Petition — Hernandez v. Florida

ET ee Te ee ee ee ee eh eS San en en a

by Buprein: Loun, U. ay i

FILED |

79-1181 JAN 81. 1990

_

a ae (_MICHAEL RODAK, JR., CLERR

Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-

LuIS HERNANDEZ,

Petitioner

Vv.

‘3

STATE OF FLORIDA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT COURT OF APPEAL OF THE

STATE OF FLORIDA, THIRD DISTRICT

E. BARRETT PRETTYMAN, JR.

ALLEN R. SNYDER

ANN MORGAN VICKERY

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

Attorneys for Petitioner

Of Counsel:

WALTERS, COSTANZO, MILLER,

RUSSELL AND DITTMAR

Suite 1000

New World Tower

100 North Biscayne Boulevard

Miami, Florida 33132

WILSON - EPES PRINTING Co.. INC. - 789-GO96 - WASHINGTON. D.C. 20001

TABLE OF CONTENTS

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CONSTITUTIONAL PROVISIONS INVOLVED ........

STATEMENT OF THE CASE ........................................

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

I. The Lower Courts are in Conflict Concerning the

Scope of the Fourth Amendment Principles

Enunciated in United States v. Chadwick and

Nee on acscuenecvncnmpmveccees

II. The Courts are Also in Conflict Regarding the

Retroactive Application of Chadwick and

ES

RS ETT SS ES a

Page

II III

, TABLE OF AUTHORITIES : TABLE OF AUTHORITIES—Continued

var so Constitutional and Statutory Provisions:

Arkansas v. Sanders, 439 U.S. 891, 99 S.Ct. 2586

CI icles a a ae eed 2, 5, 6, 8, 9, 10, 11, 12 United States Constitution

Carroll v. United States, 267 U.S. 182 (1925)........ 6 | SS EEG: GREINER 2, 4,

Chambers V. Maroney, 399 U.S. 42 (1970) .............. 6 ee a

People v. Dalton, 24 Cal.8d 850, 598 P.2d 467, 157

Cal. Rptr. 497 (1979) (en banc) ..................-.----- 7,9

People v. Minjares, 24 Cal.3d 410, 591 P.2d 514,

DET Cad, Fe TI GID nce snerskncticcnncssenenesscccecennes 10, 11

State v. Schrier, 283 N.W.2d 338 (1979) ...............- 8,9, 10

State v. Tungland, —— Minn. ——, 281 N.W.2d

DU EE ake ck oa siesdsta ess sintrernshesncn niet nsnscectentnveer nbn 8, 10

United States v. Berry, 571 F.2d 2 (7th Cir. 1978),

cert. denied, 489 U.S. 840 (1979) -.......0........-....-. 11

United States v. Chadwick, 488 U.S. 1 (1977) ......2, 5, 8, 9,

10, 11, 12

United States v. Dien, Nos. 79-1036, 79-1072, 79-

BE Ge Ee TI, TR, BTR waders resseeictssccc sc eeseps 7,9,11

United States v. Gaultney, 581 F.2d 1187 (1978)... 7

United States v. Gooch, 608 F.2d 122 (10th Cir.

NN oda ii akc allah Deeb leranngadinalensonnetn 9

United States v. Johnson, 588 F.2d 147 (1979)...... 8,10

United States v. Meier, 602 F.2d 253 (1979) .......... 8,9

United States v. Montgomery, 558 F.2d 311 (5th

I SE osetia date PE, See 11, 12

United States v. Neumann, 585 F.2d 355 (8th Cir.

NE ed carconss Vicente ada eoetaaines uadicig apie telonh=n 7,9

United States v. Ochs, 595 F.2d 1247 (2d Cir.),

cert. denied, 48 U.S.L.W. 3172 (U.S. Nov. 18,

| ENE Sea sate OL) SN Irn oe ee et ee 12

United States v. Peltier, 422 U.S. 531 (1975) ........ 11

United States v. Presler, No. 79-5043 (4th Cir.

y ISR ERS ait rte peer a elt wn a roe 9

United States v. Reda, 563 F.2d 510 (2d Cir. 1977),

cert. denied, 485 U.S. 978 (1978) .........--.......-..----- 11, 12

United States v. Schleis, 582 F.2d 1166 (8th Cir.

