Petition — EDER, et al. v. FLORIDA (No. 79-1210)

‘ Fea 6 1980 |

in the er a 1

Supreme Court = soca

of the

Wnited States

October Term, 1979

~¢9-1210

NO.

CHIC EDER and

JAMES EATON STAPLES,

Petitioners,

VS.

THE STATE OF FLORIDA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE STATE OF FLORIDA, COURT OF APPEALS,

THIRD DISTRICT

JOEL HIRSCHHORN, P.A.

By Joel Hirschhorn

Counsel for Petitioners

742 N.W. 12th Avenue

Miami, Florida 33136

Telephone: (305) 324-5320

INDEX

Page

Citation to Opinion Below ........................ 2

a 2

Questions Presented ............... OS ee 2

Constitutional Provision Involved ................. 3

Statement of the Case ................c.000000005. 3

Reasons for Granting the Writ..................... 6

Co ES 13

Certificate of Service .................ccccccceccss. 14

CITATIONS

CASES: Page

Arkansas v. Sanders,

BOSAL. TORR CIGTO) oon nonce cmecccoccce 2

Brinegar v. United States,

WP, PID ign ss doen neice dkecd ceaccs 8

Cady v. Dombrowski,

EM Aes MOP CREO 5 ios cN 0000 cb ocsbencacvece 10

Cardwell v. Lewis,

ee re I cs kas os Vaca aus dewaues 10

Carroll v. United States,

ee re MO Se oes ic oc ced cwcchs 2, 7, 8, 9

Chambers v. Maroney,

PE AE UTD oo os ss 550 vn undavigscsds 7, 10, 11

Chimel v. California,

re I isos nck ovy bce sespecaduuns 7

Coolidge v. New Hampshire, .

403 U.S. 443 (1971) ............/. 6, 7, 8, 9, 10, 11

Frank v. Maryland,

SOP IE OT cect cichevcewsvebavokewas 6

Katz v. United States,

Se ee REE ons 0s heh nk Ra oxc ck lcs 7

CITATIONS (Continued)

CASES: Page

Schneckloth v. Bustamonte, ‘

We WI. PRET io ooo sos cv oo kp oh ecccccnc.. 7

Spinelli v. United States,

WP re MUI oon soc s ook oki ce ven ccecne 8

South Dakota v. Opperman,

pe a ee 10

Terry v. Ohio,

NR ee 7

Texas v. White,

423 U.S. 67 (1975) ......... tC eters ier aalpors 10

United States v. Chadwick,

oo a a, a2, 2

United States v. McCormick,

002 F.2d 578 (9th Cir. 1974) ................... 10

United States v. Robinson,

533 F.2d 578 (D.C. Cir. NN ee ta a ok 10

United States v. Young,

489 F.2d 914 (6th Cir. 1974) ................... 10

ili

STATUTE

57 A; SURI ons snc nandneseuccconneeeenas 2

CONSTITUTIONAL PROVISION

Fourth Amendment, United States

IE vcs enn idatsweneewenwaeees 2, 3, 6, 8, 11, 12

iv

in the

Supreme Court

of the

United States

October Term, 1979

No.

CHIC EDER and

JAMES EATON STAPLES,

Petitioners,

VS.

THE STATE OF FLORIDA,

: Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE STATE OF FLORIDA, COURT OF APPEALS,

THIRD DISTRICT

The Petitioners, CHIC EDER and JAMES EATON

STAPLES, respectfully pray that a Writ of Certiorari

issue to review the judgment of the District Court of

Appeal of Florida, Third District, entered on February

27, 1979, affirming their convictions and sentences.*

*On January 31, 1980, Co-Defendant, LUIS HERNANDEZ,

filed his Petition for Writ of Certiorari under Supreme Court Case

No. 79-1181.

CITATION TO THE OPINION BELOW

The opinion of the Florida District Court of Appeal,

Third District, is reported at 369 So.2d 76 (3rd DCA,

Fla. 1979).

JURISDICTION

The Judgment of the District Court of Appeal of

Florida, Third District, was entered on February 27,

1979, affirming the Trial Court’s denial of Petitioners’

Motion to Suppress.! The District Court denied a timely

Petition for Rehearing on April 16, 1979.2 On November

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

Petition for Certiorari.? The jurisdiction of this Court is

invoked under 28 U.S.C. §1257(3).

QUESTIONS PRESENTED

1. Whether a peace officer may, under the Fourth

Amendment to the Constitution of the United States,

conduct a warrantless search of an unoccupied truck

parked on private property, in the absence of sufficient

probable cause and exigent circumstances necessary to

invoke the Carroll Doctrine.

2. Whether the principles enunciated in United

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

Sanders, 99 S.Ct. 2586 (1977) extend to protect Fourth

Amendment privacy interests in sealed, non-opaque

packages found in the cargo compartment of a truck.

‘See Appendix 1.

*See Appendix 5.

3See Appendix 6.

CONSTITUTIONAL PROVISION INVOLVED

The case, sub judice, involves Petitioners’ rights to

be free from unreasonable searches and seizures

guaranteed by the Fourth Amendment to the United

States Constitution, which provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable 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.

