Petition — Rich v. Florida

80-5

supreme Court, U.S.

a FILED

NO.

OCT 4 1980

IN THE MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

LARRY RICH and DENNIS ALLEN ROTH,

PETITIONERS,

STATE OF FLORIDA,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI

TO THE SECOND DISTRICT COURT OF APPEAL,

FLORIDA

JOSEPH BEELER

SUITE 900

28 WEST FLAGLER STREET

MIAMI, FLORIDA 33130

(305) 371-8100

ATTORNEY FOR PETITIONERS

ISSUES PRESENTED FOR REVIEW .

1. Whether once a ship is reduced

to the dominion and control of the authori-

ties, is immobilized and no exigent circum-

starces remain, may warrantless searches

of and seizures from the ship's repositor-

ies nonetheless be conducted without

offending the Fourth Amendment to the

United States Constitution?

2. Whether searches by officers made

pursuant to an unconstitutional and inval-

id administrative regulation authorizing

them to conduct warrantless searches

without probable cause, articulable suspi-

cion, or any other standard of individual-

ized objective facts can, consistent

with the policies of the Fourth Amendment,

be validated after the fact by a hindsight

judicial determination of probable cause

substituted for the officers’ own exercise

of proper discretion?

3. Whether the administrative law

doctrine that "the grounds upon which

an administrative order must be judged

are those upon which the record discloses

that its action was based," SEC v. Chen-

ery Corp., 318 U.S. 80, 87 (1947), should

be incorporated into Fourth Amendment

law as a rule by which the actions of

officials should be reviewed at hearings

upon a motion to suppregé evidence?

4. Whether the initial boarding and

search of the ship in this case was sup-

ported by probable cause?

ii

TABLE OF CONTENTS

Issues Presented for Review -

Table of Contents - - «+ -

Table of Authorities

Opinions Below

Jurisdiction

Constitutional and Statutory

Provisions Involved .

Reasons for Granting the Writ

Conclusion

Appendix

iii

iii

TABLE OF AUTHORITIES

CASES:

Almeida-Sanchez v. United States,

PAGE

ee ee

28 , 38

413 U.S. 2606, 275, 283-285 (1975)

Arkansas v. Sanders, 442 U.S.

753 (1979)

17,18,19,21

Beck v. Ohio, 379 U.S. 89, 96 (1964) 27

Berger v. New York, 388 U.S. 41,

87 S.ct. 1873, 18 L.Ed.2d 1040

(1967)

Brown v. Texas, 443 U.S. 47 (1979)

Carroll v. United States, 267 U.S.

32 (1925)

Chambers v. Maroney, 399 U.S. 42

(1970)

Davis v. Mississippi, 394 U.S.

721, 727-28, (1969)

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

661 (1979)

Henry v. United States, 361 U.S.

98 (1959)

Jones v. United States, 357 U.S.

493, 500 (1958)

Katz v. United States, 389 U.S.

. 347, 357 (1967)

Michigan v. DeFillipo, 433 U.S.

31 (1979)

Roth v. State, 378 So.2d 794 (Fla.

A 1979)

iv

26,28

27,28

1,14,23

Scott v. United States, 436 U.S. 29

128, 138 & n.12 (1978)

SEC v. Chenery Corp., 318 U.S. 31,

80, 87-88 (1947)

Sibron v. New York, 392 U.S. 40 28

(1968)

Stanford v, Texas, 379 U.S. 476 24

(1969)

Terry v. Ohio, 392 U.S. 1, 22 (1968)

Torres v. Puerto Rico, 442 U.S. 28

465 (1979)

United States v. Branch, 545 F.2d 25

177, 186 n.24 (D.C.Cir. 1976)

United States v. Brigoni-Ponce 36

735 0-8 73 T1875) ‘

United States v. Chadwick, 433 21

United States v. Cruz, 581 F.2d 25

535 (5th Cir. 1978)

United States v. Cunningham, 424 25

F.2d 942, 943 (D.C.Cir.), cert.

denied, 399 U.S. 914, 90 S.Ct.

2218, 26 L.Ed.2d 572 (1970)

United States v. Ortiz, 422 U.S. 35

891, 896-97 (1975)

United States v. Perez-Vega, 250 25

F.Supp. 429, 431, 432 n.4 & 433

(D.P.R. 1966)

United States v. Robinson, 414 29

U.S. 218, 236 (1973)

41

United States v. United States 28

District Court, 407 U.S. 297 (1972)

United States v. Ventresca, 380 28

U.S. 102 (1968)

United States v. Watson, 423 U.S. 28

411, 432 n.6 (1976)

CONSTITUTIONAL PROVISIONS:

Fourth Amendment, United States

Constitution 17,2232

1

Fourteenth Amendment, United States zs

Constitution 34,41

STATUTES AND RULES:

§ 370.021 (5), Florida Statutes

(1976) 34

Florida Seafood Quality Control

Code, 16B-28.23 6

28 U.S.C. § 1257 (3) 20

OTHER AUTHORITIES

ABA Comm. on the Police Function,

Standards Relating to the Urban

Police Function, Part IV, Law Enfor-

cement Policy-Making (tent. draft

1972, approved by ABA House of

Delegates, February, 1973) 33

Amsterdam, Perspectives on the

Fourth Amendment, 58 Minn. L. Rev.

335 (1974) 33

Caplan, The Case for Rulemaking

by Law Enforcement Agencies, 36

Law & Contemp. Prob. 500 (1971) 33

vi

Comment, At Sea With The Fourth

Amendment, 32 U.Miami L. Rev. 51

(1977) ‘21

K, Davis, Discretionary Justice:

A_Preliminary Inguiry (1969) 31,32

McGowan, Rulemaking and the Police,

70 Mich. L. Rev. 659 (1972) 32

Note, High on the Seas: Drug Smuaqql-

ing, the Fourth Amendment Ht. War-

rantless Searches at Sea, 93 Harv.L.Rev,

725-751 (1980) 21

vii

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

LARRY RICH and DENNIS ALLEN ROTH,

PETITIONERS,

STATE OF FLORIDA,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI

TO THE SECOND DISTRICT COURT OF APPEAL,

FLORIDA

Larry Rich and Dennis Allen Roth peti-

tion for a writ of certiorari to review

the judgment of the Florida Second Dis-

trict Court of Appeal in their cases,

OPINIONS BELOW

The Second District Court of Appeal's

opinion in Roth v. State, reported at

379 So.2d 794 (Fla. 2d DCA 1979), and

its per curiam affirmance in Rich v.

State, reported at 380 So.2d 591 (Fla.

2d DCA 1979), appear in the Appendix

hereto (App.8-15,7). The orders denying

Petitioners' motions to suppress in the

trial court also appear in the Appendix

hereto (App.l, 2).

JURISDICTION

The judgments of the Second District

Court of Appeal in both Rich and Roth

were entered November 30, 1979. Timely

petitions for rehearing were filed and

both denied on January 11, 1980. There-

after, timely petitions for writs of

certiorari were filed with the Supreme

Court of Florida, both being denied on

July 9, 1980. On August 28, 1980, this

Court extended the time in which to file

this joint petition to and including

October 4, 1980. This Court's jurisdic-

tion is invoked under 28 U.S.C. § 1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution

Fourth Amendment:

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 particu-

* larly describing the place to

be searched, and the persons

or things to be seized.