I a oe sd os encnmeenordeles 9, 11,12

United States v. Stewart, 595 F.2d 500 (9th Cir.

SERS EE ak! PRI ne Rr SENT ran AO Cen Oe 11

Webb v. Florida, 373 So.2d 400 (Fla. Dist. Ct.

MU SID 68k son Seth sw sancatiastecdactarghahmitaicketanivetaesinctiaintes 10

IN THE

Siren Canet of the United States

OCTOBER TERM, 1979

No. 79-

LuIs HERNANDEZ,

Petitioner

Vv.

STATE OF FLORIDA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT COURT OF APPEAL OF THE

STATE OF FLORIDA, THIRD DISTRICT

Luis Hernandez respectfully petitions for a writ of

certiorari to review the judgment of the District Court of

Appeal of Florida, Third District, in Hernandez, et al Vv.

Florida.'

OPINIONS BELOW

The opinion of the District Court of Appeal of Florida,

Third District, which is not reported, appears as Appendix

(“App.”) A hereto. The order of the Supreme Court of

Florida denying certiorari (App. B) is not reported. No

1 Counsel for James Eaton Staples and Chic Eder, whose appeals

were consolidated with petitioner’s in the District Court of Appeal

of Florida, Third District, has informed undersigned counsel that a

separate petition for a writ of certiorari will be filed with this Court

on behalf of Messrs. Staples and Eder.

2

opinion was rendered by the Circuit Court of the Eleventh

Judicial Circuit of Florida; the judgment of that court is

reprinted as Appendix C hereto.

JURISDICTION

The judgment of the District Court of Appeal of

Florida, Third District, was entered on February 27,

1979, affirming petitioner’s conviction dated October 6,

1977. On April 16, 1979, the District Court of Appeal

denied a timely petition for rehearing, and on November

7, 1979, the Supreme Court of Florida denied a petition

for a writ of certiorari. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1257(8).

QUESTIONS PRESENTED

1. Does the Fourth Amendment forbid the warrantless

search and seizure of opaquely wrapped packages found

inside a closed, unoccupied truck by police officers re-

sponding to information received from a complainant of

unproven reliability?

2. Do the decisions of this Court in United States v.

Chadwick, 433 U.S. 1 (1977), and Arkansas v. Sanders,

439 U.S. 891, 99 S.Ct. 2586 (1979), have retroactive ap-

plication to an alleged offense committed prior to their

rendition?

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const., Amend. IV:

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause, sup-

ported by oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.

3

US. Const., Amend. XIV, Sec. 1:

* * * nor shall any State deprive any person of life,

liberty, or property, without due process of law * * *.

STATEMENT OF THE CASE

At approximately 9:05 p.m. on October 30, 1976, Of-

ficers Joseph Sheppard and Adrian Martin of the Miami,

Florida, Police Department received a radio call to in-

vestigate activity near the north side of the Fifth Street

Bridge over the Miami River. The officers proceeded

to that location and, finding nothing suspicious, radioed

their dispatcher for more information. The dispatcher

directed them to the nearby address of Mr. Herbert

Halliwell, who had informed police that several men

were unloading large packages from a boat onto a truck.

Mr. Halliwell, who was unknown to the officers, pointed

out to Officers Sheppard and Martin an area across the

river where he had observed the unloading of a boat.

The two officers drove to the location indicated by Mr.

Halliwell, a stretch of private property generally used by

lobster fishermen to moor and unload their boats. They

parked their cruiser at the entrance to a fenced-in lot,

blocking exit from the area. The two officers proceeded

down a dirt road toward the river. As they approached

the water, they came upon a truck parked with its front

facing them and its back facing a boat moored in the

river. When Officer Sheppard reached the front of the

truck, he racked a shell into the chamber of his shotgun.

At that point, both officers heard rustling movements in

the bushes, but they saw no one until Officer Sheppard

reached the rear of the truck and saw a man at the edge

of the water, about six yards away. The man (later

identified as Chic Eder) entered the river and swam

away.

