Petition — Mora v. Florida

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AN 23 1989

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IN THE i ~ oR, CLERR |

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

rw Ohl 42

MIGUEL ANGEL Mora,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE FLORIDA DISTRICT COURT

OF APPEAL, FIRST DISTRICT

Murray M. WADSWORTH and

WILLIAM Howarp DAvIs

THOMPSON, WADSWORTH,

MESSER & RHODES

Post Office Box 1876

Tallahassee, Florida 32302

(904) 222-0720

Counsel for Petitioner

January 23, 1980

Washington, D.C. + THIEL PRESS + (202) 638.4621

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(1)

TABLE OF CONTENTS

Page

I I dD wie a ag ns ok Si nw wie blac ac 1

EE EO ee ee ee 2

ES 2

CONSTITUTIONAL PROVISIONS INVOLVED ......... 3

a 3

REASONS FOR GRANTING THE WRIT............. 9

I, The Decision Below Is Not in Accord with the

Decisions of This Court as to the Degree of Govern-

mental Participation Sufficient To Render a Search

Subject to Constitutional Restraint .............. 11

II, The Decision Below Conflicts with the Decisions of

Some United States Courts of Appeal on the Same

SI RR ine eas sk Win co ea t.c occ cee 15

Ill, The Decision of the Lower Court Passes upon a

Substantial and Unsettled Question of Federal Law-. . . .19

SY on ares ob WR Nis cb bob oS Fos ew we ets 24

APPENDICES:

A. Opinion of Court Below (Summary Affirmance)...... la

’ B. Order Denying Petition for Reheafing..:.......... 3a

C. Order Denying Petition for Certiorari............. 4a

D. Order Denying Motion to Suppress (Trial Court

WE ME aU N ew ee rts 66S ehhh cocks 6a

TABLE OF AUTHORITIES

Cases:

Arkansas v. Sanders, 99 S.Ct. 2586 (1979) ............. 11

Burdeau v. McDowell, 256 U.S. 465 (1921)............. 12

Cash v. Williams, 455 F.2d 1227 (6th Cir. 1972).......... 18

' Coolidge v. New Hampshire, 403 U.S. 443 (1971) ........ 13

Corngold v. United States, 367 F.2d 1 (9th Cir. 1966)...... 17

Gouled v. United States, 255 U.S. 298 (1921) ........... 23

Pea

a

(1)

Cases, continued: Page

Jones v. United States, 357 U.S. 493 (1958) ........-.-.. 10

Katz v. United States, 389 U.S. 347 (1967)..........6.- 10

Lustig v. United States, 338 U.S. 74 (1949)........ 12-15, 19

Mapp v. Ohio, 367 U.S. 643 (1961)... 12. ee ee eee ee eee 10

McDonald v. United States, 335 U.S. 451 (1948) ......... 10

Mora v. State, 368 So.2d 1377 (Fla. lst DCA 1979) ....... 2

Mora v. Florida, No. KK-409 (Fla. 1st DCA Feb. 23,

SONMRes oe ca oi ey bere FERN EGS nee 4,10

Mora v. Florida, No. 56,645 (Fla. Oct. 25,1979) ......... 3

Napue v. Illinois, 360 U.S. 264 (1959) .. 1... ee eee eee 4

Stoner v. California, 376 U.S. 483 (1964) ..........-. 22-23

United States v. Blanton, 479 F.2d 327 (5th Cir.

LOTS 6 FER GCK BEA ea OR HB Oe ae 18, 20-21

United States v. Bomengo, 580 F.2d 173 (5th Cir.

MO ie ne eg Eas os os be Se 18, 21

United States v. McDaniel, 574 F.2d 1224 (5th Cir. 1978) .. .21

United States v. Mekjian, 505 F.2d 1320 (5th Cir. 1975) ... .12

United States v. Newton, 510 F.2d 1149 (7th Cir.

RO ae aN Ss ae eae ee eod whee bo Babes 15-16

United States v. Rodriguez, 596 F.2d 169 (6th Cir. 1979) ...19

Vale v. Louisiana, 399 U.S. 30(1970)........-.2-e eee 10

Wolf v. Colorado, 338 U.S. 25 (1949)... ... ce eee cence 10

Miscellaneous:

U.S. Constitution, Amendment IV............+66. passim

U.S. Constitution, Amendment XIV..............4. passim

ie Si er EEE oa ke 6 Ga 8 od bth Ses oe ep eRe 2

Fi Be Re eR, a Win 0k NCS Sec eh s eels 8

Ws OR PROP 6 oie 5 os oc Uo wkcc ok hea 8

ee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

MIGUEL ANGEL Mora,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE FLORIDA DISTRICT COURT

OF APPEAL, FIRST DISTRICT

The Petitioner MIGUEL ANGEL MorA respectfully prays

that a writ of certiorari issue to review the judgment of

the Florida District Court of Appeal, First District,

entered in this proceeding on February 23, 1979.

OPINION BELOW

The two-sentence opinion of the Florida District

Court of Appeal, a summary affirmance, is not reported.

1

2

The result, an affirmance of the trial court, is reported

as Mora v. State, 368 So.2d 1377 (Fla. lst DCA 1979)

(“Florida Decisions Without Published Opinions’’). The

opinion is reproduced in the Appendix, at page la.

The opinion of the trial court (the Circuit Court of the

Second Judicial Circuit for Leon County, Florida) was

not published, and it, too, appears in the Appendix, at

page 6a.

