Petition — Sharpe v. Florida

Bupreing Court, a

FILED |

APR 11 1989 }

IN THE “

Supreme Court of the United States

OCTOBER TERM 1979

no. €9- 1595 ;

WILLIAM HARRIS SHARPE,

Petitioner,

V.

THE STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE FIRST DISTRICT COURT OF APPEALS

FOR THE STATE OF FLORIDA

Epwarp T. M. GarLANpD

Mark J. Kapisu

Ruonpa A. BROFMAN

Tuomas 8. CLEGG

GARLAND, NUCKOLLS, KADISH,

MARTIN & CATTS, P.C.

1012 Candler Building

Atlanta, Georgia 30303

(404) 577-2225

TABLE OF CONTENTS |

Page

IU. Saks ok eda circe vuln ate BE es 1

IN ia SES ok ie be nd ce 2

Questions Presented for Review................... 2

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

Pe en et a BS ae 3

kt) a San Serer aD 3

Reason for Granting the Writ..................... 7

THIS CASE PRESENTS NOVEL ISSUES

DEALING WITH THE AUTHORITY OF

ADMINISTRATIVE PERSONNEL TO

SEARCH AND SEIZE VEHICLES FOR

PURPOSES OF AGRICULTURAL INSPEC-

TION, ABSENT ANY REASONABLE

SUSPICION THAT THE VEHICLE WAS

CARRYING AGRICULTURAL PRODUCTS

AND THE AUTHORITY OF LAW

ENFORCEMENT OFFICIALS TO EFFECT

AN ARREST, ABSENT ANY KNOWLEDGE

OR SUSPICION THAT ANY ILLEGALITY

HAS TAKEN PLACE. REVIEW IS

NECESSARY TO BRING TO THIS COURT’S

ATTENTION A PRECEDENT SETTING

ERROR OF THE FIRST DISTRICT COURT

OF APPEALS FOR THE STATE OF

FLORIDA, CONCERNING THE CRITICAL

QUESTION OF THE ALLOWABLE SCOPE

AND DEGREES OF DETENTION AND

INTRUSION PERMISSIBLE UNDER THE

FOURTH AMENDMENT PURSUANT TO

ADMINISTRATIVE SEARCHES AND

SEIZURES OF VEHICLES. REVIEW IS

FURTHER NECESSARY TO REVIEW THE

CRITICAL QUESTION OF WHETHER kK

i

TABLE OF CONTENTS (Continued)

Page

PROBABLE CAUSE EXISTS TO JUSTIFY

AN ARREST, ABSENT ANY INFORMATION

TO SUGGEST THAT ANY ILLEGALITY

HAS OCCURRED. THESE ISSUES ARE OF

EXCEPTIONAL IMPORTANCE SINCE

THEY DEAL WITH CONSTITUTIONAL

LIMITATIONS ON GOVERNMENT

SPONSORED DETENTIONS AND SINCE

THE ISSUES INVOLVED HEREIN HAVE

NEVER BEEN DIRECTLY ADDRESSED

BY THIS COURT.

I A aes ay Side wails sae od ara vas was 27

Ey a Sn ee 28

EE RE See ce a ae A-1

SN SE la Sn rare bar B-1

TABLE OF CITATIONS

Page

Cases

Almeida-Sanchez v. United States,

ae rene 8

Beck v. Ohio, 379 U.S. 89 (1964). ......... 0. cece ee 21

Brinegar v. United States, 338 U.S. 160 (1948)....... 21

Brown v. Illinois, 422 U.S. 590 (1975). ........... 22, 23

Brown v. Texas, ___. U.S. ____ 61 L.Ed. 2d

Re tess ede Se eh a 11, 12

Bumper v. State of North Carolina,

ae PN I he Oak tn ho én Ve ewe 19

Cady v. Dombrowski, 413 U.S. 433 (1973). .......... 8

Camara v. Municipal Court, 387 U.S. 523 (1967)... .9, 16

Carroll v. United States, 267 U.S. 132 (1925)......... 26

Coolidge v. New Hampshire, 403 U.S. 443 (1971). ..15, 26

Delaware v. Prouse, 440 U.S. 648 (1979)... ......8, 9, 13

Fletcher v. Wainwright, 399 F.2d 62

ce ERE Re re ee ee 25

Marshall v. Barlow’s, Inc., 436 U.S. 307

po. RPS Dis Se ale eet 8, 9, 12, 15, 16, 17

Michigan v. Tyler, 436 U.S. 499 (1978). ........ 8, 15, 16

Schneckloth v. Bustamonte, 412 U.S. 218 (1973). ...18, 19

See v. Seattle, 387 U.S. 541 (1967).............. 9, 12, 13

Terry v. Ohio, 392 U.S. 1 (1968).............. 11, 12, 15

United States v. Beck, 602 F.2d 726

IR oe te i 25

United States v. Colbert, 474 F.2d 174

Ss WU MEN aot ee eel 2 os kes, pathuus 24

TABLE OF CITATIONS (Continued)

ey Page

Cases (Continued)

United States Ex Rel Richardson v. Rundle,

Po Bho 2k RS | > ie cr 22

United States v. Jacquillon, 469 F.2d 380

(Ses I Stn rs ale re Obl ea bs 22

United States v. Manning. 440 F.2d 1105,

Ce Ne ee phe bees 24

United States v. Martinez-Fuerte, ;

Ee se Cs hho ie cs es cece cae 8, 10

Warden v. Hayden, 387 U.S. 294 (1967)............. 15

Wong Sun v. United States, 371 U.S. 471

ld. ds4 oc ERS es Rekne es ra Xa. 10, 19, 21, 22

Statutes

NN SUNNY MUNIN ince ood Su bo nik so ween tks was 9, 16

Oe ein at a es 2

iv

IN THE

Supreme Court of the United States

OCTOBER TERM 1979

FE chine

WILLIAM HARRIS SHARPE,

Petitioner,

V.

THE STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE FIRST DISTRICT COURT OF APPEALS

FOR THE STATE OF FLORIDA

The Petitioner, WILLIAM HARRIS SHARPE, re-

spectfully asks that a Writ of Certiorari issue to review

the judgment and opinion of the First District Court of

Appeals for the State of Florida.

OPINIONS BELOW

On April 17, 1979, the First District Court of Appeals

for the State of Florida affirmed the judgment of the

Circuit Court for Hamilton County. See Appendix A.

On or about April 26, 1979, the Petitioner filed a Petition

for Rehearing in the Florida District Court which was

denied on May 21, 1979. See Appendix B. On or about

May 24, 1979, Petitioner filed his Motion to Certify

1

2

Questions to the Florida Supreme Court with the First

District Court of Appeals for the State of Florida which

granted the Motion on June 6, 1979, certifying two ques-

tions to be of great public interest. Petitioner timely filed

his Petition for Certiorari in the Florida Supreme Court,

which was denied on January 14, 1980. See Appendix C.

JURISDICTION

Jurisdiction of this appeal is grounded in an April 17,

1979 decision of the First District Court of Appeals for

the State of Florida and the denial of the Petition for

Certiorari by the Florida Supreme Court on January 14,

1980. The statutory provision conferring jurisdiction for

this appeal is 28 U.S.C. 1257.