Although he had no search warrant and had neither

seen nor smelled any contraband, Officer Sheppard then

4

opened the rear door of the closed truck. Officer Sheppard

later testifed that after opening the rear door, he

observed the truck approximately three-quarters full

with large bales of an unknown substance. At that

particular time, that was loaded or packaged in an

opaque-type material and also bound by burlap or

canvas. [R. 39.7]

With the tzuck door open, Officer Sheppard noticed an

odor which smelled to him like hay, but not like mari-

juana. Nevertheless, he took out a pocketknife and cut

one of the bales, revealing what he suspected to be mari-

juana. Officer Martin then boarded the boat and conducted

a search which revealed two weapons and a bale similar

to the bales in the truck.

Additional officers were summoned to the area. Eder

was pulled from the river and placed under arrest. Peti-

tioner and two other men were arrested by Officer John

Speisman, who observed them in the water approximately

one block from the location of the boat and the truck.

The State filed a criminal information against peti-

tioner, charging him with Unlawful Possession of Can-

nabis. Citing a violation of his Fourth and Fourteenth

Amendment rights, petitioner moved to suppress the evi-

dence seized from the truck and the boat. The motion

was denied by the trial court, after a hearing. App. D.

Petitioner was subsequently tried by a jury, convicted,

and sentenced to two years’ incarceration, a $5,000 fine,

and three years’ probation.

Petitioner’s timely motion for a new trial was denied,

and his conviction was affirmed on appeal by the District

Court of Appeal, Third District, which found that the trial

court had not erred in denying petitioner’s motion to sup-

2 References are to the Transcript of Record on Appeal as certified

to the District Court of Appeal, Third District.

5

press the evidence seized without a warrant. App. 3a.

On November 7, 1979, the Florida Supreme Court denied

certiorari, with one Justice dissenting from the denial.

App. 4a.

REASONS FOR GRANTING THE WRIT

I. The Lower Courts are in Conflict Concerning the Scope

of the Fourth Amendment Principles Enunciated in

United States vy. Chadwick and Arkansas v. Sanders.

In two opinions within the past three years, this Court

has explored the constitutionality of warrantless searches

of even those containers which have been lawfully seized

by police. (The element of legal seizure, we would con-

tend, is absent here.) In United States v. Chadwick,

supra, decided on June 21, 1977, this Court held that the

Fourth Amendment was violated by federal narcotics

agents when they conducted a warrantless search of a

200-lb. footlocker which they had lawfully seized and

_ which they had probable cause to believe contained contra-

band.* The decision rested on expectations of privacy and

lack of exigency where the footlocker was under the con-

trol of the federal agents at the time of the search:

No less than one who locks the doors of his home

against intruders, one who safeguards his personal

possessions in this manner is due the protection of

the Fourth Amendment Warrant Clause. There be-

ing no exigency, it was unreasonable for the Govern-

ment to conduct this search without the safeguards

a judicial warrant provides. (433 U.S. at 11.]

Two Terms later, this Court undertook to resolve “some

apparent misunderstanding as to the application of [Chad-

wick] to warrantless searches of luggage seized from auto-

mobiles.” * Arkansas v. Sanders, supra, 99 S.Ct. at 2588.

3 Large amounts of marijuana were found in the footlocker. 433

U.S. at 5.

4 Although the footlocker in Chadwick was seized from the trunk

of a car, the Government did not contend that an automobile search

was involved in that case. Id.

6

In Sanders, police had probable cause to believe that a

certain green suitcase contained marijuana. After watch-

ing the suitcase being loaded into the trunk of a taxi,

police officers stopped the taxi, asked the driver to open

the trunk, and immediately searched the unlocked suit-

ease. Id. at 2588. The State argued in this Court that

the warrantless search was proper under the so-called

“automobile exception” to the warrant requirement.°

A majority of the members of this Court disagreed,

holding that “as a general rule there is no greater need

for warrantless searches of luggage taken from automo-

biles than of luggage taken from other places.” 99 S.Ct.

at 2593. The majority opinion discussed the two reasons

underlying the “automobile exception”: the inherent mo-

bility of automobiles and the diminished expectation of

privacy deriving from the configuration, use, and regu-

lation of automobiles. The majority recognized that while

the suitcase might be as mobile as the automobile in

which it rides, “the exigency of mobility must be assessed

at the point immediately before the search—after the

police have seized the object to be searched and have it:

securely within their control.” Jd. The opinion noted that

exigencies justifying the warrantless search of a suitcase

generally would depend on such factors as the probable

contents of the luggage (a gun, for example) or the

suspect’s access to those contents. Jd. at n.11.