JURISDICTION

The judgment of the Florida District Court of Appeal,

First District, was entered on February 23, 1979, and a

timely petition for rehearing was denied on March 21,

1979. Thereafter, on October 25, 1979, the Supreme

Court of Florida, acting on a timely petition, declined

to exercise its authority to review by certiorari the

decision below. The jurisdiction of this Court is timely

invoked under 28 U.S.C. § 1257(3).

QUESTIONS PRESENTED

Whether the search of the Petitioner’s suitcase at

the Tallahassee Municipal Airport on January 29, 1978,

was in violation of the Petitioner’s protection against

unreasonable searches and seizures as guaranteed by the

’ fourth and fourteenth amendments to the United States

Constitution, thus requiring the suppression of the use,

in subsequent criminal prosecution of the Petitioner,

of evidence gained as a result of that search.!

‘Throughout this proceeding, the parties have principally

addressed one, seemingly controlling, subsidiary question: Was

there police involvement in the warrantless search that led to the

Petitioner’s arrest and prosecution, so as to render that search

governmental and thus within the scope of protection afforded

by the fourth and fourteenth amendments to the United States

Constitution? The sole argument of the state in the court below

was that the search was not “governmental.”

3

CONSTITUTIONAL PROVISIONS INVOLVED

The Constitution of the United States provides, in

pertinent part:

The right of the people to be secure in their

persons, houses, papers, and effects, against unrea-

sonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and

the persons or things to be seized.

U.S. Const. amend. IV.

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immu-

nities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.

U.S. Const. amend. XIV, § 1.

STATEMENT OF THE CASE?

On a Sunday morning in January, 1978, Petitioner

MIGUEL ANGEL Mora arrived at the Tallahassee [ Florida]

Municipal Airport on an Eastern Airline flight that had

2 Because the lower court did not enter an opinion setting forth

the facts, the Petitioner has reconstructed the relevant factual

situation with some depth. Throughout these appellate proceed-

ings, the Respondent State of Florida has accepted the Petitioner's

statement of the case and facts. See Respondent’s Jurisdictional

Brief at 2, Mora v. Florida, No. 56,645 (Fla. Oct. 25, 1979); Brief

[footnote continued]

4

originated in Miami, Florida, where he had ““checked”’

his suitcase with the airline. Amid the clothing in his

suitcase were two plastic sandwich-bags, one containing

some capsulés of methaqualone and phenobarbitone and

the other a few grams of marijuana (R. 8, Lines 14-16),

his possession of which was unlawful under Florida law.

(R. 1).

After disembarking, the Petitioner learned that his

suitcase had failed to accompany him. He reported the

loss and described his zippered, brown leather suitcase to

Eastern Airline employees, who then put out a “tracer”

notice in an attempt to find the lost suitcase. The

Petitioner went to his home in Tallahassee and waited.

Later that day, he telephoned the Eastern desk,

seeking information on the location of his luggage.

(R. 38, Lines 3-4). Late in the afternoon, the suitcase

arrived at the airport. According to Eastern employees,

the baggage-check identification number had been

removed. (R. 37, 56). Having obtained from the Peti-

tioner a description of his clothing in the suitcase, the

Eastern employees determined to open it, ostensibly to

make certain that it belonged to him. (R. 51).°

of Appellee at 2, Mora v. Florida, No. KK-409 (Fla. lst DCA

Feb. 23, 1979). It is recognized that this Court will “make its own

independent examination of the record” in deciding whether the

decision of the lower court deprives the Petitioner of his rights

as secured by the Constitution. Napue v. Illinois, 360 U.S. 264,

271-72 (1959). A

3Another and quite different reason for this— the initial opening

of the suitcase—is reflected in statements made by the Eastern

employees to Tallahassee police officers. Officer Gurney Smith

spoke with Eastern employee Doug Adams shortly after the

suitcase was first opened: ‘My understanding of the reasoning

I think was when he came around to advise me in this matter, that

this—Mr. Mora, I believe—had been more or less harrassing them

all during that day of calling them in regards to has his bag come

[footnote continued]

5

It was Eastern Airline employee Doug Adams who

initially opened the suitcase. (R. 35). While searching

the Petitioner’s bag, Adams found the two plastic

sandwich-bags underneath some clothing inside the

suitcase. (R. 39, Lines 7-8; R. 69, Line 1). Adams

closed the suitcase and left it to obtain the assistance of

the Tallahassee police officer who was on duty at the

airport, Officer Gumey Smith.

Doug Adams told Officer Smith that he “thought”

that he had discovered a suitcase “that contained some

type of drugs ....” (R. 22, Lines 17-19). Officer Smith

thereupon asked Adams to show him the contents of

the suitcase. (R. 42; R. 28, Lines 22-24). Officer Smith

was taken to the Eastern Airline office, where “the

suitcase was laying on the table.” (R. 22, Line 23).

Pursuant to Officer Smith’s request (R. 28, Lines 22-24;

R. 42, Lines 1-2), Mr. Adams “‘laid the top back” (R. 22,

Lines 23-24) and then moved aside some sweaters—

which the Petitioner had previously described as being

in his suitcase—to show the police officer the two sand-

wich bags: “‘After he moved the sweaters is when I saw

the stuff.”” (R. 28, Lines 10-11).

But Officer Smith could not identify the contents of

either of the plastic bags. (R. 39, Lines 15-19; R. 36,

Lines 2-9). He needed to call a “vice squad officer” to

determine whether they contained contraband. (R. 42,

Lines 7-11).

in. And they just more or less became kind of suspicious of why

he was so concerned about the bag.” (R. 26, Lines 13-18). Officer

Richard Huffman arrived on the scene sorae time later, and he was

apparently told the same thing: “Mr. Mora had further contacted

them several more times. He seemed to be upset; .... He just

wanted to get the bag as soon as possible, and he’d like to know

what the problem was. Because this happened several different

times and because Mr. Mora was very short with them over the

phone . . . they began to wonder a little bit about that bag.”

