Opposition — Hernandez v. Florida

“Buprome Court, U.

FILED

APR 23 1980

IN THE

SUPREME COURT OF THE UNITED STA@BBE: e,

OCTOBER TERM, 1979 maa RODE. IR, CLERR

79-1181

LUIS HERNANDEZ, CHIC EDER

and JAMES EATON STAPLES,

Petitioners,

-vVs _-

THE STATE OF FLORIDA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL OF

FLORIDA, THIRD DISTRICT

BRIEF OF RESPONDENT IN OPPOSITION

AND APPENDIX

JIM SMITH

Attorney General

State of Florida

JAMES H. GREASON

Assistant Attorney General

Florida Regional Service Center

401 N.W. 2nd Avenue, Suite 820

Miami, Florida 33128

(305) 377-5441

INDEX

PAGE

OPINION BELOW . 5

| CEE 4 gy 0 oe se tl lll 1

QUESTIONS PRESENTED . 1-2

STATEMENT OF THE CASE AND FACTS . 2

ARGUMENT

a LS Sy i a ae

ye ke ee

te i Neg kee 15

Cemeeraumse OF SERVICE ....-. 16

TABLE OF AUTHORITIES

CASES

Aguilar v. Texas,

| on) Se Cee Lk ke ew a

Arkansas v. Sanders,

‘ ase U.S. 891, 99 $.Ct. 25866

| (1979). 0 a a ee ee a Be

> we & F

14

| Albo v. State,

| 379 So.24 668 (Fla..1980).... 11

Carroll v. United States,

ES a oe a

ofa

TABLE OF AUTHORITIES

NTINUED —

CO

PAGE

Chambers v. Maroney,

399 U.S. 42 (1970). 3, %,4&3

Coolidge v. New Hampshire,

i oe ae ae

Draper v. United States,

eS ee ek. ne

Hernandez v. State,

369 So.2d 76 (Fla. 3d DCA 1979). 1, 5, 6

&

McGuhan v. Wainwright,

326 F.26 397 (See Cir. 1976). ..93

| Spinelli v. United States,

| ae U.S. See tare: 2 OK SS

| United States v. Barry,

ore F.26 2 £20m Cis. 1978). «20s

! United States v. Carneglia,

468 F.2d 1084 (2d Cir. 1972). . .7

United States v. Chadwick, ‘a

ee ee. Cee eee kee kao ee ee

i3, 44

United States v. Cravero,

| 545 F.2d 406 (5th Cir. 1977). ..9

United States v. Gaultney,

581 F.2d 1137 (5th Cir. 1978). 13

United States v. Looney, |

481 F.2d 31 (5th Cir. 1973). 9

United States v. Montgomery,

558 F.2d 311 (5th Cir. 1977). 13

_ - ee —

-iii-

TABLE OF AUTHORITIES

CONTINUED

PAGE

United States v. Ochs,

5995 F.2d 1247 (2d Cir. 1979). . 14

United States v. Peltier,

Sa 0.8. S28 tee... MMs: 4

United States v. Redu,

oes ©.au ote (286 Cir. 1977). . 13

United States v. Stewart,

595 F.2d 500 (9th Cir. 1979). . 14

United States v. Tramunti,

313 F.2d 1087 (2d Cir. 1975). . 14

United States v. Wysocki,

na? F126 £455 (th Cie. 1972): 16

OTHER AUTHORITIES

Fourth Amendment United States

Constitution. tay ALES

™

OPINION BELOW

The opinion below is reported as

Hernandez v. State, 369 So.2d 76 (Fla.

3d DCA 1979) cert. denied 378 So.2d 345

(Fla. 1979). The decisions of the

District Court and the Supreme Court of

Florida are set forth in the Appendix.

JURISDICTION

The jurisdictional requisites are set

forth in the briefs of the petitioners.

