MICHAEL D. MANN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in conducting a suppression hearing under the misapprehension that the defendant bore the burden of proof for the legality of a warrantless search.
The defendant was charged with breaking and entering and moved to suppress evidence from a warrantless search. The suppression hearing was conducted w…
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GRIMES, Judge.
The appellant was charged with two counts of breaking and entering a building other than a dwelling house, one with intent to commit a felony and the other with intent to commit a misdemeanor. Following the entering of a not guilty plea, the appellant filed a motion to suppress evidence obtained in a warrantless search of an apartment. After hearing testimony on the subject, Judge David Patterson denied the motion to suppress. Thereupon, the appellant withdrew his plea of not guilty and entered a negotiated plea of nolo con-tendere reserving the right to appeal the denial of the motion to suppress.
The testimony concerning the legality of the search is inconclusive. The State called no witnesses. At the outset, the Assistant State Attorney announced that the defendant had the burden with respect to his motion and the Assistant Public Defender concurred. Thus, it would appear that the entire hearing was held under the misapprehension that the defendant had the burden of proof with respect to the legality of the warrantless search.
The ultimate burden of proof as to the validity of a warrantless search is on the State. See Jeffers v. United States, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); United States v. Johnson, 425 F. 2d 630 (CA 9th 1970). The promulgation of Rule 3.190(h)(3), CrPR, 33 F.S.A., has not relieved the State of this burden. State v. Lyons, Fla.App.2d, 1974, Case No. 73-728. Under these circumstances, we believe the better procedure to follow would be to have another hearing upon the motion to suppress at which time everyone concerned would have a clear understanding of the respective burdens of the parties.
This is a revised opinion upon petition for rehearing. Since we adhere to our original decision, the petition is denied. The judgment is vacated for proceedings consistent herewith.
MANN, C. J., and McNULTY, J., concur.
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Filmon v. State, 336 So. 2d 586 (Fla. 1976)…do is make an “initial showing,” State v. Lyons, 293 So. 2d 391, 393 (Fla.App.2nd, 1974) of standing to challenge the legality of a search, and the “ultimate burden of proof as to the validity of a warrantless search is on the State.” Mann v. State, 292 So. 2d 432, 433 (Fla.App.2nd, 1974). Where the prosecution proposes to introduce evidence extracted from the body of the accused, in order to prove its case, the accused necessarily has standing to raise the question of the legality of the extraction. Schmerbe…
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Zeinida Morales v. State, 407 So. 2d 321 (Fla. 3d DCA 1981)…, 947 (Fla.1977); Andress v. State, 351 So. 2d 350 (Fla. 4th DCA 1977); State v. Hinton, 305 So. 2d 804 (Fla. 4th DCA 1975); Bicking v. State, 293 So. 2d 385 (Fla. 1st DCA 1974); State v. Lyons, 293 So. 2d 391, 393 (Fla. 2d DCA 1974); Mann v. State, 292 So. 2d 432 (Fla. 2d DCA 1974). A Ordinarily, we would have no problem in concluding on this record that the defendants failed to establish the first Fourth Amendment requirement in this case. Although clearly a governmental search and seizure took place in t…
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State v. Hinton, 305 So. 2d 804 (Fla. 4th DCA 1975)…then shifted to the state to prove a legal search which it failed to do. See Bicking v. State, supra. It is well established that the ultimate burden of proof as to the validity of a war-rantless search is on the state. Mann v. State, Fla.App. 1974, 292 So. 2d 432. Certainly the state had every opportunity to offer rebuttal evidence either by producing the warrant, if one was in existence, or by presenting testimony bearing upon the validity of the defendant’s arrest and search. Having so failed to do, the tr…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Jeffers, 342 U.S. 48 (U.S. 1951)
- United States v. Johnson, 425 F.2d 630 (9th Cir. 1970)