(R. 80, Lines 12-20).

6

But—even before Officer Smith was called—Eastern

Airline employees had long-since established that the

Petitioner was the owner of the suitcase: The sweaters

that he had described were indeed in the suitcase, cover-

ing the suspicious “baggies.” Eastern’s business was

finished, so they carefully repacked the suitcase, just as

it was before they had ever opened it. (R. 40, Lines 6-8;

R. 54, Lines 14-17). While Officer Smith watched,

Doug Adams zipped the suitcase closed (R. 27, Lines

12-14) and moved it to another room. (R. 16, Lines

12-14).

So Officer Smith called the Tallahassee Police Depart-

ment to tum the matter over to an experienced “vice

officer.” (R. 25, Lines 19-25; R. 30, Lines 20-23).

But the one vice officer who was on duty could not be

reached. (R. 23, Lines 4-9). Instead, it was Patrolman

Richard Huffman of the Tallahassee Police Department

who was dispatched to the airport. (R. 79, Line 13).

When Officer Huffman arrived, Officer Smith met

him and told him that “Eastern Airlines officials had a

suitcase that they suspected of having illegal drugs in it.”’

(R. 88, Lines 1-3). Upon learning that his call involved

suspected “‘illegal drugs,” Officer Huffman, too, “called

the vice section of the police department”’ and “found

out that there wasn’t anybody else on call in vice that

could come out and handle it.” (R. 79, Lines 23-25).

So, Officer Huffman went to the Eastern Airline office.

The Petitioner’s suitcase was there, still closed. (R. 88,

Lines 4-8; R. 30, Lines 3-6).

At this point, the Petitioner remained unaware that his

suitcase had arrived. He was not at the airport. (R. 43,

Lines 22-24). And although the airline employees could

have held the suitcase for “an hour or two” while a

warrant was obtained (R. 43, Lines 17-19), they were

7

not asked to do so. (R. 43, Lines 10-13). At no point

was there an attempt to obtain a search warrant. (R. 43,

Lines 10-13). Instead, Officer Huffman asked Eastern’s

Doug Adams to open the Petitioner’s suitcase and to

show him the suspicious items. (R. 85, Lines 16-18;

R. 29, Lines 13-17; R. 14, Lines 16-23). In response,

Adams unzipped (R. 88, Lines 7-9) and opened the bag

‘for him.” (R. 14, Lines 16-17). “He asked to look at

the contents of the bag, and I just opened the bag and

he made his examination.” (R. 40, Lines 2-3).

The plastic bags were still “in the back of the bag

underneath the coat.” (R. 39, Lines 7-8). Eastern’s

Doug Adams testified as follows:

Q. So then Officer Huffman lifted up the coat and

saw the drugs there?

Right.

Okay.

Well, he just moved it aside. [R. 40, Lines

10-14].

Officer Huffman testified that “underneath some of

the clothing” he found “a small plastic bag, clear bag,

containing a small amount of brown, grassy substance’”’

which he “tentatively considered” to be marijuana.

(R. 81, Lines 10-13). Nearby, he found a plastic bag

containing what he described as “40 to 50 pills that

were blue and green ones and four or five yellow pills.”

y 2

' (R. 81, Lines. 14-16). Officer Huffman once again called

the vice section of the Tallahassee Police Department

in hopes that someone familiar with narcotics would

come out to the airport and identify the substances. But

this was to no avail. (R. 86).

At this point, Officer Huffman decided to arrest the

Petitioner: “We ... decided that we would go ahead and

call Mr. Mora up . . . and he could come and pick it up.”

8

(R. 81, Lines 17-20). An Eastern employee notified the

Petitioner that his suitcase had arrived. (R. 60, Lines

15-18). When the Petitioner arrived at the airport, he

identified the suitcase as his and was placed under arrest

by Officer Huffman for ‘a possible drug violation.”

(R. 82, Lines 3-15).

A FEDERAL QUESTION WAS AND IS PRESENTED

As a result of the airport searches, the Petitioner was

charged by the Respondent State of Florida with the

commission of three counts of possession of controlled

substances, two felonies and one misdemeanor. (R. 1-2).

He initially plead not guilty to the charges (R. 3-4), and

pursuant to Rule 3.190(h), Florida Rules of Criminal

Procedure, he filed a timely Motion to Suppress the

evidence obtained as a result of the search. In that

Motion, the Petitioner specifically invoked his “rights as

guaranteed by the Fourth and Fourteenth Amendments

to the United States Constitution.” (R. 74). On May 22,

1978, the trial court conducted a hearing on that Motion

to Suppress, where the Petitioner and the State stipulated

that the Petitioner’s Motion would be determined solely

upon depositions which had previously been taken.

(R. 115, 117, 118). The trial court heard no testimony

nor considered any evidence—other than those deposi-

tions—in connection with the Motion.

Several days later, the trial judge orally announced

a decision to deny the Motion to Suppress Evidence,

although the written Order to that effect was not

rendered until June 2, 1978. (R. 95). As a result of

the denial of that Motion, the Petitioner entered his

negotiated plea of nolo contendere to one of the three

counts against him, expressly and specifically reserving

his right, pursuant to Rule 3.172(c)(iv), Florida Rules

_ of Criminal Procedure, to appeal the trial court’s ruling

9

denying the Motion to Suppress Evidence. (R. 106). The

sentence imposed (R. 101) has been stayed by the trial

court pending the outcome of these proceedings.

