Christie, I. G.

English

University of Miami School of Law

University of Miami Law Review Volume 9 Number 1 Miami Law Quarterly Article 13 10-1-1954 Search And Seizure --Statutory Authority to Search Without Warrant I. G. Christie Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation I. G. Christie, Search And Seizure --Statutory Authority to Search Without Warrant, 9 U. Miami L. Rev. 108 (1954) Available at: https://repository.law.miami.edu/umlr/vol9/iss1/13 This Case Noted is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact library@law.miami.edu. MIAMI LAW QUARTER.,Yjuror's testimony to facts evidencing outside influence, but he cannot testi-fy that such outside influence affected his verdict."5In the instant case, the juror remained silent when the verdict of guiltywas read aloud in open court. If he objected to such verdict, that was timeto be heard." The Supreme Court said that matters presented in the juror'saffidavit showed it essentially inhered in the verdict itself," and was inad-missible. Florida follows the general rule," except as to matters which donot inhere in the verdict," or as otherwise provided by statute.20The universal adoption of the rule has been a matter of public policywhich seeks to preserve the stability of the courts. "Such evidence, thoughnot irrelevant, must be excluded, since experience has shown it is morelikely to prevent than promote the discovery of truth"." Not to refuse jurorstestimony is a dangerous principle to follow. It permits tampering with jur-ors. By various and improper influences,, affidavits could be obtained fromjurors upon which to ground motions for new trials in almost every case.2 'It is conceded the rule leaves something to be desired since some personsmay become the victims of chance or mistake. However, it is better than tointroduce a rule which could be productive of infinite mischief, whereby noverdict could be permitted to stand." in Perry v. Bailey, "Justice Brewersaid:When a juror is heard to impeach his own verdict because of somematter resting in his own consciousness, the power is given him tonullify the expressed conclusions under oath of himself and elevenothers.Paul M. LowSEARCH AND SEIZURE-STATUTORY AUTHORITYTO SEARCH WITHOUT WARRANTDefendant's license was suspended when gambling implements werefound on the premises. The licensee instituted a certiorari proceeding toquash the order, on grounds that the evidence had been procured as a result15. State v. McKay, 63 Nev. 118, 165 P.2d 389 (1946).16. United States v. Nystrornm, 116 F.Supp. 771 (W.D. Pa. 1953); State v. Pollock57 Ariz.415, 114 P.2d 249 (1941); Lawson v. Com., 278 Ky. 1, 127 S.W.2d 879(1939); State v. Priestley, 97 Utah 158, 91 P.2d 447 (1939).17. Brackin v. State, 31 Ala. App. 228, 14 So.2d 383 (1943); Linsley v. State, 88Fla. 135, 101 So. 173 (1924).18. Ibid.19. Turner v. State, 130 Fla. 801, 178 So. 833 (1930); Linsley v. State, 88 Fln135, 101 So. 273 (1924); Perry v. Bailey, 12 Kan.539 (1874).20. FLA. STAT. 1 920.04; see note 8, supra; and FLA. STAT. 5 .920.05, whichprovides that misconduct of jurors is grounds for motion for new trial.21. Blodgett v. Park, 76 N.H. 435,84 Art. 42, Ann.Cas. 19138, 853 (1912).22. Norris v. State, see note 6, sapra.23. Tyler v. Steven, see note 6, supra.24. 12 Kan. 539 (1874).CASENOTESof unreasonable, illegal, and unlawful search and seizure. Held, the im-port of the statute' is plain that the commission had authority to enter andinspect the premises without a search warrant and that the censurable con-duct and language of the inspector did not make the entire inspection il-legal. In re Smith, 74 So.2d 353 (Fla. 1954).Few principles of our jurisprudence have been less appreciated or morethe object of virulent contention than the doctrine which protects the citi-zen from unreasonable search and seizure. The question of how far pastthe strict limits of the statute an officer can go before his action is voidbecause of infringment of constitutional guaranties, of the defendant de-pends on the reasonableness of the search.' The term "unreasonable searchand seizure" is not defined in the FederalP and Florida ' Constitutions,and in Milan v United States6, the phrase was said to have no fixed, abso-lute, or unchanging meaning. The Supreme Court has recently said that therelevant test of whether or not a search is reasonable depends upon thefacts and circumstances-the total atmosphere of the