Fourteenth Amendment:

Section 1. All persons born

or naturalized in the United

States, and subject to the juris-

diction thereof, are citizens

of the United States and of the

State wherein they reside. No

State shall make or enforce any

law which shall abridge the privi-~

leges or immunities of citizens

or the United States; nor shall

any State deprive any person

of life, liberty, or property,

without due process of law; nor

deny to any person within its

jurisdiction the equal protection

of the laws.

Florida Statutes

Section 370.021, Administration,

rules, regulations, etc.

(1) Rules and regulations.-

-The department of natural resour-

ces shall make, adopt, promulgate,

amend and repeal all rules and

regulations necessary or conveni-—-

ent for the carrying out of the

duties, obligations, powers and

responsibilities conferred on

said department or any of its

divisions. The director of each

division shall submit to the

department suggested rules and

regulations for that division.

Any person violating or otherwise

failing to comply with any of

the rules and regulations adopted

as aforsaid shall be guilty of

a misdemeanor of the second degree,

punishable as provided in § 775.082

or § 775.083, unless otherwise

provided by law.

xe *®

(S) POWERS OF OFFICERS. *

*This section was amended by Chapter

79-65, Laws of Florida, to omit from

second sentence "Department of Marine

Resources” and to add in its stead "Depart-

ment of Law Enforcement”,

3

-The department may designate

such employees of the several

divisions, as it may deem neces-

sary in its discretion, as law

enforcement officers, who shall

meet the provisions of s. 943.13

and subsection 943.12(1) and

have the powers and duties confer-

red in this subsection, except

that such employees shall comply

with the provisions of chapter

943. Such officers, together

with the executive director and

the director of the Division

of Marine Resources, are consti-

tuted law enforcement officers

of this state with full power

to investigate and arrest for

any violation of the laws of

this state and the rules and

regulations of the department

under their jurisdiction and

for violations of chapter 253

and the rules and regulations

promulgated thereunder. The

general laws applicable to arrests

by peace officers of this state

shall also be applicable to such

law enforcement officers. Such

law enforcement officers may

enter upon any land or waters

of the state for performance

of their lawful duties and may

take with them any necessary

equipment, and such entry shall

not constitute a trespass. It

shall be lawful for any boat,

motor vehicle, or aircraft owned

or chartered by the department

or its agents or employees to

land on and depart from any of

the beaches or waters of the

state. Such law enforcement

officers shall have the authority,

without warrant, to board, inspect,

and search any boat, fishing

appliance, storage or processing

plant, fishhouse, spongehouse,

oysterhouse, or any other ware-

house, building, or vehicle engag-

ed in transporting or storing

any fish or fishery products.

Such authority to search and

inspect without a search warrant

is limited to those cases in

which such law enforcement offic-

ers have reason to believe that

fish or any saltwater products

are taken or kept for sale, barter,

transportation, or other purposes

in violation of laws or rules

promulgated under this law.

Any such law enforcement officer

may at any time seize or take

possession of any saltwater pro-

ducts or contraband which have

been unlawfully caught, taken,

Or processed or which are unlawful-

ly possessed or transported in

violation of any of the laws

of this state or any rule or

regulation of the department.

Such law enforcement officers

May arrest any person in the

act of violating any of the provi-

sions of this law, rules or regula-

tions of the department, the

provisions of chapter 253 and

the rules and regulations promul-

gated thereunder, or any of the

laws of this state. It is hereby

declared unlawful for any person

to resist such arrest or in any

manner interfere, iether by abet-

ting or assisting such resistance

or otherwise interfering, with

any such law enforcement officer -

while engaged in the performance

of the duties imposed upon him

by law or regulation of the depart-

ment.

Florida Seafood Quality Control Code

16B-28.23 Inspection of boats

engaged in transporting seafood

in primary or secondary production.

The Department or its agents

shall have authority, without

warrant, to board, inspect and

search any boat or vehicle engaged

in transporting any primary or

secondary seafood, as often as

may be deemed necessary for en-

forcement of the provisions of

this subsection and for protection

of the public health.

STATEMENT OF THE CASE

- - The Search and Seizure- -

This case arose from a search and

seizure of a shrimpboat, "The Dudley",

by two officers of the Florida Marine

Patrol predicated upon the authority

of an administrative regulation authoriz-—

ing agents of the Florida Department

of Natural Resources to board, inspect

ana eateed boats engaged in transporting

seafood as they deemed necessary. Rule

16B-27.23, The Seafood Quality Control

Code. That provision allows warrantless

searches without any requirement of proba-

ble cause, reasonable grounds, founded

suspicion or any other objective restraint

upon the discretion of the officers.

On February 21, 1977, "The Dudley”,

a shrimpboat, was anchored in Charlotte

Harbor, located in Lee County, Florida.*

The boat was then carrying shrimp nets

too large to be used legally for shrimping

in Charlotte County (the county adjacent

to Lee) but which nets were legal for

use in Lee County waters or elsewhere.

(Tr.31)

One Marine Patrol officer testified

at the suppression hearing that at about

10:40 a.m. that morning, while he and

his partner were cruising in a patrol

*All transcript notations refer to

the Transcript of Record in Petitioner

Rich's case. Although Petitioner Roth

had a separate suppression hearing before

another judge, the facts adduced therein

are substantially the same.

7

->

boat he saw "The Dudley". He observed

that it seemed to be riding low in the

water, noticed the size of the shrimp

nets, and decided to board the boat and

check her hold for possible violations

of the Seafood Quality Control Act pursu-

ant to the administrative regulation.

(Tr.90) The officer further testified

that he had premised his right to board

"The Dudley” on the belief that this

administrative regulation gave him the

right to board any commercial vessel

within Lee County and search for possible

violations of the Act without a warrant,

and also because he "felt" like "something"

might be on board. (Tr.69)

The officers proceeded to "The Dudley"

and requested permission from Captain

Larry Rich, Petitioner, to board and

inspect the ship. (Tr.27) Captain Rich

then explained that no shrimp was aboard

and produced the ship's papers which

the officers found satisfactory. (Tr.27,

28, 29, 90) Again the officers requested

permission to board and, after receiving

no response from Captain Rich, boarded is

"The Dudley" anyway. (Tr. 29) At this

time, the officers observed that the

shrimp nets on board were dry. (Tr.

89)

Twice permission was requested of

Captain Rich to inspect the hold, but

the officers received no reply. (Tr.

40) Just as the officers were readying

to remove the hatch despite the lack

of consent, Petitioner stated, "Well,

I might as well tell you, you're going

to find out anyway, I've got something

illegal down there . .. marijuana."