Subsequent to the imposition of sentence, the Peti-

tioner filed a notice of appeal, timely invoking the

jurisdiction of the lower court, the Florida District Court

of Appeal, First District. (R.99). The Petitioner appealed

the trial court’s refusal to suppress the evidence, again

contending that it had been obtained as a result of an

unreasonable search and seizure in contravention of the

fourth and fourteenth amendments to the United States

Constitution. The depositions upon which the trial court

ruling was based form the bulk of the record below.

(R. 11-73, 76-92).

The lower court, on February 23, 1979, affirmed the

action of the trial court, and on March 21, 1979, denied

a timely Petition for Rehearing. Appendix, page 3a.

The Petitioner then timely sought review in the Supreme

Court of Flo.ida, but on October 25, 1979, that court,

also without opinion, declined to exercise its discre-

tionary jurisdiction to make such a review. Appendix,

page 4a. This Petition was filed within ninety days of

that denial.

REASONS FOR GRANTING THE WRIT -

No opinion was issued below, but the facts upon

which the Motion to Suppress was denied are available

in the record and are not disputed. The necessary and

dispositive subsidiary question is whether or not there

was sufficient police involvement in the search of the

Petitioner’s suitcase so as to render that search subject

to the restrictions of the fourth amendment to the

United States Constitution, as made applicable to the

10

states by the fourteenth amendment.’ Because there

are no exceptions to the fourth-amendment warrant

requirement even arguably available to render the search

constitutionally “reasonable,”5 the lower court, like

the trial court, must have adopted the Respondent’s

sole position through these proceedings: “the Fourth

Amendment is not applicable in the case sub judice.”

Brief of Appellee at 2, Mora v. Florida, No. KK-409

(Fla. lst DCA Feb. 23, 1979). The lower court found

that the fourth amendment was not implicated in Officer

Huffman’s® search of the suitcase and that, therefore,

there was no search warrant required.

‘The fourth amendment has been made fully applicable to

the states by the fourteenth amendment. See Mapp v. Ohio, 367

U.S. 643 (1961); Wolf v. Colorado, 338 U.S. 25 (1949). In this

Petition, reference is made to the fourth amendment as it applies

to the State of Florida.

SA warrantless search, if subject to the fourth amendment, is

“per sé unreasonable.” Katz v. United States, 389 U.S. $47, 357

(1967). The exceptions to the warrant requirement are “jealously

and carefully drawn,” Jones v. United States, 357 U.S. 493, 499

(1958), so as to require two things: (1) probable cause, and (2)

exigent circumstances. E.g., Vale v. Louisiana, 399 U.S. 30 (1970).

In this case, there was neither: Officer Huffman did not have

probable cause when he asked that the suitcase be opened. All he

knew was that unidentified Eastern employees “had a suitcase that

they suspected of having illegal drugs in it.” (R. 88, Lines 1-3).

Moreover, it cannot realistically be asserted that “the exigencies

of the situation made that course imperative.” McDonald v. United

States, 335 U.S. 451, 456 (1948). The record establishes the

contrary: The suitcase could have been held for the police officers

while a search warrant was obtained. The Petitioner was not at

the airport to claim the suitcase; he was not even aware that his

suitcase had arrived, until Officer Huffman “agreed” that he should

be so informed. (R. 43; R. 81, Lines 17-22).

It is clear from the record that the Petitioner was arrested

and charged, and that the evidence was seized, as a result of what

Officer Huffman saw in his (the third) search of the Petitioner's

suitcase. (R. 81, Lines 10-13).- Officer Smith, the first officer

to view the contraband, did not know what it was. And all that

[footnote continued]

11

THE DECISION BELOW IS NOT IN ACCORD WITH

THE DECISIONS OF THIS COURT AS TO THE

DEGREE OF GOVERNMENTAL PARTICIPATION

SUFFICIENT TO RENDER A SEARCH SUBJECT

TO CONSTITUTIONAL RESTRAINT.

This case involves more than one search.? From the

outset the Petitioner has conceded (R. 127) that the first

search, “the original opening,” (R. 95) was outside the

scope of protection afforded by the fourth amendment

and thus by the exclusionary rule. As the trial court

correctly found:

The orginal opening ....

- + . was done by private citizens not acting as

agents of the police. [Appendix, page 6a (emphasis

added)].

But in deciding that the subsequent openings—done at

police request and for police purposes—were beyond the

protection of the fourth amendment,® the lower court

Smith told the arresting Officer Huffman before Huffman’s search

was that “Eastern Airlines officials had a suitcase that they sus-

pected of having illegal drugs in it.” (R. 87-88). Regardless,

Officer Smith’s view was unlawfully obtained for the same reasons

as was Officer Huffman’s subsequent examination. The suitcase

was opened and clothing moved aside for Officer Smith’s benefit

and at his request, after the airline employees had identified its

owner, (R. 22, Lines 17-19; R. 23-24; R. 28, Lines 22-24; R. 29,

Lines 10-12; R. 42).

7 This fact is recognized in the trial court’s order, where the first

three of that court’s four findings were directed to the “original

opening of the Defendant’s suitcase.” See Appendix, page 6a.

8See Arkansas v. Sanders, 99 S.Ct. 2586, 2592 (1979) (cita-

tions omitted):

A lawful search of luggage generally may be performed only

pursuant to a warrant. [L]uggage is a common repository for

one’s personal effects, and therefore is inevitably associated

with the expectation of privacy.

12

deviated from principles of federal constitutional law

most clearly and specifically enunciated by this Court in

Lustig v. United States, 338 U.S. 74 (1949).

