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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980

## Text

‘ Fea 6 1980 |
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Supreme Court = soca

of the

Wnited States

October Term, 1979

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1653%3A1. Public record. Not legal advice.