(Tr. 41) Petitioners, along with two

other persons found aboard the shrimpboat

(Messrs. Henry and Hayden), were then

arrested, (Tr.43-44)

After the arrests, and after the offi-

cers advised their home base by radio

that both the ship and its occupants

were under their control, the officers

proceeded to open the hold. (Tr.47)

The hold was protected by a larger, heavy

outer hatch that required the strength

of both officers to lift and by a second

smaller hatch. (Tr.40) Once these were

opened, the officers observed crocker

sacks of what looked and smelled like

marijuana,

The ship was then ordered to nearby

phosphate docks (Tr.48), the arrestees

taken to jail, booked (Tr.50), and their

property secured in packages. (Tr.149)

"The Dudley” remained under the control

and supervision of the Florida Marine

Patrol.

While "The Dudley" remained docked,

a Florida Marine Patrol investigator,

again without a warrant, searched the

ship's hold, galley, wheelhouse and cabin,

and seized $13,000 found under a mattress

in the wheelhouse, and $5,000, a handdrawn

10

map and a Mastercharge credit card from

a drawer in the wheelhouse. (Tr.143,

144) The following day, the suspected

marijuana on board "The Dudley" was seized

and removed (Tr.139, 143), prior to the

issuance of a court order authorizing

such action, (Tr.140) Approximately

one week later, a further search was

made of "The Dudley", this time pursuant

to a search warrant (Tr.193-194), and

remaining inconsequential evidence was

seized. (Tr.152)

- - The Lower Court Decisions—- -

Following a suppression hearing in

the Circuit Court for the Twentieth Judi-

cial Circuit in and for Lee County, Flori-

da, the Honorable Jack R. Schoonover

presiding, the trial court denied Petition-

er Rich's motion to suppress. (App.1)

(Tr.210) Petitioner Rich then entered

a plea of nolo contendere reserving all

Suppression issues for appellate review,

as permitted under Florida law, and was

1l

sentenced to imprisonment of ten (10)

years and fined $5,000 for the crime

of possession of in excess of one hundred

(100) pounds of cannabis, in violation

of Section 893.13(1) (a) (2), Florida Sta-

tutes (1976). (App.3-4) (Tr.209, 212)

Following a suppression hearing in

the Circuit Court for the Twentieth Judi-

cial Circuit in and for Lee County, Flor-

ida, the Honorable Thomas W. Shands presid-

ing,* the trial court denied Petitioner

Roth's motion to suppress stating

*The cases of Petitioners Rich and

Roth were initially assigned to the same

judge. Rich subsequently recused the

judge and his case, along with the case

of another defendant, Richard Hayden,

was reassigned to Judge Schoonover.

For the Court's information, Hayden,

who was found aboard "The Dudley", went

to trial, was convicted and had his convic-

tion affirmed by the same panel of the

appellate court on the same day as the

Petitioners’ herein. His petition for

review by the Florida Supreme Court was

denied somewhat after the Petitioners'

were, He does intend, however, also

to seek review from this Court. His

petition for a writ of certiorari is

presently due on October 14, 1980, and

his motion to enlarge the time until

November 13, 1980, is pending.

12

Gentlemen, I don't know why

we even had this hearing. The

Statute gives the officer the

authority to go in. ...I think

there is no question they were

obligated to search that boat.

The statute gives them the power

to do so. And to differ with

the attorneys, it doesn't say

"probable cause” at all. Those

words are not used in the statute.

It says they have the authority

without a search warrant to enter

if they believe that fish or

any saltwater products are taken

Or kept on board - -they have

that authority. ...I wiil deny

your motion,

(Tr.91-92)

Subsequently, a written order denying

Roth's suppression motion was entered.

(App.2) (Tr.110) Petitioner Roth there-

after entered a plea of nolo contendere

reserving all suppression issues for

appellate review, as permitted under

Florida law, and was sentenced to imprison-

ment of 365 days (App.5-6) (Tr.109, 111)

The District Court of Appeal of Florida

in and for the Second District affirmed

Petitioner Rich's conviction without

13

Opinion (App.7). On the same day the

same panel of the same court reversed

Petitioner Roth's case and remanded it

for and remanded it for a new suppression

hearing. Petitioner Roth's case. Dennis

Allen Roth v., State, 378 So.2d 794 (Fla.

2d DCA 1979) (App.8-15). In Roth the Court

held that the administrative regulation

upon which the Marine Patrol had relied

in boarding and searching "The Dudley"

was invalid and that State law prohi-

bited inspecting and searching boats

and vehicles engaged in transporting

seafood without probable cause. The

opinion stated:

To the extent that this administra-—

tive regulation purports to permi't

a warrantless search without

any probable cause, it is contrary

to the controlling statute, Sec-

tion 370.021(5) [Florida Statutes],

and we hereby declare it invalid

as beyond the quasi-legislative .

rule-making authority conferred

upon the Department of Natural

Resources by the legislature.

(App.14)

14

The suppression issues raised in both

Rich and Roth were identical, as they

arose from the same incident. The only

distinction which supports the differing

treatment of them by the Second District

Court of Appeal was the trial court orders

denying the motions to suppress. In

Roth, the trial court gave a reason for

its denial: that the regulation gave

the Marine Patrol officers authority

to board and search "The Dudley". (Tr.9l-

92) In Rich, however, the trial court

offered no reason for its denial of Peti-

tioner's motion. (App.1)

On January ll, 1980, the Second Dis-

trict Court of Appeal denied Petitioners'

timely motions for rehearing.

Petitioners, thereafter, filed timely

Petitions for a Writ of Certiorari in

the Supreme Court of Florida.

On July 9, 1980, the Supreme Court

of Florida entered Orders in the above

cases which declared "it appearing to

15

the Court that it is without jurisdiction,

it is ordered that certiorari is denied".

(App.18,19) One Justice dissented without

opinion in both cases,

REASONS FOR GRANTING THE WRIT

ie

CERTIORARI SHOULD BE GRANTED

TO RESOLVE THE IMPORTANT QUESTION

OF WHETHER THE REQUIREMENT OF

A WARRANT TO SEARCH REPOSITORIES

OF PERSONAL EFFECTS FOUND IN

AUTOMOBILES SHOULD BE SIMILARLY

APPLIED TO THE SEARCH OF REPOSI-

TORIES ABOARD A SHIP

Once the Petitioners were arrested,

and "The Dudley" was reduced to the domin-

ion and control of the Florida Marine

Patrol, no exigent circumstances remained

to excuse the failure to obtain a judicial

warrant before searching the repositories

of the ship; specifically the ship's

hold, galley, wheelhouse and cabin,

Nevertheless, the trial court upheld

the searches and seizures.

This Court has recently struggled

with the limits of the mobility exception

16

to the warrant clause of the Fourth Amend-

ment. In Arkansas v, Sanders, 442 U.S.

753 (1979), the Court noted that (1)

the “automobile exception" "does not

invariably apply whenever automobiles

are searched,” id, at 760 n.7; (2) “the

reach of each exception” to the warrant

clause is limited "to that which is neces-

Sary to accommodate the identified needs

of society" supporting that exception,

id.; (3) the “exigency of mobility must

be assessed at the point immediately

before the search - - after the police

have seized the object to be searched

and have it securely within their control",

id. at 763; and (4) the right to seize

the vehicle is indeed the lesser intrusion

where the contained object, or repository,

thereby detained carries a higher expecta-

tion of privacy than the vehicle itself.

