Chapter 1 - 1.11 Crimes Against Property

CRIMINAL LAW

 

1.11 Crimes Against Property

 

A. Burglary

 

                At the common law, burglary involved the breaking and enter­ing of a dwelling house of another in the night with the intent to commit a felony therein. Modern statutes provide for several burg­lary-related crimes.

                Modern burglary requires the entering or remaining in a struc­ture or a conveyance with the intent to commit an offense therein unless the premises are at the time open to the public or the defend­ant is licensed or invited to enter or remain (F.S. 810.02). Under most burglary statutes, "structure" is defined as a building of any kind, either temporary or permanent, which has a roof over it, to­gether with the curtilage thereof. "Conveyance" includes any motor vehicle, ship, vessel, railroad car, trailer, aircraft, or sleeping car. To "enter" a conveyance, means taking apart any portion of it.

                In Florida, burglary of a dwelling, or burglary of an occupied building or conveyance is punished as a second degree felony. Burglary of an unoccupied structure, dwelling or conveyance is a third degree felony. 

                Entry may be made by some portion of the human anatomy or an instrument inserted for the purpose of committing the offense.

                Whoever has in his possession any tool, machine, or implement with the intent to use the same, or allow the same to be used, to commit any burglary or trespass shall be guilty of a felony of the third degree under Florida law.

                It thus must not only be shown that the particular tool was designed for the purpose, but it must also be shown that it was in­tended to be used for an illegal purpose. For instance, it is not un­lawful for a locksmith to have in his possession a set of lock picks. However, that same set of lock picks in the hands of an individual who intends to use them for the purpose of committing burglary would cause them to fall under the classification of burglary tools. In order to prove the requisite intent for possession of burglary tools, where such tools are mere household tools, the evidence must estab­lish that the items were in fact used to commit or attempt to commit burglary. Cantrell v. State, 405 So. 2d 986 (Fla. 1st DCA 1981).

                Intent. The gravamen of a burglary violation is the unlawful entering, which constitutes the act of the crime, coupled with the intent to commit a specific crime once inside. The act and the in­tent must coincide.

                It is possible to charge an individual with burglary, and in addi­tion charge the substantive crime committed therein‑‑such as grand theft. No force is required under present Florida law, so entry through an open door or window, if unlawful, is sufficient. Of course, most cases involve the use of force or "breaking." In Florida, in a trial on the charge of burglary, proof of the entering of such structure or conveyance at any time, stealthily and without consent of the owner or occupant thereof, shall be prima facie evidence of entering with the intent to commit an offense (F.S. 810.07). Absent this statutory intent, the state must prove the intent to commit a particular crime at the time of the unlawful entry.

                In Florida a person is a trespasser if he willfully enters any struc­ture or conveyance, of another, without being authorized, licensed or invited. If there is a human being in the structure or conveyance at the time the offender trespassed, the trespass is a misdemeanor of the first degree.

                If the offender is armed with a firearm or other dangerous wea­pon, or arms himself with such while in the structure or conveyance, the trespass in a structure or conveyance is a felony of the First de­gree .

                Curtilage at common law referred to the structures and grounds surrounding a dwelling. It traditionally included all buildings used in connection with the main dwelling house and not separated by a public road.

                "Curtilage" surrounds any temporary or permanent building with a roof, not just dwellings. Sealey v. State, 379 So. 2d 430 (Fla. 2d DCA 1980).

                The crime of burglary is one offense which is often proved through the development of fingerprint evidence. The circumstances of the fingerprint must be such as to indicate it was placed there at the time of the crime. The location of the print and the reasonable­ness of prior access are factors to be considered.

 

B. Theft

 

                Theft is composed of the following legal elements: (1) The taking, (2) carrying away or exercising control over, (3) the property, (4) of another, (5) with the intent to deprive the owner of use or possession thereof, or to deprive the owner of a right to the property or a benefit therefrom.

                If the item of property taken is valued at $300.00 or more, then the offense is grand theft, and is punishable as a felony in the third degree.

                If the above elements can be proved, however, the value of the property is less than $300.00, then the crime is a misdemeanor called petit theft.

                An owner may testify as to the value of property stolen. The value of property is determined as of the time that it is stolen from its owner or one in lawful possession. In the event that the merchan­dise is new merchandise, obviously cost to the owner is the factor which will be determinative of value. If the article stolen is used, it may be necessary to obtain an appraisal regarding the value of the property at the time of the theft. By statute in Florida, value means fair market value.

                At the common law, larceny was at one time considered to be an extremely serious offense. If the property stolen was valued at more than twelve pence (1/20th of a pound), the perpetrator could receive the death penalty. The early common law regarded larceny as a crime against possession as opposed to a crime against owner­ship.

                Probably the most difficult element to prove in a larceny case is that the thief intended to unlawfully deprive the owner of the use and benefit of his property. Intent to unlawfully deprive may be shown by statutory presumption, or by showing what the thief did with the property after he stole it. Obviously, if the thief has altered the property to make identification difficult, or has sold the prop­erty to a third party, it can be seen that he intended to unlawfully deprive the owner of the use and benefit of that property.

                This intent to unlawfully deprive the owner of his property is known in the criminal law as animus furandi.

                Modern theft statutes provide that "ownership" shall include any possessory interest in the property superior to that of the taker. Further, whether the property is actually stolen, in the traditional sense, or is obtained by the thief as the result of fraudulent represen­tations, or deceit, is irrelevant.

                Many jurisdictions deal specifically with shoplifting or retail theft. In Florida, as in other jurisdictions, an employee of a merchant may take a shoplifter into custody and a police officer may make a misdemeanor arrest without the necessity of obtaining a warrant.

                The element of taking involves the removal of property without the consent of the owner. The element of carrying away, or what is known in the law as "asportation," is required before the completed crime of larceny or theft may be charged. Asportation involves the unlawful movement of property from a point where it is lawfully kept to a position somewhere away. For instance, an individual who walks into a TV store and picks up a portable radio without the consent of the owner and then begins to move away from the shelf with the portable radio is involved in carrying the radio away or "asportation.'' The distance involved, or the amount of asportation involved, will determine whether the crime charged is a completed larceny or an attempted larceny. This is a factual determination to be made based upon the totality of the circumstances in each individual case. For instance, if the individual is apprehended prior to the time he leaves the cash register area of the store, but it can still be shown that he intended to steal the radio, he will be charged with theft (endeavoring to steal).  However, once outside the store, there is sufficient asporta­tion to charge him with the completed theft.

                The Florida Theft statute includes endeavoring to steal. Thus the attempt is charged and punished the same as the completed theft.

                Florida law provides that the activation of an anti-shoplifting or anti-theft device shall constitute reasonable cause for detention in shoplifting cases. Such detention must be accom­plished in a reasonable manner for a reasonable period of time.

                It is a felony of the third degree in the State of Florida to steal a firearm or motor vehicle. To qualify under this statute the firearm must be tested and must be operable or designed to be used as a fire­arm.

                By statute, then, the value of the firearm or motor vehicle is not determinative as to whether the officer charges a felony or mis­demeanor. Florida law requires that any law enforcement agency which recovers a stolen vehicle must notify the agency which initiated the stolen report within 72 hours of recovery, and the owner must be notified within 7 days.

                Embezzlement is a crime against ownership which is generally included within most modern theft statutes. It involves the conversion of property by someone to whom it has been en­trusted. Possession is obtained legally by the thief who later decides to steal the property. Embezzlement is a felony in the third degree.

                The distinction between embezzlement and common law lar­ceny is that in embezzlement the defendant originally comes into possession of the property lawfully, whereas in larceny there is an unlawful taking originally. For instance, a bookkeeper who has the duty and responsibility of counting the daily receipts and then mak­ing a bank deposit at the end of the day comes into lawful possession of the money. The embezzlement is committed when the individual decides to take that property which he has lawful custody over for some brief period of time and convert the same to his own use, thus depriving the owner of the use and benefit of that money.

                In Florida, embezzlement is charged as a theft. A common scheme or design to defraud property, over a period of time by an agent, servant or employee from his principal or employer by a series or combination of any of the acts denounced under the larceny laws, constitutes a felony of the third degree. Embezzlement requires proof that the property taken was appropriated to the use of the taker.

                Regardless of value, it is the felony of grand theft in Florida to take:

 

                1.             Livestock (horses, pigs, etc., commercially raised);

                2.             Anything of value from a properly posted construction site;

                3.             A will or other testamentary instrument;

                4.             Any fire extinguisher;

                5.             2,000 or more pieces of citrus fruit.