It was in durdeau v. McDowell, 256 U.S. 465 (1921),

however, that this Court set forth the most general

proposition that “The Fourth Amendment . . . applies

to governmental action.” 256 U.S. at 475 (emphasis

added). In Burdeau, papers were stolen and turned over

to federal prosecutors. The Court concluded that “there

was 10 invasion of the security afforded by the Fourth

Amendment against unreasonable search and seizure,”

because

- - no official of the federal- government had

anything to do with the wrongful seizure of the

petitioner’s property, or any knowledge thereof

until several months after the property had been

taken from him ....

Id. at 475. But there was no attempt in Burdeau to state,

in general terms, the extent to which police involvement

in a search will be tolerated before the search becomes

subject to constitutional restraints.

It was not until the decision of this Court in Lustig

that these general principles were set forth. After thirty

years, Lustig continues to be recognized as “the leading

case in this area” of the law of search and seizure. United

States v. Mekjian, 505 F.2d 1320, 1327 (5th Cir. 1975).

The principles enunciated in Lustig apply to this and

similar cases by analogy: Lustig involved the old “silver

platter” doctrine, which allowed the use in federal court

of evidence improperly seized by any person who was not

a federal officer. The Lustig decision defines the extent

to which federal officers can become involved in a search,

without that search becoming—for fourth-amendment

purposes—a federal search. In this connection, the

13

United States Court of Appeals, Fifth Circuit, has

observed:

Although the “silver platter” doctrine allowing

fruits of illegal state searches to be freely received

in the federal courts has now been abrogated, that

former rule has its analogue in the law governing

searches conducted by private individuals.

Id. at 1327-28 (citations omitted).

The general principles enunciated in Lustig were flatly

contradicted by the action of the lower court.? The facts

of “ustig make that contradiction most glaring: Local

police officers in that case (analogous to private persons)

conducted a warrantless search of Lustig’s hotel room,

with the permission of the hotel manager. They had

their own, non-federal reasons for the search —they were

seeking evidence of violations of state law. -During

their search, however, the state officers found evidence

indicating possible counterfeiting of currency, a federal

crime. They called federal agent Greene.

The Court found that “Greene did not request the

search, that . . . he was not the moving force of the

search, and that the search was not undertaken by the

police to help enforcement of a federal law.” 338 USS.

at 78. The “state. officers preceded Greene in illegally

rummaging through the bags and bureau drawers hg

°The deviation of the lower court and of some other appellate

courts from the principles enunciated in Lustig can perhaps be

partially explained by the fact that this Court has not, since

that 1949 decision, reasserted and applied those principles to a

case such as the one at bar. Cf. Coolidge v. New Hampshire,

403 U.S. 443, 487 (1971) (the fourth amendment applies if the

private party, ‘‘in light of all the circumstances of the case, must

be regarded as having acted as an ‘instrument’ or agent of the

state ....”) (plurality opinion) (citations omitted).

Sa i oe “

14

Id. at 79. Greene did not play a role, the Court observed,

in the physical process of the search, but he did in the

“functional”’ process:

He was an expert in counterfeiting matters and had

a vital share in sifting the evidence .... He exer-

cised an expert’s discretion in selecting or rejecting

evidence that bore on counterfeiting.

Id. On these facts, the Court concluded that Greene par-

ticipated to an extent sufficient to call into play the

fourth amendment:

But search is a functional, not merely a physical,

process. Search is not completed until effective

appropriation, as part of an uninterrupted trans-

action, is made of illicitly obtained objects for

subsequent proof of an offense. Greene’s selection

of the evidence deemed important for use in a

federal prosecution for counterfeiting, as part of

the entire transaction in Room 402, was not sever-

able, and therefore was part of the search carried

on in that room. [A]lthough he himself did not

help to empty the physical containers of the seized

articles he did share in the critical examination

of the uncovered articles as the physical search

proceeded.

Id. at 78. So, too, in this case, airline officials first

entered the suitcase for purposes other than assisting

Officer Huffman in garnering evidence. Completing

their search, and after reclosing the suitcase, the airline

employees informed the police of the presence of sus-

picious materials in the Petitioner’s suitcase. Yet, unlike

agent Greene in Lustig, the officers in the instant case

went so far as to request another invasion of Petitioner’s

suitcase. Like agent Greene, the police officers were the

“experts”: like him, they conducted “‘the critical exami-

nation of the uncovered articles.” Jd. The search was

15

not completed until the officers became involved and

made the determination that there was evidence present

for use in a state prosecution.

The Lustig decision set forth this basic principle:

The decisive factor . . . [making a search govern-

mental] is the actuality of a share by a federal

officer in the total enterprise of securing and select-

ing evidence. . . . It is immaterial whether a federal

agent originated the idea or joined in it while the

search was in progress. So long as he was in it

before the object of the search was completely

accomplished, he must be deemed to have partici-

pated in it.

338 U.S. at 79. Officer Huffman surely had ‘‘a share in

the total enterprise” that led to his viewing, and his

identification as evidence, of the alleged contraband.

The decision of the lower court contradicts that of this

Court in Lustig.

Il.

THE DECISION BELOW CONFLICTS WITH THE

DECISIONS OF SOME UNITED STATES COURTS

' OF APPEAL ON THE SAME QUESTION.

A. The decision of the court below con-

flicts with that of the United States

Court of Appeals, Seventh Circuit,

reported at United States v. Newton,

510 F.2d 1149 (7th Cir. 1975).

The Court of Appeals, in United States v. Newton,

reversed a trial-court denial of a motion to suppress

evidence that was seized in an airport/luggage search.

