OMAR BLANCO AND ENRIQUE GONZALEZ, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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Defendants Blanco and Gonzalez appeal their convictions for armed robbery and armed burglary, challenging the denial of their right to backstrike a juror and an alleged illegal search of their apartment. The court agrees on both issues and reverses the convictions, holding that defendants have an absolute right to backstrike jurors before the jury is sworn and that the landlord lacked authority to consent to a police search of the defendants' rented apartment.
The court held that defendants have an absolute right to backstrike a juror at any time before the jury is sworn, and that the search of the apartment was illegal because although the landlord had limited rights to enter for inspection and pest control purposes, the landlord had no authority to invite police to search the premises. A warrant should have been obtained.
[1] A defendant's right to challenge a juror, including by "backstriking," may be exercised at any time before the jury is sworn.
[2] A landlord's right to enter a tenant's apartment for inspection or pest control does not extend to inviting law enforcement to conduct a warrantless search.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Challenges to jurors may be exercised at any time before the jury is sworn Denham v. State, 421 So.2d 1082 (Fla. 4th DCA 1982), and it matters not whether this right is exercised by backstriking.”
Establishes the absolute right to backstrike jurors before the jury is sworn, the primary holding on the jury challenge issue.
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Join FLexlaw to unlock all legal intelligenceBlanco and Gonzalez were convicted of armed robbery and armed burglary. Police entered and searched their apartment with permission from the landlord …
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LETTS, Judge.
The defendants appeal their convictions for armed robbery and armed burglary claiming that they were denied their right to “backstrike” a juror and that their apartment was subjected to an illegal search and seizure. We agree on both counts and reverse.
Challenges to jurors may be exercised at any time before the jury is sworn Denham v. State, 421 So. 2d 1082 (Fla. 4th DCA 1982), and it matters not whether this right is exercised by backstriking. We are fully aware that trial judges dislike this practice and we sympathize with them. However, the law is clear. As to the search and seizure of contraband in the apartment without a warrant, the police were given permission to enter by the landlord. However, the two defendant tenants had executed a series of written agreements which, when taken together, were tantamount to a year’s lease still in force and effect.1
The State argues that under the terms of the agreement the landlord had the right to enter. We agree, but that right was for reasonable access for inspection purposes and in order to spray for infestations. Inviting the police to enter and search the apartment is another matter altogether. Nor are we impressed with the State’s insistance that the defendants had been orally told to deliver up the premises. First of all, we question the landlord’s right to evict them and second, no written notice was given as required under the Landlord Tenant Law. The State’s final argument that the defendants were three days late on their monthly rent also falls short of the kind of occurrence that would permit the landlord to invite the police to search.
In short, a warrant should have been obtained and we reverse the trial judge’s denial of the motion to suppress the fruits of that search. See Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) and Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961).
We either find no merit in or see no need to address the remaining points on appeal.
REVERSED AND REMINDED.
DOWNEY and DELL, JJ., concur. . We do not share the public defender’s confidence that the “rental agreement” was a valid one year lease. However, that agreement taken in pari materia with the application form and the deposit receipt, did have that effect.
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Blanco v. State, 452 So. 2d 520 (Fla. 1984)…53 L.Ed.2d 1065 (1977). The factor of the prior conviction was properly considered by the trial court. In the interim between the trial court’s sentencing order and oral argument before this Court, the prior conviction was reversed. Blanco v. State, 438 So. 2d 404 (Fla. 4th DCA 1983). Recently appellant was reconvicted on March 14, 1984. To remand for resentencing under these circumstances would be pointless in light of the fact that the judge could again consider the conviction as an aggravating factor. We f…
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State v. Young, 974 So. 2d 601 (Fla. 1st DCA 2008)…enter the property and inspect it for his or her own purposes, that person does not have constitutional authority to invite law enforcement officers to search the property unless he or she has common authority over the property. See Blanco v. State, 438 So. 2d 404, 405 (Fla. 4th DCA 1983) (noting that a landlord’s personal right to enter an apartment was distinct from a right to invite police in to search the apartment). In United States v. Ziegler, 474 F. 3d 1184, 1191 (9th Cir.2007), the court considered t…
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Dobek v. ANS, 475 So. 2d 1266 (Fla. 4th DCA 1985)…eting it, that a defendant has the right to retract his acceptance and object to a juror at any time before the juror is sworn. Shelby v. State, 301 So. 2d 461 (Fla. 1st DCA 1974); Walden v. State, 319 So. 2d 51 (Fla. 1st DCA 1975); Blanco v. State, 438 So. 2d 404 (Fla. 4th DCA 1983); Matthews v. State, 451 So. 2d 973 (Fla. 4th DCA 1984). The procedure for jury selection in civil trials is governed by Florida Rule of Civil Procedure 1.431. The rule does not make specific reference to the time when a perempto…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Stoner v. California, 376 U.S. 483 (U.S. 1964)
- Chapman v. United States, 365 U.S. 610 (U.S. 1961)
- Denham v. State, 421 So. 2d 1082 (Fla. 4th DCA 1982)
- Besecker v. Seminole Cnty., 421 So. 2d 1082 (Fla. 5th DCA 1982)