With regard to the expectation of privacy, the Court

stressed that the “‘very purpose of a suitcase is to serve

as a repository for personal items” (id. at 2593); and it

noted that a gun case or a kit of burglars tools would not

support such an expectation of privacy. Jd. at n.13. The

Court also acknowledged that:

There will be difficulties in determining which parcels

taken from an automobile require a warrant for

5 See, e.g., Chambers v. Maroney, 399 U.S. 42 (1970); Carroll

Vv. United States, 267 U.S. 1382 (1925).

7

their search and which do not. Our decision in this

case means only that a warrant generally is required

before personal luggage can be searched and that the

extent to which the Fourth Amendment applies to

containers and other parcels depends not at all upon

whether they are seized from an automobile. [Jd.

at 2594 n.13.]

There are sharp conflicts among the courts which have

decided recent container cases. For example, the Second

Circuit has held that cardboard cartons should not have

been searched without a warrant, United States v. Dien,

Nos. 79-1036, 79-1072, 79-1075 (2d Cir. Oct. 26, 1979),

while the Eighth Circuit has upheld the legality of a war-

rantless search involving a department store box. United

States v. Neumann, 585 F.2d 355 (8th Cir. 1978).

Both courts focused on the issue of expectation of

privacy, with the Second Circuit concluding that:

By placing the -aarihuana inside a plain cardboard

box, sealing it with tape and placing it inside a van

the windows of which had been painted over and in

which plywood had been placed behind the drivers’

seat, petitioners manifested an expectation that the

contents would remain free from public examination.

The fact that the agents detected the odor of mari-

huana emanating from the van did not alter this.

[United States v. Dien, supra, slip op. at 5246.]

The Eighth Circuit, on the other hand, found “an in-

sufficient expectation of privacy in an unsecured card-

board box sitting in plain view in the passenger compart-

ment of an automobile.” United States v. Neumann,

supra, 585 F.2d at 360. If a court seeking guidance in

deciding a cardboard box case* were tempted to dis-

® See aiso United States v. Gaultney, 581 F.2d 1137 (1978) (no

expectation of privacy in taped-shut Scrabble box); People v.

Dalton, 24 Cal.3d 850, 598 P.2d 467, 157 Cal.Rptr. 497 (1979) (en

banc) (reasonable expectation of privacy in contents of locked metal

boxes).

8

tinguish these cases on the basis of the relative security

of the boxes, this Court’s language in Sanders, decided

after United States v. Neumann, would be instructive.

Comparing a small, unlocked suitcase with the locked

200-pound footlocker in Chadwick, the Sanders majority

concluded that the difference in size was not material,

“nor did respondent’s failure to lock his suitcase alter its

fundamental character * * * *” 99 S.Ct. at 2592 n.9.

The conflicting opinions in cases involving canvas-type

containers are similarly divergent. The Tenth Circuit fol-

lowed Sanders in finding that a backpack, like a suitcase,

is a repository for transporting personal items and con-

cluding that the warrantless search of a backpack vio-

lated the Fourth Amendment. United States v. Meier,

602 F.2d 253 (1979). Two months later, the Supreme

Court of Iowa upheld the warrantless search of a knap-

sack which, unlike a footlocker or suitcase, did not

securely conceal articles from view unless latched. “Un-

less the strap was tight and the sides of the flap were

pulled down, contents of the knapsack became visible

by simply pushing the flap aside, as on this occasion.”

State v. Schrier, 283 N.W.2d 338, 346 (1979).

In contrast, the Fifth Circuit had held even before

this Court’s decision in Sanders that expectations of

privacy in the contents of a white canvas duffle bag

brought it within the protection of the Chadwick pro-

hibition against warrantless searches of luggage. United

States v. Johnson, 588 F.2d 147 (1979).