Id. at 764-65 & n.13. Assuming, arguendo,

that the mobility exception applies not

only to cars but also to ships as well,

17

the guiding principles announced in Sand-

ers, applied to the facts in the instant

case, require suppression of the evidence.

The warrantless searches and seizures

in this case were an unconstitutional

deprivation of the Petitioner's rights

and that the trial courts were in error

when they denied Petitioners’ motions

to suppress.

Here, the officers themselves announced

to their home base by radio that the

Petitioners had been arrested and "The

Dudley” was under their control prior

to their actual search of the hold.

Thus, they admitted that exigencies no

longer existed to support a warrantless

intrusion. The hold, which they then

searched, was secured by a larger, heavy

outer hatch that required the strength

of both officers to lift and by a second

smaller hatch. Clearly, its contents

were meant to be kept from the indiscrimin-

ate eye and the possible probing of stran-

18

gers. The ship itself constituted the

living quarters of its crew members and

was a repository for their personal ef-

fects. The Petitioners had the reasonable

expectation that the inner enclosures

of the ship would be as secure from war-

rantless intrusions as any home would

be. Therefore, Petitioners contend the

warrantless search of the hold after

the ship was securely seized and placed

under the dominion and control of the

officers and the warrantless searches

of and seizures from the ship's hold,

galley, wheelhouse and cabin later once

"The Dudley” had been securely docked

at nearby phosphate docks, were constitu-

tionally unreasonable under the rationale

of Arkansas v. Sanders, 442 U.S. 753

(1979).

The Petitioners' federal constitutional

claims for suppression of evidence were

raised in a timely manner in the trial

court and have been argued and preserved

19

ever since. If a warrant is ever required

to search and make seizures from any

part of a boat, this is the case since

all of the State's physical evidence

against Petitioners' was seized from

"The Dudley" after it had been placed

under the dominion and control of the

authorities, docked, guarded and thus

plainly immobilized.

‘However, the matter of vessel searches

has not been addressed by this Court,

and basic legal questions thus remain

unanswered. Does the mobility exception

to the warrant clause, announced by this

Court in the context of automobiles,

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

(1925), Chambers v. Maroney, 399 U.S.

42 (1970), apply with lesser, equal or

greater force to searches and seizures

of vessels? Once a boat has been reduced

to the dominion and control of law enforce-

ment authorities and thus immobilized,

do the ship's hold and all other repositor-

20

ies of personal effects deserve protection

under the warrant clause similar to that

announced by this Court in Arkansas v.

Sanders, 442 U.S. 753 (1979), and United

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

Or, because of the unique privacy inter-

ests of vessels, upon which persons live

and work and the peculiar mobility of

ships, should new standards of Fourth

Amendment law be fashioned to deal with

searches of a vessel's repositories?

These are serious and basic issues

of federal constitutional law‘not yet

resolved by this Court. Boat searches

have been burgeoning in recent years

and are spawning much litigation and

controversy. See generally Note, High

on the Seas: Drug Smuggling, the Fourth

Amendment and Warrantless Searches at

Sea, 93 Harv.L.Rev. 725-751 (1980); Com-

ment, At Sea With The Fourth Amendment,

32 U.Miami L. Rev. 51 (1977). This case

presents an opportunity to decide the

21

threshold question of whether the warrant

requirement of the Fourth Amendment ever

applies to boats and to explore further

the extent of the mobility exception

to it. Thus, certiorari should be granted

. to resolve questions of federal law which

are important practically and doctrinally

as well.

Il.

CERTIORARI SHOULD BE GRANTED

IN ORDER TO DETERMINE FOR THE

FIRST TIME WHETHER AN UNCONSTITU-

TIONAL SEARCH AND SEIZURE MAY

BE RESUSCITATED BY A HINDSIGHT

JUDICIAL DETERMINATION OF PROBABLE

CAUSE

Important, basic questions of federal

constitutional law are raised by the

Florida Marine Patrol officers' searching

pursuant to an invalid regulation. The

officers believed that the had carte

blanche to conduct administrative searches

for Seafood Quality Control Code viola-

tions whithout any necessity for probable

cause, founded suspicion or any other

22

individualized objective facts to justify

the intrusion, Indeed, they planned

to search "The Dudley" before they observ-

ed anything about it other than that

it was a shrimpboat. The Second District

Court of Appeal, of course, held in Roth

that the administrative regulation was

invalid since it did not require "probable

cause." Roth v. State, 378 So.2d ?O4

(Fla. 2d DC® 1979). But the panel affirm-

ed Petitioner Rich's conviction and remand-

ed Petitioner Roth's case with instruc-

tions to conduct a new suppression hearing

rather than with instructions to suppress

the evidence. Thus these cases squarely

raise the question of when, if ever,

may a court validate a search and seizure

by substituting its judicial judgment

as to both factual and legal issues,

all after the fact and in place of the

judgment of officers actually in the

field correctly exercising their expertise

and discretion?

23

In the present case, the officers

conducted an administrative search under

a regulation comparable to a general

warrant and, indeed, to the "writs of

assistance" which necessitated the Fourth

Amendment in the first place. See Stan-

ford v. Texas, 379 U.S. 476 (1969).

We contend that when, under the objective

facts, it would be within the discretion

of officers applying correct legal stan-

dards either to search or not to search,

it violates the Fourth Amendment for

a court to uphold the search, To begin

with, the Fourth Amendment sitters a

right upon every citizen to his privacy

protected in the first instance by the

constitutionally informed discretion

of law enforcement officers. Moreover,

it is unreasonable under both the Fourth

and Fourteenth Amendments to countenance

after the fact judicial guesswork to

validate searches which in truth have

been conducted unlawfully. What if a

24

search is concededly and wholly grounded

upon a policy of harassing certain groups

on account of race, national origin,

sex, religion or political belief? What

if a seemingly valid ground is found

to be a sham or pretense for such unlawful

grounds? See, e.g., United States v.

Cruz, 581 F.2d 535 (5th Cir. 1978). ~

Such "afterthought" efforts to salvage

a search have been condemned by some .

of the lower courts. E.g., United States

v. Perez-Vega, 250 F.Supp. 429, 431,

432 n.4 & 433 (D.P.R. 1966); United States

v. Branch’, 545 F.2d 177, 186 n.24 (D.C.Cir.

1976) ("[a] lack of probable cause cannot

be made up in hindsight by a hypothetical

variation in the basis on which a search

was conducted.") (quoting United States

v. Cunningham, 424 F.2d 942, 943 (D.C.Cir.),

cert. denied, 399 U.S. 914, 90°S.Ct.

2218, 26 L.Ed.2d 572 (1970). We contended

in every court below and will contend

in the Supreme Court that the issue is

25

governed by the principle set forth in

Berger v. New York, 388 U.S. 41, 87 S.Ct.