QUESTIONS PRESENTED

WHETHER THE WARRANTLESS SEARCH

OF A CLOSED, UNOCCUPIED TRUCK AND

THE SEIZURE OF BALES OF MARIJUANA

IN OPAQUE WRAPPING FOUND IN THE

CARGO COMPARTMENT, BASED ON PROB-

ABLE CAUSE AND IN EXIGENT CIRCUM-

STANCES, VIOLATED THE FOURTH

AMENDMENT ?

II

WHETHER THE DECISIONS OF THIS

COURT IN UNITED STATES v. CHAD-

WICK, 433 U.S. 1 (1977),

AND ARKANSAS v. SANDERS, 439

U.S. 891, 99 S.Ct. 2586

(1979), HAVE RETROACTIVE AP-

PLICATION TO AN OFFENSE COM-

MITTED PRIOR TO THEIR RENDITION?

STATEMENT OF THE CASE AND FACTS

The respondent accepts the statements

of the case and the facts as set forth in

the briefs of the petitioners and as sup-

plemented by the opinion below.

ARGUMENT

THE WARRANTLESS SEARCH OF A

CLOSED, UNOCCUPIED TRUCK AND

THE SEIZURE OF BALES OF MARI-

JUANA IN OPAQUE WRAPPING FOUND

IN THE CARGO COMPARTMENT, BASED

ON PROBABLE CAUSE AND IN EXIGENT

CIRCUMSTANCES, DID NOT VIOLATE

THE FOURTH AMENDMENT.

As stated in Arkansas v. Sanders, 439

U.S. 891, 99 S.Ct. 2586, 2591, (1979),

One of the curcumstances in

which the Constitution does not

require a search warrant is when

the police stop an automobile

a$e

on the street or highway because

they have probable cause to

believe it contains contraband

or evidence of a crime. See

United States v. Martinez-Fuerte,

428 U.S. 543, 561-562, 96 S.Ct.

3074, 3084-3085, 49 L.Ed.2d 1116

(1976); United States v. Ortiz,

422 U.S. 891, 896, 95 §.Ct. 2585,

2588, 45 L.Ed.2d 623 (1975); Texas

v. White, 423 U.S. 67, 68, 96

S.Ct. 304, 305, 46 L.Ed.2d 209

(1975).

In the language of Chambers v. Maroney,

399 U.S. 42, (1970),

automobiles and other conveyances

may be searched without a warrant

in circumstances that would not

justify the search without a

warrant of a house or an office,

provided that there is probable

cause to believe that the car con-

tains articles that the officers

are entitled to seize. 399 U.S. 48

The Court restated the holding of Carroll

v. United States, 267 U.S. 132, (1925):

On reason and authority the true

rule is that if the search and

seizure without a warrant are

made upon probable cause, that

is, upon a belief, reasonably

arising out of circumstances

known to the seizing officer, that

an automobile or aches vehicle

contains that which by law is sub-

wo Pe on rg emme

wie

ject to seizure and destruction,

the search and seizure are valid.

U.S. at 149.

*k***

The right to search and the valid-

ity of this seizure are not de-

pendent on the right to arrest.

U.S. at 158.

Although Carroll dealty specifically with

the stop and search of a vehicle in tran-

sit, Chambers dispells any motion that the

vehicle need be actually moving; the

crucial factor is that the vehicle is mov-

able. 599 U.S. 51. The Court also stated

that

For constitutional purposes, we

see no difference between on the

one hand seizing and holding a

car before presenting the prob-

able cause issue to a magistrate

and on the other hand carrying

out an immediate search without

a warrant.

399 U.S. 52.

In determining the belief of the officers

in Carroll, the Court looked to "the facts

and circumstances within their knowledge,

and of which they had reasonably trust-

«in

worthy information." 399 U.S. at 162.

This definition as well as other provisions

of the Carroll opinion is statutory law in

Florida.

