Opposition — Sharpe v. Florida

JUN 26 1980

WICHAEL RODAK, JR., CLERA

IN THE oo

Supreme Court of the Wnited States

OCTOBER TERM 1979

NO. 79-1595

WILLIAM HARRIS SHARPE,

Pett ttoner,

v.

STATE OF FLORIDA,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

TO THE PETITION FOR WRIT OF

CERTIORARI TO THE FLORIDA DISTRICT

COURT OF APPEAL, FIRST DISTRICT

JIM SMITH

Attorney General

RAYMOND L. MARKY

Assistant Attorney

General

CHARLES A. STAMPELOS

Assistant Attorney

General

THE CAPITOL

Tallahassee, FL 3230]

Counsel for Respondent

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

STATEMENT OF THE CASE

REASONS WHY THE WRIT

SHOULD NOT BE GRANTED

CONCLUSION

PAGE

1-2

2-3

3-8

9-22

22

ii

TABLE OF CITATIONS

PAGE

Abel v. United States,

362 U.S. 217 (1960 17

Delaware v. Prouse,

440 U.S. 648 (1979) 13

Godbee v. State,

224 So.2d 441 (Fla. 2d DCA 1969) 20

Hester v. United States,

265 U.S. 57 (1924) 17

Johnson v. State,

99 Fla. 1311, 128 So. 853 (1930) 10

Mackiewtez v. State

114 So.2d 684 (Fla. 1959) 19

Marshall v. Barlow's, Inc.,

436 U.S. 307 (1978) 16

McNamara v. State,

357 So.2d 410 (Fla. 1978) 21

Noeling v. State,

40 So.2d 120 (Fla. 1949) 19

Pederson v. State,

373 So.2d 367 (Fla. 1 DCA 1979),

cert. dented, So. 2d

(Fla. 1980) 16

iii

Ross v. Moffitt,

417 U.S. 600 (1974)

Sharpe v. State,

370 So.2d 42 (Fla. 1 DCA 1979),

eert.denied, 381 So.2d 769

(Fla. 1980)

Sligh v. Kirkwood,

65 Fla. 123, 61 So. 185 (1913),

aff'd, 237 U.S. 52 (1915)

South Dakota v. Opperman,

428 U.S. 364 (1976)

State v. Batley,

120 Ariz. 399, 586 P.2d 648

(Ct. App. 1978)

Stephenson v. Department of

Agriculture and Consumer Services,

329 So.2d 373 (Fla. 1 DCA 1976),

aff'd. 342 So.2d 60 (Fla. 1976),

appeal dismissed, 434 U.S. 803

(1977)

Untted States v. Brignoni-Ponce,

422 U.S. 873 (1975)

Untted States v. Edwards,

441 F.2d 749 (5th Cir. 1971)

3-6

20

15

10-13 >

21

20

17, 18-

19

iv

United States v. Marttnez-Fuerte,

428 U.S. 543 (1976)

United States v. Mendenhall,

48 U.S.L.W. 4575 (1980)

Untted States v. Ortiz,

422 U.S. 891 (1975)

United States v. Schaffer,

461 F.2d 856 (9th Cir. 1972),

ecert.denied, 409 U.S. 81 (1972)

Untted States v. Walton,

938 F.2d 1348 (8th Cir. 1976),

ecert.dented, 429 U.S. 1055

(1976)

OTHER AUTHORITIES

28 U.S.C. § 1257(3)

Rule 19, Rules of the Supreme

Court of the United States

Section 570.15(1), Florida

Statutes (1977)

Section 570.15(1)(a), Florida

Statutes (1977)

20

20-21

20

15

19

10

IN THE

Supreme Court of the United States

OCTOBER TERM 1979

NO. 79-1595

WILLIAM HARRIS SHARPE,

Pettttioner,

Vv.

STATE OF FLORIDA,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

TO THE PETITION FOR WRIT OF

CERTIORARI TO THE FLORIDA DISTRICT

COURT OF APPEAL, FIRST DISTRICT

Respondent prays that this Court

will deny the petition for writ of

certiorari heretofore filed seeking

review of the opinion rendered by the

First District Court of Appeal.

OPINIONS BELOW

On the 24th day of October, 1977,

the trial court entered an order denying

Petitioner's motion to suppress and

amended motion to suppress. On the.17th

day of April, 1979, the First District

Court of Appeal affirmed Petitioner's

judgment and sentence. Sharpe v. State,

370 So.2d 42 (Fla. 1 DCA 1979), cert.

dented, 381 So.2d 769 (Fla. 1980). The

instant petition followed.