Adding to the confusion caused by conflicts among the

courts is a measure of misunderstanding regarding the

proper application of the Chadwick/Sanders principles.

The Supreme Court of Minnesota, for example, inter-

preted this Court’s “expectation of privacy” principle as

justifying a warrantless search without probable cause.

State v. Tungland, ——- Minn. ——, 281 N.W.2d 646,

649 (1979). The Minnesota court held that the motion to

suppress of a defendant charged with possession of mari-

9

juana was properly denied because the defendant, who

had left his car unlocked on a private lot without per-

mission, with the keys in the ignition dnd intoxicating

liquor in open view, had no expectation of privacy in the

passenger area of his car. Consequently, the court found

that a police officer did not violate defendant’s Fourth

Amendment rights when the officer entered the car and

looked inside a grocery bag in the back seat, despite a

finding that:

One cannot justify the intrusion into the car and

the search of the grocery bag on the theory that

before he entered the car [the officer] had probable

cause to believe the bag contained marijuana because

? 7 ges that [he] did not have this probable cause.

The difficulties encountered by the lower courts in de-

termining which containers may be searched without a

warrant were frequent in the 30 months following the

Chadwick decision. The opinion has been cited at least

250 times, an average of more than 8 cases per month.

Similarly, the Sanders case, which was decided only

seven months ago, has already been discussed by courts in

28 different cases. The dissenters in Sanders predicted

that “Still hanging in limbo, and probably soon to be

litigated are the briefcase, the wallet, the package, the

paper bag, and every other kind of container.” Jd. at

2595. Not every kind of container has yet been litigated,

but the list includes briefcases,’ backpacks,® knapsacks,*

cardboard boxes,"° metal and _ leather boxes,'' tote

7 See United States v. Presler, No. 79-5043 (4th Cir. Nov. 29,

1979) ; United States v. Gooch, 603 F.2d 122 (10th Cir. 1979) ;

United States v. Schleis, 582 F.2d 1166 (8th Cir. 1978) (en banc).

8 See United States v. Meier, supra, 602 F.2d at 253.

® See State v. Schrier, supra, 283 N.W.2d at 346.

10 See United States v. Dien, supra, slip op. at 5242: United

States v. Neumann, supra, 585 F.2d at 360.

11 See People v. Dalton, supra, 24 Cal.3d at 850, 598 P

157 Cal. Rptr. at 497. , .2d at 467,

10

bags,” duffle bags,"* grocery bags,"* and bales.”

This Petition presents an appropriate opportunity for

forging the next link in the Chadwick/Sanders chain, for

several reasons. First, this case involves a type of con-

tainer which is different from a suitcase. The question of

whether enclosing material in a sealed non-luggage con-

tainer is a sufficient demonstration of privacy interest is

an open one. In deciding whether these bales are protected

by the Fourth Amendment, this Court would provide sorely

needed guidance to the lower courts.

Second, the testimony of the officer who cut open the

bale in this case is that he did not know what was inside

before using his pocketknife. Thus, the complicating

factors of protruding contraband or a tell-tale smell are

absent.'* There is also ample evidence that the truck and

its contents were under the control of the police at the

time of the search. No exigency existed which would

justify the failure to obtain a warrant.

Finally, if this Petition were granted, we would argue

that there was no probable cause in this case. If this:

Court were to decide that no reasonable expectation of

privacy existed, it would be presented with the important

question—raised in Tungland but never clearly decided

by this Court—whether probable cause is a necessary

predicate to a warrantless search.

II. The Courts are Also in Conflict Regarding the Retro-

active Application of Chadwick and Sanders.

An additional compelling reason for granting this

Petition is that the warrantless search and seizure took

place in 1976, and the case was pending trial when this

12 See People v. Minjares, 24 Cal.3d 410, 591 P.2d 514, 153 Cal.

Rptr. 224 (1979).

13 See United States v. Johnson, supra, 588 F.2d at 147.

14 See State v. Tungland, supra, ———- Minn. at ——, 281 N.W.2d

at 649 (1979).

18 See Webb Vv. Florida, 373 So.2d 400 (Fla. Dist. Ct. App. 1979).

16 See State v. Schrier, supra, 283 N.W.2d 346; Webb v. Florida,

supra, 373 So.2d at 402.