QUESTIONS PRESENTED FOR REVIEW

1. Whether Petitioner’s Fourth Amendment right to be

free from an unreasonable search and seizure was violated

when he was detained for an extended period of time by

administrative officials despite the lack of any articulable

suspicion that the vehicle which Petitioner was driving

was being used to transport agricultural products.

2. Whether Petitioner’s Fourth Amendment right to

be free from an unreasonable search and seizure was vio-

lated when his truck and its contents were searched by

administrative officials without a search warrant when

there was no articulable suspicion that the vehicle con-

tained or was used to transport agricultural products;

where Petitioner gave no consent to allow the search of

his vehicle; and where no abandonment occurred prior to

the search.

3. Whether Petitioner’s Fourth Amendment rights were

violated when he was arrested without probable cause

3

and when his truck was searched subsequent to this illegal

arrest by local police authorities.

4. Whether Petitioner’s Fourth Amendment rights were

violated when Sheriff’s officers conducted a second search

of his vehicle, without a warrant; where there was no

probable cause to search; and where there was no exigent

circumstances.

CONSTITUTIONAL PROVISION INVOLVED

Fourth Amendment, United States Constitution:

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.

PREFATORY STATEMENT

All references to the record in this case will be preceded

by the capital letter “‘R’’; references to the transcript of

the Motion to Suppress Hearing will be preceded by the

capital letter ‘‘T’’.

STATEMENT OF THE CASE

Petitioner was charged with violating state laws of

Florida, in that he possessed more than one hundred

pounds of cannabis and in that he attempted bribery.

Petitioner filed a Motion to Dismiss the Information,

alleging numerous insufficiencies in the Information, and

a Motion to Suppress, alleging the warrantless search of

his truck was in violation of his Fourth Amendment rights.

On October 24, 1977, the Motion to Dismiss and the

Motion to Suppress were denied. At trial, Petitioner was

4

acquitted of the bribery charge, but was convicted of the

possession charge. Petitioner filed a Motion for a New

Trial which was denied orally on December 5, 1977 and

by written order dated December 9, 1977. An appeal was

taken to the First District Court of Appeals for the State

of Florida, which affirmed the judgment on April 17, 1979.

On April 26, 1979, the Petitioner filed a Petition for Re-

hearing in the Florida District Court, which was denied

on May 21, 1979. On May 24, 1979, Petitioner filed his

“Motion to Certify Questions to the Florida Supreme

Court” which was granted by the First District Court of

Appeals for the State of Florida on June 6, 1979, certi-

fying two questions to the Florida Supreme Court to be

of great public interest. However, on January 14, 1980,

the Supreme Court of Florida denied Petitioner’s writ of

certiorari, and stated that no petition for a rehearing

would be entertained. On March 11, 1980, Petitioner filed

with this Court a Motion to Stay the Mandate of the

Florida District Court of Appeals and Judgment of the

Florida Circuit Court and Motion for Enlargement of

Appellant’s Bond Already In Force. This motion was

denied on March 24, 1980.

Petitioner respectfully submits the following chronology

with respect to the “search and seizure” issue presented

here.

On the evening of March 19, 1977, William Harris

Sharpe, Petitioner, was driving a Ryder Rental Truck

north on Interstate 75 in the State of Florida. (T-36)

Approximately twenty-five miles south of the Georgia

border, the Petitioner voluntarily entered an inspection

station maintained by the Florida Department of Agri-

culture (T-36). No one was traveling with him at the

time. (T-36).

5

Upon entry into the inspection station, he was ap-

proached by a uniformed inspector, (T-49) who stated

that, “I would like to take a look inside your truck if

you don’t mind.” (T-34). The purpose of this request

was to ascertain whether the truck contained agricultural

products. (T-41). Petitioner responded that he was un-

able to open the truck, since the key to the padlock, was

in the possession of his girlfriend, who was traveling

ahead of him. (T-36). Petitioner further stated that the

truck contained furniture from his girlfriend’s apartment

(T-51), which he was helping move.

The inspector refused to allow Petitioner to continue

his northward journey, because he had not had an oppor-

tunity to look inside the truck, (T-53) despite the fact

that he had no reason whatsoever to believe that Peti-

tioner had anything but furniture in the vehicle. (T-52).

Shortly thereafter, the agricultural inspector informed

Petitioner that, “we can get a hammer for you if you

wouid like to break it” (the lock) (T-53). Petitioner re-

plied that it was a brand new lock and that he did not

wish to damage it. (T-55). Another uniformed inspector

told Petitioner that, it could be a long wait and that the

truck would have to stay in the inspection station until

it was searched. (T-71).

At least ten minutes later, (R-20) the inspectors ob-

served that the back of Petitioner’s vehicle was open.

Petitioner was observed standing next to it. (7-39). The

first inspector who initially approached Petitioner looked

into the vehicle and observed furniture, an old motorcycle

and an old tire. (T-56). At no time, did he observe any

agricultural products or contraband. (T-59). After ob-

serving these items, he physically entered the truck in

order to further search it. (T-57). This was the first search

6

which uncovered no contraband or agricultural products

in the truck.

Shortly thereafter, the inspector heard another inspec-

tor call to him that the Petitioner was gone. (T-58). The

first inspector stated he did not know why the Petitioner

had left (T-59) and that during the time the truck was

being searched, he had no idea that any contraband or

agricultural products were in the truck. (T-59). The other

inspector agreed, that even after seeing Petitioner leave,

he had no reason to believe that Petitioner had done any-

thing wrong. (T-68). He further stated that from looking

at the contents of the truck, but without entering it, the

truck contained nothing that concerned the Florida De-

partment of Agriculture. (T-72).

Without further searching the vehicle, the inspector

contacted the Florida Highway Patrol and the Hamilton

County Sheriff’s Office. (T-58-60). Shortly thereafter, a

deputy sheriff took the Petitioner into custody and took

him directly to the Hamilton County Jail. (T-82). Another

deputy sheriff took possession of the truck and drove it

to the jail. (T-74). Up to this time, no one from the

Sheriff’s Office had entered the truck, (T-75) and no con-

traband had been found. The deputy sheriff who trans-

ported the truck stated that he did not know why it was

carried to the jail. (T-75).

Petitioner was at the jail when the truck arrived. (T-82).

Without conferring with Petitioner in any way, the truck

was opened, searched and a controlled substance was

seized. No search warrants had ever been obtained for

either the agricultural inspectors’ or the sheriff’s depart-

ment search. (T-78).