The evidence adduced at the suppres-

sion hearing in the case sub judice

established that the police officers who

made the search and seizure in question

had probable cuase. The facts are as set

forth in the opinion of the District Court

of Appeal of Florida, Third District, in

Hernandez v. State, 369 So.2d 76 (Fla. 3d

DCA 1979) wherein the court upheld the trial

court's finding of probable cause:

lLOn October 30, 1976,] two police

officers recieved a radio dis-

patch 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 information and

were given the location of the

caller. They contacted the caller,

who gave them no further informa-

tion other than pointing to the

general location of the activity

he allegedly saw. The officers

proceeded to the private property

o6e

involved. It was an area where

lobsters and fishing boats fre-

quently unload. The officers

parked their cars 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 sub-

Stance 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 recognized

as marijuana.

Another police officer later

spotted three heads bodding in

the river, one of whom he identifi-

ed 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.

The "unidentified caller" referred to

afle

essential elements of the information he

gave the officers was corroborated, and it

was the corroborating evidence, the

officers' own observations, which gave rise

to probable cause. Cf. Aguilar v. Texas,

378 U.S. 108 (1964); Spinelli v. United

States, 399 U.S. 410 (1969). Draper v.

United States, 358 U.S. 307 (1959); United

states v. Carneglia, 468 F.2d 1084 (2d

Cir. 1972). The officers found a truck

in that location matching the descrip-

tion, and parked for loading thus corrobor-

ating the information given. There was no

indication that the truck was incapable

of being moved. Both officers heard

noises indicating the presence of a number

of persons in the darkenss, again corrobor-

ating the information that several men

were doing the loading. The truck could

have been driven away through the chain-

by the District Court was a Mr. Herbert

Hallowell, a resident of the area in which link fence around the area. There clearly

he saw the suspicious activity. The was probable cause to believe that truck

ale

contained contraband and that the truck

was movable. The situation was thus dis-

tinguishable from the facts of Coolidge

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

where there was no suggestion that the car

was being used for any illegal purpose,

and since it was regularly parked in the

driveway of the defendant's house, the

opportunity for search was not fleeting.

Another factor which can contribute to

probable cause is the extent of the

officers’ knowledge of "public facts and

geographical positions." Carroll v. United

States, 267 U.S. at 160. Just as the

agents in Carroll knew that the Detroit

area was one of the most active centers in

the country for smuggling bootleg whiskey,

the officers in the case sub judice had

general knowledge prior to the search

that that area was used for marijuana

smuggling. One officer had specific

| knowledge of a seizure of bales of

=

marijuana loaded in a truck. Neither

officer had before seen a truck or a truck

with a boat in the area in question.

An alternative or additional justifica-

tion for opening the cargo door of the

truck in this case is the fact that a

serious threat to the officers' safety

was presented. Where circumstances

provide probable cause to believe a

serious threat to safety exists, a

cursory safety check is permitted,

United States v. Cravero, 545 F.2d 406

(5th Cir. 1977), cert. denied 97 S.Ct.

1123; McGuhan v. Wainwright, 526 F.2d

397 (5th Cir. 1976); United States v.

Looney, 481 F.2d 31 (5th Cir. 1973) cert.

denied 414 U.S. 1070. The officers heard

what sounded like people running near the

truck. Their police dispatch had indicated

more than one person was involved.

Petitioner Edér took flight upon being

commanded to stop. The officers were

~ 3G»

reasonable in their belief in light of all

the circumstances that the truck was occupied \A

by someone possibly possessing a weapon. f

One officer testified that he was concerned

for his safety and that of his partner

in opening the truck. Therefore, the

search was justified on safety grounds

alone at least to the extent of opening

the cargo door of the truck.

In light of the circumstances, the

officers acted properly in searching the

truck and the boat. The lawfulness of

their actions must be considered on the

basis of what they saw and the informa-

tion they possessed, as stated in Carroll,

without the benefit of hindsight. United

States v. Wysocki, 457 F.2d 1155 (5th Cir.