11

Court’s decision in Chadwick was announced. An im-

portant question raised by this case, therefore, is whether

Chadwick and its progeny should be applied retroactively.

The lower courts are badly split on this question. The

Eighth Circuit 7 and the Supreme Court of California **

have held that Chadwick announced no new rule of law,

rejecting contentions that the case should only be applied

prospectively.

The Second,'® Fifth,2° Seventh,27 and Ninth Circuits,”

however, have declined to apply Chadwick retroactively,

citing this Sourt’s decision in United States v. Peltier,

422 U.S. 531 (1975). Apparently, the Florida courts

agree. The courts are obviously in conflict on the question

of whether Chadwick announced a new constitutional

doctrine; ** they are also confused regarding the weight

to be given to this Court’s remand of Schlets v. United

States, 483 U.S. 905 (1977), for further consideration in

light of Chadwick.

On remand, the Eighth Circuit, sitting en banc, held in

Schleis that Chadwick did not represent a departure from

17 See United States v. Schleis, supra, 582 F.2d at 1173-74.

18 See People v. Minjares, supra, 24 Cal.3d at 421 n.6, 591 P.2d

at 519 n.6, 153 Cal.Rptr. at 229 n.6.

19 See United States v. Reda, 563 F.2d 510 (2d Cir. 1977), cert.

denied, 435 U.S. 973 (1978).

2 See United States v. Montgomery, 558 F.2d 311 (5th Cir. 1977).

21 United States v. Berry, 571 F.2d 2 (7th Cir. 1978), cert. denied,

439 U.S. 840 (1979).

22 United States v. Stewart, 595 F.2d 500 (9th Cir. 1979).

23 Yet another wrinkle concerns the application of Sanders retro-

actively. In United States v. Dien, supra, the Second Circuit, which

had refused to apply Chadwick retroactively, held that “Sanders

merely gave further clarity to a doctrine that was in force at least

since Chadwick. * * * This is clearly not an appropriate case for

us to refuse retroactive application of a Supreme Court decision.”

Slip op. at 5248 (emphasis added).

12

this Court’s long-standing approach to the Fourth Amend-

ment. 582 F.2d at 1173. The opinion specifically recog-

nized that the Second, Fifth and Seventh Circuits had held

that Chadwick should only be applied prospectively but

noted: “If the Supreme Court had not intended Chad-

wick to be applied retroactively, there would have been

no reason for remanding the case to this Court.” Jd. at

n.6.

Subsequently, the Second Circuit was asked to recon-

sider its holding in Reda that Chadwick is inapplicable

to pre-Chadwick searches. The panel declined to overrule

Reda, but it also declined to rely on it, noting that neither

party in Reda had called the panel’s attention to the re-

mand of Schleis. The opinion also noted that the “bear-

ing of the Supreme Court’s remand of Schleis was like-

wise not discussed in United States v. Montgomery, 558

F.2d 311 (5th Cir. 1977), on which the Reda panel relied.”

United States v. Ochs, 595 F.2d 1247, 1255 (2d Cir.),

cert. denied, 48 U.S.L.W. 3172 (U.S. Nov. 13, 1979).

The confusion and conflict among the lower courts re-

garding not only the retroactivity but also the scope and

meaning of this Court’s opinions in Chadwick and Sanders

are serious. The issues involved in this case recur with

unusual frequency in both state and federal courts, and

only this Court can insure that unequal treatment of

defendants does not continue to occur.

13

CONCLUSION

We respectfully urge the Court, for all of the reasons

set forth above, to grant a writ of certiorari and to re-

verse the decision below.

Respectfully submitted,

E. BARRETT PRETTYMAN, JR.

ALLEN R. SNYDER

ANN MORGAN VICKERY

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

Attorneys for Petitioner

Of Counsel:

WALTERS, COSTANZO, MILLER,

RUSSELL AND DITTMAR

Suite 1000

New World Tower

100 North Biscayne Boulevard

Miami, Florida 331382

a

Appendices

la

APPENDIX A

NOT FINAL UNTIL TIME EXPIRES

TO FILE REHEARING PETITION

AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JANUARY TERM, A.D. 1979

Case Nos. 77 -1682

77-2412

Luis HERNANDEZ JAMES EATON STAPLES,

and CHIC EDER,

Appellants,

Vs.