7

REASON FOR GRANTING THE WRIT

THIS CASE PRESENTS NOVEL ISSUES DEAL-

ING WITH THE AUTHORITY OF ADMINISTRA-

TIVE PERSONNEL TO SEARCH AND SEIZE

VEHICLES FOR PURPOSES OF AGRICULTURAL

INSPECTION, ABSENT ANY REASONABLE SUS-

PICION THAT THE VEHICLE WAS CARRYING

AGRICULTURAL PRODUCTS AND THE AUTHOR-

ITY OF LAW ENFORCEMENT OFFICIALS TO

EFFECT AN ARREST, ABSENT ANY KNOWL-

EDGE OR SUSPICION THAT ANY ILLEGALITY

HAS TAKEN PLACE. REVIEW IS NECESSARY TO

BRING TO THIS COURT’S ATTENTION A PRECE-

DENT SETTING ERROR OF THE FIRST DISTRICT

COURT OF APPEALS FOR THE STATE OF FLOR-

IDA, CONCERNING THE CRITICAL QUESTION

OF THE ALLOWABLE SCOPE AND DEGREES OF

DETENTION AND INTRUSION PERMISSIBLE

UNDER THE FOURTH AMENDMENT PURSU-

ANT TO ADMINISTRATIVE SEARCHES AND SEI-

SURES OF VEHICLES. REVIEW IS FURTHER

NECESSARY TO REVIEW THE CRITICAL QUES-

TION OF WHETHER PROBABLE CAUSE EXISTS

TO JUSTIFY AN ARREST, ABSENT ANY INFOR-

MATION TO SUGGEST THAT ANY ILLEGALITY

HAS OCCURRED. THESE ISSUES ARE OF EX-

CEPTIONAL IMPORTANCE SINCE THEY DEAL

WITH CONSTITUTIONAL LIMITATIONS ON

GOVERNMENT SPONSORED DETENTIONS AND

SINCE THE ISSUES INVOLVED HEREIN HAVE

NEVER BEEN DIRECTLY ADDRESSED: BY THIS

COURT.

A. PETITIONER’S FOURTH AMENDMENT RIGHT

8

TO BE FREE FROM AN UNREASONABLE

SEARCH AND SEIZURE WAS VIOLATED WHEN

HE WAS DETAINED FOR AN EXTENDED

PERIOD OF TIME BY ADMINISTRATIVE OF-

FICIALS DESPITE THE LACK OF ANY ARTIC-

ULABLE SUSPICION THAT THE VEHICLE

WHICH PETITIONER WAS DRIVING WAS BE-

ING USED TO TRANSPORT ARGICULTURAL

PRODUCTS.

Under the Fourth Amendment, an individual has a

right to be free from unreasonable searches and seizures.

Reasonableness is measured by balancing the intrusion

against the promotion of legitimate government functions.

United States v. Martinez-Fuerte, 428 U.S. 543 (1976). As

part of considering this equation with regard to warrant-

less searches of motor vehicles, (which does constitute a

search within a meaning of the Fourth Amendment, Dela-

ware v. Prouse, 440 U.S. 648 (1979)), it is necessary not

only to consider the government interest at hand, but the

degree of intrusion upon the individual, Almeida-Sanchez

v. United States, 413 U.S. 283 (1973), and the degree of

discretion left with the official who seeks to effect the stop.

Cady v. Dombrowski, 413 U.S. 433 (1973). Due to the in-

herent flexibility in the concept of reasonableness this

Court has enunciated a unique standard of measuring the

propriety of searches and seizures by administrative offi-

cials. This Court has not addressed itself, however, to the

novel issue of administrative searches and seizures of

motor vehicles, as is presented in the case at hand.

Administrative searches and seizures are subject to the

Fourth Amendment, Michigan v. Tyler, 436 U.S. 499

(1978) although to justify a search or seizure, “probable

cause in the criminal law sense is not required.”” Marshall

9

v. Barlow’s, Inc., 436 U.S. 307, 320 (1978). Instead a

determination must be made as to whether the reasonable

legislative or administrative standards for conducting an

administrative inspection are satisfied with respect to the

particular premises to be searched. Camara v. M unicipal

Court, 387 U.S. 523 (1967).

The rationale for allowing this unique standard for ad-

ministrative searches was to permit the smooth imple-

mentation of regulatory schemes. As noted however, the

Fourth Amendment standard of reasonableness continued

to apply, so that while searches and siezures were based

on a lesser standard of justification than probable cause,

it was necessary that they be “relatively limited inva-

sions” of privacy, Camara v. M unicipal Court, supra at

537 and “limited in scope and relative in purpose.”’ See

v. Seattle, 387 U.S. 541, 544 (1967). In determining the

justification of the intrusion, it is also proper to consider

whether the seizure interferes with the person’s freedom

of movement, and if so, how much time was consumed

and whether the person was inconvenienced by the de-

tention. Delaware v. Prouse, supra at 658.

In the case at hand, Petitioner voluntarily entered an

agricultural and weight station pursuant to Florida Stat-

ute 570.15, which states that Florida agricultural officials

may have access to truck and motor vehicle trailers which

are used “in the production, manufacture, storage, sale,

or transportation within the state of any food product;

any agricultural, horticultural or livestock product; or

any article or product with respect to which any authority

is conferred by law on the department.” It is noteworthy,

that subsequent to the search and seizure in question, this

statute was amended by the Florida legislature. This new

statute now gives Florida officials the right to indefinitely

10

detain any vehicle, until a search of said vehicle has been

made.

When Petitioner entered the agricultural station, he

told the inspectors that his truck contained no agricul-

tural products but instead contained furniture. (T-51).

The agricultural officials were denied access to the cargo

area of the truck, due to the Petitioner’s lack of a readily

available key. (T-36). Thereafter, the inspectors refused

to allow the Petitioner to continue his journey, although

they had no reason whatsoever to believe that Petitioner

had anything but furniture in his truck. (T-52).

The Florida Appellate Court, in its opinion, viewed the

behavior of the agricultural inspectors as within the con-

fines of the Fourth Amendment, holding that the state

agricultural commission has the authority to detain all

trucks until they have been physically inspected. Peti-

tioner asserts that such authority granted to an adminis-

trative agency exceeds the limits of reasonableness as con-

templated by the Fourth Amendment, and as such is

illegal, so as to authorize the suppression of any evidence

obtained pursuant to that seizure. Wong Sun v. United

States, 371 U.S. 471 (1963).

Petitioner contends that those detentions which exceed

the limits of reasonableness can no longer be justified on

administrative grounds. Such detentions must then be

measured by the same standards which apply in criminal

cases. The case of United States v. Martinez-Fuerte, 428

U.S. 543 (1976) is instructive. There the border patrol

had constructed a permanent checkpoint for the purpose

of detaining illegal aliens. The procedure used at the

checkpoint was found to be acceptable, but the Court

limited the extent of the seizure. Thus, the border patrol

1]

could:

1. Require a vehicle to stop at a border patrol check-

point.

2. Briefly detain the travelers juring which time all

that is required of them is a response to a brief question

or two or possibly the production of a document evi-

dencing the right to be in the United States.

3. Visually inspect the vehicle (but limiting that in-

spection to what could be seen without a warrant).

4. Refer motorists selectively to a secondary area for

questioning only if there is something suspicious about

the particular vehicle passing through the checkpoint, but

then only for a few brief questions about citizenship and

immigration status.