1873, 18 L.Ed.2d 1040 (1967) (Court will

not examine the sufficiency of the facts

to justify issuance of search warrant

where governing statute establishes uncon-

stitutional guidelines). However, this

specific issue -- hindsight probable

cause assessment where a statute relied

upon for authority to search is unconstitu-

tional -- has never been decided by the

Supreme Court, and that Court's deci-

sions dealing with similar legal issues

offer no clearcut guidelines,

This Court has in dicta expressed

its refusal to engage in such hindsight

constructions of probable case. Jones

v. United States, 357 U.S. 493, 500 (1958)

(court refused to entertain government

theory, as the dissenters urged, that

warrantless search of house could be

sustained by justifying it as a search

incident to arrest where “testimony of

26

the federal officers makes clear beyond

dispute that their purpose in entering

was to search... and not to arrest

petitioner," even though admittedly the

officers had probable cause to arrest).

Further, this Court's oft-repeated prefer-

ence for warrants, see, e.g., Katz v.

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

("search conducted outside the judicial

process without prior approval by judge

Or magistrate, are per se unreasonable

under the Fourth Amendment. . .") has

been predicated upon a policy to deter

the kind of invitation to hindsight proba-

ble cause determinations as the instant

cases present. See, e.g., Beck v. Ohio,

379 U.S. 89, 96 (1964) ("An arrest without

a warrant bypasses the safeguards provided

by an objective predetermination of proba-

ble cause, and substitutes instead the

far less reliable procedure of an after-

the-event justification for the arrest

or search, too likely to be subtly influ-

27

enced by the familiar shortcomings of

hindsight judgment.") Accord United States

v. Watson, 423 U.S. 411, 432 n.6 (1976)

(citing Beck, supra); United States v.

United States District Court, 407 U.S.

297 (1972); United States v. Ventresca,

380 U.S. 102 (1968); Katz v. United States,

389 U.S. 347, 358 (1967) ("antecedent

justification" is central to the Fourth

Amendment).

This Court's decision in Berger v.

New York, 388 U.S. 41 (1967) seems impli-

citly to condemn resuscitating an unconsti-

tutional search by an independent judicial

assessment of debatable facts to find

probable cause. See also Torres vy, Puerto

Rico, 442 U.S. 465 (1979); Almeida-San-

chez v. United States, 413 U.S. 266 (1973);

Sibron v. New York, 392 U.S. 40 (1968)

(cases following Berger, supra, and hold-

ing that suppression is required where

searches are carried out pursuant to

statutes, previously not found unconstitu-

tional, which purport to authorize search-

es without probable cause). Some of

this Court's recent decisions, however,

seriously put into question whether these

policies still prevail. See, e.g., Michi-

gan v. DeFillipo, 433 U.S. 31 (1979)

(no suppression required where search

is pursuant to an arrest for violation

of statute later found constitutional) ;

United States v. Robinson, 414 U.S.

218, 236 (1973) (rejecting, inter alia,

the notion that the motivation of the

search must coincide with the legal justi-

fication); Scott v. United States, 436

U.S. 128, 138 & n.12 (1978) (probable

cause determined "under standard of objec-

tive reasonableness without regard to

the underlying intent or motivation of

the officers involved"). Thus, Petition-

ers present iuportent, basic and difficult

questions of federal constitutional search

and seizure doctrine which have never

been but should be settled by the Supreme

29

Court of the United States. Further,

if certiorari is granted, we believe

that Petitioners will succeed in convinc-

ing this Court that the same basic policy

which prohibits "dragnet" arrests, search-

es and seizures prohibits courts from

validating them after the fact on debat-

able grounds which the officers never

contemplated in the first place.

III,

CERTIORARI SHOULD BE GRANTED

IN ORDER TO DETERMINE WHETHER

BASIC PRINCIPLES OF ADMINISTRATIVE

LAW, SPECIFICALLY THE CHENERY

DOCTRINE, SHOULD APPLY TO JUDICIAL

REVIEW OF SEARCHES AND SEIZURES

Other basic principles of law are

also thwarted by allowing a trial court

to substitute its judgment for that of

an administrative factfinder, Petitioner

has contended in all courts below that

the Chenery doctrine should apply to

administrative searches and seizures

and that “hindsight” and "afterthought"

30

justifications relied upon by a court

cannot be substituted for the original

exercise of informed expertise and discre-

tion by the administrative officers acting

in the field. Compare SEC v. Chenery

Corp., 318 U.S. 80, 87-88 (1947) (under-

scoring a basic proposition of administra-

tive law that "[T]he grounds upon which

an administrative order must be judged

are those upon which the record discloses

that its action was based") with K.

Davis, Discretionary Justice: A Prelimin-

ary Inquiry 222 (1969) (advocating stan-

dard administrative law policies be ap-

plied to police action to limit unbridled

discretion). Since the officers herein

expressly based their decision to search

the vessel upon the Garte blanche regula-

tion, the Second District Court of Ap-

peal's decision invalidating the regula-

tion in Petitioner Roth's case should

have ended the judicial inquiry into

the search and seizure, Instead, the

31

‘>

panel affirmed Petitioner Rich's convic-

tion, presumably based upon its specula~

tion that if the officers had applied

their discretion under a correct probable

cause standard they might have searched

anyway and its conclusion that such a

hypothetical decision by the officers

would not have been an abuse of discretion.

The panel's approval of judicial hindsight

decision-making and its rejection of

the Chenery doctine is made clear by

the remand of Petitioner Roth's case

for a new suppression hearing. Chenery,

of course, condemns such “second-guessing."

Many authorities have urged the adop-

tion of administrative law principles

to govern police actitivities, primarily

to narrow the area of discretion of law

enforcement personnel by administrative

rule-making procedures. E.g., K. Davis,

Discretionary Justice: A Preliminary

Inguiry (1969); McGowan, Rulemaking and

the Police, 70 Mich. L. Rev. 659 (1972);

32

Caplan, The Case for Rulemaking by Law

Enforcement Agencies, 36 Law & Contemp.

Prob. 500 (1971); Amsterdam, Perspectives

on the Fourth Amendment, 58 Minn.L.Rev.

335 (1974); ABA Comm, on the Police Func-

tion, Standards Relating to the Urban

Police Function, Part IV, Law Enforcement

Policy-Making (tent. draft 1972, approved

by ABA House of Delegates, February,

1973). With the modern growth of admini-

strative search authorization and the

attempted professionalization of many

police departments, rules and regula-

tions governing arrests, inspections,

searches and seizures are becoming more

and more common. The instant case pre-

sents an opportunity for this Court to

explore applicability of standard admini-

Strative law to review of the new Fourth

Amendment rulemaking development,

33

IV.

CERTIORARI SHOULD BE GRANTED

SINCE THE UPHOLDING OF THE SEARCHES

AND SEIZURES IN THESE CASES CON-

FLICTS WITH SUPREME COURT PRECEDENT

AND VIOLATES THE FOURTH AMENDMENT

Petitioners contend finally that the

marine patrol officers did not have reason-

able grounds to board and search "The

Dudley” and that their actions violated

the Fourth and Fourteenth Amendments

to the United States Constitution. Thus,

even if the judiciary should ever assume

the role of justifying debatable searches

and seizures after the fact when the

officers in the field never weighed the

facts in the first instance, the convic-

tions herein must still be reversed.