STATEMENT OF THE CASE

On October 30, 1976, two City of Miami Police

officers received a radio dispatch at approximately 9:00

p.m. advising them that someone had reported seeing

several men moving packages or bales from a boat to a

truck, along the Miami River. The officers were also

advised that the bales might contain marijuana. The

officers went to the scene of the alleged activity but saw

nothing.‘ The officers then personally contacted the

complainant, who merely repeated the information he

had already reported and pointed across the river to the

general area where he had allegedly seen the unloading.*®

Viewing the scene from the same vantage point as the

complainant, the officers were unable to perceive for

‘See Appendix 8-9.

‘See Appendix 10-11, 22-23.

themselves the alleged activity. Neither of the officers

knew the complainant or previously received any

information from him.®

The private property involved was surrounded by a

fence with only a single dirt \road leading to the

riverfront. The officers were familiar with the property

and knew that it was used primarily by lobster

fishermen.’ The officers went to the described premises

and parked their patrol car in a manner blocking the

only path to and from the lot, thereby effectively sealing

it off so no other vehicle could pass. As they walked

toward the river, the officers observed a truck parked

facing the street.? One of the officers “racked” his

shotgun producing a loud noise. Then the officers heard

noises which sounded like something or someone

scurrying around.?

When the officers got to the rear of the truck, they

observed someone (Petitioner EDER) backing away

from them — down into the Miami River. Petitioner

EDER began to swim away despite the officers’

demands that he stop.'° An officer then returned to the

‘ruck and opened the back door, discovering numerous

large bales of an unknown substance.!! Before the truck

*See Appendix 23-25.

‘See Appendix 11-12, 31-32.

‘See Appendix 12-13.

"See Appendix 15-16, 27, 32-33.

“See Appendix 18-19, 26.

''See Appendix 17, 20.

door was opened, no contraband or other illegal activity

was observed in the area.!? One of the bales was cut

open, revealing what was suspected to be marijuana,

even though the officer was previously unable to identify

its contents as contraband by either sight or smell.!* An

officer then boarded the unoccupied boat and found a

carbine and shotgun, as well as another bale. The

marijuana on board the boat and in the truck were

seized.'* Petitioner EDER was arrested in the water and

Petitioner STAPLES approximately 5000’ away.

The Trial Court denied Petitioners’ Motion to

Suppress,'> following which Petitioners STAPLES and

EDER entered pleas of nolo contendere, with leave to

appeal the denial of that Motion. Each was adjudicated

guilty and sentenced to three years in the State

Penitentiary, to be followed by seven years’ probation

and fined $10,500.00. On February 27, 1979, the Florida

District Court of Appeal, Third District, rendered its

decision affirming the Trial Court.'6

"See Appendix 28-29,

"See Appendix 20-21, 30-31.

“See Appendix 22, 33-34.

‘See Appendix 34-35.

‘See Appendix 1.

REASONS FOR GRANTING THE WRIT

1. The Court below has decided a Federal

question of substance in a way probably not in accord

with applicable decisions of this Court.

A. Coolidge v. New Hampshire, 403 U.S. 443

(1971).

In upholding the warrantless search of the truck

over which Petitioners were alleged to have knowledge

and control, the Florida District Court of Appeal, Third

District, has denied Petitioners their Constitutional

right to be free from an unreasonable search and seizure.

The opinion below conflicts with the general

Constitutional principles established by decisions of this

Court and particularly with respect to Coolidge v. New

Hampshire, 403 U.S. 443 (1971). The plurality in

Coolidge struck down the search of an unoccupied car

parked on private property, holding that there were no

exigent circumstances to justify the warrantless search.

Id., at 2033-37.

It is firmly established that evidence of criminal

action may not, save in very limited and closely

confined situations, be seized without a judicially-

issued search warrant. Frank v. Maryland, 359 U.S. 360

(1959).

[T]he most basic constitutional rule in this

area is that ‘searches [and seizures] conducted

outside the judicial process, without prior

approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment —

subject only to a few specifically established

and well delineated exceptions.’

6

Coolidge v. New Hampshire, supra, 403 U.S. at 454-455,

quoting Katz v. United States, 389 U.S. 347, 357 (1967).

Petitioners respectfully submit that the only

possible justification applicable to the warrantless

search of the truck is under the “‘automobile exception”

promulgated by Carroll v. United States, 267 U.S. 132

(1925), and its progeny, Chambers v. Maroney, 399 U.S.

42 (1970). Petitioners contend that this is so because the

search was not based on consent or incident to an arrest,

nor was there a “plain view” seizure. See, Schneckloth

v. Bustamonte, 412 U.S. 218 (1973); Chimel uv.

California, 395 U.S. 752 (1969); Coolidge v. New

Hampshire, supra. Petitioners further contend that the

“stop and frisk” exception, Terry v. Ohio, 392 U.S. 1

(1969), is equally inapplicable to the case instanter.

In Chambers v. Maroney, supra, 399 U.S. at 51, this

Court read Carroll as holding that

. a search warrant [is] unnecessary where

there is probable cause to search an automobile

stopped on the hig! way; the car is movable,

the occupants are alerted, and the car’s

contents may never be found again if a warrant

must be obtained. . . . [T]he opportunity to

search is fleeting. . . .

Thus, under the Carroll “automobile exception”, a

warrantless search is roasonable when two factors are

present:

1. The officer has probable cause to believe

that the automobile contains contraband,

and

2. There are exigent circumstances associated

with the automobile making it

impracticable to secure a warrant.