                6.             Theft of property from a properly posted construction site.

 

In Edwards v. State, 226 So. 2d 140 (Fla. 2d DCA 1969), the Second DCA commented:

 

                                The State presented evidence of several of the complain­ing witnesses which established that they had given the ap­pellant certain sums of monies for the purpose of acquiring a radio station. It was agreed that a corporation was to be formed and the monies were to be deposited into a cor­porate bank account by the appellant. At the time the monies were turned over to the appellant the corporation had not been formed and it was agreed that Mr. Edwards would accept the monies and hold them in escrow for the corporation. It was also agreed that the complaining wit­nesses were to receive five shares of stock in the corporation in return for monies.

 

                                The State's testimony further showed that the monies were never deposited in a bank account in the name of the corporation even though the corporation was subsequently formed by the appellant.

 

                                In substance, the only thing the State proved was that the complaining witnesses gave him monies to open an account and that no bank account was ever opened.

 

                                In the case of Richard v. State, 181 So. 2d 677, (Fla. App. 1966) under substantially the identical proof by the State as in the case sub judice, the court stated at pages 678 and 679:

 

                                `The State proved that Mrs. Iglesias gave the ap­pellant the money to open the account for her husband in the Royal Bank of Canada in Kings­ton, Jamaica. The State also proved that no bank account of any type was ever opened in the Royal Bank of Canada in the name of Mrs. Iglesias' husband.'

 

                                As in all criminal cases, the State had the burden of prov­ing the accused guilty beyond all reasonable doubt. Eizen­man v. State, 132 So. 2d 763, (Fla. App. 1961). In order to convict the accused of the charge, the State was required to prove that the defendant appropriated the money to his own use, or that of another person other than the true owner. The evidence upon which the State relied to prove this element was that the defendant received the money and that no bank account was ever opened. We hold that this evidence was not sufficient to establish a prima facie case of grand larceny. Therefore, the trial court erred in denying defendant's motions for a directed verdict, and the judgment must be reversed.

 

                                We hold that the State failed to establish a prima facie case of grand larceny and therefore the lower court erred in not granting the appellant's motion for a directed ver­dict at the close of the State's case.

 

                                Thus, the officer's investigation must disclose how the money was used, to put it another way, how the defendant benefitted, even if the owner's deprivation or the suspect's benefit is temporary.

 

                                                                                          End of Opinion

 

Note:  The rationale of the Edwards decision was questioned by Brewer v. State, 413 So. 2d 1217 (Fla. 5th DCA 1982) which indicated that the court could look t the circumstantial evidence to determine whether the failure to perform the future act evinced intent necessary for the crime of theft.

 

                The Florida statute further provides that on a third or subse­quent conviction of the offense of petit theft, the offender may be punished for a felony under grand theft, regardless of the value of the goods obtained.

                Many jurisdictions, including Florida (See F.S. Ch. 815) are attempting to cope with computer-related crimes. The problem of thefts by use of a computer or invasion and interruption of compu­ter programs in corporate and banking institutions is one of growing concern. Police expertise in these highly technical areas must be in­creased. The statutes generally redefine asportation of property ele­ments of traditional theft statutes to aid in dealing with this problem.

 

C. Receiving, Concealing, or Dealing in Stolen Property

 

                Florida has an anti-fencing statute (812) which permits prosecution of persons who deal in stolen property.  The act provides that persons convicted of trafficking in stolen property may be sentenced as either first or second degree felons.

                It should be noted that under Florida law, if there is evidence to indicate that the defendant actually stole the property involved, the state may charge both the larceny (or burglary, etc.) and the possession of stolen property, permitting the jury to decide which of the two offenses the defendant is to be found guilty.

                Chapter 812 per­mits prosecution of persons who deal in stolen property. The act itself among other things, provides that stolen property shall retain its character as stolen property until it has been intercepted (recov­ered) by the police and either returned to the owner, or 30 days from interception whichever shall occur first. This permits the con­tinued use of the property in undercover fencing operations by the police for that period of time. Persons convicted of trafficking in stolen property may be sentenced as first or second degree felons. The anti-fencing statute also specifically makes unlawful the willful misrepresentation of a future act or false promise.

                The Supreme Court of Illinois, in the case of People v. Ferris, 52 N.E. 2d 171 (Ill. 1944), discussed the crime of receiving and con­cealing stolen property as follows:

 

                                FULTON, Justice.

 

                                The grand jury of Cook county returned an indictment against the plaintiff in error, together with five other men and Bertha Ferris, consisting of three counts. The first two counts charged the defendants with the crime of burglary, and in the third count they were charged with receiving stolen property. Plaintiff in error was found guilty and sentenced to the penitentiary for an indeter­minate term of from one to ten years. He prosecutes a writ of error to this court.

 

                                The facts show that on the first day of April, 1942, a group of boys staged a robbery at 219 East Forty-third Street at a clothing store belonging to one Joe Weissman. His place of business adjoined the Indiana Theatre, and on the night in question four of the defendants, not including the plain­tiff in error, bound the employees of the theatre and then took an axe and cut through the partition wall of the theatre into the store of the complaining witness. They practically cleaned out the store, taking a variety of arti­cles to be found in a clothing store. The merchandise in­cluded shirts, suits, jackets and a number of bolts of goods. The value of the property was fixed at $500. At about three o'clock in the morning the stolen goods were taken to the residence of the plaintiff in error, John Ferris who resided on the second floor at 320 East Forty-eighth street. After said defendants arrived at the residence of the plain­tiff in error, Ferris, the latter called up another defendant, Clarence Jolivet, to come over to his apartment. Neither Jolivet nor Ferris had anything to do with the robbery. Jolivet came over and Ferris let him in. The defendants who brought in the stolen merchandise offered to sell the lot to Jolivet and Ferris for the sum of $150. Jolivet of­fered $80 and when the boys accepted the offer, Jolivet called Ferris out into another room and Ferris gave $40 toward the purchase price of the stolen goods, but plain­tiff in error claims that he merely loaned the money to Jolivet. Jolivet testified that he and Ferris went on equal shares in purchasing the merchandise. The $80 was paid to the four other defendants, who split the money four ways and received $20 each, and the goods were left in the apartment of the plaintiff in error. The burglary was reported to the police by the complaining witness, Weiss­man, and within a short period of time all of the defend­ants were arrested and later indicted by the grand jury. The stolen property was positively identified by Joe Weissman, the owner thereof, who also fixed the value at $500.

 

                                The plaintiff in error was represented by a lawyer, and after the arraignment, a jury trial was waived by all of the defendants and the case tried before Judge Harold G. Ward in the criminal court of Cook county. One of the burglars had been killed prior to the return of the indict­ment and the remaining defendants who participated in the robbery were found guilty on the first two counts of the indictment. The defendant Jolivet and the plaintiff in error, Ferris, were found guilty of receiving stolen goods and were sentenced for that offense. Bertha Ferris was found to be not guilty.

 

                                * * [material omitted] * *

 

                                The plaintiff in error also claims that the evidence in the case falls far short of proving him guilty beyond a reason­able doubt, but a brief review of the facts stated in this opinion demonstrates that the testimony was sufficient to support the finding of guilty by the trial court. The fact that the plaintiff in error, Ferris, at three o'clock in the morning, admitted the four robbers to his home with a great variety of merchandise; the fact that he called Joli­vet to come over to his apartment and was present when Jolivet offered the boys $80 for the stolen goods; and the fact that Ferris furnished part of the purchase price, togeth­er with the testimony of Jolivet that Ferris went with him on equal shares on the purchase of the goods is sufficient to warrant the finding of guilty on the part of the court.

 

                                (2) We said in People v. Grizzle, 381 Ill. 278, 44 N. E. 2d 917, that in order to sustain a conviction for receiving stolen property, knowing the same to have been stolen, three elements of the offense, viz., that the property must be identified as stolen property; that the person charged must be shown to have received the property or aided in concealing it, knowing that it was stolen; and that he re­ceived it for his own gain or to prevent the owner from again possessing it, must be established beyond a reason­able doubt. Proof of these elements constituting the crime, however, may be by circumstantial evidence.

 

                                (3) The charge of receiving stolen property is often shown by circumstances which clearly indicate the guilt of the defendant. This court has many times held that proof of receiving stolen property may be shown by circumstances and that knowing that the property has been stolen may be inferred where a defendant has bought the goods at a far less price than the actual value of such property. Peo­ple v. Grove, 284 Ill. 429, 120 N. E. 277; Gunther v. People, 139 Ill. 526, 28 N. E. 1101; People v. Lanie, 378 111. 320, 38 N. E. 2d 11.