The facts did not warrant the intrusion,

Parenthetically, the standard of reason-

able grounds governing in this case is

probable cause since State law § 370.021(5),

Fla.Stat. (1976), has dictated that

expectation of privacy. Moreover, tradi-

34

tional probable cause would govern in

any event since we are dealing with a

boat on inland waters. See United States

V. Ortiz, 422 U.S. 891, 896-97 (1975);

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

(1925).

In order to validate the warrantless

search of "The Dudley", the facts before

the Florida Marine Patrol officers must

have established probable cause to believe

that violations of the Seafood Quality

Control Code existed aboard "The Dudley"

at the time of the search. To determine

whether there was probable cause to make

a search without a warrant, the Court

must first determine the sufficiency

of the knwoledge of the officers by a

comparison as to what a reasonable person,

knowing all the facts which the officers

knew, would have believed under all the

circumstances, Henry v. United States,

361 U.S. 98 (1959).

The record indicates that the officers

35

were acting under the Seafood Quality

Control Code (Tr.43); therefore, the

facts before them must have indicated

(1) there were shrimp aboard "The Dudley"

(2) in violation of the Code.

The fact that "The Dudley” was a larger

boat than usually found in Charlotte

Harbor is no basis for probable cause.

First, according to the testimony of

Captain Wheeler, a witness at the suppres-

sion hearing and a charter boat captain

in the Boca Grande area for 4l years,

it is not uncommon to find shrimp boats

as large as "The Dudley" in Charlotte

Harbor. As he put it, "They're so common,

though, that it doesn't register with

you, really, because you see them every

day, as a rule. It just don't register

with you." (Tr.189). Second, even if

a large boat in Charlotte Harbor were

uncommon, it is irrelevant. Cf., United

States v. Brigoni-Ponce, 422 U.S. 873

(1975) (rejection of inference that per-

36

sons who look like they are of Mexican

extraction are thus illegal aliens).

The irrelevance of the fact that "The

Dudley" was a shrimpboat to supply proba-

ble cause is especially pronounced in

light of the previous day's weather condi-

tions. The record indicates that there

had been a strong northwestern wind previ-

ous to the day "The Dudley" was seized.

One marine patrol officer testified that

the seas in the Gulf had been rough (Tr.

86-87), and as Captain Wheeler testified,

"all shrimp boats, if they're 45 to 80

feet, would be inside [during] a Nor'wes-

ter" in Charlotte Harbor (Tr.185). The

officers should have expected to see

nonlocal boats the size of "The Dudley"

anchored in the harbor.

Equally irrelevant is the fact that

the nets on "The Dudley" were larger

than those allowed in Charlotte County,

The record clearly indicates that "The

Dudley” was not in Charlotte County,

37

but rather, was in Lee County. (Tr.34)

Also, the vague claim that unspecified

complaints had been received from unspeci-

fied persons about the taking of small

shrimp off the bottom of Charlotte Harbor

amounts to no more than rank specula-

tion and of course cannot be the basis

for probable cause. Compare Almeida-

Sanchez v. United States, 413 U.S. 266,

275, 283-285 (1975) (Mr. Justice Powell,

concurring) with Davis v. Mississippi,

394 U.S. 721, 727-28, (1969).

Moreover, the fact that "The Dudley"

appeared to be sitting low in the water

is no basis for probable cause. "The

Dudley" could have simply been transport-

ing cargo or could have simply been taking

on water.* Moreover, had "The Dudley”

*If this could be characterized as

leading to the possibility that contraband

was aboard, we should like the opportunity

to urge that a search for contraband

on the pretext of an administrative search

for seafood violations violates the Fourth

Amendment.

38

been loaded with shrimp, there should

have been evidence of shrimping activity

present. But, to the contrary, the nets

were dry (Tr.89) and presumably free

of any debris such as grass, crabs and

fish which are normally caught and remain

in the nets when shrimping (see Tr.189).

In fact, one marine patrol officer testi-

fied that he boarded "The Dudley” to

inspect for possible violations, not

because there were facts which reasonably

led him to believe there were violations

on board (Tr.28, 64, 66-7, 69, 75, 100),

but rather because he "felt" like "some-

thing” might be on board (Tr.69). Even

at that point in time after he had checked

out the ship's papers satisfactorily

and was preparing to board anyway, he,

in his own words, “wasn't concerned with

the shrimp landing permit because I didn't

know whether they had shrimp on the boat

- - aboard or not." (Tr.28)

33

Under these facts, its was unjustified

for the officers to disbelieve the Captain's

statement that there were no shrimp on

board. That Rich was silent in the fact

of some of the officers' demands is beside

the point. It surely does not amount

to probable cause, Cf. Brown v. Texas,

443 U.S. 47 (1979). Captain Rich readily

complied with the officers' request to

produce his ship's papers and answered

the questions concerning the reason "The

Dudley” was anchored in Charlotte Harbor

and whether he had shrimp on board.

(Tr.27, 28, 29, 90) Certainly, the Cap-

tain was not required to carry on a friend-

ly conversation with the officers, and

neither was he required to invite them

aboard his boat.

In conclusion, it is apparent that

there was no reasonable grounds or proba-

ble cause for prudent Florida Marine

Patrol officers to believe that "The

40

Dudley” had committed a violation of

the Seafood Quality Control Code. At.

best, the officers were acting on the

basis of a hunch, a feeling that cannot

rise to the dignity of an articulable

suspicion let alone probable cause.

Delaware v. Prouse, 440 U.S. 648, 661

(1979); Terry v. Ohio, 392 U.S. l, 22

(1968).

Therefore, the trial courts' denial

of Petitioners’ motions to suppress,

and the Second District Court of Apeal's

summary affirmance of Petitioner Rich's

conviction violates the Fourth and Four-

teenth Amendments to the United States

Constitution,

41

CONCLUSION

The petition for a writ of certiorari

should be granted.

Respectfully submitted,*

JOSEPH BEELER

Joseph Beeler, P.A.

Suite 900

28 West Flagler Street

Miami, Florida 33130

(305) 371-8100

*Counsel gratefully acknowledges

the assistance of Laurel D. White, third

year student at the University of Miami

School of Law.

<9

APPENDIX

IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL

CIRCUIT IN AND FOR LEE COUNTY, FLORIDA

CRIMINAL DIVISION

STATE OF FLORIDA

vs. CASE NO. 77=-185CF TWS

LARRY RICH

ORDER

THE Defendant's Motion to Suppress

Evidence in Unlawful Search having come on

for hearing, and the Court havins been

advised in the premises on both the facts and

the law respecting the said Motion, it is

therefore,

ORDERED AND ADJUDGED that the afore-

said Motion is Denied.

DONE AND ORDERED, in Chambers, at

Fort Myers, Lee County, Florida this 4th day

of October, 1977.

