BILL HEARNS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant's conviction must be reversed due to reversible errors concerning an illegal search and seizure and a tainted in-court identification.
The defendant was convicted of robbery and sentenced to life imprisonment. The conviction was based in part on evidence obtained from an illegal searc…
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Defendant was convicted of robbery and sentenced to life imprisonment. He appeals. We reverse and remand for a new trial.
We have considered the points on appeal and the appellate presentment. From the totality of the evidence we conclude that two reversible errors appear, as follows:
1. Defendant was the subject of an illegal search and seizure, the fruit being a hand gun which should not have been received in evidence. Defendant was stopped for a minor traffic offense and his automobile searched while defendant was being held at gun point. From a careful scrutiny, we believe that probable cause for the search did not exist (this being the only basis or predicate advanced for the search) and we reverse on this facet upon authority of Byrd v. State, Fla.1955, 80 So.2d 694; Riddlehoover v. State, Fla.App.1967, 198 So.2d 651; State v. Gustafson, Fla.1972, 258 So.2d 1.
2. The defendant’s in-court identification was prejudicially tainted by an illegal lineup proceeding. Wade v. United States, 1967, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. United States, 1967, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed. 2d 1178. There was not a sufficient basis *908in fact for the witness to make an independent identification, predicated on the crime rather than the illegal lineup or infield identification procedure, as was the case in Robinson v. State, Fla.App.1970, 237 So.2d 268; Allen v. State, Fla.App.1969, 219 So.2d 444; Anderson v. State, Fla.App.1968, 215 So.2d 618, and Shepard v. State, Fla.App.1968, 213 So.2d 11.
We reverse and remand for a new trial.
Reversed and remanded.
WALDEN and OWEN, JJ., and RICHARDSON, GEORGE, Jr., Associate Judge, concur.
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Citator
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Bailey v. State, 295 So. 2d 133 (Fla. 4th DCA 1974)…se there was no testimony of any facts known to exist upon which the search of the automobile could be predicated. See Keener v. State, Second District Court of Appeal, 290 So. 2d 513, opinion filed February 22, 1974; Hearns v. State, Fla.App. 1972, 262 So. 2d 907; cf. F.S. Sec. 933.19, F.S.A.; see also Richardson v. State, First District Court of Appeal, 291 So. 2d 253, opinion filed March 14, 1974. Furthermore, there.is no evidence or testimony that would give rise to the type of emergency situation which…
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Sobczak v. State, 462 So. 2d 1172 (Fla. 4th DCA 1984)…rd that the in-court identification may have been tainted by the illegal lineup. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Hearns v. State, 262 So. 2d 907 (Fla. 4th DCA), cert. denied, 268 So. 2d 533 (Fla.1972). Accordingly, the defendants’ convictions are vacated and this matter is remanded for a new trial in accordance herewith. DOWNEY and DELL, JJ., concur.…
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Ciongoli v. State, 337 So. 2d 780 (Fla. 1976)…ri issued in this cause on the basis of a supposed conflict between the decision of the District Court of Appeal, Fourth District, reported at 313 So. 2d 41, and the decisions in Cribbs v. State, 297 So. 2d 335 (Fla.App.2d 1974) and Hearns v. State, 262 So. 2d 907 (Fla.App. 4th 1972). After hearing oral argument, we have concluded that the conflicting language is mere obiter dicta, and that the writ of certiorari should be discharged. See Lake v. Lake, 103 So. 2d 639 (Fla.1958) (where “an opinion is rendered…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Wade, 388 U.S. 218 (U.S. 1967)
- Gilbert v. California, 388 U.S. 263 (U.S. 1967)
- State v. Gustafson, 258 So. 2d 1 (Fla. 1972)
- Byrd v. State, 80 So. 2d 694 (Fla. 1955)
- Anderson v. State, 215 So. 2d 618 (Fla. 4th DCA 1968)
- Riddlehoover v. State, 198 So. 2d 651 (Fla. 3d DCA 1967)
- Robinson v. State, 237 So. 2d 268 (Fla. 4th DCA 1970)
- Readus Roscoe Shepard v. State, 213 So. 2d 11 (Fla. 2d DCA 1968)
- Allen v. State, 219 So. 2d 444 (Fla. 4th DCA 1969)