The Defendant Newton, like the Petitioner in the instant

case, suffered the in-flight loss of her luggage. The

airline employees were suspicious of Newton, and they

initially opened her suitcase in the presence of govern-

16

ment agents. Like agent Greene in Lustig, the agent in

Newton, upon having the suitcase opened in his presence,

determined that it contained contraband. The court

concluded:

There was not a “hands-off” participation by the

federal agents.

In the first place, the airline employees did not

need to search the luggage to find out to whom it

belonged. They already knew. There was only one

reason why they initially notified the DEA and

subsequently took the federal agents into their

confidence; that was to determine whether the

bag contained narcotics and, if so, to turn it over to

the agents for their investigative activities. That

the agents came prepared to participate in the

immediate investigation is without dispute.

Under all of these circumstances we feel compelled

to reach the conclusion that this was a government

search requiring the application of the Fourth

Amendment.

510 F.2d at 1153. When the airline employees in the

instant case reopened the Petitioner’s suitcase, they, too,

already knew to whom it belonged. They probably knew

that before they first lifted his sweaters, inside of the

suitcase, to get their first, private look at the contraband.

But the only reason for opening the Petitioner’s suitcase

the second and third time was to assist police officers in

their investigation. Indeed, the suitcase was opened at

the officers’ request. Yet, the court below necessarily

found the fourth amendment did not apply to the

search of the Petitioner’s suitcase, and in so doing it is

in conflict with the decision at United States v. Newton,

510 F.2d 1149 (7th Cir. 1975).

—__

17

B. The decision below conflicts with that of

the United States Court of Appeals, Ninth

Circuit, reported at Corngold vy. United

States, 367 F.2d 1 (9th Cir. 1966).

The Court of Appeals, in Corngold v. United States,

reversed a trial-court denial of a motion to suppress evi-

dence that was seized in an airport search. In Corngold,

airline agents opened a package, allegedly pursuant to a

right of inspection reserved in its contract of Carriage.

But the TWA employees opened the package in response

to government requests, as did the Eastern employees in

the instant case. The court held, “‘The fruits of a search

conducted solely in aid of the enforcement of a federal

statute, as this one was, are inadmissible when the search

fails to meet Fourth Amendment standards.” 367 F 2d

at 5 (citations omitted).

The court in Corngold stated precisely the procedure

that should have been followed in the instant case:

We would of course agree that if a carrier, while

inspecting packages for its own Purposes pursuant

to a provision in the contract of Carriage, discovers

contraband and notifies the customs agents of that

fact, and the agents then secure a warrant on the

basis of this information and conduct a search, the

search is entirely proper. This is precisely the pro-

cedure which the Fourth Amendment contemplates..

367 F.2d at 6 (emphasis added). The police officers in

the instant case did not comply with this “procedure

which the Fourth Amendment contemplates.”” Jd. Thus,

the decision of the lower court conflicts with that in

Corngold v. United States.

18

C. The decision below conflicts with that of

the United States Court of Appeals, Sixth

Circuit, reported at Cash v. Williams, 455

F.2d 1227 (6th Cir. 1972).

Cash v. Williams involved the search of an automobile

held by a wrecker operator, Mr. Rainey, in his garage.

After towing the vehicle to his garage, he began searching

it for the purpose of finding evidence of ownership, that

he might know whom to bill for the towing charges. In

the course of that search, he found a “brownish grassy

substance” which he was unable to identify. 455 F.2d

at 1229. Rainey returned the substance to the automo-

bile, and law enforcement officers were summoned.

Without obtaining a search warrant, the officers

confirmed the presence of marijuana in the automobile.

At the outset, the Court of Appeals first recognized, as

has this Petitioner, that “‘a search by a private citizen not

acting in concert with or at the direction of the police

is not a violation of the fourth amendment’s prohibi-

tion of unreasonable searches.” Jd. at 1230 (citations

omitted). But the Cash court held that “the subsequent

searches by government officers must be independently

tested against constitutional criteria.” Jd.!9

Like the Eastern employees in the instant case, Rainey

did not turn over the evidence that he found to the

police. He merely “tipped them off” as to its location.

Thus, the court in Cash observed that

Rainey is best characterized not as a citizen who has

furnished the government with evidence which he

has seized, but as an informer who has come upon

information which he feels should be revealed to the

proper law enforcement officials.

'°Centra, United States v. Bomengo, 580 F.2d 173 (5th Cir.

1978), cert. denied 99 S.Ct. 1022 (1979); United States v.

Blanton, 479 F.2d 327 (5th Cir. 1973).

a a ag ncn cn

19

Id. (citations omitted). The court concluded that the

search by the police officers, who were acting upon

Rainey’s information, had to be measured against fourth

amendment standards.!1_ The officers in that case not

having obtained a warrant, and there being no justifi-

cation in the record for a warrantless search, the Cash

court concluded that the evidence seized in that search

was inadmissible and that the motion to suppress was

improperly denied.

The decision of the court below squarely contradicts

that of the court in Cash v. Williams. In the instant case,

the officers did not have the evidence handed over to

them “on a silver platter” by Eastern employees, but

instead they were “tipped off” to the presence of a

suspicious substance in the suitcase. Just as the officers

in the Cash case failed to have a magistrate determine

whether they had probablggcause before they re-entered

the automobile, the officers in the instant case failed to

take their “tip” to a magistrate for appraisal before

having the Petitioner’s suitcase reopened and searched.!2

Il.

_ THE DECISION OF THE LOWER COURT PASSES

UPON A SUBSTANTIAL AND UNSETTLED QUES-

TION OF FEDERAL LAW.

As has already been illustrated, the decision of the

lower court conflicts with the principles of Lustig v.