1972) cert. denied 409 U.S. 859, 93 S.Ct

145, 34 L.Ed.2d 105.

Moreover, any attempt by the petitioners

to characterize the bales of marijuana as

containers, like luggage, from which an

of4n

expectation of privacy might be inferred

from their appearance, must fail. One

officer observed what he believed to be

marijuana on the loading platform of the

truck and noted the smell of hay or dried

grass before he slit open one bale to

sample its contents. There was therefore

probable cause to support the seizure of

the bales prior to the slitting of the

ene bale, based on plain view. Moreover,

the contents of the marijuana bales was

reasonably inferrable from their outward

appearance in those circumstances, even

though wrapped in opaque material. Albo

v. State, 379 So.2d 648 (Fla. 1980). As

stated in Note 13 to this Court's opinion

in Arkansas v. Sanders, supra:

Not all containers and pack-

ages found by police during

the course of a search will

deserve the full protection of

the Fourth Amendment. Thus, some

containers (for example a kit

of burglar stools or a gun case)

by their very nature cannot

support any reasonable ex-

= 5S»

pectation of privacy because

their contents can be inferred

from their outward appearance.

Similarly, in some cases the

contents of a package will be

open to "plain view," thereby

obviating the need for a war-

rant. See Harris v. United

States, 390 U.S. 234, 236, 88

S.Ct. 992, 993, 19 L.Ed.2d 1067

(1968) (per curiam).

There will be difficulties in

determining which parcels taken

from an automobile require a

Warrant for their search and

which do not. Our decision in

this case means only that a war-

rant generally is required before

personal luggage can be searched

and that the extent to which the

Fourth Amendment applies to con-

tainers and other parcels depends

not at all upon whether they are

seized from an automobile.

ARGUMENT

II

THE DECISION OF. THIS COURT

IN UNITED STATES v. CHADWICK,

433 U.S. I (1977), AND

ARKANSAS v. SANDERS, 439 U.S.

: .Ct. (1979)

DO NOT HAVE RETROSPECTIVE AP-

PLICATION TO AN OFFENSE COMMITTED

PRIOR. TO THEIR RENDITION.

Based upon the standards set forth by this

Court in United States v. Peltier, 422

=i%e

U.S. 531 (1975), the holdings of United

States v. Chadwick, 433 U.S. 1 (1977),

and Arkansas v. Sanders, 439 U.S. 891,

99 S.Ct. 2586 (1979), may not be

retroactively applied to the case at

bar. At the time of the search and

seizure in issue, October 30, 1976,

neither Chadwick nor Sanders had been

decided, and rule of law in Florida, the

Fifth Circuit, and other circuits in

effect at that time was that law enforce-

ment officers could open containers found

in motor vehicles so long as they had

protabié cause to believe the containers

contained evidence or contraband, pursuant

to the automobile exception to the warrant

requirement under Carroll v. United States,

267 U.S. 132 (1925), and Chambers v.

Maroney, 399 U.S. 42 (1970). United States

v. Montgomery, 558 F.2d 311 (5th Cir. 1977);

United States v. Gaultney, 581 F.2d 1137

(Sth Cir. 1978); United States v. Redu,

563 F.2d 510 (2d Cir. 1977) cert. denied

-14- | )

Ps’, on

|

'

435 U.S. 973 (1978); United States v. Barry,

CONCLUSION

5971 F.2d 2 (7th Cir. 1978) cert. denied

439 U.S. 840 (1979); United States v | For the foregoing reasons and authority,

Stewart, 595 F.2d 500 (9th Cir. 1979): | the petitions for Writ of Certiorari must

United States v. Ochs, 595 F.2d 1247 | be denied.

(2d Cir. 1979) cert. denied 48 N.S.L.W.