JURISDICTION

The jurisdiction of this Court is

sought to be invoked by Petitioner under

28 U.S.C. § 1257(3). It is Respondent's

position that the issues raised here are

not such as should be reviewed by this

Court. Petitioner has not presented this

Court with a substantial federal constitu-

tional question. Review by writ of

certiorari is a matter of sound judicial

discretion, and will be granted only where

there are special and important reasons

therefore. See Rule 19, Rules of the

Supreme Court of the United States; Ross

v. Moffitt, 417 U.S. 600 (1974).

STATEMENT OF THE CASE

Respondent will rely upon the facts

as recited in the opinion rendered by the

First District Court of Appeal in Sharpe v.

State, 3/0 So.2d 42 (Fla. 1 DCA 1979),

cert.denied, 381 So.2d 769 (Fla. 1980)

wherein the Court stated in part as fol-

lows:

The facts are that

Sharpe stopped his rental

truck at an agricultural

inspection station on an

interstate highway, but

when told by a unifomrned

inspector that he wished

to inspect the vehicle,

Sharpe advised that his

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 Sharpe what was in

the truck and Sharpe

answered that he had some

furniture from his girl-

friend'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 girl-

friend 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.

Id. at 43. In addition, Nick C. Law, Sr.,

an agricultural inspector for the

Department of Agriculture for the State of

Florida, testified regarding Petitioner's

flight from the agricultural inspection

station (T 66). Mr. Law stated in part

as follows:

Mr. Shope got up in the

truck to inspect it and

see what was on it, and

‘I was standing on the

ground outside, and

another truck come up,

or something, but anyway,

got my attention, and I

had to go back inside,

and I went inside to take

care of that, and while

I was sitting there I

looked around and Mr.

Sharpe was running towards

the fence, and I ran out

the door, and when I got

out the door he had al-

ready went over about a

five or six foot fence.

Ever how high that fence

is out there, and I just

hollered at him, and he

paused for a moment and

kept on going. Then I

went out to the truck and

told Mr. Shope that he

had left and run to the

woods, and I went on back

in the station and called

the Sheriff's department.

(T 66). Upon hearing the testimony

adduced during the hearing held on

Petitioner's motion to suppress and amended

motion to suppress and upon hearing argu-

ment of counsel, the trial court ruled as

follows:

On the authority part

of the Department of

Agriculture to stop, I

think we all agree that

is not unconstitutional.

After the stop I don't

find there was any unlaw-

ful detention. I think

it was a reasonable

amount of time to hold

him. They would have the

right to stop and detain

long enough to obtain a

search warrant. The RV

vehicle, I did not go

along with the defense

argument on this. I

accept the position that

the position that the

vehicle was abandoned by

him leaving it out there

at the inspection station.

That the subsequent re-

uniting at the jail does

not give him the standing

to come back in and to

demand that it not be

searched. I think once

he has abandoned it out

there and they brought

it in, the fact that he

then is at the jail does

not require a search

warrant, under the cir-

cumstances of this case.

This is my position, and

I will deny the motion.

(T 110-111).

REASONS WHY THE WRIT

SHOULD NOT BE GRANTED

Petitioner objects to a warrantless

inspection conducted at an agricultural

inspection station on an interstate high-

way by agricultural inspectors of the

Department of Agriculture and Consumer

Services pursuant to Section 570.15(1),

Florida Statutes (1977) and the subsequent

retrieval of contraband contained therein

by law enforcement officials.

It is beyond peradventure that "[t]he

protection of a large industry constituting

one of the great sources of the state's

wealth and therefore directly or indirectly

affecting the welfare of so great a portion

of the population of the state is affected

in

to such an extent by public interest as

to be within the police power of the

sovereign. [Citations omitted]."

Johnson v. State, 99 Fla. 1311, 128 So.

853, 857 (1930). See also, Sligh v.

Kirkwood, 65 Fla. 123, 61 So. 185 (1913),

aff'd, 237 U.S. 52 (1915). Agricultural

inspectors of the Department of Agriculture

and Consumer Services have the authority

under Section 570.15(1)(a), Florida

Statutes (1977) to stop and inspect all

trucks, motor vehicles, and trailers

other than private passenger automobiles

and vehicles bearing an RV license tag.