 

                                The contention of the plaintiff in error that he cannot be proved guilty by the uncorroborated testimony of an ac­complice does not apply in this case. The testimony of the four robbers and of Jolivet, together with the circumstances hereinabove related, all corroborate the testimony of the alleged accomplice. We believe the three elements above stated have all been proved beyond all reasonable doubt in this case.

 

                                                                                          End of Opinion

 

                The use of circumstantial evidence in proving the knowledge necessary to convict under this statute has been discussed by the Su­preme Court of Appeals of Virginia in Reaves v. Commonwealth, 65 S.E. 2d 559, (Va. 1951):

                                SPRATLEY, Justice.

 

                                Edwin L. Reaves, sometimes hereinafter referred to as the defendant, was indicted for buying and receiving an elec­tric hammer and attachments thereto of the value of $75, knowing the same to have been stolen. Upon his plea of not guilty, he was convicted by a jury and his punishment fixed at one year in the penitentiary. To the judgment en­tered according to the verdict we allowed this writ.

 

                                The evidence on behalf of the Commonwealth shows a long course of dealings between the defendant, an experi­enced business man, thirty-two years of age, and two youths, Allen Taylor, sixteen years of age, and John Spruce, twelve years of age.

 

                                In 1949, Allen Taylor sold some tools, which he had used in building a racer for a soapbox derby, to the defendant. Subsequently, he and John Spruce began stealing various types of tools from automobiles and shops. Two or three times a week, over a period of more than six months, they carried the stolen goods to the defendant and received in return food, money, candy, drinks, or cigarettes. Almost invariably they went to his place of business, a restaurant, at night to sell and deliver the tools. If the tools were small they concealed them in their pockets and went to the front door of the restaurant; but if they were too large to be so concealed they would leave them at the basement door at the back of the restaurant building, call the de­fendant, who would then come, open the door, and let them bring the tools in. Sometimes they would put the tools in the defendant's car parked near his restaurant.

 

                                The electric hammer, in its box container, was brought to the basement door of the restaurant. Taylor went in the front door and notified Reaves of its arrival. The two of them went to the back door and the boxed hammer was delivered to Reaves and carried to the upstairs floor.

 

                                On one occasion Reaves told the boys that he had enough tools and wanted some toys. The boys then stole a tricycle and a red toy fire truck which they sold to the defendant. The fire truck was practically new. Reaves admitted that its purchase caused him some uneasiness, but he did not inquire of the boys' parents whether their sons had a right to sell it, although they lived within a short distance of his restaurant.

 

                                Several times Reaves loaned Taylor money on condition that the latter would bring him property in return. If Tay­lor did not carry out his promise, Reaves looked him up and inquired the reason for his failure. Taylor said that two or three times, he told the defendant that the goods which he delivered to him were stolen, and that while Reaves did not always know where the tools came from, sometimes he did. Spruce corroborated Taylor's testi­mony as to the sale and manner of delivery of the stolen goods. He said that he, alone and with Taylor, sold stolen merchandise to Reaves `a lot of times.' He also said that `a few times' when the defendant asked him where the things came from, he told him that they were stolen. Payment was always made in small amounts or in merchandise of much less value than the property delivered.

 

                                On June 19, 1949, W. H. Phlegar, a police officer of the city of Lynchburg, questioned Taylor about a theft of stolen goods. A search warrant disclosed stolen property in the basement of Taylor's home. Taylor admitted other thefts involving tools, said that he had sold them, and promised to return them. That afternoon Phlegar ques­tioned Reaves about buying tools from Taylor and some other boys. Reaves told the officer, `I think I bought a couple of screw drivers and maybe a pair of pliers or two.' Asked about metal tool boxes, he said, 'Yes, I think I bought one of those from them, might be one or two. I am not sure.' He was told to bring the tools to police head­quarters. The next day he brought in a couple of boxes of tools, a lot of mechanics wrenches, end wrenches and screw drivers, and said 'That is all,' adding that probably some of the tools belonged to him. That afternoon the police went to Reaves' home, where they found a tricycle a sidewalk bicycle, and in the attic a large number of tools, bucksaws, braces, bits, wrenches, vices and planes. There were a dozen pairs of pliers, three or four bucksaws, four or five pipe wrenches, a dozen screw drivers, braces, and two or three planes, two or three vices, wood chisels, and a new set of wood bits in a wooden box. Many of the tools were in new condition, especially the wrenches. After their visit to his house, the police again questioned Reaves about a Stanley electric hammer, which had been stolen by Taylor and Spruce, and on the next morning, July 21st, the defendant, Reaves, brought the Stanley electric hammer involved in this proceeding, the toy fire truck, the tricycle, both heretofore mentioned, and a few more tools to police headquarters, all of which he said he got from the two boys.

 

                                The defendant testified that he had worked with the Hot Shoppes, a large organization of restaurants in Washington, D. C., for about twelve years, and had risen from the low­est position to that of manager. In 1948, he left that job and purchased a farm near Lynchburg, where he lived with his family. In 1949, he purchased and began the operation of a restaurant in Lynchburg. He admitted receiving the tools, saying that he didn't pay what they were worth, but what he was asked for them. He denied any knowledge, or circumstances putting him on notice, that the property was stolen. He paid Taylor $5 for the electric hammer, and said he purchased the tools looking forward to an oppor­tunity to open a workshop of his own. He explained that he did not return all of the tools after the first questioning of the officers, because he didn't understand that those re­tained by him were stolen property, and thought the elec­tric hammer had been found by the officers when they went to his home.

 

                                A number of the defendant's friends and business associ­ates testified that his reputation for telling the truth was good .

 

                                R. W. Smith, Jr. for twenty-one years a hardware salesman, said he was familiar with the Stanley line of electric goods, and while his firm did not stock Stanley electric hammers, it sold them on special orders, and he was familiar with their price. He gave the price of a new hammer as $135 He examined the hammer in evidence and said it would be worth half-price, that is, $60 or $65, it being the custom of the hardware business to allow half-price for such an item .

 

                                Thomas W. Bryant, engaged in the electric business for five years, said that while he was not familiar with Stanley elec­tric hammers, he knew the custom of the trade with regard to other electric tools, and that the general practice was to cut the original price in half for a second-hand tool in good shape. He examined the hammer in question, found it to be in first class condition, and fixed its value at $60.

 

                                Another witness, J. O. Burnett, who had been employed for five years in a repair shop and had bought and sold electric hammers, said he thought the value of the one involved here was about $35, with an increase in price if its attachments were included. He fixed the price from its outside appearance because said he, `You can't tell what is on the inside.'

 

                                * * [material omitted ] * *

 

                                `You are further instructed that the circum­stances under which the prisoner is found in pos­session of such electric hammer and accessories, the time and place, the conduct of the accused, and his account of his possession are all matters for the consideration of the jury.'

 

                                * * [material omitted] * *

 

                                `E. The Court instructs the jury that in deter­mining whether the defendant knew that the electric hammer and accessories were stolen property at the time he bought or received same, the jury may, if warranted by the evidence, infer that he had such knowledge from all the circum­stances known to the accused prior to and at the time of receiving the property.'

 

                                * * [material omitted] * *

 

                                Defendant argues that section 18-169 of Virginia Code, 1950, requires proof of actual knowledge to justify a con­viction, and that any other construction would authorize a conviction if the jury was satisfied that the circumstances were sufficient to impute knowledge to a man of reasonable prudence, and thus permit a conviction of an accused because he was not a man of reasonable prudence in the opinion of the jury. In effect, his contention is that a con­viction cannot be based on circumstantial evidence. We find no merit in this contention.

 

                                Instruction number 1 clearly told the jury that failure to exercise ordinary care and reasonable prudence could not be made the basis of conviction but that `Knowledge of the larceny must be brought home to the defendant.' Our statute does not contain the words actual knowledge.

 

                                (5,6)The great weight of authority is to the effect that guilty knowledge need not be directly proved. It may be shown by circumstances. It is sufficiently shown if the circumstances proven are such as must have made or caused the recipient of stolen goods to believe they were stolen. 45 Am. Jur., Receiving Stolen Property, sections 18 and 19, pages 40~, et seq; 52 C.J.S., Larceny, S.105, page 924; 17 R.C.L., Larceny, section 92, page 85; Clarke's Criminal Law, 3rd Ed ., section 109 , page 381, 382 ; Bishop on Criminal Law, 9th Ed., section 1138;Wharton's Crimi­nal Law, 12th Ed., sections 1231 and 1232.

 

                                In Longman v. Commonwealth, 167 Va. 461, 188 S. E. 144, 146, we said: `While guilty knowledge is an essential element of the crime of receiving stolen goods, it may be shown by circumstances.'

