to

vehicles." Id. at 334.

* * *

"There is still another distin-

guishing factor. 'The search of an

automobile is far less intrusive on

the rights protected by the Fourth

Amendment than the search of one's

person or of a building.' Almeida-

Sanchez v United States, 413 US

266, 279, 37 L Ea 2a 596, 93 S$ Ct

2535 (1973) (Powell, J., concur-

ring). One has a lesser expectation

of peavacy in a motor vehicle because

its function is transportat on and it

seldom serves as one's residence or

as the repository of personal effects."

In Cardwell v. Lewis, supra, 417 U.S. 583, 41 L.Ed.2d Id. at 335. (Emphasis added).

In South Dakota v. Opperman, 428 U.S. 364, 367,

325, the Court again noted the priority of privacy as a

368, 49 L.Ed.2d 1000, 1004 (1976) the Court said:

key to the warrant requirement, saying:

“Rather than property rights, the

primary object of the Fourth Amend-

ment was determined to be the

protection of privacy. Id., at

305-306, 65 L Ed 647.. And it had

been said earlier, 'The decisions

of this Court have time and again

underscored the essential purpose

of the Fourth Amendment to shield

the citizen from unwarranted in-

trusions into his privacy.'"

Id. at 334.

R-74

"This Court has traditionally

drawn a distinction between auto-

mobiles and homes or offices in

relation to the Fourth Amendment.

Although automobiles are ‘effects’

and thus within the reach of the

Fourth Amendment, Cady v Dombrowski,

413 US 433, 439, 37 L Eda 2a 706,

93 S Ct 2523 (1973), warrantless

examinations of automobiles have

been upheld in circumstances in

R-75

which a search of a home or

office would not.

* * ad

Besides the element of mobility,

less rigorous warrant require-

ments govern because the expec-

tation of privacy with respect

to one's automobile is signifi-

cantly less than that relating to

one's home or office."

Therefore, although the point has not been explicitly

decided by the Court, appellant contends that he was pro-

tected by the Fourth Amendment from being arrested in his

home by police who failed to obtain a warrant or explain

why they did not. "Physical entry of the home is the

chief evil against which the wording of the Fourth Amend-

ment is directed. . .." United States v. United States

District Court, supra, 407 U.S. at 313, 32 L.Ed.2d at 764.

The twin concepts stressed in Katz v. United States, supra,

389 U.S. 349, 19 L.Ed.2d 576, that the Amendment protects

"people not places" and applies when there is a reasonable

expectation of privacy, coalesce to shield appellant from

the unilateral action taken by the police here. A more

compelling example of abuse could hardly be imagined, when

officers, acting only on hearsay from an accomplice,invade

a private dwelling, awaken the Sleeping appellant with

drawn guns and spirit him away for questioning, without

bothering first to: seek the authority and neutral judgment

R-76

of a magistrate. This bypassing of the judiciary when

making such a substantial assault on the privacy of a

person in his home is intolerable, and surely will be

found to violate the right to be free from unreasonable

searches and seizures. This case is, on balance, only

Slightly different from those which have ruled that so-

Called "exigent circumstances" did not justify warrantless

Searches and seizures of Property. Hornblower v. State,

Supra; Raffield v. State, (not reported) Fla. S.Ct. case

49,872, July 14, 1977; Parsons v. State, 334 So.2d 308

(Fla. 1 DCA 1976) (cert. discharged October 27, 1977);

Shepard v. State, 310 So.2d 127 (Fla. 1 DCA 1975); Hannigan v.

State, 307 So.2d 850 (Fla. 1 DCA 1975). There is no mean-

ingful difference between raiding a home without a warrant

when the purpose is arresting the occupant as distinguished

from conducting a search. Both should require the advance

judgment of a neutral Magistrate. These words are appropriate,

even though written in dissent.

"We have recognized that 'the Fourth

Amendment protects people, not

Places." Katz v United States,

Supra, at 351, 19 L Ed 24 576, 88

S Ct 507. Indeed, the privacy

guaranteed by the Fourth Amendment

is quintessentially personal. Cf.

