Solomon v. State , 115 Fla. 310 ( 1934 )

"If any sheriff, city marshal or chief of police has good reason to believe that gambling is being carried on in any house or other place, he may enter the same forcibly, if necessary, and without written warrant, and may arrest any person violating the provisions of this Article."

Under Section 7666 C. G. L., 5508 R. G. S., gambling is defined as follows:

"Whoever plays or engages in any game at cards, keno, roulette, faro or other game of chance, at any place, by any device whatever, for money or other thing of value, shall be punished by imprisonment not exceeding ninety days, or by fine not exceeding one hundred dollars. (Amended by Ch. 4514, Acts 1895, Sec. 1.)"

So it is obvious that Section 7664 C. G. L., supra, is so broad that it would apply to the attempted act of any sheriff, city marshal or chief of police who, having conceived that he has good reason to believe that "gambling" — the misdemeanor (not felony) denounced by Section 7666 C. G. L., supra, is being committed in any house (including a dwelling house) either in the day time or in the night time, decides to enter such dwelling house by force and without warrant on such suspicion.

The common law rights, duties and powers of deputy sheriffs concerning the apprehension of felons are not in any respect involved in this case.

In this case we are undertaking to construe Section 7664 C. G. L., supra, not the rights of officers under the common law. The statute under consideration covers misdemeanors as well as felonies — at least it is not limited to that form of gambling carried on in houses which the law has denominated as felonies. The statute refers merely to "gambling."

We must therefore construe strictly a statute which undertakes to declare that it is a reasonable investiture of the State's police power for certain named officers to have authority to enter without warrant either in the day time or in the night time, houses, clubs, hotel rooms, etc., on a mere suspicion that a game of cards or other such similar acknowledged universal indoor sport is being played therein in violation of a statute making such playing of cards for money a mere misdemeanor punishable by a fine not exceeding $100.00 or imprisonment not exceeding ninety days.

Delegated authority to officers to forcibly enter houses and other places without warrant, both in the day time and in the night time, on what amounts simply to a substantial suspicion on the officer's part that the commission of a mere misdemeanor is going on therein, amounts to the exercise of a high prerogative power of government. If it lies within the province of the Legislature at all to delegate to non-judicial officers the authority to make a preliminary determination that probable cause exists for the forcible invasion of a citizen's constitutional rights of privacy and security in order to enforce a minor police regulation, the Act of the Legislature which undertakes to vest such authority in mere police or peace officers should be strictly construed — at least as strictly construed as was the statute considered recently by this Court in the case of Lezema v. State, 110 Fla. 230,148 Sou. Rep. 304.

Section 22 of the Declaration of Rights set forth in the Constitution of this State is an express limitation not only upon the Legislature, but upon the power of our constituted State government itself, to violate the inherent right of every free people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, with or without force. Organized society created government — not government society. And it seems that the Legislature must have had this principle somewhat in mind when it undertook to declare not to be unreasonable, and therefore authorized by law, a forcible intrusion into the houses of those citizens whom certain designated officials might have good reason to believe were committing the misdemeanor of gambling therein. It seems plain that the statute specifically delegated authority for that purpose only to those peace officers who were the heads of their respective departments, because their identity as officers would likely be better known to citizens required to open their private places to them or suffer a forcible entry by violence. In addition their status as officers in our law enforcement system might suggest the possession on their part of a higher degree of intelligence, discretion and qualification for the making of the determination of what was "good reason to believe" than the ordinary peace officer is supposed to have.

I am not unmindful of Section 4578 C. G. L., 2881 R. G. S., which reads as follows:

"Sheriffs may appoint deputies to act under them who shall have the same power as the sheriff appointing them, and for the neglect and default of whom in the execution of their office the sheriff shall be responsible. (Ch. 1659, Aug. 6, 1868, Sec. 4.)"

But this Court has already committed itself to the proposition that the foregoing section does not confer on a deputy sheriff any right to exercise a non-delegable prerogative governmental power vested alone in the sheriff, such for example, as the power to appoint a deputy. Guarantee Trust Safe Deposit Co. v. Buddington, 23 Fla. 514,2 Sou. Rep. 885.

I am equally certain the Section 4578 C. G. L.,supra, even when construed in connection with Section 7664 C. G. L., is subject to the same implied limitation against any authority being in a deputy sheriff to exercise that essentially non-delegable high prerogative governmental power vested by statute specifically in the sheriff alone, such as the power of deciding whether the factual jurisdictional prerequisite to forcible entry into private houses exists under Section 7664 C. G. L., supra, before forcible entry is attempted.

Such holding is no hindrance to proper law enforcement. It simply means that where an officer other than the three officers named in Section 7664 C. G. L., and specifically privileged to act without warrant, shall decide that there is a good reason to believe that gambling is being carried on in a private house or other place, he must secure advance judicial approbation of his suspicions in the form of a warrant before he can enter by strong arm with a multitude of people into those places which the Constitution says shall be secure against all unreasonable violations of privacy.

If the supposed pressing necessity for invasions of this kindwithout warrant is not real enough to appeal to the attention of the high sheriff himself, it would seem per se unreasonable to hold that the mere inconvenience to a deputy sheriff that would be caused by the annoyance of having to procure a warrant, must outweigh all the constitutional rights of the citizen to be secure against forcible intrusions by those whom they would likely not readily know or recognize as officers of the law unless they could produce some official paper to prove it, such as a proper warrant of authority to enter.

Whatever rights deputy sheriffs may have at common law to act in cases where felonies are being committed or have been committed, are not touched on in the opinion of this Court as to which this rehearing has been granted. No statute was necessary to restate such rights. Section 7664 C. G. L.,supra, obviously does not attempt to take away any officer's common law powers. On the contrary, its purpose is to enlarge those powers so as to take in all "gambling" whether misdemeanor or felony.

I therefore adhere to my previous opinion which was concurred in by a majority of the Court and filed herein on February 27, 1934.

BROWN, J., concurs.