case.' Since the rightof search and seizure is in derogation of constitutional guaranties,' the sta-tute authorizing or regulating searches must be strictly construed againstthe state' and liberally construed in favor of the individual."' In Solomonv. State," the statute vested in the sheriff the right to Iforcibly' enter ahouse without a warrant if he had good reason to believe gambling wasbeing conducted. It was held that the search was illegal because it wasconducted by a deputy sheriff. An Idaho case,'2 wherein a statute providedfor the search of a place where there was probable cause to believe thatintoxicating liquor was sold, held that the authority of an officer to searcha certain place cannot be extended so as to constitute authority to searcha person not connected in any way with the place being searched, and who1. FLA. STAT. § 511.11 (1953).2. U.S. CONST. Amend. IV.3. District of Columbia v. Little,178 F. 2d 13 (D.C. Cit. 1949). (The constitut-ional prohibition against unreasonable searches, by implication, permit, reasonablesearches); Church v. State, 151 Fla. 24 9 So. 2d 164 (1942).4. Agnello v.'U.S., 290 Fed. 671 (2d Cir. 1923).5. FLA. CONST. Declaration of Rights § 22.6. 296 Fed. 629 (4th Cir. 1924).7. U.S. v. Rabinowtiz, 339 U.S. 46 (1950); Drayton v. U.S., 205 F.2d 35 (5th Cit.1953); U.S. v. Hill,114 F. Supp.44 1 (D.C. Cir. 1953); Brinegar v. State, 262 P.2d464, (Okl.1953).8. State v. Jones, 358 Mo. 398, 214 S.W. 2d 705 (1948).9. Wilson v. Quigg,154 Fla.348, 17 So. 2d 697 (1944); Gildrie v. State,94 Fla.134,113 So. 704 (1929); accord, Hart v. State, 89 Fla. 202, 103 So. 633 (1925); Jacksonv. State,87 Fla. 262, 99 So. 548 (1924); Edwards v. State, 83 Okl.Crim. 340, 177P.2d 143 (1947).10. Sgno v. U.S., 287 U.S. 206 Q923); accord, U.S. v. Nichols, 89 F.Supp. 935(D.C. Ark. 1950); Marron v. U.S., 275 U.S. 192(1927); Boyd v. U.S., 116 U.S. 616(1886).11. 115 Fla. 310, 156 So. 401 (1934).12. Purkey v. Mabey, 33 Idaho 281, 193 Pac. 79 (1920); accord. Town v. Beam, 104S. C. 146, 88 S. E. 441 (1919); ef., State v. Kollat, 190 Wis 255, 208 N.W. 900(1926).MIAMI LAW QUARTERLYmerely happens io be on the premises. However, it has been stated that thestatute should not be construed so strictly as to thwart reasonable and pro-per efforts to detect crime." In Commonwealth v Courtney," officers whilemaking a search committed acts not authorized by the warrant. The courtheld that all that was done was not tainted with illegality, and that the actswere illegal only to the extent that they were not authorized by the war-rant. Again, in a federal case," it was held that there was an unlawfuldestruction of liquor, but this did not make unlawful the seizure of propertywhich could rightfully be taken.The Supreme Court bases its decision in the instant case upon the rulingof In re Advisory Opinion to the Governor Florida,", where the Court pre-viously said that the Hotel Commission has authority to go upon the prem-ises of the establishments and inspect them without a search warrant forthe purpose of determining whether or not any law with reference to thehotel, including the gambling laws, were being violated. The majority ofthe Court admits that the inspecting officials are charged with the duty ofexercising care to see that no abuse or unnecessary severity occurs," butthey adopt the underlying principle of Commonwealth v Courtney.- The dis-sent, on the other hand, admits that some flexibility of judgment on thepart of officers is necessary in carrying out justice, but that consideringthe facts and circumstances, ' the search was unreasonable. By these con-flicting opinions we can see two somewhat opposed views in cases ofsearch and seizure. One view adheres to the principle that the state has aduty to protect its citizens in enjoyment of privileges and immunities asguaranteed by the constitution.20 The other view is that the state also hasa duty to prevent and suppress unlawful conduct.,,13. Pong Ying v. U.S., 66 F. 2d 67 (3rd Cir. 1930); accord, U.S. v. Snow, 9 F.2d978 (D.C. Mass. 1925);c/.. Perry v. State, 72 OkI.Crim. 149, 114 P. 2d 185 (1929);Wagner v. State, 72 OkI. Crim. 393, 117 P.2d 162 (1941).14. 243 Mass. 363, 138 N.E. 16 (1923); accord, Adams v. N.Y., 192 U.S. 585(1904); Quandt Brewing Co. v. U.S., 47 F.2d 199 (2d Cir. 1931); Commonwealth v.Intoxicating Liquors, 203 Mass. 585,89 N.E. 918 (1909); cf., State v. Brown, 91W.Va. 709, 114 S.E. 372 (1922).15. McGuire v. U.S., 273 U.S. 95 (1926); accord. Giacolone v. U.S., 13 F.2d108 (9th Cir. 1926); Hurley v. U.S., 300 Fed. 75 (1st Cir. 1924); In re Quirk, 1F. 2d 484 (D.C. N.Y. 1924).16. 