Petitioners contend that the officers sub Judice did

not have probable cause to believe the truck contained

contraband. The Court, in attempting to define

probable cause, has noted that it requires “less than

evidence which would justify conviction”, but yet “‘more

than bare suspicion’. Brinegar v. United States, 338

U.S. 160, 175 (1949). The record here clearly establishes

no independent knowledge on the part of the officers to

sustain the belief that the law was being violated.

Moreover, the information supplied by the complainant,

his observation of packages being transferred from a

boat in an area regularly used by fishermen, without.

indicia of illegality, cannot supply sufficient probable

cause for the subsequent warrantless search. Cf.,

Spinelli v. United States, 393 U.S. 410 (1969).

Assuming, arguendo, that the officers did have

probable cause, nevertheless, the absence of exigent

circumstances renders the warrantless search of the

truck unreasonable under the Fourth Amendment.

Carroll does not allow an officer having probable cause ~

to seize any automobile, but only those automobiles

which are movable and for which “it is not practicable

to secure a warrant”. 267 U.S. at 153.

[N]o amount of probable cause can justify a

warrantless search absent ‘exigent

circumstances’.

Coolidge v. New Hampshire, supra, 403 U.S. at 468.

Mr. Justice Stewart, writing for the plurality in

Coolidge, supra, emphasized the lack of sufficient

exigent circumstances to justify the warrantless search.

Coolidge’s car was regularly parked in the driveway of

his house, he was arrested inside the house, he had no

access to the automobile after the police arrived on his

property, the Coolidge property was under guard by two

other officers, the police had known for some time of the

probable role of the car in the crime, and the automobile

was not being used for any illegal purpose.

[T]here is nothing in this case to invoke the

meaning and purpose of the rule of Carroll v.

United States — no alerted criminal bent on

flight, no fleeting opportunity on an open

highway after a hazardous chase, no

contraband or stolen goods or weapons, no

confederates waiting to move the evidence, not

even the inconvenience of a special police

detail to guard the immobilized automobile.

Coolidge v. United States, supra, 403 U.S. at 463.

Petitioners respectfully submit that the lack of

exigent circumstances, as demonstrated by the record,

renders the Carroll doctrine inapplicable to the instant

case, thus the opinion below conflicts with general

Constitutional principles set forth in the Court’s

plurality opinion in Coolidge v. United States, supra.

The truck sub judice was parked on private property

and was not stopped along the highway. The officers had

the property where the truck was located effectively

sealed off. Their partrol car was parked so as to block

the only ingress and egress to and from the property. No

one was seen in or near the truck. The only person in the

9

—

area that the officers were aware of was in the Miami

River swimming away. As in Coolidge, it simply was not

reasonably impractical for the officers to secure a

warrant before conducting the search. 403 U.S. at 463;

see also, United States v. Young, 489 F.2d 914 (6th Cir.

1974); United States v. McCormick, 502 F.2d 281 (9th

Cir. 1974); United States v. Robinson, 533 F.2d 578

(D.C. Cir. 1975).

At the most, this case may involve a potential, as

opposed to a present exigency. However, the plurality in

Coolidge rejected mere speculative exigencies based on

potential mobility:

[i]t is, of course, true that even though

Coolidge was in jail, his wife was miles away in

the company of two plainclothesmen, and the

Coolidge property was under the guard of two

other officers, the automobile was in a literal

sense ‘mobile’. A person who had the keys and

could slip by the guard could drive it away. We

attach no constitutional significance to this

sort of mobility.

403 U.S. at 461 n. 18.

Petitioners recognize that the Court has upheld

some warrantless searches in the absence of an

immediate danger that the vehicle would be removed

from the jurisdiction, e.g., Chambers v. Maroney, 399

U.S. 42 (1970); Cady v. Dombrowski, 413 U.S. 433

(1973); Cardwell v. Lewis, 417 U.S. 583 (1974); Texas v.

White, 423 U.S. 67 (1975); South Dakota v. Opperman,

428 U.S. 364 (1976). However, these cases are readily

distinguishable in that the truck sub judice was not

10

impounded and subjected to an inventory search,

rather, it was unoccupied and parked on private

property. In distinguishing Chambers v. Maroney,

supra, the plurality in Coolidge noted that:

[t]here is a significant constitutional difference

between stopping, seizing, and searching a car

on the open highway, and entering private

property to seize and search an unoccupied,

parked vehicle not then being used for any

illegal purpose.

403 U.S. “62 n. 20.

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

and Arkansas v. Sanders, 99 S.Ct, 2586

(1979).

Additionally, Petitioners raise the issue of whether

the opinion below conflicts with this Court’s opinions in

United States v. Chadwick, 483 U.S. 1 (1977), and

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

In United States v. Chadwick, supra, the Court

held that a warrant must be obtained, even though

probable cause exists, when a locked footlocker is taken

from the open trunk compartment of a suspect’s

automobile and placed securely in police custody. In

Arkansas v. Sanders, supra, Chadwick was cited as the

Court invalidated a similar search of an unlocked

suitcase. Petitioners contend that the Fourth

amendment principles which invalidated the searches in

Chadwick and Sanders should also provide protection

for those who place personal effects, here the non-

1]

opaque packages, in a closed cargo compartment of a

truck,

The cargo compartment of a truck — like the trunk

of an automobile, when compared to the other parts of

the vehicle, does not share in the “diminished exception

of privacy which surrounds the automobile”. United

States v. Chadwick, supra, 433 U.S. at 12. Moreover,

Petitioners contend that the cutting open of the non-

opaque sealed bales sub judice is directly analogous to

the opening of the footlocker and suitcase condemned by

the Court in Chadwick and Sanders. Thus, assuming,

arguendo, that this case does fall within the Carroll

“automobile exception’, nevertheless, the warrantless

search of the bales found in the back of the truck was

unreasonable under the Fourth Amendment.