In Stephenson v. Department of Agriculture

and Consumer Services, 329 So.2d 373 (Fla.

1 DCA 1976), aff'd, 342 So.2d 60 (Fla.

Shs

1976), appeal dismissed for want of a

substantial federal question, 434 U.S. 803

(1977), the Supreme Court of Florida held

that said inspections are necessary in

order that the Department of Agriculture

and Consumer Services carry out its

responsibilities relating to disease con-

trol, fruit and vegetable grading, and

other similar matters required by law.

In Stephenson v. Department of Agriculture

and Consumer Services, supra, the First

District Court of Appeal opined and the

Supreme Court of Florida agreed that:

"Unless such a vehicle

stops at the station,

it cannot be determined

by the inspectors whether

or not it is being used

for transportation of

"any food product, any

agricultural, horticul-

«tS

tural, or livestock

product; or any article

or product with respect

to which any authority

is conferred by law on

the department." Upon

stopping, the majority of

operators of such vehicles

will probably have no ob-

jection to such an inspec-

tion 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 with-

out a legal basis for

search without a warrant

pursuant to established

law. Such in no way

impairs appellants' right

to be free from unreason-

able 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 constitu-

tional right of appellant."

Stephenson v. Department of Agriculture

and Consumer Services, supra, 342 So.2d at

ot $s

62. In Delaware v. Prouse, 440 U.S. 648

(1979), this Court stated that its holding

did not "cast doubt on the permissibility

of roadside truck weigh-stations and

inspection checkpoints, at which some

vehicles may be subject to further deten-

tion for safety and regulatory inspection

than are others."' Id. at 663, n.26.

Petitioner's contention that the agricul-

ture inspectors must limit their inspection

of a type truck driven by Petitioner to a

few questions and a plain view search is

unrealistic and fails to contemplate the

impracticality of such limitation. The

Petitioner was driving a two-ton Ryder

Rental Truck with a large fully enclosed

cargo area. Inspector Shope testified

atta

that it was during the height of the fruit

and tomato season and that such rental

trucks are frequently used to inal toute

and tomatoes. The nature of the truck

completely precludes any piain view in-

spection and therefore, it was necessary

for the inspector to look inside the truck's

cargo area in order to perform his duty to

inspect for agricultural products. There

is no other way to accurately determine if

such a truck is being used in the transpor-

tation of agricultural products. As a

result, Petitioner's detention at the road-

guard station was reasonable, especially

in light of Petitioner's indication that

his girlfriend was ahead of him in a car

and would probably return with the key to

a}

the lock on the truck. See Untted States

v. Sehaffer, 461 F.2d 856 (9th Cir. 1972),

eert.dented, 409 U.S. 81 (1972); State v.

Batley, 120 Ariz. 399, 586 P.2d 648 (Ct.

App. 1978).

Petitioner's contention that the

inspection of his truck was without his

valid consent is without merit. As noted

by the First District Court of Appeal,

"[a]Jt no time did Sharpe refuse to allow

the truck to be searched." Sharpe v. State,

supra, at 43. See e.g., (T 43). In addi-

tion, it is Respondent's position that

Petitioner opened the truck of his own

volition with no inspectors in his immediate

vicinity and made no objection to the in-

spector entering the back of the truck.

aRibe

See e.g., (€T.56). As a reauit,.it de

Respondent's position that Petitioner con-

sented to the inspection of his truck. Cy.

Marshall v. Barlow's, Ine., 436 U.S. 307,

314 (1978) and Pederson v. State, 373 So.2d

367 (Fla. 1 DCA 1979), cert.denied,

So.2d __—_—ss« (Fila. 1980) with Sharpe v.

State, supra.

Next, Petitioner's contention that

the search of the truck at the jail was an

unlawful search and seizure is without

merit. Sub judice, the trial court

specifically found that Petitioner aban-

doned his truck at the roadguard station

(T 111). The First District Court of

Appeal agreed. Sharpe v. State, supra, at

45. The testimony of Agricultural Inspectors

el F-

Shope and Law supports said finding. See

(T 39-41; 58-59; 66-67). Im Hester v.

United States, 265 U.S. 57 (1924), this

Court held that revenue officers had prop-

erly retrieved several containers of il-

legally distilled whiskey which they had

seen the defendant discard in an open

field as he was attempting to flee from

the federal officers. In Abel v. United

States, 362 U.S. 217 (1960), this Court

upheld the seizure of contents from a

wastepaper basket found in the defendant's

hotel room immediately after he had paid

his bill and had vacated the room.