Applying the logic of this decision to the case at hand,

the State of Florida would have had the authority to

require the Petitioner to stop and would have been en-

titled to inquire as to the contents of the truck. However,

absent probable cause in the form of specific and artic-

—ulable facts that the truck contained agricultural prod-

ucts, they would have had no authority to detain the

Petitioner. The record is clear that no such suspicion

existed. The agricultural inspector testified that he had

no reason to believe that Petitioner’s truck carried any-

thing but furniture. (T-52).

Numerous criminal cases, have dealt with the degree of

proof necessary to justify a continuing detention. In Terry

v. Ohio, 392 U.S. 1, 21 (1968), this Court stated that

“specific and articulable facts” were necessary to justify

even a short detention. In Brown v. Texas, __ U.S. ___,

61 L.Ed. 2d 357, 362 (1979), this Court required that a

detention must be based on “specific, objective”’ facts,

12

concerning specific misconduct and rejected a contention

that an intrusion could be justified if a party “looked

suspicious’. It is significant that both Terry v. Ohio, supra,

and Brown v. Texas, supra, involve short detentions.

As noted, administrative searches and seizures are unique

in that they may be based on less than probable cause,

since they are presumably less intrusive. Petitioner does

not dispute the authority of the state to briefly detain

vehicles to determine if they contain agricultural prod-

ucts. Petitioner does dispute however, the authority of

administrative officials to subject all trucks to an extended

detention, absent any specific knowledge or articulable

suspicion that the vehicles’ contents are subject to ad-

ministrative regulation by the agency in question.

When considering the state’s interest in regulating the

transfer of agricultural products inside the State of Flor-

ida, it is necessary to consider the unique factual setting

in which the seizure in question took place. Virtually all

of the leading administrative search and seizure cases con-

sidered by this Court have involved situations in which

the administrative officials knew that the premises which

they sought to search contained something within, which

was subject to the regulatory authority. In Marshall v.

Barlow’s, Inc., supra, the inspector was aware that the

inside of the premises was subject to the provisions of the

Occupational Safety and Health Act. Likewise, in See v.

Seattle, supra, there was no doubt that the premises sought

to be inspected were subject to the fire regulations of the

City of Seattle. The case at hand, however, is different

in that the agricultural inspectors had no reason to believe

that the truck in question centained agricultural products.

This lack of knowledge, then makes this case ripe for

review by this Court, as here the administrative agency

13

in question, had no reason to believe that they would find

those items for which they were authorized to conduct an

inspection.

Delaware v. Prouse, supra, concerned the administrative

detention of motor vehicles. There a policeman stopped

a vehicle for purposes of a spot license registration check.

This court found such a practice to be illegal, as there

existed no, “appropriate factual basis for suspicion direct-

ed at a particular vehicle” at 660. Such a standard, more

stringent than the standard enunciated in other adminis-

trative search cases, was necessary because of the extent

of the intrusion and because it left too much discretion in

the hands of the arresting authority. As the court noted

at 660, ‘‘the grave danger of abusive discretion, does not

disappear simply because the automobile was subject to

the State regulation resulting in numerous instances of

police citizen contact.”’

The intrusion in the case at hand, was “inconvenient”,

“consumed time’’, and significantly interfered with the

Petitioner’s “freedom of movement’. Furthermore, the

seizure was not “limited in scope and relevant in purpose,”

See v. Seattle, supra, since the administrative officials here

saw fit to detain a vehicle, absent any information what-

soever to suggest that the vehicle detained was subject

to the administrative regulation which formed the basis

of the detention. Finally, in suggesting that the agricul-

tural commission is entitled to a physical search of all

trucks, the state asserts that they are able to subject all

trucks to an extended detention, a clear contradiction of

the Fourth Amendment requirement that administrative

seizures be relatively limited invasions of privacy.

Under the rule propounded by the Florida Appellate

Court, the state should be allowed to physically inspect

14

all vehicles for the purposes of administrative efficiency

and refusal of a citizen to permit that extensive intrusion

should give them authority to detain a vehicle and the

citizen indefinitely. Such a rule of course would give the

state agricultural commission not only the right to make

seizures on less than probable cause “in the criminal

sense’, but allow them to make seizures more intrusive

than those necessary to accomplish their administrative

function. In such circumstances, the anticipated tradeoff

between the lesser justification needed to conduct an ad-

ministrative search and the lesser degree of intrusiveness

of an administrative search and seizure would become non-

existent. The practical result would be that all seizures

and subsequent searches would become reasonable. Such

a result is contrary to the Fourth Amendment and ac-

cordingly the evidence seized as a result of the illegal

detention should have been suppressed.

B. PETITIONER’S FOURTH AMENDMENT RIGHT

TO BE FREE FROM AN UNREASONABLE

SEARCH AND SEIZURE WAS VIOLATED WHEN

HIS TRUCK AND ITS GONTENTS WERE

SEARCHED BY ADMINISTRATIVE OFFICIALS

WITHOUT A SEARCH WARRANT WHEN THERE

WAS NO ARTICULABLE SUSPICION THAT THE

VEHICLE CONTAINED OR WAS USED TO

TRANSPORT AGRICULTURAL PRODUCTS;

WHERE PETITIONER GAVE NO CONSENT TO

ALLOW THE SEARCH OF HIS VEHICLE; AND

WHERE NO ABANDONMENT OCCURRED

PRIOR TO THE SEARCH.

Permissible searches under the Fourth Amendment are

limited to those which are reasonable. In criminal cases,

probable cause must exist before a search can be reason-

15

able. Absent exigent circumstances, a search warrant is

necessary to effectuate a search and seizure, as absent a

warrant all searches are presumed to be unreasonable.

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

function of a warrant, which seeks to insure “reasonable-

ness’, is the requirement limiting the allowable scope of

a search, so that it remains “strictly tied to and justified

by the circumstances which rendered its initiation per-

missible.” Terry v. Ohio, 392 US. 1, 19 (1968), citing

Warden v. Hayden, 387 U.S. 294, 310 (1967) (Mr. Justice

Fortas, concurring).

Administrative searches are subject to the authority of

the Fourth Amendment, Michigan v. Tyler, 436 U.S. 499

(1978) and thus normally require a search warrant absent

consent. Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978).

Accordingly, they are limited in scope by the prescrip-

tions of the Fourth Amendment. While it is well recog-

nized, that such seizures can be based on a lesser standard

than those necessary to justify a criminal search, Marshall

v. Barlow’s, Inc., supra, the Fourth Amendment require-

ment of reasonableness remains, .0 that the legitimacy of

each search must be reviewed on a case by case basis.

Thus in each case, there must be a balancing of the spe-

cific enforcement needs of each statute justifying an ad-

ministrative intrusion and the individual’s privacy guar-

antees infringed upon. Marshall v. Barlow’s, Inc., supra.

Accordingly, the scope of searches made by administra-

tive personnel is limited by the purposes of the search in

question. This is implicit in the concept allowing a search

based on “less than probable cause in a criminal sense,”’

because such searches involve a relatively limited inva-

sion of the citizen’s privacy, since, “the inspections are

neither personal in nature nor aimed at the discovery of

16

evidence of crime.” Camara v. Municipal Court, 387 U.S.