THE STATE OF FLORIDA,

Appellee.

Opinion filed February 27, 1979.

Appeals from the Circuit Court for Dade County, lra

L. Dubitsky, Judge.

Michael Kennedy and Paul Costeleiro; Jack Attias;

Hirschhorn & Freeman and Joel Hirschhorn, for appel-

lants.

Jim Smith, Attorney General and James H. Greason,

Assistant Attorney General, for appellee.

Before HAVERFIELD, C.J., and PEARSON and

BARKDULL, JJ.

PER CURIAM.

These appeals have been consolidated for appellate dis-

position because they grow out of the same factual situa-

tion. Chic Eder and James Eaton Staples appeal a judg-

ment finding them guilty of possession of over one hun-

2a

dred pounds of marijuana, entered upon their plea of

nolo contendere, reserving their right to appeal the trial

court’s order denying their motions to suppress evidence

of the marijuana, which was found in a truck and over

which they were alleged to have had knowledge and con-

trol. The defendant Luis Hernandez appeals a judgment

finding him guilty of the same crime. Hernandez was

ivied before a jury and found guilty.

Each of the defendants has a point urging error upon

the trial court’s denial of defendants’ motion to suppress.

For the determination of this question, it is necessary

briefly to present the facts as revealed by the record.

These facts wil! be set out in the light most favorable to

the order of the trial judge. See Ponder v. State, 323

So.2d 296 (Fla. 3d DCA 1975) ; and Rodriguez v. State,

189 So.2d 656 (Fla. 3d DCA 1966).

Two police officers received a radio dispatch that an

unidentified caller saw several men unloading bales from

a boat at night in the Miami River. When the officers

saw nothing in the area, they radioed for more informa-

tion and were given the location of the caller. They con-

tacted the caller, who gave them no further information

other than pointing to the general location of the activity

he allegedly saw. The officers proceeded to the private

property involved. It was an area where lobsters and

fishing boats frequently unload. The officers parked their

car so as to block ingress and egress to and from the lot.

With firearms drawn, they entered the property, saw a

truck and heard a rustling noise in the surrounding

bushes. Defendant Eder was seen near a moored boat

backing into the water. As the officer approached him,

Eder began to swim away. The officer returned to the

back of the truck, looked inside through the rear door

and saw bales of an unidentified substance enclosed in

opaque material. One officer observed what he believed to

be marijuana on the loading platform of the truck and

thereafter cut open one bale to find a substance he recog-

nized as marijuana.

3a

Another police officer later spotted three heads bobbing

in the river, one of whom he identified as Hernandez.

Hernandez was not wearing a shirt, but a shirt was found

aboard the boat on which the marijuana was seized. The

officers seized the marijuana in the truck and on the boat.

We hold that the evidence is sufficient to show a prob-

able cause to search the area and the truck which con-

tained the contraband. We further hold that there was

adequate, legally-sufficient evidence to withstand defendant

Hernandez’s motion for judgment of acquittal in that the

evidence viewed in the light most favorable to the State

shows a prima facie case. See Everett v. State, 339

So.2d 704 (Fla. 3d DCA 1976).

Defendant Hernandez urges, in addition to his claim

that the evidence was insufficient, that he should be

granted a new trial because a state requested instruction

‘given by the court tended to place the burden on him of

disproving his own guilt. We have examined the instruc-

tion to which objection was made and hold that it was

properly given. See Selph v. State, 22 Fla. 537 (1886) ;

and U.S. v. Llamas, 280 F.2d 392 (2d Cir. 1960).

Having examined the contentions of each appellant in

the light of this record and finding no error, the judg-

ments and sentences are affirmed.

Affirmed.

A True Copy

ATTEST:

LouIs J. SPALLONE

Clerk District Court of

Appeal, Third District

By: /s/ Evelyn A. Hillman

Deputy Clerk

4a

APPENDIX B

SUPREME COURT OF FLORIDA

Wednesday, November 7, 1979

Case No. 56,664

District Court of Appeal, Third District

77-1682

77-2412

LUIS HERNANDEZ, ET AL.,

Petitioners,

VS.