 

                                In Stapleton v. Commonwealth, supra, citing and approv­ing previous decisions, we held that the recent possession of stolen goods is evidence against the possessor tending to show a guilty receiving by him.

 

                                (7) The necessity for the Commonwealth to prove that the defendant had actual knowledge of the larceny in the sense that he was present as a witness thereof would place upon it an undue and impossible burden in many cases embraced within the provisions of our statutes. It might give a juror an impression that a conviction could not be based on circumstantial evidence, or that it must be shown that the accused actually witnessed the theft. It is true that instruc­tions requiring actual knowledge were given on behalf of the defendant in Stapleton v. Commonwealth, supra. How­ever, in that case the conviction of the defendant was sus­tained, and our action in affirming his conviction in no wise indicated an approval of instructions given in his favor. It was not necessary to take them into considera­tion .

 

                                (8) Upon a careful consideration of the evidence and the law, we see no reason for disturbing the verdict for insuffi­ciency of proof, or error of law: The article described in the indictment admittedly had been stolen. There was no question but that Reaves received it directly from the boys who stole it. He paid but $5 for it when it was worth more than ten times that much according to the Common­wealth's evidence. His own testimony concerning the cir­cumstances under which he dealt with the two youths made it plain that he suspected that they had stolen the property which he was buying from them. He bought a large number of tools from two young boys, without visi­ble means of a livelihood. He arranged for receipt of them under circumstances of stealth calculated to avoid atten­tion. He was found in the recent and exclusive possession of the stolen property. His lack of frankness in dealing with the police in the return of the tools indicated his comprehension of unlawful dealing with the boys, and makes it difficult to believe that he thought he was en­gaged in honest and honorable transactions. Evidence of his good reputation for truth and honesty only showed what his friends and neighbors thought of his character. His real character was shown by his acts and deeds. All of the facts and circumstances irresistibly point towards his guilty knowledge.

 

                                The judgment of the trial court is affirmed.

 

                                                                                          End of Opinion

 

                In Meath v. State, 182 N. W. 334 (Wis. 1921), the Supreme Court of Wisconsin ruled with regard to the Wisconsin receiving and concealing statute as follows:

 

                                By the express language of this statute, an essential ele­ment of the offense is that the defendant shall, at the time of his receiving or dealing with the stolen property, know that such property has been stolen. It is as essential that the jury shall, beyond a reasonable doubt, find that he had such knowledge at the time of his transaction with the property as they must that the property was theretofore stolen. Such guilty knowledge, or its equivalent, guilty be­lief, may be proven by circumstantial evidence, but it is not sufficient that such circumstantial evidence convinces the jury beyond a reasonable doubt that the defendant ought to have known that the property was stolen; it must go a substantial step further and satisfy them that he did know or believe.

 

                                                                                          End of Opinion

 

                The Interstate Transportation of a Stolen Motor Vehicle is a federal violation. The federal offense does not involve the actual stealing of the vehicle, but merely involves the transportation of the stolen vehicle across a state line. Hence, an individual may be charged with both the federal violation and the state violation of the theft of the motor vehicle.

                Further, Florida's theft statute provides for a felony of the third degree when one is in unlawful possession of a stolen motor vehicle or other stolen property. Thus an individual who steals an automobile in one jurisdiction, and is found in possession of the automobile in another, may be charged in the State of Florida. Chap­ter 817 of the Florida Statutes also provides that one who fails to re­turn a rental or leased motor vehicle after the time and date agreed upon for the return of the motor vehicle, commits a felony.

                In summary, for there to be a conviction for traditional theft there must be proof of knowledge and specific criminal intent. As with most other offenses, the mens rea element is the gravamen of the offense. This intent involves the "conscious intent to steal that which doesn't belong to the taker."

                Florida requires dealers in sec­ondhand goods to maintain records for police inspection. Precious metal dealers must obtain identification data (photo or thumbprint) of sellers, and may not buy from any person under the age of 18 years. Dealers must furnish purchase records to law enforcement within 24 hours, and hold the items purchased for 15 days in order to facilitate.  Dealers must have actual physical possession of property, and the holding period may be extended by the court if necessary to safeguard such property.

 

D. Worthless Checks

 

                Florida Statute Chapter 832 provides that it is against the law to issue a check for which there are not sufficient funds on deposit in a banking institution. If the check written is for an amount of $150 or more, and if property is obtained in return for the check, the offense is a felony of the third degree.

                There is a presumption in the law providing that one is presumed to know the balance of his checking account at any given time. As with all other presumptions, however, this may be rebutted by com­petent testimony, (and might especially be true in the case of joint checking accounts). Obtaining property in return for worthless checks means that there were any services, goods, wares or other things of value obtained by means of a check.

                There are certain defenses to issuing worthless check violations. If a bank has previously extended credit to the defendant so that he has reason to expect that while the check is an overdraft, the bank will honor same, there is a defense to the action. Further, if the check given is post-dated, then it is nothing more in the eyes of the law than a promissory note and the individual passing the check may not be prosecuted for a worthless check violation. If the person re­ceiving the check is told, or has any reasonable basis to believe that the check given will not be honored by the bank, i.e., he has taken bad checks before from this defendant, then there is a defense to the worthless check violation. If a merchant voluntarily, at the request of the defendant, holds the check for payment for some period of time, the cases say that he is placed on notice that there are not suf­ficient funds on deposit, and it is a defense to a worthless check charge .

                Restitution is not a defense to the criminal act of issuing a worthless check or obtaining property in return for a worthless check .

                One who stops payment on a check, to defraud another party, is guilty of a felony in the third degree, if the check was written for $150 or more.

                In State v. Harris 136 So. 2d 633 (Fla. 1962), the Supreme Court of Florida held that the issuance of a worthless check without receiving anything of value therefor is a lesser offense neces­sarily included in the higher offense of obtaining property in return for worthless check. If an individual merely attempts to obtain property via a worthless check, it is a second degree misdemeanor, but if he actually receives the property, it is a first degree misde­meanor if the check is written for less than $150, or a third degree felony if the check is written for $150 or more.

                The requirement that the defendant "receive something of value" has been extended to the situation where he has only con­structive possession of the property. In Gill v. State, 235 So. 2d 751 (Fla. 2d DCA 1970), the defendant was purchasing automobiles for a worthless check. Even though he had not received actual possession of the automobiles, he had received all rights to immediate posses­sion to them. The court held this to be sufficient for the purposes of "obtaining" them within this statute. However, the courts have held that the passing of a worthless check for the purpose of discharging a pre-existing debt is not "obtaining" property within the statute so as to justify a felony conviction. The proper conviction in that case would be under the misdemeanor provisions of the statute. Laytner v. State, 239 So. 2d 857 (Fla. 3d DCA 1970).

                It has been held in the case of George v. State, 203 So. 2d 173 (Fla. 2d DCA 1967), that it was the intent of the legislature that the person who "receives something of value" for a check was meant to be the maker or person who passes the check in exchange for that something of value. But the term "payee," as used in the law in Florida, includes not only the person to whom the check is nomi­nally payable, but any person to whom it is knowingly given or passed. In the George case, the defendant was both the maker and the payee of the worthless check. The court held that the statutory exception against prosecution where the payee knows or has reason to know that the check is worthless is not applicable where the de­fendant was both maker and payee.

                At least one early Florida case has deemed the intent to defraud to be a necessary element of the worthless check statute.  Anderson v. Bryson, 115 So. 505 (Fla. 1927). It has been defined as "the intent to induce another to part with his property by the use of false and deceptive means when otherwise the owner would not have done so." U.S. v. Frazier, 444 F. 2d 235 (5th Cir.. 1971).

                The reason for including the intent to defraud as a necessarily implied element of the offense is said to be the prevention of declar­ing the statute unconstitutional as providing for imprisonment for debt without fraud, contrary to Section 11 of the Declaration of Rights of the Florida Constitution, which provides "no person shall be imprisoned for debt, except in cases of fraud."

                Florida Statute §832.05(7) establishes a prima facie presump­tion of knowledge of insufficient funds or credit when the check has the drawee's stamp of refusal thereon. This provision causes some serious constitutional questions concerning the establishment of the state's case by means of illegal presumption. This issue was raised by the defendant in Shargaa v. State, 84 So. 2d 42 (Fla. 1955), but was treated summarily by the Court in holding that the presump­tion only established guilty knowledge, not the entire corpus delicti.

                In summary then the corpus delicti requirement for prosecu­tion under the worthless check statute includes the following:

 

                (1)           that some check or other negotiable instrument,

                (2)           was uttered or delivered, and,

                (3)           that the utterer or deliverer of such instrument had knowledge of the insufficiency of the account or otherwise thereby intended to defraud.