523, 527 (1967). Thus the standard needed to legitimize

an administrative search is lessened, since such a search

involves a lesser degree of intrusion.

Because a lesser degree of intrusion is justified under

the administrative search guidelines, a search warrant is

invariably preferred absent consent. As the Court in

Michigan v. Tyler, 436 U.S. 499, 508 (1978), noted, “when

the inspector demands entry (without a warrant), the

occupant has no way of knowing whether enforcement of

the . . . code requires inspection of his premises, no way

of knowing the lawful limits of the inspector’s power to

search and no way of knowing whether the inspector him-

self is acting under proper authorization.” Implicit in this

preference for a warrant is the fear that administrative

officials in the field would possess almost unbridled discre-

tion to exceed the permissible limits of an administrative

search. Marshall v. Barlow’s, Inc., supra at page 324.

In the case at hand, a search of the contents of the

Petitioner’s truck was conducted after the Petitioner had

been involuntarily detained and absent a warrant. The

search was conducted by Florida agricultural officials,

(T-56) for the purpose of ascertaining whether the vehicle

in question contained any agricultural products. (T-41).

Under the Florida Statute 570.15, the officials in question

were entitled to search vehicles used in the agricultural

business, and thus the intrusions were to be confined to

searching for agricultural products.

Upon looking in the rear of the truck, the inspector in

question noticed that the truck contained furniture an

old motorcycle, and possibly an old tire. (T-56). Peti-

tioner had previously informed the inspector that the

truck contained furniture. (T-52). At no time did the

17

inspector ever observe any agricultural products or contra-

band in the truck. (T-59). Another inspector, who ob-

served the contents of the truck, while standing on the

road near the tailgate of the truck, testified at the Motion

to Suppress Hearing, that the contents of the truck were

nothing that concerned the Florida Department of Agri-

culture. (T-72). Nevertheless, the first inspector proceeded

to physically enter the truck although he had no reason

to believe that the truck contained any items subject to

the authority of the Florida Department of Agriculture.

This first search was conducted, because the thought en-

tered the mind of the inspector that the Petitioner might

not be telling the truth. (T-57).

The Florida Appellate Court interpreted the relevant

statute as allowing a search of all trucks, regardless of

whether reasonable suspicion existed to justify belief that

the vehicle contained agricultural products. Such a proce-

dure for inspection, absent a warrant, violates this Court’s

decision in Marshall v. Barlow’s, Inc., supra, that a war-

rant be obtained. Under Marshall, a neutral magistrate

should be interjected to assure that a search, “is reason-

able under the Constitution” and is “pursuant to an ad-

ministrative plan containing specific criteria.” Absent

such a warrant, the possibility exists that the scope and

purpose of a search will be exceeded and thus become

unreasonable.

A warrant would have been appropriate in the case at

hand, for purposes of requiring the state to justify the

search, and if issued, to limit the scope of the search to

a determination as to whether agricultural products were

present. Instead, no warrant was issued and the inspec-

tors were given “unbridled discretion” to arbitrarily search

Petitioner’s vehicle, absent any reason to believe that the

18

vehicle in question contained agricultural products.

Furthermore, once having gone forward with the search

by looking inside the vehicle, they proceeded to physically

enter the truck despite the fact that no agricultural prod-

ucts were apparent and despite the fact that the visible

contents of the truck coincided with the description pro-

vided by the Petitioner. This physical entry, certainly

not for the purpose of discovery of agricultural products,

was rationalized on the ground that the inspector in ques-

tion “‘felt”’ that the Petitioner might not be telling the

truth and not on the basis of any articulable suspicion

that any Florida law or regulation was being violated. An

“inarticulable hunch” provided the basis for the physical

entry of the truck. This was clearly outside the permis-

sible scope of an administrative search, since prior to

entry into the truck the inspectors observed that the

truck contained nothing which concerned the Florida

Department of Agriculture.

The physical entry into the truck and the search of the

truck’s contents violates Petitioner’s rights, since no pos-

sible probable cause to search existed at that time. In

fact, as already stated any suspicion that agricultural

products were contained within the truck, were negated

by the “‘look inside” the truck.

The Florida Appellate Court bypassed the issue of

whether or not the initial detention of Petitioner’s vehicle

was legal and assumed legality. Thus, that Court could

not properly reach an opinion as to whether Petitioner’s

consent to search his vehicle was given.

A party may consent to waive its Fourth Amendment

rights to be free from an unreasonable search and seizure.

Such a consent, however, must be a voluntary relinquish-

ment of a known right, Schneckoloth v. Bustamonte, 412

19

U.S. 218 (1973) and must not be the product of coercion

offered by those with the cloak of authority. Bumper v.

State of North Carolina, 391 U.S. 543 (1968). The gov-

ernment of course may not benefit from its own illegality,

Wong Sun v. United States, 371 U.S. 471 (1963) and if

illegality is detected by the government which is directly

related to the consent in question, such illegality must be

included in a determination of the voluntariness of the

consent.

In the case at hand, the Petitioner was subject to ex-

tensive restraint and detention before apparently opening

the doors of the truck. Prior to this time, Petitioner had

denied inspection agents access to his vehicle (T-36). It

was only after the Petitioner had been restrained and

detained that the inspectors discovered that the tailgate

doors of the truck were open. The illegal detention should

have been considered in deciding the voluntariness of the

consent, since as Petitioner noted, the government may

not benefit from its own illegality. Wong Sun v. United

States, supra.

It is also significant that the State did not prove “con-

sent”’, and only showed that the doors to the truck were

open. Therefore, at best, Petitioner consented to a “view”

of the contents of the truck by opening the doors. Con-

sent was never extended to include entry into the truck.

To summarize, no consent to search was expressly given

and it was only after the Petitioner was informed that he

might need to remain for an indefinite time and until a

physical search was conducted, that officials noticed the

doors to Petitioner’s truck were open (T-71). This is cer-

tainly not an articulated and express consent as required

by law. The agents in question were uniformed and

cloaked in administrative authority (T-49). Thus, if the

20

authority to detain the truck was illegal (as Petitioner

asserts herein) then it would. prevent the Petitioner from

having made a knowing voluntary consent of his Fourth

Amendment rights.

As the consent given to the first search here was not

voluntary, it is for purposes of the Fourth Amendment,

equivalent to no consent at all. Accordingly, it cannot be

argued that consent attenuated the primary illegality,

since the consent was a direct product of said illegality

and hence not voluntary.

Petitioner further asserts that the issue of abandonment

of the vehicle in regard to the first search is irrelevant,

since the Petitioner did not leave his vehicle until after

the agricultural authorities had physically entered it.

Accordingly, his standing to contest this search was intact

at the time of this search.

Administrative officials are granted a lesser standard to

justify their searches, precisely because they would be less

intrusive. To allow those who conduct administrative

searches, the degree of discretion which the Florida Appel-

late Court approved for the agricultural inspectors in this

case would be to grant administrative agencies the right

to conduct more expansive searches than those permitted

in criminal situations, in which the state has a far greater

interest. The opinion below authorizes agricultural in-

spectors to stop every truck and presumably search, with-

out @ warrant, all of its contents, whether or not they

believed they contained agricultural products. Such un-

limited discretion would allow searches of all trucks and

place no limitation on the scope of such searches in direct,

violation: of the Fourth Amendment. Accordingly, the

state should have been required to obtain a search war-

rant to justify its intrusion and said warrant should have

21

limited the scope of any justifiable search (if any) to far

below that which was effected by the Florida officials.

