
    Joseph Cleveland MOORE, Appellant, v. The STATE of Florida, Appellee.
    No. 65-275.
    District Court of Appeal of Florida. Third District.
    Dec. 28, 1965.
    Robert L. Koeppel, Public Defender, and Phillip A. Hubbart, Asst. Public Defender, for appellant.
    Earl Faircloth, Atty. Gen., and James T. Carlisle, Asst. Atty. Gen., for appellee.
    Before TILLMAN PEARSON, CARROLL and SWANN, JJ.
   SWANN, Judge.

The appellant, Joseph Cleveland Moore, appeals a conviction for breaking and entering a building with intent to commit petit larceny and petit larceny. The essential facts are these.

A church in Dade County, Florida, was broken into some time between December 17, 1964 and December 19, 1964. A Bogen amplifier was missing and the police were called, arriving at 10:59 A.M. December 19, 1964. While driving in his police car at approximately 4:30 A.M. of the same day, Officer James E. Kellish of the City of Miami Police Department saw the appellant walking south along a railroad track, carrying a large bundle wrapped in newspapers. When the police car turned the corner, the appellant turned and began walking in the opposite direction along the railroad track. As Officer Kellish backed up his police car, the appellant turned again and began walking south on the railroad tracks. The officer stopped his car, called the appellant over, and questioned him as to what the bundle which he was carrying contained. The appellant stated that it was clothes wrapped in newspapers for protection from the rain. When Officer Kellish asked the appellant if he could see what was in the bundle, the appellant then stated it was a radio which he was going to pawn later that morning. The appellant gave the bundle to Officer Kellish, who placed it on the back of the police car, unwrapped it, and found it to be a Bogen amplifier, which bore markings indicating it had come from a church.

The appellant then stated he had found the amplifier, and Officer Kellish informed him he was under arrest for breaking and entering. The trial judge found the defendant guilty as charged, and this appeal was properly taken.

The appellant contends that the instant case should be reversed for two reasons. His first contention is that the State failed to prove a prima facie case because it failed to prove the defendant was found (a) in possession of recently stolen property (b) at a time subsequent to the breaking and entering of the church. The second contention was that the search was not incident to a valid arrest.

It is clear that the appellant was searched prior to his arrest and that he was not placed under arrest until after the seizure of the Bogen amplifier. The officer had no knowledge of a felony, or crime being committed prior to the search.

This case is controlled by Kraemer v. State, Fla.1952, 60 So.2d 615, in which the Supreme Court stated that when the police officer lifted a package from the basket on the rear seat of the automobile and looked beneath it, a search was commenced, and where such search was made without a warrant, before any arrest had been made and on mere suspicion without probable cause, it was unlawful, though it resulted in discovery of packages of money and lottery tickets.

The cases where the fruits of an illegal search, prior to arrest, are inadmissible in evidence, are too numerous for citation; however, in a similar case, Pigg v. United States, 8 Cir., 1964, 337 F.2d 302, the United States Court of Appeals reversed a conviction based upon an unreasonable search. In that case, a police officer stopped the defendant at 10:50 P.M. The defendant was walking down the street with a box bearing a label with the words “International Shoe Company” clearly visible. The defendant was well known to the officer as a “noted thief”. The officer asked him where he was going with the box and where he got it. After the defendant stated that he had found it, the officer replied, “I bet you stole it”, and the defendant said, “I wouldn’t doubt it.” The officer took the box from the defendant and placed him under arrest. It was subsequently discovered that the box contained property stolen from an interstate shipment. At the time of defendant’s arrest, the officer knew nothing of the theft. The court held that the search of the defendant was not made incident to a valid arrest, and stated:

* A' * :|: * *
“ * * * We cannot escape the conclusion that this is another case where an attempt is made to establish probable cause by the fruits of the search and seizure and by other after-acquired information, a practice long condemned. (Citations omitted). Without such post-arrest information, it clearly and unmistakably appears that the arrest stemmed from mere suspicion ; it was not based upon information which would warrant a reasonable prudent person in believing that'appellant was violating or had violated the law. As a consequence, appellant’s motion to suppress should have been granted.”
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It is not necessary to discuss the appellant’s other contentions, since we have found that the search was not incident to a valid arrest. The judgment appealed from is therefore reversed.