 

                If the defendant succeeds in obtaining something of value in return for the worthless check, regardless of the value of the prop­erty or services received, so long as the check is written for $150 or more, he should be charged with a felony violation. If he did not succeed in obtaining property, he should be charged with a misde­meanor violation.

                A discussion of the worthless check statute took place in the Florida Supreme Court decision of Sherman v. State, 255 So. 2d 263 (Fla. 1971):

 

                                (1) Fla. Stat. 832.05, F.S.A., should be construed and applied, so as to fairly and liberally accomplish the bene­ficial purpose for which it was adopted. It should not be construed so as to bring about an unreasonable or absurd result. See George v. State, 203 So. 2d 173 (Fla. App. 2d, 1 967).

 

                                (2) There is no conflict between the decision of the Dis­trict Court of Appeal and the case sub judice and our deci­sion in State v. Harris, supra. In the Harris case, the Court held that Payment of a pre-existing debt by a worthless check does not constitute the obtaining of anything of val­ue in exchange therefore. The evidence in the case sub judice is sufficient to prove that defendant received `a thing of value' ($250 in exchange for the $850 worth­less check).

 

                Florida law provides that prima facie evidence as to identification of the person passing the check may be achieved by the recording of certain data on the check by the person receiving same.  Included is the driver's license number and state of issuance of the person presenting the check.

 

E. Forgery and Uttering Forged Instruments

 

                Florida Statute 831 deals with forgery and counterfeit­ing. Forgery involves falsely making, altering or counterfeiting a material portion of a negotiable instrument. The most common in­stance of forgery is the signing of another person's name to a blank check. Forgery also includes the alteration of any material portion of the face of a blank check.

                Forgery is a felony of the third degree and one who aids, abets, counsels and procures another to commit forgery is guilty as the principal.

                It is further a felony in the third degree to present or utter a document which is forged with the intent to injure or defraud any person. Uttering occurs when a person who knows an instrument is false, attempts to pass the instrument, representing it as the real thing. It is not necessary that one take a forged instrument. Simply the offering as genuine, by word of mouth or conduct, is sufficient to constitute uttering.

                The elements of a forgery include not only the act of making a material alteration in any document which, if genuine, would have some legal effect, but also the intent to defraud. Intent to defraud in forgery cases is shown the same as intent in any other type of case, i.e., by direct or positive evidence, or by circumstantial evidence.

                A special portion of the Florida Statute makes it a felony to ut­ter a check or other instrument with a forged endorsement. Thus, where the face of the check may not be altered or changed from its genuine status, the cashing of same or the attempt to cash same by forging an endorsement of the payee is thus a felony. It should be recalled, in forgery violations, it is not necessary that anything of value be obtained in order to charge the forgery.

                It is a felony in Florida to possess a stolen or counterfeit credit card. Included in the definition, is possession or use of credit card making equipment (plates, etc.) capable of being used to produce a counterfeit credit card or any aspect or component of any such credit card.

 

F. Drug and Narcotic Offenses

 

                Florida Statute 893 is the Florida Comprehensive Drug Abuse Prevention and Control Act. The use, possession, manufacture, or illegal sale of certain prescribed narcotic drugs fall under this Stat­ute. The Florida Statute incorporates, by schedule, all of those nar­cotics and drugs to be prohibited. It provides for the licensing of individuals dealing with certain types of narcotics.

                Provisions in the statutes provide for the forfeiture of vehicles, money or personal property used in the transportation, possession, or sale of narcotics. Such forfeiture is accomplished after the police seize the vehicle etc. which is carrying or transporting the contra­band. Application is then made to the Circuit Court, providing for forfeiture of the vehicle to the state or the individual law enforce­ment agency, providing there are no liens on the vehicle and the vehicle is owned by the defendant, or the defendant was utilizing the vehicle with the owner's consent. In that case the lien must be paid to the innocent lien holder.

                Drugs classified under this law include barbiturates, central ner­vous system stimulants, hallucinogenic drugs, and cannabis sativa.  Second and third convictions carry increased penalties under the act.

                Florida prohibits the sale of any drug or other substance that is falsely represented to be a controlled substance. The law further prohibits the sale, manufacture, delivery and possession with intent to sell of counterfeit controlled substances defined as physically re­sembling a controlled substance by its trademark, trade name, iden­tifying mark, imprint, number, container, labeling, or other likeness.

                Penalties, including minimum mandatory sentences, and special probation terms under F.S. 948.034 are imposed according to statute for convictions related to drugs and narcotics.

                Possession of drug paraphernalia is also outlawed. Drug para­phernalia includes items used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, or inject, ingest, inhale, or otherwise introduce into the human body, a controlled substance.

                To be in possession of drugs and narcotics under the laws of Florida, that possession usually means that the drug or narcotic is under the actual control, care, or dominion of the person charged. Possession in Florida may be fleeting possession. In other words‑‑ very short-term possession. It is possible to be in possession of nar­cotics in Florida by just passing a pipe containing marijuana around in a circle. The test appears to be that for some period of time, no matter how short, the individual exercised control over the contra­band. The law recognizes constructive possession. A jury would be permitted to infer that a defendant had control of a narcotic drug when drugs are found in his room or on his premises. If the offi­cers do not actually see the defendant in possession of the parti­cular contraband, it is always appropriate to dust the container for fingerprints in an attempt to establish that at one time the defendant did exercise control over the contraband. Only external possession or control is a chargeable offense in Florida. It is generally not appropriate to charge an individual who has ingested drugs into his system with possession.

                Proof of actual knowledge of the presence of drugs under some circumstances is required. For example, in Hall v. State 381 So. 2d 779 (Fla. 2d DCA 1980), the Court required proof of actual knowl­edge where marijuana was found under the defendant's bed where (1) the residence is occupied jointly by more than the person, (2) other persons have free access to the residence, and (3) the marijuana is not in plain view.

                It is not possible to charge an individual with being a drug ad­dict. It is possible to charge an individual with being "under the in­fluence" of drugs.

                In the case of State v. Eckroth, 238 So. 2d 75 (Fla. 1970) the Court held that possession for a fleeting instant was sufficient under Florida law (passing a pipe around and smoking from it in a circle of people).

 

                                Webster's Third New International Dictionary defines `pos­session' as `the act or condition of having in or taking into one's control or holding at one's disposal' and `smoke' as 'to inhale and exhale the fumes of tobacco or something resembling tobacco from a pipe, cigar, or cigarette.' Inhal­ing and exhaling requires both possession and control of the substance smoked, in this case, the narcotic, mari­juana. In addition, when defendant Eckroth received the pipe containing marijuana and passed it on to the smoker, he was possessing and controlling both the pipe and the narcotic drug therein.

 

                                It is clear that possession and control under the Act need not be exclusive nor of great duration, and that the quan­tity possessed is immaterial. Cases from other states involving `pot parties' and common access to a narcotic hold possession sufficient even when based on circumstantial evidence. The facts before us establish a stronger case based on actual possession. In State v. Jefferson, the State's evidence was that a needle and syringe with its contents were seen in defendant's right hand. The Missouri Court held this sufficient under the Uniform Act.

 

                                                                                          End of Opinion

 

                Where contraband is found on premises jointly in possession of defendants there is no inference of knowledge in the ability to control just by virtue of joint possession.  There must be independent proof of actual knowledge.  Anderson v. State, 624 So. 2d 362 (Fla. 1st DCA 1993).

 

                Also see Skelton v. State, 609 So. 2d. 716  (Fla. 2d DCA 1992) where mere proximity to contraband is not enough to establish the elements of knowledge required for constructive possession.  The evidence must show:

 

                1.  The accused had dominion and control over the contraband

 

                2.  That the contraband was in his presence

 

                3.  That he had knowledge of its illicit nature.

                Under the terms of the Florida Act, a drug violation is a misde­meanor when a defendant is involved in the bare possession or dis­pensing without profit of less than 20 grams of cannabis sativa. Under these circumstances, the possession of paraphernalia would also be a misdemeanor.  However, when a sale is made (and sale under the terms of the Act includes the offer to sell), then the violation is a felony regardless of the amount involved.

 

                The Drug Abuse Prevention and Control Act also provides for persons engaging in

the manufacture, compounding, mixing, cultivat­ing, growing, producing or preparing controlled substances. Adequate records regarding receipt, production and distribution must be main­tained for review by state authorities.

                Depending on the substance and amount involved, sale or de­livery of a controlled substance may be a felony of the first, second or third degree. The statute also makes it a crime to forge or utter a forged prescription for a controlled substance.