12

CONCLUSION

The Petitioners have been denied basic

fundamental rights guaranteed by the United States

Constitution. They seek relief in this Court to restore

those rights. Based on the arguments and authorities

cited herein, Petitioners CHIC EDER and JAMES

EATON STAPLES, respectfully request this Honorable

Court to grant a Petition for a Writ of Certiorari to the

State of Florida, Court of Appeals, Third District,

reversing that Court’s decision.

Respectfully submitted,

JOEL HIRSCHHORN, P.A.

Attorneys for Petitioners

742 N.W. 12th Avenue

Miami, Florida 33136

Tel: (305) 324-5320

JOEL HIRSCHHORN

13

APPENDIX

INDEX TO APPENDIX

Page

Hernandez, Staples and Eder v. State,

369 So.2d 76 (8rd DCA, 1979) .............000 1

Hernandez, Staples and Eder v. State,

Denial of Petition for Rehearing (April 16,

BP Or ee re eee eek Oa nr ea 5

Hernandez, Staples and Eder v. State,

Denial of Petition for Certiorari

(Fla. Sup. Ct., November 7, 1979) ............ 6

Excerpts from Record below ..............eeeeee0e 8

App. i

[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,

US.

THE STATE OF FLORIDA,

Appellee.

Opinion filed February 27, 1979.

Appeals from the Circuit Court for Dade County,

Ira L. Dubitsky, Judge.

Michael Kennedy and Paul Costeleiro; Jack Attias;

Hirschhorn & Freeman and Joel Hirschhorn, for

appellants.

App. 1

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

disposition because they grow out of the same factual

situation. Chic Eder and James Eaton Staples appeal a

judgment 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 crime.

Hernandez was tried 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 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

officers saw nothing in the area, they radioed for more

App. 2

information and were given the location of the caller.

They contacted 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 recognized as marijuana.

Another police officer later spotted three heads

bobbing in the river, one of whom he identified 4s

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

probable cause to search the area and the truck which

contained 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).

App. 3

ea

Defendant Hernandez urges, in addition to his IN THE DISTRICT COURT OF APPEAL

claim that the evidence was insufficient, that he should OF FLORIDA

be granted a new trial because a state requested THIRD DISTRICT

instruction given by the court tended to place the

burden on him of disproving his own guilt. We have JANUARY TERM, A.D. 1979

examined the instruction to which objection was made

and hold that it was properly given. See Selph v. State, MONDAY, APRIL 16, 1979

22 Fla. 537 (1886); and U.S. v. Llamas, 280 F.2d 392 (2d

Cir. 1960).

CASE NOS. 77-1682

Having examined the contentions of each appellant 77-2412

in the light of this record and finding no error, the

judgments and sentences are affirmed.

LUIS HERNANDEZ, JAMES EATON STAPLES and

Affirmed. CHIC EDER,

Appellants,

US.

THE STATE OF FLORIDA,

Appellee.

Counsel for Hernadez and Eder and Staples having

each filed petition for rehearing and motion to stay

mandate, and same having been considered by the court

which determined the cause, it is ordered that said

petitions and motions be and they are hereby severally

denied.

A True Copy

ATTEST:

/s/ [Illegible]

Clerk District Court of

Appeal, Third District

App. 4 App. 5

SUPREME COURT OF FLORIDA ADKINS, ACTING C.J., Dissents

WEDNESDAY, NOVEMBER 7, 1979 A True Copy

TEST:

CASE NO. 56,664 Sid J. White

Clerk Supreme Court.

District Court of Appeal,

Third District By: TANYA CARROLL

77-1682 Deputy Clerk

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 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

App. 6 App. 7

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL

CIRCUIT IN AND FOR DADE COUNTY, FLORIDA

(Criminal Division — Dubitsky)

NO, 76-9380

STATE OF FLORIDA,

Plaintiff,

US.

LUIS HERNANDEZ, JAMES EATON STAPLES,

CHIC EDER and OSORIO LOPEZ,

Defendants.

MOTION TO SUPPRESS

The above-entitled cause came on for hearing

before the Honorable Ira L. Dubitsky, Judge of the

above-styled court, at the Metropolitan Justice

Building, Miami, Florida, on the 18th day of April 1977,

commencing at approximately 11:00 a.m.

LS

A. The police unit that I was in received a call,

reference a suspicious activity at the north side of the

5th Street Bridge.

Q. Was there a description of the suspicious

activity given in the radio call?

A. Yes, there was.

App. 8

Q. Would you tell the Court what that was?

A. The radio call stated that there were several

men taking large packages or large bales off a boat and

loading them into a truck. And the truck was, I believe,

aluminum or silver-type truck that was parked in the

dark along with the boat that was also parked in the

dark,

Q. Do you recall whether or not the radio message

contained what the caller suspected was in those bales?