"ss/ Jack R. Schoonover -

xe keke

IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL

CIRCUIT IN AND FOR LEE COUNTY, FLORIDA

CRIMINAL

STATE OF FLORIDA

vs. CASE NO. 77-186CF-TWS

77-187CF-TWS

DENNIS ROTH

DENNIS HENRY

ORDER

Having heard the evidence and argu-

ment of coun@el and being otherwise advised

in the premises, it is hereby

ORDERED AND ADJUDGED that Defend-

ant's Motions to Suppress Evidence In Unlawful

Search heard covethet are hereby denied.

DONE AND ORDERED in Chambers, at

Fort Myers, Lee County, Florida, this lst day

of July, 1977.

"ss/ Thomas W. Shands 4

x ek tt

SENTENCE AND JUDGMENT FORM

x kek

LEE COUNTY CIRCUIT COURT MINUTE

BOOK 22 PAGE

STATE OF FLORIDA

)

)

vs. ) CASE NO. 77-185CF JRS

)

)

LARRY RICH

Defendant

The State appeared by its Assistant State

Attorney, Peter D. Ringsmuth.

The Defendant appeared in person in open

court and with his attorney, Joseph A. Beeler,

Esquire, having entered his plea OF NOLO

CONTENDERE as to COUNT III on September 28,

1978.

The defendant being before the court, in

person, in custody, in open court was informed

of the accusation against him and of the judg-

ment and penalty and his right of appeal

therefrom, and was asked by the Court whether

he had any cause to show why the judgment of

the Court and the sentence of the law should

not now be pronounced upon him, and he saying

nothing sufficient, The Court pronounced the

following judgment and sentence upon him:

You having ****plead nolo contendere to

the offense of POSSESSION OF IN EXCESS OF ONE

HUNDRED (100) POUNDS OF A CONTROLLED SUBSTANCE.

It is the judgment of this court that you are

guilty of this said offense,

and it is the judgment of the Court and the

sentence of the law, that you, LARRY RICH for

your said offense, do be punished by confine-

ment in the State Prison for a period or term

of TEN (10) years with credit of 5 days for

time served and that you pay a FINE of

$5000.00 to the LEE COUNTY FINE & FOREFITURE

FUND.

You are remanded to the custody of the

sheriff of Lee County, Florida.

Date: February 3, 1978

"ss/ Jack R. Schoonover "

SE eallllceedlieenedtllianeeeiimeetiinmmettimeteaibaentntiattiansntinamedtieemediteetitcmedinenet. me ee ee ee eee ee ae eae a aes ae ae aes es as? se ee ee

x* ke & ®

Form 305 CR

LEE COUNTY CIRCUIT MINUTE BOOK 21

PAGE

STATE OF FLORIDA

vs.

DENNIS ALLEN ROTH

The State appeared by its Assistant State

Attorney, Peter D. Ringsmuth.

The Defendant appeared in person in open

court and with his attorney, David L. Orosz,

Esquire, having entered'his plea of NOLO

CONTENDERE on June 21, 1977.

The defendant being before the court, in

person, in custody, in open court was informed

of the accusation against him and of the judg-

ment and penalty and his right of appeal there-

from, and was asked by the Court whether he had

any cause to show why the judgment of the Court

and the sentence of the law should not now be

pronounced upon him, and he saying nothing

sufficient, The Court pronounced the following

judgment and sentence upon him:

You having ***plead nolo contendere to

the offense of I BRINGING INTO STATE A

CONTROLLED SUBSTANCE, II POSSESSION OF IN

EXCESS OF 100 POUNDS OF A CONTROLLED SUBSTANCE.

It is the judgment of this court that you

are guilty of this said offense, and it is

the judgment of The Court and the sentence of

the law, that you, DENNIS ALLEN ROTH, for

your offense, do be confined in THE LEE COUNTY

JAIL and employed at hard labor for a period

of term of -365— days with credit of five (5)

days for time served.

You are herewith remanded to the custody

of the sheriff of Lee County, Florida.

Date: September 26, 1977

. "ss/ Thomas W. Shands i

x ke *& *€

=»

|

NOT FINAL UNTIL TIME EXPIRES TO FILE

REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

LARRY RICH,

Appellant,

Vv. CASE NO. 79-244

STATE OF FLORIDA,

Appellee.

ee ee ee ee ee ee ee eee eee eee

Opinion filed November 30, 1979

Appeal from the Circuit

Court for Lee County;

Jack R. Schoonover, Judge.

Joseph Beeler, Miami,

for Appellant.

Jim Smith, Attorney General,

Tallahassee, and Richard G.

Pippinger, Assistant Attorney

General, Tampa, for Appellee.

PER CURIAM.

Affirmed.

GRIMES, C.J., and BOARDMAN and

RYDER, JJ., Concur.

| -

ve

NOT FINAL UNTIL TIME EXPIRES TO FILE

REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

DENNIS ALLEN ROTH,

Appellant,

Vv. Case No. 79-243

STATE OF FLORIDA,

Appellee.

ee eee ee ee ee ee ee ee ee

Opinion filed November 30, 1979

Appeal from the Circuit

Court for Lee County;

Thomas W. Shands, Judge.

Joseph Beeler, Miami

for Appellant.

Jim Smith, Attorney General,

Tallahassee and Robert J.

Landry, Assistant Attorney

General, Tampa, for Appellee.

RYDER, Judge.

On the morning of February 21, 1977,

believing there was a violation of the Laws of

Florida pertaining to seafood quality control,

Florida Marine Patrol Officers approached the

The Dudley, a shrimp hoat at anchor in Char-

lotte Harbor, Boarded it, conducted a search

without a warrant and. seized a large quantity

of marijuana from the hold. Several individ-

uals on board The Dudley, including appellant,

were arrested.

Thereafter, appellant was charged by a

two count information with feloniously bring-

ing cannabis into Florida and felonious

possession of cannabis in excess of 100 pounds, -

violations of Section 893.13, Florida Statutes.

Appellant pleaded not guilty and moved to

suppress all evidence on the grounds that it

was obtained by an unlawful search and seizure.

An evidentiary hearing on appellant's motion

to suppress was held on June 20, 1977. In

sum, the Florida Marine Patrol Officers test-

ified they believed at the time they boarded

The Dudley that shrimp or other seafood was

unlawfully on board and/or that there was a

violation of seafood quality control. The

officers also testified as to their reasons

for arriving at this belief. Testimony was

also given regarding the seizure of the

quantity of marijuana from The Dudley's hold.

At the conclusion of the suppression

hearing, the trial judge stated, "Gentlemen,

I don't know why we even had this hearing.

The statute gives the officer the authority to

go in. ---L think there is no question they

were obligated to search that boat. The stat-

ute gives them the power to do so. And to

differ with the attorneys, it doesn't say

"probable cause' at all. Those words are not

used in the statute. It says they have the

authority without a search warrant to enter if

they believe that fish or any saltwater prod-

ucts are taken oz kept on board -- they have

that authority. ...I will deny your motion."

Subsequently, a written order denying the

motion to suppress evidence was entered.

Appellant then changes his plea of not

guilty to nolo contendere, reserving the right

to appeal the issue of the denial of his

motion to suppress. Appellant was adjudicated

guilty and sentenced to a term of 365 days in

1Q

the Lee County Jail.