                In dealing with the problem of possession, the court in Medlin v. State, 279 So. 2d 41 (Fla. 4th DCA 1973), held that mere evidence that a defen­dant owned the house where drugs were found was insufficient to sus­tain a conviction for possession of the contraband found therein. However, the court noted that constructive possession exists where a person without manual possession of items knows of their presence on or about his premises and has the ability to maintain control over the items. In the case of Griffin v. State, 276 So. 2d 191 (Fla. 4th DCA 1973), the court held that under the rules requiring that defendant is not shown to have exclusive possession of the premises on which drugs are found, the state must present other evidence which forms a rea­sonable basis for an inference that the defendant knew of the pre­sence of drugs. By "other evidence," we mean the evidence other than the evidence of defendant's non-exclusive possession of the premises.

                Thus, merely having been present where marijuana or other drugs are found is not sufficient proof of possession where there was no exclusive possession of the premises.

                The court in the Griffin  case, supra, also held that the evidence was insufficient to present a jury issue on the question of defendant's knowledge of the presence of drugs inside of his own home at which he did not arrive until after the raid had commenced.

                One of the more common offenses charged by law enforcement under the drug and narcotic laws, involves possession of the outlawed substance.  Possession is defined as having personal charge or exercising the right of control, ownership, or management over the item in question. The law may condemn the following types of possession in drug re­lated cases.

 

                1.             Actual possession: On the person or so close as to be with­in reach and under the control of the person.

                2.             Constructive possession: In a place over which the person has control or in which the person has hidden the contra­band.

                3.             Joint possession: Shared possession and/or control by two or more persons.

                4.             Exclusive control: On the person, or in a place that is acces­sible or controlled by a single person even though others are present.

               

                Knowledge is the essential element of intent in this type of of­fense. The person charged must be aware of the nature of the object or substance.

                A person may also be in constructive possession of contraband, when it can be proven that he had the ability to exercise control over the substance and knew of its presence and nature.

                Temporary control of contraband in the presence of an actual owner for the sole purpose of verifying that it is what it is represented to be; or to conduct tests for quantity prior to completion of the transaction, may constitute illegal possession. Amaya v. State,782 So. 2d 984 (Fla. 3d DCA 2001).  Florida Statute Section 893.02(16) “possession includes temporary possession for the purpose of verification or testing, irrespective of dominion or control.”

                Florida, and most other jurisdictions, now provide for civil for­feiture proceedings against property, money and vehicles which are utilized to facilitate a violation of the drug and narcotic laws. Such forfeitures may not be totally dependent for their success upon the successful prosecution of the criminal charge. (F.S. 932.703-.704)

                If 90 days after seizure, forfeiture proceedings have not been in­itiated, the owner may file suit to recover the property.

                Sale or delivery of hypodermic syringes, needles, etc., to any person under 18 is a misdemeanor.

                Property jointly titled between husband and wife shall not be forfeited if the co-owner establishes that he neither knew nor should have known after a reasonable inquiry that the property was employ­ed in a criminal activity.

                The mere fact that contraband is found in a locked container in the trunk of an automobile, is insufficient as a matter of law, without more, to support a charge of constructive possession by a passenger in that automobile.

 

G. Arson

 

                Arson was considered to be a very serious common law offense. It consisted of willfully and maliciously burning down the house of another. Modern state statutes divide Arson into various degrees and provide for far ranging penalties.

                In Florida, Arson may be either a First or Second Degree Fel­ony (Florida Statute 806). Any person who willfully and unlawful­ly by fire or explosion damages or causes to be damaged any dwell­ing or its contents, any structure or its contents, where persons are normally present, or any structure that he knew or had reasonable grounds to believe was occupied by a human being, is guilty of Arson in the First Degree and may be punished with a prison term of up to 30 years.

                Any Arson committed upon any structure, whether the prop­erty of the Defendant or another, where there are no persons living, is guilty of Arson in the Second Degree, punishable as a Second De­gree Felony.

                Unless considered to be the contents of a dwelling or structure, the burning of other personal property is punishable under the Crim­inal Mischief Statute in Florida. The possession, manufacture or disposing of fire bombs is unlawful in Florida.

                Often Arson is the result of conspiracy or solicitation. It fre­quently is committed in an effort to defraud an insurance company. Most jurisdictions including Florida have specific statutes dealing with that situation. Florida Statute 817.233 provides that it is a Felony of the Third Degree for any person willfully and with in­tent to injure or defraud the insurer, to set fire to or burn or attempt to burn either his own or someone elses property. The statute fur­ther prohibits any person from aiding, counseling or procuring any such burning for the purpose of defrauding the insurer.

                The definition of structure in Florida under the Arson statute contemplates any building or any enclosed area with a roof over it and any vehicle, vessel, aircraft or boat. Portable buildings are also included in the definition.

                Willful and unlawful as used in the statute have been defined as "deliberate and without legal justification."

                The investigation relating to Arson is conducted as any other criminal investigation. Arson convictions generally result from thor­ough, painstaking investigation and the accumulation of scientific and circumstantial evidence. The scene of a fire for purposes of conducting an investigation into the cause of the fire may be treated as a crime scene. In the case of Michigan v. Tyler, 436 U S. 499, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978) the United States Supreme Court dealt with the issue of a warrantless crime scene investigation. Pertinent portions of the decision appear below:

 

                                Shortly before midnight on January 21, 1970, a fire broke out at Tyler's Auction, a furniture store in Oakland Coun­ty, Mich. The building was leased to respondent Loren Tyler, who conducted the business in association with respondent Robert Tompkins. According to the trial testi­mony of various witnesses, the fire department responded to the fire and was `Just watering down smoldering embers' when Fire Chief See arrived on the scene around 2 a.m. It was Chief See's responsibility to determine the cause and make out all reports.' Chief See was met by Lt. Lawson, who informed him that two plastic containers of flammable liquid had been found in the building. Using portable lights, they entered the gutted store, which was filled with smoke and steam, to examine the containers. Concluding that the fire `could possibly have been an arson,' Chief See called Police Detective Webb, who arrived around 3:30 a.m. De­tective Webb took several pictures of the containers and of the interior of the store, but finally abandoned his efforts because of the smoke and steam. Chief See briefly `looked throughout the rest of the building to see if there was any further evidence, to determine what the cause of the fire was.' By 4 a.m. the fire had been extinguished and the fire­fighters departed. See and Webb took the two containers to the fire station, where they were turned over to Webb for safekeeping. There was neither consent nor a warrant for any of these entries into the building, nor for the re­moval of the containers. The respondents challenged the introduction of these containers at trial, but there was never an objection in the State Supreme Court. 399 Mich., at 570,250 NW2d, at 470.

 

                                Four hours after he had left Tyler's Auction, Chief See re­turned with Assistant Chief Somerville, whose job was to determine the `origin of all fires that occur within the Township.' The fire had been extinguished and the build­ing was empty. After a cursory examination they left, and Somerville returned with Detective Webb around 9 a.m. In Webb's words, they discovered suspicious `burn marks in the carpet, which (Webb) could not see earlier that morn­ing, because of the heat, steam, and the darkness.' They also found `pieces of tape, with burn marks, on the stair­way.' After leaving the building to obtain tools, they re­turned and removed pieces of the carpet and sections of the stairs to preserve these bits of evidence suggestive of a fuse trail. Sommerville also searched through the rubble `looking for any other signs or evidence that showed how this fire was caused.' Again, there was neither consent nor a warrant for these entries and seizures.

 

                                Both at trial and on appeal, the respondents objected to the introduction of evidence thereby obtained.

 

                                On February 16, Sergeant Hoffman of the Michigan State Police Arson Section returned to Tyler's Auction to take photographs. During this visit or during another at about the same time, he checked the circuit breakers, had some­one inspect the furnace, and had a television repairman examine the remains of several television sets found in the ashes. He also found a piece of fuse. Over the course of his several visits, Hoffman secured physical evidence and formed opinions that played a substantial role at trial in establishing arson as the cause of the fire and in refuting the respondents' testimony about what furniture had been lost. His entries into the building were without warrants or Tyler's consent, and were for the sole purpose `of making an investigation and seizing evidence.' At trial, respondents' attorney objected to the admission of physical evidence obtained during these visits, and also moved to strike all of Hoffman's testimony `because it was got in an illegal man­ner.'