United States, 338 U.S. 74 (1949). As such, and given

'ICf. Lustig v. United States, 338 U.S. at 78-79 (“it is not a

search by a federal official if evidence secured by state authorities

is turned over to the federal authorities on a silver platter.”’)

(emphasis added).

12See also United States v. Rodriguez, 596 F.2d 169 (6th Cir.

1979) (police called by carrier to investigate contraband not

required to obtain warrant where package was still open and

contraband in plain view).

20

the facts of this case, the lower court decision joins a

line of cases emanating from the United States Court of

Appeals, Fifth Circuit, that likewise conflict with the

principles of Lustig and with the other federal appellate

decisions discussed above. That line of cases not only

acts to unsettle this aspect of the law of search and

seizure. Its basic proposition threatens the privacy

clearly intended for protection by the fourth amend-

ment. Its continued application will undermine that

necessary trust by which one must permit limited, private

intrusions. This case provides the Court with an oppor-

tunity to overrule bad law.

In United States v. Blanton, 479. F.2d 327 (5th Cir.

1973), airline employees opened an unclaimed suitcase in

order to determine its ownership. They found suspected

contraband, and law enforcement officials were notified.

The bag was then closed by an airline employee. When

the law-enforcement officer arrived, the airline employees

in Blanton tured the bag over to him. He thereupon

opened it, observed the contraband, and arrested Blanton.

As in the instant case, it was conceded that the original

search by the airline employees was outside the protec-

tion of the fourth amendment. “The argument is that

the federal officer made a new search under circum-

stances where a warrant could have been obtained.” Id.

at 328. The Blanton court decided that “whether the

bag was left open .. . or reopened by the police” was

“happenstance” and “insufficient to convert an otherwise

private search into an unreasonable official search in the

immediate circumstances . . . which are present ....”

Id.13— Thus, the officers’ opening of the suitcase, ac-

13The Blanton case can be distinguished, on its facts, from the

instant case. In Blanton, “‘the bag was turned over to the federal

officers.” In the instant case, however, the officers were not

examining evidence turned over to them, but were instead respond-

[footnote continued]

21

cording to Blanton, “did not constitute a separate or

additional search” to that initially made by private

persons. Id. The Blanton court insisted that the case

could “be distinguished from cases where the officers

participate in or are in league with the private person in

making the initial search.” Id. at 329 (citation omitted).

Thus, on the question of whether the officer in

Blanton should have sought a search warrant, the fifth

circuit court decided that he did not conduct “a separate

search.” Yet, on the controlling question of whether

or not the search was governmental, the Blanton court

would seek to distinguish its case “from cases where the

officers participate.”” The Blanton court, as a rationale

to uphold the search in that case, found that the govern-

ment’s own search was not “separate” from the first

search, and, at the same time, found that the government

did not participate in the first search.

The fifth circuit court’s decision in Blanton was

elevated to a principle in United States v. Bomengo, 580

F.2d 173 (5th Cir. 1978), cert. denied 99 S.Ct. 1022

(1979): :

We have long recognized that a police view sub-

sequent to a search conducted by private citizens

does not constitute a “search” within the meaning

of the Fourth Amendment so long as the view is

confined to the scope and product of the initial

search.

ing to an informant’s “tip’’ that there was suspicious material in

the Petitioner’s suitcase. Cf. United States v. McDaniel, 574 F.2d

1224, 1227 (5th Cir. 1978) (“Since the airline voluntarily released

the briefcase to the Government, this case is controlled by our

decision in Blanton. The district court correctly denied the

motion to suppress.) (emphasis added), cert. denied 99 S.Ct.

2181 (1979) (“‘Mr. Justice BRENNAN and Mr. Justice WHITE

would grant certiorari.’’).

22

Id. at 175. Thus Bomengo extended Blanton to a search

of a private residence, when preceded by a landlord’s

initial entry.'*

The principle enunciated by the fifth circuit in

Blanton and Bomengo, a principle apparently followed

by the lower court in this case, is an extremely dangerous

one. First, it does not consider the right or the authority

of the private person to make the initial search: Under

Blanton-Bomengo a police officer could, without a

warrant, retrace the steps of a burglar-turned-informant,

without conducting a “separate” or “governmental”

search subject to the fourth amendment’s reasonableness

requirement. But if the Blanton-Bomengo rule did turn

on the propriety of the initial, private search, would

inquiry then need to be made into the purpose or state

of mind of the inspecting landlord or hotel clerk? Would

this case need to be remanded for findings of “fact” in

that regard? Even if the Blanton-Bomengo rule was so

limited, it undermines well-established law to the effect

that one who confers a right to inspect or enter an

area, without conferring an equal right to the use or

enjoyment of that area, does not authorize the other

to consent on his behalf to a warrantless search by law

14 But cf. Stoner v. California, 376 U.S. 483, 489-90 (1964),

where this Court ordered the suppression of evidence found in a

hotel room by law enforcement officers admitted by a hotel clerk:

In a closely analogous situation the Court has held that a

search by police officers of a house occupied by a tenant

invaded the tenant’s constitutional right, even though the

search was authorized by the owner of the house, who

presumably had not only apparent but actual authority to

enter the house for some purposes, such as to “view waste.”

Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776,

5 L.Ed.2d 828. The Court pointed out that the officers’

Purpose in entering was not to view waste but to search for

istilling equipment, and concluded that to uphold such a

search without a warrant would leave tenants’ homes secure

only in the discretion of their landlords.