Thus, the search was unreasonable and any evidence dis-

cussed pursuant to that search, including any evidence

discovered pursuant to the alleged consent should be sup-

pressed. Wong Sun v. United States, 371 U.S. 471 (1963).

C. THE PETITIONER’S FOURTH AMENDMENT

RIGHTS WERE VIOLATED WHEN HE WAS AR-

RESTED WITHOUT SUFFICIENT PROBABLE

CAUSE.

An arrest of an individual is a seizure for purposes of

the Fourth Amendment and accordingly must be rea-

sonable. The reasonableness of an arrest will depend on

whether, ‘“‘at the moment the arrest was made, the officers

had probable cause to make it.” Beck v. Ohio, 379 U.S.

89, 91 (1964). Probable cause exists when there is rea-

sonably trustworthy information whith is sufficient for a

prudent man to believe that the individual in question

had committed or was committing an‘offense. Brinegar

v. United States, 338 U.S. 160, 175 (1948).

In order to properly review probable cause decisions

made by law enforcement officers in the field, it is neces-

sary to look to the totality of the circumstances as re-

vealed by the record. Beck v. Ohio, supra. In the case at

hand, Petitioner was arrested after he had left the area

where his truck and he had been illegally detained. (T-82).

At that time, no contraband had been found in the vehicle

(T-75) and there was no evidence whatsoever that any

sort of illegality had occurred. This is born out by the

testimony of an agricultural inspector who had testified

that even after having seen Petitioner leave, he had no

reason to believe that Petitioner had violated the law.

(T-68). The question to be considered then is whether the

22

arrest in question was justified by probable cause. If not,

any evidence seized subsequent to and pursuant to said

illegal arrest should have been suppressed. Wong Sun v.

United States, 371 U.S. 471 (1963); Brown v. Illinois, 422

U.S. 590 (1975).

Brown v. Illinois, supra, is controlling here. In Brown,

the defendant was arrested without probable cause and

without a warrant. Thereafter, while in custody, he made

two exculpatory statements. The Court held that these

statements were to be excluded as the fruit of an illegal

arrest. Reflecting on the illegality of the arrest, this Court

stated:

The impropriety of the arrest was obvious; aware-

ness of that fact was virtually conceded by the two

detectives when they repeatedly acknowledged, in

their testimony, that the purpose of their action was

“for investigation” or for “questioning”. The arrest,

both in design and in execution, was investigatory.

The detectives embarked upon this expedition for

evidence in the hope that something might turn up.

(at 605).

The impropriety of the arrest in the instant case is as”

obvious as it was in Brown, supra. The State contends

that the Petitioner fled from his truck and probable cause

existed for his arrest. Flight, however, while a factor to

be considered is, standing alone, insufficient to constitute

probable cause. United States v. Jacquillon, 469 F.2d 380

(5th Cir. 1972). To be sufficient to constitute probable

cause, it should be “coupled with specific knowledge on

the part of the officer relating the suspect to evidence of

crime”. United States Ex Rel Richardson v. Rundle, 461

F.2d 860, 863 (3d Cir. 1962).

In the case at hand, the Petitioner was subject to a

full arrest. At the time that officials began pursuit of the

23

Petitioner, there was no reason to suspect that Petitioner

was involved in any sort of illegality. This was evidenced

by the fact that once informed that the Petitioner had

fled, the search of the vehicle ceased. Thus any contra-

band subsequently discovered during the second search

at the Sheriff’s station was unrelated to the pursuit and

apprehension of the Petitioner. Accordingly, even if there

was @ vague suspicion of some illegality, it would have

been impossible to state what specific crime was suspect-

ed, if any. Thus, any basis for pursuit and subsequent

arrest could not have been sufficient for a prudent man

to believe that Petitioner had committed or was com-

mitting an offense.

Petitioner apparently was subject to a full arrest. Absent

any knowledge of criminal behavior by the State, prob-

able cause was not present to either arrest defendant or

search the truck a second time (when the contraband was

ultimately found). Thus, the evidence discovered subse-

quent to arrest should have been suppressed. Brown »v.

Illinois, supra.

D. PETITIONER’S FOURTH AMENDMENT RIGHTS

WERE VIOLATED WHEN SHERIFF'S OFFICERS

CONDUCTED A SECOND SEARCH OF HIS

VEHICLE, WITHOUT A WARRANT; WHERE

THERE WAS NO PROBABLE CAUSE TO

SEARCH; AND WHERE THERE WAS NO EXI-

GENT CIRCUMSTANCES.

Absent certain well recognized exceptions, a warrant

issued by a neutral and detached magistrate is necessary

to justify a search or seizure. In the case at hand no

search warrant was issued to authorize the second search

of the truck, which was conducted at the Hamilton County

Jail. (T-78). Petitioner asserts that absent a warrant, no

24

probable cause and exigent circumstances justify the

search.

The Florida Appellate Court in its opinion held that an

abandonment of the truck in question had occurred, which

authorized the search. Petitioner contends however that

a valid abandonment did not occur in that (1) he was

present on the same premises as the truck, when the sec-

ond search took place and (2) any alleged abandonment

on the part of Petitioner was involuntary and therefore

did not constitute an abandonment for purposes of the

Fourth Amendment.

The consideration of an “abandonment” necessitates

an examination of all relevant circumstances existing at

the time of the alleged abandonment of an item, United

States v. Manning, 440 F.2d 1105, 1111 (5th Cir. 1971),

in order to determine if the party in question retained a

reasonable expectation of privacy in regard to it. United

States v. Colbert, 474 F.2d 174 (5th Cir. 1973).

In the case at hand, Petitioner left his vehicle after

agricultural authorities had physically entered it. Upon

being advised that Petitioner was no longer present, the

inspectors ceased their search, and the contraband in

question was not discovered until a second search took

place at the Hamilton County Jail. (T-74). Petitioner

was present at the jail during this search having arrived

prior to the truck (T-82). Thus, he was present on the

premises, at the same time that his truck which was

allegedly abandoned, was searched. By being present on

said premises, Petitioner retained his reasonable expecta-

tion of privacy in his vehicle and no abandonment took

place.

Petitioner further asserts that any alleged abandonment

attributed to him here would be improper as his actions

~

25

were caused by and were the result of an illegal search

and seizure. To be proper, an abandonment, must be vol-

untary. Fletcher v. Wainwright, 399 F.2d 62 (5th Cir. 1968) ;

United States v. Beck, 602 F.2d 726 (Sth Cir. 1979). Evi-

dence will not be regarded as abandoned for purposes of

the Fourth Amendment if the action in question was a

result of illegality on the part of law enforcement officials

since under such circumstances, said action could not be

regarded as voluntary.