A. Yes. The radio message advised that it was

possible packages of marijuana,

Q. Did you have occasion to respond to the scene

after that call?

Yes, we did.

And who is “we,” by the way?

Myself and Officer Adrian Martin.

e Ff £2 ?P

Where did you respond to?

A. We responded to the north side of the 5th

Street Bridge.

Q. Did you make any observations at that time?

A. Yes, we looked on the north side of the 5th

Street Bridge and couldn’t locate anything right in that

immediate confines there; so, we contacted the

complainant.

App. 9

Q. Was the complainant’s address given in the

radio call?

A. Who was the complainant? The complainant

was Herbert Halliwell.

Q. Do you remember the address at which he was

living?

A. He was at 801 Northwest 4th Street.

Q. Did you respond to the residence of Mr.

Halliwell?

A. We responded to the area of his residence. He

has a boat that’s moored and is docked there.

Q. Did you speak with him at that time?

A. Yes, I did.

Q. What was Mr. Halliwell’s demeanor during the

course of this conversation?

A. He seemed sober and concerned.

Q. What did he tell you at that time?

MR. ATTIAS: Objection, hearsay, your Honor.

THE COURT: Overruled.

THE WITNESS: He stated that across the river

from him, on the north side of the Miami River, there

was a boat that was docked — approximately 37 to 40

App. 10

foot boat — and there was a truck backed up to the boat.

And, there were several men that were taking large

packages off the boat and loading them into the back of

the truck.

Q. Was there anything about Mr. Halliwell’s

demeanor that caused you to disbelieve the information

he was giving you?

A. No.

Q. Did you respond to the area which he

indicated?

A. Yes, I did.

Q. How did you respond there?

A. We went north up 7th Avenue to, I believe, it’s

Northwest 7th Street and turned and went over the

bridge, westbound; at which point, we came to, I

believe, it’s Northwest 7th Court and went southbound

to the intersection of Northwest North River Drive and

Northwest 7th Court. There is a large lot at that location

that has a fence and a dirt road that goes back up and is

usually used by lobster

A. One of my partners, his father was a lobster

“onerman, and he directed my attention to this area.

MR. KENNEDY: Objection. We are now

bringing hearsay into it. This could not possibly relate to

probable cause.

MR. ATTIAS: And it goes back five years.

App. 11

THE COURT: Overruled.

BY MR. GILBERT:

Q. Would you tell us how that area is used by the

fishermen?

A. Yes. The boats, that are the lobster boats, that

are used by the fishermen, are docked there. And, by the

same token, they also have their lobster traps stored

there. They’re outside with the wooden boxes and the

buoys — the little white and red different colored buoys

that they use. And I have never seen, in my experience,

anything in there except maybe a car or two parked that

would possibly belong to a lobster fisherman.

Q. Do you recall ever having seen any large trucks

about the size of the one you came in contact with that

evening?

A. Never.

Q. Do you know whether the activity of the lobster

fishermen is confined mostly to the day, evening, or

night hours?

A. I couldn’t say. I am not sure.

Q. Id ask if you would please describe what you

did when you came up to the fence?

A. Parked the police car, blocking the exit or

entrance to the area and turned the lights off and exited

the vehicle.

App. 12

Q. Continue, if you would, please. What took

place next?

A. Officer Martin and myself — I was a passenger

in the police car — we exited the police vehicle and

walked approximately 25 yards or so towards the Miami

River, south from where we parked the vehicle.

Q. Are there any restricted signs with respect to

the entrance on that property?

A. No.

Q. Are there any “No Trespass” signs; anything

such as that?

A. No.

Q. Do you know, of your own experience, of any

restrictions of persons entering onto that property?

A. No, I do not.

Q. Continue, if you would, please.

A. Officer Martin and myself walked up. When we

got about five yards south of the front of the police

vehicle, I looked to the right in a southwesterly direction

and noticed a large aluminum truck parked with its

front facing me and the back facing a southwesterly

direction next to the water.

Q. What was the lighting in this area?

A. It was dark.

App. 13

Q. I'd ask, if you would please take this red pen

and circle the area on the map — or the picture that has

been introduced into Evidence — the approximate

position of the truck on that night and put, if you would,

the word truck inside that circle.

(Witness complies.)

Q. That’s back inside the trees?

A. Yes. It has a clear view from this dirt drive out

there. However, from back here, you cannot see it.

Q. Indicating the — what corner of the property

would that be?

A. This corner?

Q. Yes.

A. This would be the northwest corner.

radio call had said “suspected marijuana’. I was

concerned as to my safety and what could possibly be

going on here.

Q. Are there any dangers involved to the

investigation of large quantities of narcotics?

A. Yes, quite a few.

MR. KENNEDY: Objection, your Honor. We are

dealing with marijuana, which is not a narcotic.

THE COURT: Rephrase it.

App. 14

La inn bc aa cand

MR. KENNEDY: Secondly, there is danger in all

occupations, it seems to me, including being a lawyer.

BY MR. GILBERT:

Q. Are the dangers any greater with the

investigation of large quantities of narcotics and drugs

than they are in other areas of police work?

MR. KENNEDY: Same objection, your Honor.

THE COURT: Sustained.

BY MR. GILBERT:

Q. What, if anything, did you hear or see upon

racking your shotgun?