Appellant now challenges the denial of his

motion to suppress evidence and advances

several points of argument. We hold that

? error of reversible proportions occurred and

remand for a new hearing on the suppression

motion.

With due respect, it is our view that the

trial court misconstrued and misapplied the

law by failing to employ the standard of

probable cause in determining the suppression

issue, as mentioned above. The statute

referred to by the trial judge which is mat-

erial to a disposition of this case is

Chapter 370, "Saltwater Fisheries and Conser-

vation", charging the Department of Natural

Resources with various duties and empowering

the Department and its officers with certain

necessary authority. Specifically, Section

370.021(5), Florida Statutes (1977) provides

in pertinent part:

"(5) POWERS OF OFFICERS. -

The department may designate

such employees of the several

ll

divisions, as it may deem

necessary in its discretion,

as law enforcement officers

---.-Of this state with full

power to investigate and

arrest for any violations

of the rules and regulations

of the department under their

Jurisagiaction... . Such law

enforcement officers shall

have the authority, without

warrant, to board, inspect,

and search any boat... or

vehicle engaged in trans-

orting or storing any fish

or sr aon products.

Such authority to search and

inspect without a search

warrant is limited to those

cases in which such law

enforcement officers have

reason to believe that fish

Or any saltwater products

are taken or kept for sale,

barter, transportation, or

other purposes in violation

of laws or rules promulgated

under this law. ...Such law

enforcement officers may

arrest any person in the act

of violating any of the prov-

isions of this law, rules or

regulations of the department,

--. Or any of the laws of this

state."

[Emphasis added.]

Although the trial court correctly noted

y that the statute quoted above does not

expressly use the term "probable cause", it

erred in apparently overlooking the case of

12

Hill v. State, 238 So.2d 608 (Fla. 1970) in

which the Florida Supreme Court construed

Section 370.021(5), Florida Statutes (1967),

which did not differ in any material way from

the current section. Our supreme court held

that the "reason to believe" limitation on the

authority of the officers to search the boat,

without a search warrant, was equivalent to a

requirement of probable cause to believe that

a conservation rule or law was being violated.

Thus, a determination of whether the

marine patrol officers had the lawful statut-

ory authority pursuant to Section 370.021(5)

to search The Dudley without a warrant depends

upon whether the officers had probable cause

to do so. The trial court erred by not apply-

ing this standard to the evidence adduced.

In this regard, we note here that the

legal authority of the marine officers to

search the boat without warrant must derive

from Section 370.021(5), Florida Statutes,

quoted above, and not from the particular rule

adopted by the Department of Natural Resources

13

on the same point, to wit, Seafood Quality

Control Code Rule 16B-27.23 which states:

"Inspection of boats engaged

in transporting seafood in

primary or secondary prod-

uction.

The Department or its agents

shall have authority, with-

out warrant, to board, inspect

and search any boat or vehicle

engaged in transporting any

primary or secondary seafood

as often as may be deemed

necessary for enforcement of

the provisions of this sub-

section and for protection

of the public health."

To the extent that this administrative

regulation purports to permit a warrantless

search without any requirement of probable

cause, it is contrary to the controlling

statute, Section 370.021(5), and we hereby

declare it invalid as beyond the quasi-legis-

lative rule-making authority conferred upon

the Department of Natural Resources by the

legislature. This fundamental principle of

law is stated in 2 Am.Jur.2d Administrative

Law § 300 (1962),

"Administrative rules and regulations, to be

14

valid, must be within the authority conferred

upon the administrative ‘agency. ---TO the

extent that a regulation is not in conformity

with the statute and with controlling judicial

interpretations of the statute it conflicts

with the meaning of such statute and so is un-

authorized; and regulations must conform, not

only with the statute under which they are

issued, but also with the constitution and

other laws." See also DeThorne v. Beck, 280

So.2d 448 (Fla. 4th DCA 1973); Florida Growers

Coop Transport v. Department of Revenue, 273

So.2d 142 (Fla. lst DCA 1973).

In view of this disposition of this cause,

we need not address the other arguments raised

by appellant.

Accordingly, we REVERSE the judgment and

sentence appealed from and REMAND this cause

for a new hearing on appellant's motion to

Suppress in accord with the standards set

forth in this opinion.

GRIMES, C.J., and BOARDMAN, J., Concur.

L5

IN THE SECOND DISTRICT COURT OF APPEAL,

LAKELAND, FLORIDA

JANUARY 11, 1980

LARRY RICH,

Appellant,

Vv. Case No. 79-244

STATE OF FLORIDA,

Appellee.

4

ll dd dd

Counsel for appellant having filed a

motion for rehearing in the above-styled

cause, upon consideration, it is

ORDERED that said motion is hereby denied.

x*ke*r®ek

16

IN THE SECOND DISTRICT COURT OF APPEAL,

LAKELAND, FLORIDA

January 11, 1980

DENNIS ALLEN ROTH,

Appellant,

Vv. Case No. 79-243

STATE OF FLORIDA,

Appellee.

ee eee ee ee ee ee ee ee ee”

Counsel for appellant and appellee having

filed motions for rehearing in the above-styled

cause, upon consideration, it is

ORDERED that said motions are hereby

denied.

x* ket

17

SUPREME COURT OF FLORIDA

Wednesday, July 9, 1980

LARRY RICH,

Petitioner, CASE NO. 58,662

District Court of

Appeal, 2nd District

Case No. 79-244

vs.

STATE OF FLORIDA,

Respondent.

me ee ee ee ee ee ee ee ee ee”

This cause having heretofore been

submitted to the Court on Siri sittotienal.

briefs and portions of the record deemed

necessary to reflect jurisdiction under Fla.

R.App.P. 9.120, and it appearing to the

Court that it is without jurisdiction, it is

ordered that certiorari is denied.

No Motion for Rehearing will be enter-

tained by the Court. See Fla.R.App.P.

9.330(d).

BOYD, OVERTON, ALDERMAN and MCDONALD,

J.J., Concur

ADKINS, ACTING C.J., Dissents

r~ kek tt

18

SUPREME COURT OF FLORIDA

Wednesday, July 9, 1980

DENNIS ALLEN ROTH,

Petitioner,

vs. CASE NO. 58,660

District Court of

Appeal, 2nd

District

Case No. 79-243

STATE OF FLORIDA,

Respondent.

— Oe ee ee ee ee ee ee ee

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 entertain-

ed by the Court. See Fla.R.App.P. 9.330(d).

BOYD, OVERTON, ALDERMAN and

McDONALD, JJ., Concur

ADKINS, ACTING C.J., Dissents

xe eek.

19

SUPREME COURT OF THE UNITED STATES

No. A=-193

LARRY RICH AND DENNIS ALLEN ROTH,

Petitioners

Vv.

FLORIDA

UPON CONSIDERATION of the application of

counsel for petitioner(s),

IT IS ORDERED that the time for filing

a petition for writ of certiorari in the

above-entitled cause be, and the same is

“hereby, extended to and including October 4,

1980.

/s/ Lewis F. Powell, Jr.

Associate Justice of

the Supreme Court of

the United States

Dated this 28th «-

day of August, 1980.

20