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 certorari 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/ Tanya Carroll

Deputy Clerk

C

ee: VHon. Louis J. Spallone, Clerk

Hon. Richard P. Brinker, Clerk

Hon. Ira L. Dubitsky, Judge

Joel Hirschhorn, Esquire

of Hirschhorn & Freeman

James H. Greason, Esquire

A True Copy

ATTEST:

Louis J. SPALLONE

Clerk District Court of

Appeal, Third District

By: /s/ Evelyn A. Hillman

Deputy Clerk

6a

APPENDIX C

BENCH DOCKET

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT OF FLORIDA,

IN AND FOR DADE COUNTY

Case No. 76-9380-A

[Filed Oct. 6, 1977—Richard P. Brinker, Clerk]

STATE OF FLORIDA

vs.

LuIs HERNANDEZ

CHARGE, UNLAWFUL POSSESSION OF CANNABIS

J UDGMENT

It appearing unto this Court that you LUIS HERNAN-

DEZ have been regularly tried and convicted of unlawful

possession of cannabis in an amount in excess of one

hundred (100) pounds.

IT IS THEREFORE THE JUDGMENT of the law

and it is hereby adjudged that you are and stand con-

victed of the offense as above set forth, and it is hereby

certified that the fingerprints on the certificate attached

hereto and made a part hereof are the fingerprints of the

Defendant in this cause and were placed thereon by the

Defendant in my presence in Open Court on the date

therein certified.

IT IS FURTHER ORDERED that costs in this cause

shall be taxed in accordance with the law.

Ta

DONE AND ORDERED in open Court at Miami, Dade

County, Florida, this 6th day of October A.D. 1977.

/s/ Ira L. Dubitsky

IRA L. DUBITSKY

Judge

[Recorded Oct. 17, 1977—Richard P. Brinker, Clerk]

STATE OF FLORIDA )

) SS.

COUNTY OF DADE )

[SEAL]

I HEREBY CERTIFY that this instrument is a true

and correct copy as shown by files and records in my

office. WITNESS MY HAND and official seal this Nov.

17, 1977.

RICHARD P. BRINKER

Clerk, Circuit Court

By /s/ Gloria [Illegible]

D.C.

8a

APPENDIX D

IN THE CIRCUIT COURT OF THE

11TH JUDICIAL CIRCUIT,

IN AND FOR DADE COUNTY, FLORIDA

CRIMINAL DIVISION

Case No. 76-9380A (Dubitsky)

[Filed Oct. 7, 1977—Richard P. Brinker, Clerk]

STATE OF FLORIDA,

3 Plaintiff,

vs.

LUIS HERNANDEZ,

Defendant.

ORDER DENYING DEFENDANT,

LUIS HERNANDEZ’S,

MOTION TO SUPPRESS

THIS CAUSE having come on to be heard before me

upon the Motion to Suppress filed herein by the De-

fendant, LUIS HERNANDEZ, and the Court having

taken extensive testimony herein, having received certain

exhibits into evidence on the Defendant’s Motion to Sup-

press, having heard argument of counsel and being other-

wise fully advised in the premises, it is thereupon

ORDERED and ADJUDGED that for the reasons set

forth with more particularity in the record, including the

various findings of fact that this Court made on June 1,

1977, Defendant’s Motion to Suppress the 5,000 pounds

of marijuana seized, without a search warrant, by the

City of Miami Police Department on October 30, 1976, be

and the same is hereby DENIED; in addition, and for

9a

the reasons also stated in the record and the findings of

fact entered by the Court on June 1, 1977, Defendant,

LUIS HERNANDEZ’S, Amended Motion to Suppress

and ore tenus Motion to Suppress the oral statements,

confessions, and/or admissions made by him be and the

same are hereby DENIED.

DONE and ORDERED at Miami, Dade County, Flor-

ida, this 6th day of October, 1977 nunc pro tunc June 1,

1977.

/s/ (Illegible]

Circuit Court Judge

Copies furnished to:

Joel Hirschhorn, Esq.

State Attorney’s Office