 

                                ** (material omitted) **

 

                                The petitioner argues, however, that an entry to investigate the cause of a recent fire is outside that protection because no individual privacy interests are threatened. If the occu­pant of the premises set the blaze, then, in the words of the petitioner's brief, his `actions show that he has no ex­pectation of privacy' because `he has abandoned those premises within the meaning of the Fourth Amendment.' And if the fire had other causes, `the occupants of the premises are treated as victims by the police and fire offi­cials.' In the petitioner's view, `(t)he likelihood that they will be aggrieved by a possible intrusion into what little remains of their privacy in badly burned premises is negli­gible.'

 

                                This argument is not persuasive. For even if the petitioner's contention that arson establishes abandonment be accepted, its second proposition‑‑that innocent fire victims inevit­ably have no protectible expectations of privacy in what­ever remains of their property ‑‑ is contrary to common experience. People may go on living in their homes or working in their offices after a fire (and their) private ef­fects often remain on the fire-damaged premises. The peti­tioner may be correct in the view that most innocent fire victims are treated courteously and welcome inspections of their property to ascertain the origin of the blaze, but `even if true, (this contention) is irrelevant to the question whether the. . . inspection is reasonable within the mean­ing of the Fourth Amendment.' Camara, supra, at 536, 18 L. Ed. 2d 930, 87 S. Ct. 1727. Once it is recognized that innocent fire victims retain the protection of the Fourth Amendment, the rest of the petitioner's argument unravels. For it is, of course, impossible to justify a warrantless search on the ground of abandonment by arson when that arson has not yet been proved, and a conviction cannot be used ex post facto to validate the introduction of evidence used to secure that same conviction.

 

                                **  (material omitted) **

 

                                To secure a warrant to investigate the cause of a fire, an official must show more than the bare fact that a fire has occurred. The magistrate's duty is to assure that the pro­posed search will be reasonable, a determination that re­quires inquiry into the need for the intrusion on the one hand, and the threat of disruption to the occupant on the other. For routine building inspections, a reasonable bal­ance between these competing concerns is usually achieved by broad legislative or administrative guidelines specifying the purpose, frequency, scope, and manner of conducting the inspections. In the context of investigatory fire searches, which are not programmatic but are responsive to individu­al events, a more particularized inquiry may be necessary. The number of prior entries, the scope of the search, the time of day when it is proposed to be made, the lapse of time since the fire, the continued use of the building, and the owner's efforts to secure it against intruders might all be relevant factors. Even though a fire victim's privacy must normally yield to the vital social objective of ascer­taining the cause of the fire, the magistrate can perform the important function of preventing harassment by keep­ing that invasion to a minimum.

 

                                **  (material omitted) **

 

                                In short, the warrant requirement provides insignificant protection for fire victims in this context, just as it does for property owners faced with routine building inspec­tions. As a general matter, then, official entries to investi­gate the cause of a fire must adhere to the warrant proce­dures of the Fourth Amendment.

 

                                **  (material omitted) **

 

                                Since all the entries in this case were `without proper con­sent' and were not `authorized by a valid search warrant,' each one is illegal unless it falls within one of the `certain carefully defined classes of cases' for which warrants are not mandatory. Camara, 387 U.S., at 528-529, 18 L. Ed. 2d 930,87 S. Ct. 1727.

 

                                Our decisions have recognized that a warrantless entry by criminal law enforcement officials may be legal when there is compelling need for official action and no time to secure a warrant. Warden v. Hayden, 387 U.S. 294, 18 L. Ed. 2d. 782,87 S. Ct. 1642 (warrantless entry of house by police in hot pursuit of armed robber); Ker v. California, 374 U.S. 23, 10 L. Ed. 2d. 726, 83 S. Ct. 1623, 24 Ohio Ops. 2d. 201 (warrantless and unannounced entry of dwelling by police to prevent imminent destruction of evidence). Similarly, in the regulatory field, our cases have recognized the importance of "prompt inspections, even without a warrant, . . . in emergency situations." Camera, supra, at 539, 18 L. Ed. 2d. 930, 87 S. Ct. 1727, citing North American Cold Storage Co. v. Chicago, 211 U.S. 306, 53 L. Ed. 195, 29 S. Ct. 101 (seizure of unwholesome food); Jacobson v. Massachusetts, 197 U.S. 11,49 L. Ed. 643,25 S. Ct. 358 (compulsory smallpox vaccination); Compagnie Francaise v. Board of Health, 186 U.S. 380, 46 L. Ed. 1209, 22 S. Ct. 811 (health quarantine).

 

                                A burning building clearly presents an exigency of suffi­cient proportions to render a warrantless entry "reason­able."

 

                                Indeed, it would defy reason to suppose that firemen must secure a warrant or consent before entering a burning struc­ture to put out the blaze. And once in a building for this purpose, firefighters may seize evidence of arson that is in plain view. Coolidge v. New Hampshire, 403 U.S. 443, 465466, 29 L. Ed. 2d 564, 91 S. Ct. 2022. Thus, the Fourth and Fourteenth Amendments were not violated by the entry of the firemen to extinguish the fire at Tyler's Auction, nor by Chief See's removal of the two plastic containers of flammable liquid found on the floor of one of the showrooms.

                                Although the Michigan Supreme Court appears to have accepted this principle, its opinion may be read as holding thatthe exigency justifying a warrantless entry to fight a fire ends, and the need to get a warrant begins, with the dousing of the last flame. 399 Mich, at 579, 250 NW 2d., at 475. We think this view of the firefighting function is unrealistically narrow, however, fire officials are charged not only with extinguishing fires, but with finding their causes. Prompt determination of the fire's origin may be necessary to prevent its recurrence, as through the detec­tion of continuing dangers such as faulty wiring or a defec­tive furnace. Immediate investigation may also be necessary to preserve evidence from intentional or accidental destruc­tion. And, of course, the sooner the officials complete their duties, the less will be their subsequent interference with the privacy and the recovery efforts of the victims. For these reasons, officials need no warrant to remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished. And if the warrantless entry to put out the fire and determine its cause is consti­tutional, the warrantless seizure of evidence while inspect­ing the premises for these purposes also is constitutional.

 

                                The respondents argue, however, that the Michigan Su­preme Court was correct in holding that the departure by the fire officials from Tyler's Auction at 4 a.m. ended any license they might have had to conduct a warrantless search. Hence, they say that even if the firemen might have been entitled to remain in the building without a warrant to investigate the cause of the fire, their departure and re-­entry four hours later that morning required a warrant.

 

                                On the facts of this case, we do not believe that a warrant was necessary for the early morning re-entries on Jan­uary 22. As the fire was being extinguished, Chief See and his assistants began their investigation, but visibility was severely hindered by darkness, steam, and smoke. Thus they departed at 4 a.m. and returned shortly after daylight to continue their investigation. Little purpose would have been served by their remaining in the building, except to remove any doubt about the legality of the warrantless search and seizure later that same morning. Under these circumstances, we find that the morning entries were no more than an actual continuation of the first, and the lack of a warrant thus did not invalidate the resulting seizure of evidence.

 

                                The entries occurring after January 22, however, were clearly detached from the initial exigency and warrantless entry. Since all of these searches were conducted without valid warrants and without consent, they were invalid un­der the Fourth and Fourteenth Amendments, and any evidence obtained as a result of those entries must, there­fore, be excluded at the respondents' retrial.

 

                                In summation, we hold that an entry to fight a fire requires no warrant, and that once in the building, officials may re­main there for a reasonable time to investigate the cause of the blaze. Thereafter, additional entries to investigate the cause of the fire must be made pursuant to the warrant procedures governing administrative searches. See Camara, 387 U.S., at 534-539, 18 L. Ed. 2d. 930, 87 S. Ct. 1727; See v. Seattle, 387 U.S. at 544-545, 18 L. Ed. 2d. 943, 87 S. C+. 1 737; Marshall v. Barlow's Inc., ante, at 320-321, 56 L. Ed. 2d. 305, 98 S. Ct. 1816. Evidence of arson discov­ered in the course of such investigations is admissible at trial, but if the investigating officials find probable cause to believe that arson has occurred and require further access to gather evidence for a possible prosecution, they may obtain a warrant only upon a traditional showing of probable cause applicable to searches for evidence of crime. United States v. Ventresca, 380 U.S. 102, 13 L. Ed. 2d. 684, 85 S. Ct. 741 .

 

                                These principles require that we affirm the judgment of the Michigan Supreme Court ordering a new trial.

 

                                Affirmed.

 

                                                                                          End of Opinion

 

                Remember that the case deals specifically with a situation where the targeted defendant was the owner of the burned property (crime scene). In those arson investigations where the Defendant is someone other than the owner or possessor, this case would have no applica­tion .