Respectfully submitted,

3172 (1979); United States v. Tramunti,

JIM SMITH

513 F.2d 1087 (2d Cir. 1975) cert. | yrs ! ease

denied 423 U.S. 832 (1975). Therefore,

at that time the police officers could

have opened one of the bales of marijuana, | JAMES H. CREASON )

, : P Assistant Attorney General

which was wrapped in opaque material, | Florida Regional Service

found in the cargo compartment of the truck pg 2nd Avenue

even if under Chadwick and Sanders the | int. Fiexids 33128

bales were now deemed a container, like a | (305) 377-5441

Suitcase, which manifested a reasonable

expectation of privacy.

=

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and

correct copy of the foregoing Brief of

Respondent in Opposition was furnished

by mail to E. BARRETT PRETTYMAN, Esq.,

815 Connecticut Avenue, N.W., Washington,

D.C., 2006, and JOEL HIRSCHHORN, Esq.,

742 N.W. 12th Avenue, Miami, Florida,

33136, this day of April, 1980.

JAMES H. GREASON

Assistant Attorney General

—

APPER DIA

wie

Luis HERNANDEZ , James Eaton Staples,

and Chic Eder, Appellants,

v.

The STATE of Florida, Appellee.

Nos. 77-1682, 77-2412

District Court of Appeal of Florida,

Third District.

Feb. 27, 1979.

Rehearing Denied April 16, 1979.

Defendants were convicted in the Circuit

Court, Dade County, Ira L. Dubitsky, J.,

of possession of over 100 pounds of mari-

juana and they appealed. The District

Court of Appeal held that: (1) the

evidence was sufficient to show prob-

bable cause to search a truck and the

area around it, and (2) the evidence was

sufficient to sustain one defendant's

conviction.

Affirmed.

Michael Kennedy and Paul Costeleiro,

New York City, Jack Attias, Key Biscayne,

Hirschhorn & Freeman and Joel Hirschhorn,

ee TN aN Tn ee ee ee

~A2

~

Miami, for appellants.

Jim Smith, Atty. Gen., and James H.

Greason, Asst. Atty. Gen., for appellee.

Before HAVERFIELD, C.J., and PEARSON

and BARKDULL, JJ.

PER CURIAM.

These appeals have been consolidated for

appellate disposition because they grow out

of the same factual situation. Chic Eder

and James Eaton Staples appeal a judg-

ment finding them guilty of possession

of over one hundred 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 control. The

defendant Luis Hernandez appeals a

judgment finding him guilty of the same

hit

crime. Hernandez was tried before a jury

and found guilty.

Each of the defendants has a point urg_

ing 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 will

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

ofetceee’ sbi nothing in the area, they

radioed for more information and were

given the location of the caller. They

contacted the caller, who gave them no

~pihs

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 fire-

arms 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 hin,

Eder began to swim away. The officer re-

turned 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 belived to be marijuana on the

loading platform of the truck and thereafter

cut open one bale tofind a substance he

recognized as marijuana.

-~A5-

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 mari-

juana in the truck and on the boat.

We hold that the evidence is sufficient

to show a probable cause to search the area

and the truck which contained the contra-

band. 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 insuf-

ficient, that he should be granted a new

trial because a state requested instruc-

~A6-

tion given by the court tended to place the

burden on him of disproving his own guilt.

We have examined the instruction 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 judgments and sen-

tences are affirmed.

Affirmed.

SUPREME COURT OF FLORIDA

WEDNESDAY, NOVEMBER 7, 1979

CASE NO. 56,664

District Court of Appeal,

Third District

77-1682

77-2412

oe 'y

LUIS HERNANDEZ, ET AL.,

Petitioners,

vs.

STATE OF FLORIDA,

Respondent.

This cause having heretofore been sub-

mitted 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 enter-

tained by the Court. See Fla.R.App.P.

9.330(d).

BOYD, OVERTON, SUNDBERG and ALDERMAN, JJ.,

Concur.

ADKINS, ACTING C.J., Dissents

A True Copy

TEST:

Sid J. White

Clerk Supreme Court.

By: TANYA CARROLL, Deputy Clerk