A. There was a great deal of movement in the area

of the truck. It sounded as if people were running or —

Q. Were you able to tell —

THE COURT: Do you want to let him finish his

answer?

THE WITNESS: That’s all.

BY MR. GILBERT:

Q. Were you able to tell whether or not the sound

was being produced by more than one person or object

going through the woods?

App. 15

MR. KENNEDY: Objection. That seems — the

persons were making the sounds as opposed to

something else.

MR. GILBERT: I said persons or objects.

MR. ATTIAS: It’s also leading, your Honor.

THE COURT: Overruled.

BY MR. GILBERT:

Q. You may answer the question.

A. Yes. In my experience, I have heard numerous

people running, and it sounded as if there were people,

in fact, behind the truck that were scurrying around.

Q. More than one at least?

A. At least.

Q. Could you tell, from about where you were, the

direction in which the people were running?

A. No, I could not.

A. I believe it was strictly early in the morning. It

was still dark at that time.

Q. Were you aware of all these things at the time

that you came to the rear of the truck on October 30th,

1976?

A. Yes, I was.

App. 16

Q. At the time you came to the rear of the truck,

do you know, for a fact, whether or not anyone had

secreted items inside of the truck?

A. No, I did not.

Q. Whether or not anyone had secreted

themselves inside of the boat that you were coming back

to?

A. No, I did not.

Q. What, if anything, did you think when you

reached the back of the truck?

A. Ireached the back of the truck, and the back of

the truck was closed. However, it was not locked, and I

briefly glanced at the boat. And I turned around and

raised the door of the back of the truck to see if there was

anyone inside and to see if there was any suspected

contraband.

Q. At the time that you lifted the door, did you

have a belief, in your own mind, as to what was inside

the truck?

marijuana, from the information we had received over

the police radio and from the circumstances involved

where you have the boat parked and the truck parked.

And, I was also concerned as to if someone may be in the

back of the truck.

Q. Based upon this belief, did you believe that

there was reason to concern for your safety and the

App. 17

safety and the safety of Officer Martin who was with

you?

A. Yes, I did.

Q. Going back to the person that you saw by the

boat at the time you arrived at the back of the truck,

what, if anything, did you see that person do?

A. When I saw this person, I pointed my shotgun

and advised him that I was the police and to stop and to

appreach me.

Q. How were you dressed at the time?

A. In a police uniform.

Q. Full uniform, badge, holster, and whole

attendant uniform?

A. Yes.

Q. And what happened when you advised him to

halt and approach?

A. Ibelieve I told him approximately twice to stop

and not move. And, at that point, I started to approach

him; at which time, he started backing away from me

into the Miami River. And, when he got about knee-

deep or so, he went down into the water and began

swimming.

Q. Approximately how many times did you call

out to this person asking him to stop?

App. 18

A Bil 20h Ne Ld ac Ae A tt Toni nie rion ain eana seam

~ <2 ot ae nie Jl ead BOIL

A. Over a period of the next several minutes, I told

him to stop at least six or seven times.

Q. How many of those times occurred prior to the

time you opened the back of the truck?

A. I believe twice.

Q. And was there anything that you know of that

would have prevented him from hearing you tell him to

stop or advising him that you were of the Police

Department? ‘

MR. KENNEDY: Objection, your Honor. There

is no way that the man could possibly know that. It’s

speculative.

THE COURT: Read the question back.

(Thereupon the question referred to was read back

by the court reporter.)

MR. KENNEDY: I didn’t hear it that way. I’d

object to the form.

THE COURT: Overruled.

MR. KENNEDY: Then, I would object that it’s

impossible for this man to determine what another

person can hear.

THE COURT: He only asked if there was

anything that he knew of that would prevent anybody

from hearing. That doesn’t mean that there wasn’t

App. 19

—-S-—”—-—

something that anybody else knew of. Insofar as it is

limited, I think you may answer.

THE WITNESS: There was nothing that I knew

of that would prevent it.

BY MR. GILBERT:

Q. Was it at that time that you turned and went

to the rear of the truck and opened it?

A. I was still standing at the rear of the truck.

Q. And what, if anything, did you observe upon

opening the rear of the truck?

A. I 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.

Q. Going back to the questions I asked earlier

about your belief about the way in which marijuana is

brought into the continental United States, prior to that

time, did you have any information as to

THE COURT: I think that’s why they have cross-

examination.

MR. KENNEDY: It’s difficult to cross-examine

when there is no time-frame.

THE COURT: You may place the time-frame, if

you wish, on cross-examination.

App. 20

BY MR. GILBERT:

Q. Did you have occasion to smell the contents of

the back of the truck?

A. Yes.

Q. And what, if anything, did it smell like at that

time?

A. It smelled like dry grass or hay or some type of

material.

Q. Prior to that time, had you ever smelled

marijuana in large quantities?

A. No.

Q. What, if anything, did you do upon opening the

back of the truck and perceiving these items?

A. Itook a pocketknife out and cut one of the bags

open.

Q. What, if anything, did you observe?

A. What I suspected to be marijuana.

Q. Would you continue and tell us what took

place after this?

A. At that point, I advised, over the police radio,

what we had found and asked for additional units to

come into the area; and I had one man in the water and

possibly there could have been other suspects involved.

App. 21

Q. Do you know whether entry was made onto the

boat that was parked near the truck?

A. Yes.

Q. Did you know who it was — the first person to

make the entry onto the boat?