63 So. 2d 321 (Fla. 1953).17. Marshall v. Commonwealth, 140 Va. 542, 125 S.E. 329, (1924); accord,McMahan's Admi'x v. Droffen, 242 Ky. 785, 47 S.E. 2d 716 (1932); cf.. State v. Frye,58 Ariz. 409, 120 P.2d 793 (1942); Girard v. Anderson, 219 Iowa 142, 257 N.W. 400(1934); Krebbeil v. Henkle, 142 Iowa 677, 121 N.W. 378 (1909).18. See note 14 supra.19. Mathews v. Correa, 135 F. 2d 534( 1934); U.S. v. Hotchkiss 60 F.Supp. 405 (D.C. 1.d. 1945); U.S. v. Fsposito, 45 FSupp. 39 (D.C. Pa. 1942);Langov. State, 157 Fla. 668, 26 So. 2d 819 (1946); Buckley v. Beaulieu, 104 Maine 56,71 Ad. 70 (1908); Cleek v. State, 192 Tenn. 457, 241 S.W. 2d 529 (1951); accor,Ellis v. State, 92 Fla. 275, 109 So. 622 (1926); Haile v. Gardner, 82 Fla. 355,91So. 376 (1921).20. Weeks v. U.S., 232 U.S. 384 (1941); Boyd v. U.S., 116 U.S. 616 (1886); accord,Youman v. Commonwealth, 189 Ky. 152,224 S.W. 860 (1921); cf., Manning v. Rob-erts, 179 Ky. 550, 200 S.W. 937 (1918).21. Angello v. U.S., 269 U.S. 20 (1925); Carrol v. U.S., 267 U.S. 132 (1925);Elliot v. Haskin, 20 Cal. App. 2d 591, 67 P.2d 698 (1937); accord, Tranum v.Stlinger, 216 Ala. 522, 113 So. 541 (1927).CASENOTESIt is respectfully submitted that the Florida Supreme Court, in weighingthese two principles, may have placed too much emphasis on the protectionof the public welfare to the detriment of an individual's constitutionalright. There is no question that a reasonable inspection of apartmenthouses, restaurants, and hotels is necessary for the protection of publicwelfare.3' But laws which authorize such inspections must respect theindividual's guaranties against unreasonable search and seizure.Since the "reasonable" test depends upon the facts and circumstances-"the total atmosphere of the case, ", and since this Court has held that astatute which purports to delegate authority to certain officers be strictlyconstrued, 1 it is difficult to say that when a state officer commits a physi-cal assult on an individual and subjects him to verbal abuse that the searchwas reasonable."5 Certainly, no broad power bestowed upon the law enforce-ment officer warrants an assault upon the person. As Justice Brandeis soably stated:Decency, security and liberty alike demand that government offi-cials shall be subjected to the same rules of conduct that are com-mands of the citizen.... To declare that the government may com-mit crimes in order to secure the conviction of a private criminalwould bring terrible retribution. Against that pernicious doctrinethis court should resolutely set its face."01. G. ChristieWORKMEN'S COMPENSATIONUNLAWFULLY EMPLOYED MINORSAn unlawfully employed minor attempted to sue at law for injuries sus-tained in the course of the employment. Held, the minor is limited to anexclusive remedy under the Workmen's Compensation Act. Winn-LovettTampa v. Murpbree 73 So.2d 287 (Fla. 1954).Workmen's Compensation statutes fall into four general types as regardsthe treatment of unlawfully employed minors.Type one makes no provision for minors unlawfully employed. Under thistype statute, one group of decisions permits the minor to sue at law,' the22. Elliot v. Haskins, 20 Cal. App. 2d 591, 67 P. 2d 698 (1937); Camden CountryBeverage Co. v. Blair, 46 F. 2d 648 (2d Cir. 1930); Kelleher v. Minshull, 11 Wash.380, 119 P.2d 302 (1941).23. See note 7 supra. See Matherne, Search and Seizure- U.S. v. Rabinowitz, 21TENN. L. REV. (1951).24. See note 9 supra.25. People v. Fields, 15 N.Y.S. 2d 561 (1939); Marshall v. Commonwealth, 140Va. 541, 125 S.E. 329, (1924); c/., Reininger v. State, 49 Okl. Crim. 463, 60 P.2d629 (1936).26. Olmstead v. U.S., 277 U.S. 438,485 (1928).1. Widdoes v. Laub, 33Del.4, 129 Art. 344 (1952); Lee v. Kansas City PublicService Co., 137 Kan. 759, 22 P.2d 942 (1933); Win. B. Tilghman Co. v. Conway150 Md. 525, 133 At. 593 (1926); Rock Island Coal Mining Co. v. Gilliam, 89 Oki.49,213 Pac. 833 (1923); Knoxville News Co. v. Spitzer, 152 Tenn. 614, 279 SW 1043(1926); Wlock v. Fort Drummer Mills, 98, Vt. 449, 129 Ad. 311 (1925).

Search And Seizure --Statutory Authority to Search Without Warrant

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Search And Seizure --Statutory Authority to Search Without Warrant

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