Roe v Wade, 410 US 113, 35 L Ed 24

147, 93 S Ct 705 (1973); Doe v

Bolton, 410 US 179, 35 L Ed 2d 201,

93 S Ct 739 (1973); Griswold v

Connecticut, 381 US 479, 14 L Ed

R-77

et ee oe ep eeee

I a a Fo ae

2d 510, 85 S Ct 1678 (1965).

Thus a warrant is required in

search situations not because

of some high regard for property,

but because of our regard for the

individual, and his interest in

his possessions and person.

‘It is not the breaking

of his doors, and the

rummaging of his drawers,

that constitutes the es-

sence of the offense; but

it is the invasion of his

indefeasible right of

personal security, personal

liberty and private pro-

perty, where that right has

never been forfeited by his

conviction of some public

offense, ~ it is the invasion

of this sacred right which

underlies and constitutes

the essence of Lord Camden's

judgment [in the classic

English warrant case of

Entick v Carrington, 19

How St Tr 1029, 95 Eng

Rep 807 (1765)].' Boyd v

United States, 116 US 616,

630, 29 L Ed 746, 6 S Ct

524 (1886).

Not only is the Fourth Amendment

directly addressed to the privacy of

our citizens, but it speaks in in-

distinguishable terms about the free-

dom of both persons and property from

unreasonable seizures. A warrant is

required in the search situation to

protect the privacy of the individual,

but there can be no less invasion of

privacy when the individual himself,

rather than his property, is searched

and seized. Indeed, an unjustified

arrest that forces the individual

temporarily to forfeit his right to

control his person and movements and

R-78

oa eer Om pernene

interrupts the course of his daily

business may be more intrusive

than an unjustified search.

* * *

A warrant requirement for arrests

would, of course, minimize the possi-

bility that such an intrusion into

the individual's sacred sphere of

personal privacy would occur on less

than probable cause. Primarily for

this reason, a warrant is required

for searches. Surely there is no

reason to place greater trust in the

partisan assessment of a police

officer that there is probable cause

for an arrest than in his determina-

tion that probable cause exists for a

search." 423 U.S. at 445-447, 46 L.

Ed.2d at 622, 623 (Marshall, J.,

dissenting).

To underscore the need for a warrant here, it is

Significant that after the arrest the police first

brought the appellant to the Sheriff's Office for

questioning, rather than bringing him directly to a

magistrate for the determination of probable cause and

the advisement of rights. This action undercuts the

assumption made in Chimel v. California, supra, 395 U.S.

752, 23 L.Ed.2d 685, by Justice White in arguing that

warrants were unnecessary when he said that a warrantless

arrest "demands the prompt bringing of the person arrested

before a judicial officer, where the existence of probable

cause is to be inquired into" and that the arrested person

would be provided "almost immediately with a lawyer and a

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judge". Id. at 782, 783, 23 L.Ed.2d at 705, 706. for not obtaining an arrest warrant, the arrest was

Furthermore, the absence of prior judicial invalid under either the Federal and Florida Constitutions,

approval for the arrest here casts serious doubt on or under both. The appellant's confession was the direct

whether the police really had probable cause. The only result of this unconstitutional arrest and should have

evidence against appellant at trial was his own confes- been suppressed.

sion. The supposed "informer" took the Fifth Amendment

at trial.

Under these circumstances it is virtually impossible

to assess after the fact the actual information, and the

indicia of its reliability, known by the police prior to

appellant's arzest and confession. The floundering testi-

mony of Officer Terry in explaining the facts known by he

and other officers highlights the need for judicial deter-

mination of probable cause before, and not after, the arrest.

In Beck v. Ohio, 379 U.S. 89, 96, 13 L.Ed.2d 142, 147

(1964) the Court commented on this same point, saying:

"An arrest without a warrant by-

passes the safeguards provided

by an objective predetermination

of probable cause, and substitutes

instead the far less reliable pro-

cedure of an after-the-event justi-

fication for the arrest or search,

too likely to be subtly influenced

by the familiar shortcomings of

hindsight judgment."

Because the police in the case now before the Court

failed to obtain prior judicial approval before arresting

appellant in his home, when there was mo showing of an excuse

R-80 R-81

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.