A. Yes, I do.

Q. Who was that?

A. Officer Martin.

Q. Based upon what you had observed on the

scene, had you, in your own mind, drawn a conclusion as

to whether or not that boat was involved with the

marijuana on the truck?

A. Yes, I did.

Q. And what was your conclusion?

A. My conclusion was yes, that the boat had

brought the marijuana and that it was being unloaded

off of the boat and into the back of the truck.

MR. GILBERT: I have nothing further of this

officer.

Q. What did he tell you?

A. I really couldn’t tell you exactly what it was,

because it’s been quite some time back. I believe that he

stated the same thing that the radio dispatch had said;

App. 22

La re ee ee een eT eT ee a ae

that there were several men over there that were taking

things off the boat — large bales off the boat and putting

them in the truck.

Q. That’s, in fact, all that he told you?

A. As far as I can remember.

Q. And isn’t it also correct that you had no

knowledge cf this individual prior to that time?

A. That’s correct.

Q. That you never, at any time in the past, had

received any information, to your knowledge, from him

relating to any criminal activity whatsoever?

A. Not that I know of.

Q. And it was the first time that this man ever

conveyed any complaint to you of any nature

whatsoever; is that. correct?

A. Yes.

Q. At the time you spoke to him, did he point in

the direction from where he saw this particular activity?

A. From where he saw it?

Q. Yes.

A. Yes.

App. 23

Q. Isn’t it true, when he pointed in that direction,

you weren’t able to ascertain any activities that he was

referring to as you couldn’t see any activity?

A. That’s correct.

Q. Isn’t it true, Officer, that prior to the time you

entered — excuse me — opened the truck that you did

not have any facts upon which to base or believe that a

crime had been committed or was about to be

committed; isn’t that true, sir?

A. Facts I didn’t have, no.

Q. You had suspicions only; is that correct?

MR. GILBERT: Objection.

THE COURT: Overruled.

THE WITNESS: That’s correct.

MR. ATTIAS: Thank you, Judge.

THE COURT: Anything further?

MR. KENNEDY: Excuse me?

THE COURT: I mean from Mr. Attias?

MR. ATTIAS: No.

THE COURT: Okay, Mr. Kennedy.

App. 24

Se a ey

ii ai

BY MR. KENNEDY:

Q. About 200 yards from the bridge to where this

boat was docke@?

MR. GILBERT: Objection, repetitious.

THE COURT: Sustained.

BY MR. KENNEDY:

Q. Approximately, what is the distance —

approximating the position that Mr. Halliwell was in

when he was pointing out this area — where this

incident was occurring?

A. I don’t know the exact distance; whatever the

distance is from one side of the river to the other.

Q. Can you give us your best estimate of that, sir?

A. I would say it’s approximately 75 to 100 yards

across the river.

Q. When Mr. Halliwell pointed across the river to

that area, you were not able to see anything going on

over there?

A. From the area I was standing, that’s correct.

Q. You indicated before that Mr. Halliwell was

not an individual who was known to you to be a reliable

or a credible informant?

A. That’s correct.

App. 25

Q. When you walked up to Position X on State’s

Exhibit Number 1, in what appears to be a cleared area,

that is when you first observed the truck?

A. That’s approximately the location.

Q. What was the distance separating you from the

truck?

A. Id say 25 yards.

Q. Would you resume your seat, please.

As you approached the truck all that you knew was

that some individuals had been unloading something

from a truck; is that correct?

A. That’s all the information that I had received

other than the police radio broadcasts.

Q. When you approached the truck, you saw, as

you began walking up to the truck, you saw no people

around the truck; I believe was your testimony? Is that

correct?

A. That’s correct.

Q. Atsome point, you saw an individual near the

water; correct?

A. Correct.

Q. Was that before or after you had opened the

back of the truck?

App. 26

i

Q. How do people sound when they scurry

around?

MR. GILBERT: Objection.

MR. KENNEDY: As opposed to animals

scurrying around, for example.

THE COURT: Overruled.

THE WITNESS: I couldn’t really say.

BY MR. KENNEDY:

Q. So they could have been animals?

A. Could have been.

Q. Now, this door that you have to open is the

type of — it’s a metal door; is it not?

A. I believe.

Q. And it’s the type of door that you have to open

from the bottom up?

Ny

A. Correct.

Q. It’s not the type of door that you can swing

A. No.

Q. It’s rather noisy when it is opened; is it not?

App. 27

A. I.believe so.

Q. And rather noisy when it is closed; wouldn’t

you believe?

A. Yes.

Q. You didn’t hear that door being closed as you

approached the truck, did you?

A. No, I didn’t.

Q. Isn’t it also a fact, based upon your

observation, that the truck door can only be opened

from the outside?

A. No. I worked for a truck company at one time,

and you can close them from the inside.

Q. The same kind of a truck?

A. Yes.

‘Q. Okay. Would it be fair to say that that door

was closed sometime — the door of that truck was closed

before you approached the truck?

MR. GILBERT: Objection.

THE COURT: Sustained.

BY MR. KENNEDY:

Q. So you are saying, at the edge of the door, you

don’t smell anything at that time; do you?

App. 28

nr ae Re ae ON nr ee ee ee

#:

No.

You don’t know what is contained in the truck?

> © >

No.

Q. You can’t see any contraband anywhere

around, can you?