Reversed.

TILLMAN PEARSON, Judge,

(dissenting).

It is my view that the search was not illegal, and therefore, the fruits thereof were admissible in this case because the search was reasonable under the circumstances. It is important to note that we are not dealing here with the search of a home or even a place of business but with the examination of a package carried by the defendant under suspicious circumstances.

The majority opinion is placed squarely on the holding in Kraemer v. State, Fla. 1952, 60 So.2d 615, which held inadmissible the fruits of a search of an automobile made before arrest and on a mere suspicion without probable cause. I would distinguish the Kraemer case upon the fact that the car was.stopped without probable cause. In the instant case, as the facts recited in the majority opinion show, the police officer apprehended the defendant when he was fleeing with a package under conditions which I suggest would cause a reasonable person to believe that a felony had been committed. Judge Kanner of the District Court of Appeal, Second District, has set out the requirements of reasonable search in McCain v. State, Fla.App. 1963, 151 So.2d 841:

“Not every search made without a warrant is unlawful but only the search that is unreasonable. What constitutes reasonable and valid search is to be determined by the court through due consideration of the circumstances and manner' in which the search is made. Longo v. State, 1946, 157 Fla. 668, 26 So.2d 818; Starks v. State, Fla.App. 1959, 108 So.2d 788. In dealing with ‘probable cause’ for search and seizure without a warrant, a court deals with probabilities which are not technical but which are factual and practical considerations of every day life upon which reasonable and prudent men act and not legal technicians. The essence of ‘probable cause’ is a reasonable ground for belief of guilt; and the court in determining whether there was probable cause to make a search without a warrant must first determine sufficiency of knowledge by the searching officer by comparison to what a reasonable man, knowing all the facts which the searching officer knew, would have believed under all of the circumstances. Gispert v. State, Fla.App.1960, 118 So.2d 596, cert. denied, Fla.1960, 122 So.2d 782.”

The strong support for the majority opinion is the testimony of the arresting officer that he placed the defendant under arrest only after he discovered what was in the package. Perhaps this is enough and we ought to throw up our hands and quit at this point. But it keeps coming to my mind that we are dealing with good police work— catching this suspect with the goods on him, and it ought not to be nullified unless it is clear that some constitutional wrong has been done.

The Supreme Court of Florida dealt with similar testimony (and reached the same conclusion that the majority reaches here) in Melton v. State, Fla.1954, 75 So.2d 291. However, in so holding they qualified the rule in what may be a very important way. The statement is as follows:

“On this narrow issue the arresting officer, who was the only witness for the state, testified unequivocally that he did not make the arrest until after the search had been made and the moonshine whiskey had been seized under the invalid search warrant. There are no facts and circumstances in the case to negative this testimony.” [Emphasis supplied]

The facts and circumstances of the instant case are that the arresting officer had stopped the defendant and placed him under restraint upon suspicion because of the defendant’s conduct before the officer opened the package.

I believe that the legality of the search should be upheld upon the basis that the facts and circumstances in this case negative the conclusion of the arresting officer that the search was prior to a valid arrest. An arrest is not a formal action to be judged only by the words expressed. This was pointed out by the Supreme Court of Florida in determining the time of an arrest in Giblin v. City of Coral Gables, Fla.1963, 149 So.2d 561:

“In the circumstances of this case there can be no doubt that when the police officer compelled petitioner to stop the vehicle she was driving and undertook to keep her in his custody at least pending his decision on their dispute, there was effected ‘an apprehension of such person sufficient to be considered an arrest.’ The arrest was, then, as a matter of law effected independent of the officer’s admonitions upon petitioner’s departure with her husband.”

I would therefore hold that the search in this instance was not unreasonable because it was an incident to a lawful arrest.  