# Opposition — Hernandez v. Florida

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 951

## Text

“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

---

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