A. Not in plain view, no.

Q. And you don’t have X-ray vision?

A. No.

Q. You don’t see any contraband of any sort on

the boat —

A. No, from where I am standing.

Q. (Continuing) — or on the grounds, at all, on

the boat or truck?

A. No.

Q. You then opened the door?

A. That’s correct.

Q. Upon opening the door, you observed several

bales; is that correct?

A. I observed a large truck, approximately two-

thirds full of large bales.

App. 29

Q. Isn’t it a fact that even at the point after you

raised the door and looked in, and you saw the bales,

even at that point, you didn’t know what, if anything,

those bales contained: did you?

MR. GILBERT: Objection.

THE COURT: Overruled.

THE WITNESS: I had an idea, a real good idea of

what they contained.

BY MR. KENNEDY:

Q. But you didn’t know, did you?

A. No, not for a fact.

Q. And, in your prior deposition, you were asked

whether or not a smell emanated from the back of that

truck; is that correct?

MR. GILBERT: Objection, form.

THE COURT: Sustained as to form.

BY MR. KENNEDY:

Q. Your first impression, upon opening the truck,

was that there were bales of something such as alfalfa or

hay, isn’t that true?

A. That’s what I stated in my deposition.

Q. And that is true; is it not?

App. 30

Qe ee

A. It smelled like some type of dried grass or

something like that.

Q. So with all of this extensive experience of

yours, and all the information you got from Vice and

Narcotics over the years, and all the positions you had,

and the fact that you smelled marijuana before, even

when you opened the gate or the door, did you still think

it could just be alfalfa?

MR. GILBERT: Objection.

THE COURT: Sustained.

Any redirect?

ei ane

walked back to the area that the complainant had

indicated.

Q. And, had you been in that area before?

A. Yes.

Q. Have you ever had occasion to patrol the area

of those lobster traps?

A. I have spent almost my whole police career in

that area.

Q. Approximately how many times have you had

occasion to observe the type of activity that goes on after

dark in that area?

A. I couln’t even tell you how many times. It’s a

App. 31

routine patrol area that we cover maybe once a night,

maybe a couple of times a night.

Q. Are we talking about more than 10 or 20 times,

more than 100 times.

A. Over five years, yeah.

Q. More than 100 times?

A. I would say approximately more than 100

times.

Q. Okay. And, what, if anything, did you do upon

entering into this area?

A. There was a little dirt road; we walked back

and we had gone maybe 50, 75 feet; and observed a truck

facing us, backed up under the trees in the dark.

that point, it appears to us that this is what our call was

in reference to. And, Officer Sheppard walked in front of

me. I was behind Officer Sheppard, and, we started to

walk towards the truck, when he racked his shotgun.

What do you mean by racked a shotgun?

Engaged a shell.

When this happens is a noise produced?

Yes.

2 > © >

. And, what if anything, happened after the

noise was produced?

App. 32

oe etre

TARE tala

Neha PROD NL

A. That’s when we heard a lot of rapid movements

coming from the area behind the truck.

Q. And, during the course of your employment as

a police officer, had you had occasion to work with

individuals who are either using or dealing in narcotics?

A. Yes, in my area, just about every day.

Q. In what capacity do you come in contact with

them?

A. Either arrest, complaints, and on calls;

speaking with them in the street.

Q.. Have you worked in plain clothes with

individuals in narcotics traffic?

A. I worked a few details in plain clothes;

upon entering the boat?

A. As soon as I stepped into the boat, I shot my

flashlight towards the front; a shotgun and carbine were

the first things I saw. I opened the door to the front

cabin of the boat, I proceeded to the front of the boat to

make sure that there was no one hiding in there, that the

boat was unoccupied. As soon as I got up to the door

with the flashlight, there was another bale lying on the

floor just like in the truck.

MR. GILBERT: I ask that this be marked as the

next numbered state exhibit for indentification.

App. 33

EEE SSO OE LETT | ORT TT OTT TTT ee

THE CLERK: State Exhibit B for

indentification.

BY MR. GILBERT:

Q. Ill show you what has been marked as State

Exhibit One B for indentification; and ask you if you

can recognize what is depicted in the photograph?

A. A carbine and a shotgun.

Q. What particular carbine and shotgun is

depicted in this photograph?

A. This is a photograph of the leftside front of the

boat that we have been talking about,

have. I think it would be unreasonable to require that he

did.

There was a secondary motive there, and I’m

satisfied it was secondary as far as concern for his safety.

I’m satisfied that primarily they were searching when

they went in there for the evidence. And, I don’t think

that they acted unreasonably in doing so. In any event,

going from this they then wanted to go to the opposite

end of the ramp to see if indeed anything remained, or

anybody remained on the boat. And, I don’t think under

the circumstances they acted unreasonably in doing

that either, for the same reasons. Obviously, whatever

probable cause they had to enter into the truck, was not

diminished by what they found, but only strengthened

and lent additional weight to the hypothesis that there

would be either people or property connected with what

was on the truck, on the boat. I think they acted

App. 34

en Ce ee

reasonably in going go the boat. So, I’ll deny the Motion

to Suppress.

MR. GILBERT: Your Honor, the Motion to

Suppress also mentions weapons found on the boat, the

additional Motion to Suppress.

THE COURT: Well, I understand, and I’m

indicating that I’m denying it as to everything

App. 35