If this Court should find, that either the initial deten-

tion of the Petitioner, or the initial intrusion into the

truck was illegal, then the State of Florida would have

no justification for taking the vehicle into its possession.

The taking of the vehicle into its possession would then

have been an illegal act, as would have been the second

search, during which the contraband was discovered.

Here, the Petitioner took no action to leave his truck

prior to the time that the agricultural inspector entered

the vehicle. (T-58). Once the inspector was physically

inside the truck, the Petitioner left. (T-58). Petitioner

asserts that there exists a causal relationship between the

physical entry by the inspector and the Petitioner leaving

the truck and that the alleged abandonment would not

have occurred, but for the entry into the truck. Accord-

ingly, abandonment does not provide justification for the

second search of the truck as the abandonment was in-

voluntary, being the product of law enforcement illegality.

As the abandonment here was not voluntary, it is for

purposes of the Fourth Amendment, equivalent to no

abandonment at all. Accordingly, it cannot be argued

that any allowed abandonment attenuated the primary

illegality since the alleged abandonment was a direct

product of said illegality and hence not voluntary.

26

Even if the Court should find that no illegality existed

in the search and seizure of the Petitioner’s truck by the

administrative officials in question and that the arrest of

Petitioner is legal, the Court should still suppress the

items seized pursuant to the second search.

No probable cause existed at the time of said search.

Carroll v. United States, 267 U.S. 132 (1925) as the State

lacked independent “specific and articulable facts” on

which to base probable cause. Instead, at the time of the

second search, there was no information to suggest that

any illegality occurred.

Additionally, no exigent circumstances existed to jus-

tify the search. At the time of the search, the Petitioner

was in custody and was traveling alone and the possibility

of movement of the vehicle was non-existent as it was

under the control of the Sheriff of Hamilton County.

Furthermore, the vehicle could have been readily locked

so as to safeguard its contents. In addition, the State had

ample opportunity to seek a warrant, and as such should

not be permitted to decide probable cause, instead of leav-

ing that decision to a neutral magistrate. In this regard,

it must be remembered that, ‘the word ‘automobile’ is not

a talisman in whose presence the Fourth Amendment fades

away and disappears.”’ Coolidge v. New Hampshire, supra.

Accordingly, a search warrant should have issued as ab-

sent such warrant no probable cause and no exigent cir-

cumstances existed. Thus any evidence seized pursuant

to the second search should have been suppressed as the

“fruits” of the primary illegalities which occured or al-

ternatively as items seized during a warrantless search

where no probable cause existed.

27

CONCLUSION

Based on the foregoing reasons, the Petitioner contends

that the First District Court of Appeals for the State of

Florida erred in its decision concerning the novel issue

presented to it and misapplied controlling authority to the

circumstances involved in Petitioner’s situation. There-

after, a Writ of Certiorari should issue to review the

judgment of the First District Court of Appeals.

Respectfully submitted,

GARLAND, NUCKOLLS, KADISH,

MARTIN & CATTS, P.C.

f mye? . Kabisu

1012 Candler Building

127 Peachtree Street

Atlanta, Georgia 30303

404/577-2225

28

CERTIFICATE OF SERVICE

This is to certify that I have this day served, the Attor-

ney General, Tallahassee, Florida with a copy of this

pleading by depositing in the United States Mail a copy

of same in a properly addressed envelope with adequate

postage t#Jereon. ‘

This day of , 1980.

ww Lhd. (). edad

i Max J. KHapisH

1012 Candler Building

127 Peachtree Street

Atlanta, Georgia 30303

404/577-2225

Appendices

APPENDIX A

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

WILLIAM HARRIS SHARPE, ) NOT FINAL

UNTIL TIME

Appellant, EXPIRES TO

FILE REHEAR-

VS | ING PETITION

AND DISPOSI-

STATE OF FLORIDA, TION THEREOF

IF FILED.

CASE NO. II-183

Appellee.

4

Opinion filed April 17, 1979.

An Appeal from the Circuit Court for Hamilton County.

Royce Agner, Judge.

Virlyn B. Willis, Jr., for Appellant.

Robert L. Shevin, Attorney General and Michael H.

Davidson, Assistant Attorney General, for Appellee.

BOOTH, J.

This cause is before the Court on appeal from the judg-

ment of the Circuit Court, Hamilton County, entered on

a jury verdict finding Sharpe guilty of possession of more

than 100 pounds of cannabis, and sentencing him to five

years imprisonment and a ten thousand dollar ($10,000)

fine. He urges as error the trial court’s failure to suppress

evidence taken in a search of his truck.

The facts are that Sharpe stopped his rental truck at

an agricultural inspection station on an interstate high-

way, but when told by a uniformed inspector that he

wished to inspect the vehicle, Sharpe advised that his

A-1

A-2

girlfriend had the key to the lock securing the rear door

of the truck and she was driving another vehicle ahead

of him on the highway. The inspector asked Sharve what

was in the truck and Sharpe answered that he had some

furniture from his girlfriend’s apartment. The inspector

then requested Sharpe to pull his truck over to the dock

and wait. At one point, the inspector suggested that if

Sharpe couldn’t get the truck open, and if his girlfriend

didn’t come back, that he could get a hammer for Sharpe

to break the lock. Sharpe stated it was a new lock that

he didn’t want to break. He indicated his girlfriend would

come back. At no time did Sharpe refuse to allow the

truck to be searched.

Some minutes later the inspectors noticed that the back

of the truck was open and Sharpe was standing next to

it. One of the inspectors went over and looked inside the

truck and observed furniture and an old motorcycle.

Shortly after he entered the back of the truck to look

further, he heard another inspector call that Sharpe was

gone. Sharpe was seen running across an open field. At

that point all inspection of the vehicle was stopped. The

inspectors contacted the highway patrol and the sheriff’s

office. Shortly thereafter, Sharpe was taken into custody.

A deputy drove the truck from the inspection station to

the jail, where the truck was searched and the cannabis

discovered.

Sharpe contends that despite the requirement of Florida

Statute section 570.15(1)(a) that specified vehicles stop

at agricultural inspection stations, the inspectors must

allow such vehicles to pass uninspected absent a reason-

able suspicion that agricultural products are being trans-

ported. It is his position that when he told the inspector

that his vehicle contained furniture, and the inspector

A-3

had no reason to suspect otherwise, the inspector should

have let his vehicle pass. Finally, he contends that he did

not abandon his truck and therefore the search carried

out by the sheriff’s officers was illegal because it was done

without a search warrant and without his valid consent.

We must disagree with Sharpe’s reasoning.

Florida Statute 570.15 provides in pertinent part as

follows:

““(1)(a) +The commissioner, assistant commissioner,

irectors, counsel, experts, chemists, agents, inspec-

tors, road-guard inspection special officers, and other

employees and officers of the department shall have

full access at all reasonable hours to all:

* * *

6. Trucks;

7. Motor vehicles, other than private passenger auto-

mobiles with no trailer in tow or any vehicles bearing

an RV license tag;

8. Truck and motor vehicle trailers;

* * *

used in the production, manufacture, storage, sale,

or transportation within the state of any food prod-

uct; any agricultural, horticultural, or livestock prod-

uct; or any article or product with respect to which

any authority is conferred by law on the department.

