City of Miami v. Culmer

J. FRITZ GORDON, Circuit Judge.

This cause came on to be heard on appeal from a conviction and judgment in the municipal court of the city of Miami on a charge of unlawful possession of lottery tickets.

The facts are that a police officer saw the defendant in a beauty parlor from a distance of about twelve feet. The defendant was writing in a book. At a distance of twelve feet the officer said he could “tell from the motion of his hand that he was writing numbers.” The officer testified that it looked like a book commonly used in writing bolita tickets and that the defendant put-the book away when he saw the officer.

The officer did not arrest him at that time but did arrest him a short time later on the sidewalk, some distance away — and demanded the book with which he had previously seen the defendant in the beauty parlor at least twice. Defendant gave it to him, as an officer of the law, because as he said he was 72 years old and had previously been hit by an officer for not obeying him.

The question is, then — Did the officer have sufficient evidence upon which to make an arrest at the time he demanded the book and it was handed to him — in order to justify the search?

It will be noted that he asked for the book, and then made the arrest. The search and seizure was, therefore, without authority of law.

The cause is reversed, with costs taxed against the appellee.