Similarly, in United States v. Edwards,

441 F.2d 749 (5th Cir. 1971), a highway

patrolman attempted to stop the defendant

-18-

for speeding only to have the defendant

increase his speed to over 100 miles an

hour. In attempting to make a turn, the

defendant's car left the road and became

enlodged in a ditch. Edwards jumped out

of the car, left the engine running and

the lights burning, and fled on foot. The

officer took the keys and upon opening the

trunk found three gallons of illegal

whiskey. Edwards was arrested the follow-

ing day at his place of employment. Judge

Roney, writing for the Court, stated, in

part, as follows:

Defendant's right to

Fourth Amendment protec-

tion came to an end when

he abandoned his car to

the police, on a public

highway, with engine run-

ning, keys in the ignition,

lights on, and fled on

~1D-

foot. At that point defen-

dant could have no reason-

able expectation of pri-

vacy with respect to his

automobile.

Id. at 751. See also, United States v.

Walton, 538 F.2d 1348, 1354 (8th Cir. 1976),

eert.dented, 429 U.S. 1055 (1976). Flight

is usually considered to exist when the

accused departs from the vicinity of the

crime. Mackiewicz v. State, 114 So.2d 684,

689 (Fla. 1959); Woeling v. State, 40 So.2d

120, 121 (Fla. 1949). Based upon the fore-

going, it is Respondent's position that the

record sustains the finding of the trial

court and the First District Court of

Appeal that Petitioner fled from the agri-

cultural inspection station and as a

result, intended to abandon his truck.

~20-

The subsequent impoundment of the abandoned

truck was reasonable and the seizure of the

evidence contained therein, not improper.

See South Dakota v. Opperman, 428 U.S. 364

(1976); Godbee v. State, 224 So.2d 441

(Fla. 2d DCA 1969).

Finally, it should be noted that the

instant case involves an agricultural

inspection, United States v. Brignon7-

Ponee, 422 U.S. 873, 887 (1975) (Rehnquist,

J., concurring), which is a routine inspec-

tion of certain vehicles required as a con-

dition of road use. United Statas v. Ortiz,

422 U.S. 891, 897 (1975), n.3. The stop

and inspection of Petitioner's vehicle is

consistent with United States v. Martinez-

Fuerte, 428 U.S. 543 (1976). See

Pie

Stephenson v. Department of Agriculture

and Consumer Services, 342 So.2d 60, 62

(Fla. 1976) (Hatchett, J., concurring).

Moreover, the subsequent retrieval of the

contraband contained therein was reason-

able, especially in light of Petitioner's

flight from the agricultural inspection

station and Petitioner's abandonment of

the vehicle. Petitioner enjoyed no rea-

sonable expectation of privacy with respect

to his automobile subsequent thereto. Con-

sequently, the trial court's denial of

Petitioner's motion to suppress and amended

motion to suppress was proper and properly

sustained by the record and affirmed by

the First District Court of Appeal. See

United States v. Mendenhall, 48 U.S.L.W.

o 32.

4575, 4579 (1980); MeNamara v. State, 357

So.2d 410 (Fla. 1978).

CONCLUSION

Based upon the foregoing, supported

by the authorities cited in the argument

and jurisdictional portions of this Brief,

Respondent respectfully requests that this

Court decline to assume jurisdiction in

this case and deny Petitioner's application

for issuance of a writ of certiorari.

Respectfully submitted:

JIM SMITH

Attorney General

RAYMOND L. MARKY

Assistant Attorney

General

a2

CHARLES A. STAMPELOS —

Assistant Attorney

General

THE CAPITOL

Tallahassee, FL 32301

(904) 488-0290

Counsel for Respondent

»

=-24-

_ CERTIFICATE OF SERVICE

I, RAYMOND L. MARKY, Counsel for

Respondent, and a member of the Bar of

the United States, hereby certify that on

the day of June, 1980, I served

copies of the Respondent's Brief in

Opposition to the Petition for Writ of

Certiorari on Mark J. Kadish, Esq., of

Garland, Nuckolls, Kadish, Martin & Catts,

P.C., at 1012 Candler Building, 127

Peachtree Street, Atlanta, Georgia 30303,

Counsel for Petitioner, by a duly addressed

envelope with postage prepaid.

RAYMOND L. MARKY

Assistant Attorney

General

THE CAPITOL

Tallahassee, FL 32301

(904) 488-0290