ODELL RUSSELL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the trial judge did not err in denying the motion to suppress the gun, nor in admitting it into evidence.
[1] A defendant seeking to suppress evidence seized from a location must prove they were the owner, tenant, or lawful occupant of the premises at the time of the search.
[2] A homeowner may consent to a police search of their residence, even if another individual resides there.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of second-degree murder. He appealed, arguing the trial court erred in denying his motion to suppress a gun found under hi…
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The defendant appeals from a judgment finding him guilty of second degree murder pursuant to a verdict of the jury. A single point is presented on appeal. This point urges that the trial court erred in denying defendant’s motion to suppress evidence resulting from an alleged warrant-less search not incident to a lawful arrest.
An eyewitness testified to the fact that the appellant killed a woman in whose house he was living. The eyewitness was the murdered woman’s son. This eyewitness account was corroborated by the testimony of another witness who also placed the defendant at the scene at the time of *463the killing. The victim's son telephoned the police. A police officer discovered the gun used in the killing under defendant’s mattress.
Appellant made a motion to suppress the evidence which was seized by the arresting officer and a hearing was held prior to the trial. The officer stated that the victim’s son pointed out to him where the gun was. The defendant had already been placed under arrest when the search took place. At the hearing on the motion to suppress, defense counsel did not submit any evidence to contradict the statement of the arresting officer that the defendant had been admitted to the house by the victim’s son, nor did defense counsel contradict the testimony of the officer that the son had pointed out the place where the gun was hidden. The argument made by defense counsel as to the gun was that it should be suppressed because no search warrant was obtained. The judge denied the motion to suppress. The law is uniform that a defendant who complains of an unlawful search must claim and prove that he was at the time of the search the owner, tenant, or lawful occupant of the premises searched. Rivers v. State, Fla. 1969, 226 So.2d 337; Mixon v. State, Fla.1957, 54 So.2d 190; Church v. State, 151 Fla. 24, 9 So.2d 164 (1942); Moore v. Wainwright, Fla.App.1971, 248 So.2d 262; Robinson v. State, Fla.App. 1967, 194 So.2d 29; Testasecca v. State, Fla.App.1959, 115 So.2d 584; Alexander v. State, Fla.App. 1958, 107 So.2d 261; Tribue v. State, Fla.App. 1958, 106 So.2d 630.
At the time of the trial court’s ruling on the motion to suppress, the evidence before the court established that the eyewitness to the crime, the victim’s son, took the police officer into his home and showed the police officer a gun which the eyewitness knew belonged to the defendant. It was certainly proper for the victim’s son to allow police officers access to his home. Therefore, we hold that the trial judge did not err in denying the motion to suppress.
Appellant argues, however, that he is entitled to the benefit of testimony which was brought out during the trial and prior to the admission of the gun into evidence. He relies upon testimony of the husband of the deceased that the appellant lived in the house as a member of the family. The appellant gave the victim some money to buy food, and he also paid $10.00 for the use of a room. There was also testimony during the course of the trial which contradicted the testimony of the police officer given upon the motion to suppress. The son of the victim testified that he merely suggested a place for the officer to look for the gun when a search was already in progress. At the time of the admission of the gun into evidence, the appellant objected to its introduction into evidence only upon the basis of relevancy and materiality. No objection at this time was made as to an unreasonable search. Under these circumstances, we hold that the court did not commit error in admitting the gun into evidence. The appellant, after arguing only relevancy and materiality at the time of his objection to the admission of the gun into evidence cannot now contend that no one had permission to enter the room where it was hidden. North v. State, Fla.1952, 65 So.2d 77; Bertone v. State, Fla.App.1969, 224 So.2d 400; Shea v. State, Fla.App.1964, 167 So. 2d 767.
Having reached the conclusion that appellant’s point on appeal does not present reversible error, it is not necessary for us to consider an additional contention by the State that the admission of the gun would be, if error, merely harmless error. The State urges that under the testimony presented no reasonable jury could have found the appellant not guilty because of the eyewitness testimony as to the shooting. We have reviewed the record and find that the contention of the State is cor*464rect, and that even without the admission of the gun into evidence, there was no reasonable basis upon which a different verdict could have been reached.
Affirmed.
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Winchell v. State, 362 So. 2d 992 (Fla. 3d DCA 1978)…fendant’s automobile. This point is without merit because appellant has failed to demonstrate that she had any standing to challenge the stopping of the vehicle. See, e. g., United States v. Sacco, 436 F. 2d 780 (2d Cir. 1971); and Russell v. State, 270 So. 2d 462 (Fla. 3d DCA 1972). Appellant contends in her fourth point on appeal that the trial court erred in admitting the marijuana into evidence because the separate quantities seized were commingled at the time of trial thus indicating probable tampering…
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Herman v. State, 396 So. 2d 222 (Fla. 4th DCA 1981)…a zip gun, which would give rise to prejudicial inferences on the part of the jury. There being no reasonable basis upon which a different verdict could have been reached, if admission of the shotgun was error, it was harmless. See Russell v. State, 270 So. 2d 462 (Fla. 3d DCA 1972); § 924.33, Fla.Stat. (1979). [*230] POINT VII The issue here presented is the propriety of the denial by the trial court of a motion for mistrial occasioned by a state witness’ offer, during cross-examination, to take a polygraph…
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Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- North v. State, 65 So. 2d 77 (Fla. 1953)
- Mixon v. State, 54 So.2d 190 (Fla. 1951)
- Lou Church & J. D. Sawyer v. State, 151 Fla. 24 (Fla. 1942)
- Macon Tribue v. State, 106 So. 2d 630 (Fla. 2d DCA 1958)
- Shea v. State, 167 So. 2d 767 (Fla. 3d DCA 1964)
- Bertone v. State, 224 So. 2d 400 (Fla. 3d DCA 1969)
- Alexander v. State, 107 So. 2d 261 (Fla. 2d DCA 1958)
- Rivers v. State, 226 So. 2d 337 (Fla. 1969)
- In the Interest of S. T. P., 194 So. 2d 29 (Fla. 3d DCA 1967)
- Moore v. Wainwright, 248 So. 2d 262 (Fla. 1st DCA 1971)