(b) If such access be refused by the owner, agent, or

manager of such premises or by ‘the driver of such

aforesaid vehicle, the inspector or road-guard inspec-

tion special officer may apply for a search warrant

which shall be obtained as provided by law for the

obtaining of search warrants in other cases, or may

conduct a search of any of the aforesaid vehicles with-

out a warrant pursuant to s. 933.19.

A-4

(c) Such departmental officers, employees, and road-

guard inspection special officers may examine and

open any package or container of any kind contain-

ing or believed to contain any article or product which

may be transported, manufactured, sold, or exposed

for sale in violation of the provisions of this chapter,

the rules of the department, or the laws which the

department enforces and may inspect the contents

thereof and take therefrom samples for analysis.

(2) It shall be unlawful for any truck or any truck

or motor vehicle trailer to pass any official road-guard

inspection station without first stopping for inspec-

tion. A violation of this subsection shall constitute a

misdemeanor of the second degree, punishable as pro-

vided in s. 775.082 or s. 775.083.”

Section 570.151 provides as follows:

“The department may appoint road-guard inspec-

tion special officers of sufficient number to carry out

the duties of the department relating to road-guard

inspection as prescribed in this section. Said offi-

cers shall be known as road-guard inspection special

officers...

* * xX

All such special officers shall have power and au-

thority to make arrests, with or without warrants

as provided in s. 570.15, for violations of law com-

mitted within the jurisdiction of s. 570.15 to the

same extent and under the same limitations and

duties as do peace officers under the provisions of

chapter 901, and all such special officers shall have

the right and authority to carry arms while on duty,

provided such officers shall meet the requirements

of the Police Standards and Training Commission

established under s. 943.11...”

The State in the reasonable exercise of its police power

has required agricultural inspections of specified vehicle ;

A-5

operated on the highways of the State. In Stephenson v.

Department of Agriculture and Consumer Services, 329

So.2d 373 (Fla Ist DCA 1976), affirmed 342 So.2d 60

(Fla 1976), this Court so held and ruled further:

‘‘The inspections are necessary in order that appellee

[Department of Agriculture and Consumer Services]

may carry out its responsibilities relating to disease

control, fruit and vegetable grading and other simi-

lar matters required by law, appellee’s regulations

and federal marketing orders. Under subsection (2)

of section 570.15 above, all trucks and motor vehicle

trailers [not limited to those mentioned in subsection

(1)] are required to stop at appellee’s road-guard in-

spection stations for inspection. Unless such a vehicle

stops at the station, it cannot be determined by the

inspectors whether or not it is being used for trans-

portation of ‘any food product, any agricultural, hor-

ticultural, or livestock product; or any article or

product with respect to which any authority is con-

ferred by law on the department.’ Upon stopping,

the majority of operators of such vehicles will prob-

ably have no objection to such an inspection and

will consent to same; but as provided in the statute,

if access is refused, the vehicle may not be searched

without the inspector obtaining a search warrant or

without a legal basis for search without a warrant

pursuant to established law. Such in no way impairs

appellants’ right to be free from unreasonable search

and seizure, their right to due process of law, or their

right to equal protection of the law. We do not find

that it violates any constitution right of appellant.”

(329 So.2d at page 376)

The Supreme Court affirmed the Stephenson decision,

quoting an earlier decision,’ holding (342 So.2d 60, 61):

“The protection of a large industry constituting one

of the great sources of the state’s wealth and there-

1 Johnson v. State, 99 Fla. 1311, 128 So.2d 853 (Fla 1930).

A-6

fore directly or indirectly affecting the welfare of

so great a portion of the population of the state is

affected to such an extent by public interest as to

be within the police power of the sovereign.”

Sharpe’s contention that the agricultural inspectors

should have limited their inspection of his truck to a few

questions and a plain view search is devoid of merit. He

was driving a two-ton rental truck with a large fully en-

closed cargo area of the type customarily used as testi-

fied to by the inspectors, to haul fruit and tomatoes. The

nature of the truck precluded any plain view inspection

and, therefore, it was necessary for the inspector to look

inside the truck’s cargo area in order to perform his duty

of inspecting for agricultural products. Therefore, we find

that Sharpe’s detention at the road-guard station was

reasonable.

We find that Sharpe consented to the inspection of his

truck and opened the truck of his own volition, State v.

Drake, 343 So.2d 1336 (Fla 1st DCA 1977), and that his

arrest was lawful following his having fled the scene after

an inspection of the truck began. City of Miami v. Nelson,

186 So.2d 535 (Fla 3d DCA 1966); Florida Statute sec-

tions 570.151, 901.15.

Finally, we agree with the trial court that defendant

abandoned his truck at the road-guard station. The sub-

sequent impoundment of the abandoned truck was also

reasonable, Mattson v. State, 328 So.2d 246 (Fla 1st DCA

1976), and the seizure of the evidence contained therein

not improper. State v. Jackson, 240 So.2d 88 (Fla 3d DCA

1973); State v. Nittolo, 317 So.2d 748 (Fla 1975).

A-7

We have considered Sharpe’s remaining points and

find them without merit. Accordingly, the judgment and

sentence appealed are AFFIRMED.

SMITH, Acting Chief Judge and MASON, ERNEST E.,

Associate Judge, CONCUR.

APPENDIX B

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

WILLIAM HARRIS SHARPE, )

Appellant,

—vs— > CASE NO. II-183

STATE OF FLORIDA,

Appellee. |

ORDER

Petition for Rehearing and Response thereto having

been considered,

IT IS ORDERED that the petition is hereby denied.

By Order of the Court dated this 21st day of May,

A. D. 1979. Unless otherwise ordered, the Court’s man-

date will issue fifteen (15) days after this date. Florida

Rules of Appellate Procedure, 9.340; General Order en-

tered April 14, 1978. Acting Chief Judge Robert P. Smith,

Jr., Judge Anne C. Booth, and Associate J udge Ernest E.

Mason.

A TRUE COPY

ATTEST:

RAYMOND E. RHODES, CLERK

/s/ Raymonp E. Ruopss ©

District Court of Appeal, First District

Tallahassee, Florida

APPENDIX C

SUPREME COURT OF FLORIDA

MONDAY, JANUARY 14, 1980

) CASE NO. 57,012

WILLIAM HARRIS SHARPE, District Court

Petitioner, of Appeal,

STATE OF FLORIDA, “First: District

Respondent. DCA brn NO.

I-183

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).

Petitioner’s amended notice is hereby denied.

ADKINS, ACTING C.J., BOYD, OVERTON, SUND-

BERG and ALDERMAN, JJ., Concur

A True Copy ner

CC: Hon. Raymond E. Rhodes,

TEST: Clerk

Hon. Charles Ralph Carlton,

Clerk

Sid J. White Hon. Royce Agner, Judge

Clerk Supreme Court.

Virlyn B. Willis, Jr., Esquire

Charles A. Stampelos, Esquire

By: /s/ Nancy E. Ryats

Deputy Clerk