23

enforcement authorities. Before “consenting” to a

government search, the third person would only need

to intrude before the police: The police could then

follow and repeat the intrusion without probable cause,

without exigent circumstances, and without a search

warrant. The Blanton-Bomengo doctrine, in effect,

allows police searches at the unfettered discretion of

landlords, hotel clerks, exterminators, telephone repair-

men, plumbers, and anyone else who is entrusted with

access, for a limited purpose, to areas that are otherwise

private. Under that doctrine it is they, not the neutral

magistrate acting upon their “tip,” who can authorize

a governmental search. And the

constitutional protection against unreasonable

searches and seizures . . . would disappear if it were

left to depend upon the unfettered discretion of

an employee of the hotel. ;

Stoner v. California, 376 U.S. 483, 490 (1964) (citations

omitted). The Court has, in this case, an opportunity

to reject the Blanton-Bomengo rationale and to put a

halt to continued state reliance upon its dangerous non

sequitur. The Court should take this opportunity “‘so

as to prevent stealthy encroachment upon or ‘gradual

depreciation’ of the rights secured by [the fourth amend-

ment], by imperceptible practice of courts or by well-

intentioned, but mistakenly overzealous, executive

officers.” Gouled v. United States, 255 USS. 298, 304

(1921).

24

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment of the Florida District Court of

Appeal, First District.

Respectfully submitted,

te tenia APPENDIX

WILLIAM Howarp Davis | |

THOMPSON, WADSWORTH, ' |

MESSER & RHODES

Post Office Box 1876

Tallahassee, Florida 32302

(904) 222-0720

Counsel for Petitioner

January 23, 1980

>.

la

APPENDIX A

IN THE

DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

Case No. KK-409

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

PETITION AND DISPOSITION THEREOF IF FILED.

MIGUEL ANGEL MORA,

Appellant,

Vv.

STATE OF FLORIDA,

Appellee.

Opinion filed February 23, 1979.

An Appeal from the Circuit Court for Leon County.

John A. Rudd, Judge.

Murray M. Wadsworth and William H. Davis of Thomp-

son, Wadsworth, Messer, Tumer & Rhodes, for Appellant.

Robert L. Shevin, Attorney General; Charles A.

- Stampelos, Assistant Attorney General, for Appellee.

PER CURIAM

Upon considering the briefs, the record and oral argu-

ment, we find no reversible error.

2a

Accordingly, the judgment appealed from is affirmed.

McCORD, Chief Judge, MELVIN and BOOTH, JjJ.,

concur.

3a

APPENDIX B

IN THE

DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

Case No. KK-409

MIGUEL ANGEL MORA

v.

STATE OF FLORIDA

ORDER

Petition for Rehearing and Response thereto having

been considered,

IT IS ORDERED that the petition is hereby denied.

By Order of the Court dated this 21st day of March,

A.D. 1979. Unless otherwise ordered, the Court’s

mandate will issue fifteen (15) days after this date.

Florida Rules of Appellate Procedure, 9.340; General

Order entered April 14, 1978. Chief Judge Guyte P.

McCord, Jr., Judge Woodrow M. Melvin, and Judge

Anne C. Booth. .

A TRUE COPY

ATTEST:

/s/ Raymond E. Rhodes

Clerk

District Court of Appeal, First District

Tallahassee, Florida

4a

APPENDIX C

SUPREME COURT OF FLORIDA

FIRST DISTRICT

Thursday, October 25, 1979

Case No. 56,645

District Court of Appeal

KK-409

MIGUEL ANGEL MORA,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

This cause having heretofore been submitted to the

Court on jurisdictional briefs and portions of the record

deemed necessary to reflect jurisdiction under Fla. R.

App. P. 9.120, and it appearing to the Court that it is

without jurisdiction, it is ordered that certiorari is denied.

No Motion for Rehearing will be entertained by the

Court. See Fla. R. App. P. 9.330(d).

BOYD, OVERTON, SUNDBERG and ALDERMAN,

JJ., Concur

ADKINS, Acting C.J., Dissents

5a

A True Copy

TEST:

Sid J. White

Clerk Supreme Court.

By: /s/ Janie L. Bentley

Deputy Clerk

cc: Hon. Raymond E. Rhodes, Clerk

Hon. Paul F. Hartsfield, Clerk

Hon. John A. Rudd, Judge

Murray M. Wadsworth, Esquire

and William H. Davis, Esquire

of Thompson, Wadsworth,

Messer & Rhodes

Charles A. Stampelos, Esquire

6a

APPENDIX D

IN THE

CIRCUIT COURT OF THE

SECOND JUDICIAL CIRCUIT

IN AND FOR LEON COUNTY, FLORIDA

Case No. 78-83

[Filed: June 2, 1978]

STATE OF FLORIDA,

v.

MIGUEL ANGEL MORA,

Defendant.

ORDER DENYING MOTION TO SUPPRESS

THIS CAUSE coming on for hearing in open court

on Defendant’s Motion to Suppress Tangible Evidence,

and the Court having heard argument of counsel both

for the defendant and for the State, and being fully

advised in the premises, finds as follows:

1. The original opening of defendant’s suitcase was

done with his consent and acquiescence.

2. The opening was done by private citizens not acting

as agents of the police.

3. The discovery of the contraband inside the defend-

ant’s suitcase was legal, and the personnel of Fastern

Airlines had an obligation to report the same to law

enforcement officials.

7a

4. The law enforcement officers viewing of the

contraband was also legal in that they were responding

to a complaint from private citizens.

THEREFORE, it is accordingly ORDERED AND

ADJUDGED that the defendant’s Motion to Suppress

be denied.

DONE AND ORDERED at Tallahassee, Leon County,

Florida, this 2nd day of June, 1978.

/s/ John A. Rudd

Circuit Judge