 

H. Weapons and Firearms

 

                All of the following crimes are included in Chapter 790 of the Florida Statutes:

 

                1.             It is a misdemeanor for any person to carry on or about his person any concealed weapon.

                2.             It is a felony of the third degree for any person to carry a concealed firearm on or about his person. In order for this charge to lie, the firearm must at some time be com­pletely concealed on or about the defendant. Also, the firearm must be operable, i.e., it must be capable of expel­ling a projectile. Carrying a weapon in the trunk of an auto­mobile is not considered carrying a concealed firearm.

                3.             It is a felony of the second degree for any person in Flori­da to shoot or throw a deadly missile into any dwell­ing, public or private building, vessel, aircraft, bus, railroad car, street car, or other vehicle.

                4.             It is a felony of the third degree to have possession of any short-barrelled rifle, or any short-barrelled shotgun .

                5.             It is unlawful for any person in Florida who has previously been convicted of a felony, to have possession of any firearm .

                6.             It is unlawful to manufacture, sell or possess any device which propels a knife-like blade by means of coil spring, elastic material or compressed gas. (Does not apply to com­mon bows, compound bows, crossbows or spearguns.)

 

                It is essential that a police officer in Florida be familiar with the various sections of Chapter 790 relating to weapons and firearms. The statute contains many exceptions or circumstances under which the carrying of a firearm would not constitute a criminal act. The legislative intent in enacting Chapter 790 was to afford the citizen the widest possible latitude in regard to his constitutional right to bear arms. 

                It is a third degree felony to wear a bullet proof vest while in possession of a firearm and in the process of committing certain enun­ciated crimes of violence.

                Florida specifically prohibits the carrying of a concealed firearm on the premises of any pharmacy (unless by the owner).

                In the case of Ensor v. State, 403 So. 2d 349 (1981 ) the Florida Supreme Court dealt with what constitutes a concealed firearm in the context of an automobile. The Court held that "absolute invisi­bility is not a necessary element to a finding of concealment under Section 790.001"  the definitional provision for the violation carrying a concealed weapon. The Court further states that "on or about the person" would include the interior of a vehicle including a locked glove compartment, and if on the floorboard it would be outside "ordinary observation." It is a jury question whether "a weapon's location in some extreme part of the vehicle's interior. . . [is] not `about the person,' and thus not concealed. The ultimate decision must rest upon the trier of fact under the circumstances of each case. " Special emphasis is placed upon the observations of a trained police officer.

                In response to the Ensor case, the legislature in Florida revised Florida Statute 790 to permit a citizen to carry a concealed firearm or other weapon for self-defense or other lawful purpose within the interior of a private conveyance, without a license, if the firearm or other weapon is securely encased or is otherwise not readily accessible for immediate use. The legislature thus has permitted the citizens of Florida to carry concealed firearms in the passenger com­partment of an automobile so long as the firearm is securely encased and is not readily accessible (i.e. in a glove compartment, holster, or console).

                Ashley v. State, 619 So. 2d 294 (Fla. 1993) holds that this means carried on the person or in such proximity and in such a manner that it can be retrieved and used as easily and quickly as if carried on the person.  A case by case analysis is required to determine this test.  The court found that a firearm carried concealed on the floorboard of the car unloaded, and with no ammunition in the car is permissible.  However, if carried under the seat unloaded, with  the ammunition in plain view on the front seat, it is illegal.

                In State v. Commons, 592 So. 2d 317 (Fla. 3rd DCA 1991), it was found that it is permissible to carry a concealed firearm at one's place of business.  It is not necessary to be the owner of the business.  See F.S. 790.25(3)(n).

                In Florida, any person convicted of any murder, sexual battery, robbery, burglary, arson, aggravated assault, aggravated battery, kidnaping, escape, aircraft piracy, or in the attempt to commit any of the above, who has in his possession during the commission of the crime a firearm or destructive device, shall be sentenced to a minimum term of three years.

                Whenever a person is charged with a felony in Florida, except a felony in which the use of a weapon or firearm is an essential ele­ment, and during the commission of such felony the defendant car­ries, displays, uses, threatens or attempts to use any weapon or firearm, or during the commission of such felony the defendant com­mits an aggravated battery, the felony charged shall be re-classified one degree higher than would be charged normally.

 

I. Cheating and Fraud

 

                Florida Statute Chapter 817 deals with fraudulent practices generally. The statute deals with such divers[e] crimes as obtaining property or credit by the making of a false statement; prohibits mis­leading advertising; the making of false entries on the books of a corporation; false reports by officers of banks and trust companies; and declares as a crime the making of a false affidavit to defraud an insurer. In addition, S.817.29 provides that whoever is convicted of any gross fraud or cheating at common law shall be guilty of a felony of the third degree. Florida also defines "organized fraud" as a scheme or operation whereby any person obtains any property of an aggregate value of $50,000 or more from five or more victims.

 

J. Wiretaps

 

                Florida Statute 934 makes it a crime for an individual to place an unauthorized wiretap or otherwise interfere with wire or oral communications. The statute, which is somewhat similar to a federal statute dealing with the same subject, not only makes it a crime, but provides for certain minimal civil remedies for one who has violated the rights of another by placing an illegal wiretap.

                In order for a wiretap to be placed in the State of Florida, the following procedure must be observed: The law enforcement agency seeking the wiretap must make application to the State Attorney's Office. The State Attorney's Office then makes the decision as to whether to seek a wiretap order from the circuit court. A petition filed with the circuit court, including a sworn affidavit by the police officers, is presented to the court for its consideration, asking that a wiretap be ordered. The petition must allege, among other things, the following:

 

                1.             The name of the agency requesting the wiretap;

                2.             The location and description of the instrument to be tapped;

                3.             The name of the person or persons in whose name the in­strument to be tapped is registered;

                4.             The affidavit must state probable cause to believe that a crime is being committed and that evidence relating to that crime may be obtained by the use of said wire tap;

                5.             The affidavit must allege that all other logical leads have been exhausted, and that all other means of investigation have failed to produce the evidence for which there is pro­bable cause to believe a wire tap may develop; and

                6.             The length of time for which application is made.

 

                If a circuit court judge is convinced through the affidavit and sworn testimony of officers that the above have been complied with, he may order the issuance of a wire intercept for an initial period of up to thirty days. At the time the intercept is ordered by the judge, the court file is sealed with regard to any information regarding the wire tap. Law enforcement officers are instructed not to discuss or reveal the contents of conversations taped as a result of the intercept. Law enforcement officers are further instructed by the court to main­tain in their control a tape of all conversations on that particular instrument for the period of time outlined in the intercept order. These tapes or other records are to be turned over to the court at the end of the period in the intercept order.

                In the event that the wire tap is in effect for the prescribed period of time in the intercept order, and evidence is not obtained, another petition may be filed seeking an extension of the order. However, in this petition, in addition to outlining the above information, the applicants must also convince the judge that they have probable cause to believe that an extension will result in obtaining the evidence of the crime desired which they were unable to obtain during the initial period of the intercept. This burden is obviously very difficult.

                At the conclusion of all wire intercept orders, the Florida statute provides that the contents of the taped communications will be made available to the person to whom the instrument is registered. This individual will be notified by the Court that a tap has been placed on his phone during the particular period, and that the taped conver­sations are available for his perusal. This requirement of the law ob­viously has the effect of discouraging police officers from making fraudulent applications or manufacturing probable cause to justify a wire tap order.

                Similar regulations relating to the issuance of wire taps appear in the federal law and are binding upon federal law enforcement officers .

                The installation of videotape equipment, because it records both sight and sound, must meet statutory and constitutional require­ments for both electronic eavesdropping and search warrant.

                Law enforcement frequently uses the pen register as an investiga­tive tool, where it is believed the telephone is used to further the aims of the criminal. Constitutional privacy interests are implicated in such methods. A pen register, while it does not record the conversation, and is thus not a wiretap, does record the number of the dialing instru­ment, as well as the number dialed, and the date, time and duration of the call. In Florida, the state must justify the intrusion by convinc­ing the court that the right of privacy assured to all citizens by the State Constitution, is outweighed by the necessity of a compelling public interest. The burden is on the state to justify the intrusion on privacy, and to further convince the court that the pen register is the least intrusive means which can reasonably accomplish the state's pur­pose. A legitimate ongoing criminal investigation may satisfy this bur­den, if it is based upon a founded suspicion that the telephone is being used to accomplish a criminal purpose, and that the targeted tele­phone line is being used currently for that purpose. Prior judicial ap­proval is required, but without the formality attending an application for a wiretap. The State Attorney will have developed the procedure for securing such judicial approval, and should be consulted by law enforcement. Shaktman v. State, 553 So. 2d. 148 (Fla. 1989).