Appendix — Florida v. Harrison

Supreme Court brief1981

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Text

Supreme Court

“supreme

ED

NO.

FEB 17 1987

itt the | ALEXAND"p L. STEVAS,

pee |

of the

United States

October Term, 1980

THE STATE OF FLORIDA,

Petitioner,

Vs.

SHEROLYN DENISE- HARRISON,

Respondent.

On Petition for a Writ of Certiorari

to

the District Court of Appeal

of Florida, Third District ’

APPENDIX TO BRIEF

OF PETITIONER ON JURISDICTION

JIM SMITH

Attorney General

CALVIN L. FOX

Of Counsel:

JANET RENO

State Attorney

IRA N. LOEWY

Assistant Attorney General Assistant State Attorney

401 N.W. Second Avenue 1351 N.W. 12th Street

(Suite 820) Miami, Florida 33125

Miami, Florida 33128

(305) 377-5441

INDEX TO APPENDIX

Document Page

1. MotiontoSuppress.........cs.scsccaesuees 2-4

2. EXCERPT OF

Hearing upon Motions toSuppress.......... 5-71

8. Opinion of District Court of Appeals of

Florida, Third District .'.....5.5. ccc ecutus 72-73

4. Motion for Rehearing.................+-- 74-82

5. Order denying Rehearing.................. 83

6. EXCERPT OF

Defendants Brief on Appeal in the Florida

Third District Court of Appeal.......... A83-A86

App. |

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT IN

AND FOR DADE COUNTY, FLORIDA

CASE NO: 79-13082

THE STATE OF FLORIDA,

Plaintztff,

Vs.

SHEROLYN HARRISON,

Defendant.

MOTION TO SUPPRESS EVIDENCE

COMES NOW the Defendant, by and through his

undersigned attorney pursuant to RCrP 3.191 (h), the

Fourth and Fourteenth Amendments to the United

States Constitution and Article I, Section 12 of the

Florida Constitution (1968) and respectfully moves this

Honorable Court to suppress as evidence in this cause:

Any and all cocaine or any mixture containing

cocaine as alleged in the information and which was

seized from the Defendant’s daughter.

GROUNDS FOR MOTION:

The evidence was illegally seized without a search

warrant in violation of the Fourth and Fourteenth

Amendments to the United States Constitution and

Article I, Section 12 of the Florida Constitution (1978).

App. 2

STATEMENT OF FACTS:

While at Miami International Airport on August

9, 1979, the Defendant was approached by Detective J.

Wolfe of the Dade County Public Safety Department.

The Defendant was carrying her baby in her arms

and appeared to be in the company of two other

individuals.

The Defendant and the two others were approached

by police officers.

A search of the Defendant’s belongings revealed

no contraband.

As the Defendant was walking down the concourse

with Detective Wolfe, Detective Wolfe noticed a bulge

in the baby’s diaper.

Detective Wolfe had the Defendant put the baby

down.

Detective Wolfe reached into the baby’s pants and

felt what she believed to be a soft bag.

Detective Wolfe had no permission from the

Defendant to search the baby.

After feeling what Detective Wolfe believed to be

a bag, the Defendant was placed under arrest.

App. 3

Subsequent to the Defendant’s arrest, a bag

containing the evidence sought to be suppressed herein

was removed from the baby’s pants.

WHEREFORE, the Defendant respectfully requests

this Honorable Court to grant this motion to suppress

evidence.

Respectfully submitted,

BENNETT H. BRUMMER

Public Defender

11th Judicial Circuit of Florida

1351 Northwest 12th Street

Miami, Florida

BY: /s/ David Finger

DAVID FINGER

Assistant Public Defender

App. 4

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT IN

AND FOR DADE COUNTY, FLORIDA

CRIMINAL DIVISION

NO. 79-13080

THE STATE OF FLORIDA,

Plaintiff,

vs

SHEROLYN D. HARRISON,

Defendant.

Metropolitan Justice Building,

Miami, Florida,

Friday, 9:00 a.m.,

September 28, 1979.

The above-entitled case came on for motion to

suppress before The Honorable Richard S. Fuller, Circuit

Judge, pursuant to Notice.

APPEARANCES:

JANET RENO, State Attorney, by

RENA COHAN, Assistant State Attorney,

Attorney for Plaintiff.

BENNETT H. BRUMMER, Public Defender, by

DAVID FINGER, Assistant Public Defender,

Attorney for Defendant.

App. 5

INDEX

Witness Direct Cross Redirect Recross

JODY WOLFE

[By Ms. Cohan] 4 53

[By Mr. Finger] 21 53

EXHIBITS

For State For Identification In Evidence

No. 1 Composite 91

2 92

MR. FINGER: There is a motion to dismiss as

well as a motion to suppress. Which would the Court

prefer go first?

THE COURT: That is what we are waiting for.

MS. COHAN: Prior to proceeding on anything,

the State is now filing a new information out of an

abundance of caution. That is all.

THE COURT: Without looking at it, I bet you

can tell what it says.

MS. COHAN: I bet we added a count.

THE COURT: Added a count of possession.

MR. FINGER: That, obviously, is going to throw

the trial posture in the case in a different position, but

App. 6

the motion to suppress and the factual issues as to the

motion to suppress, we can go on.

The motion to dismiss as to Florida Statute 893.135,

would still lie as to Count I of the information regardless

of what happens on Count II.

THE COURT: Your whole motions would still

lie.

MR. FINGER: I understand exactly what she is

doing. I will have to arraign my client on the new

charges.

We will stand mute and invoke no discovery.

THE COURT: It will be entered by the Court as

not guilty to the new information. Let us go with the

motion to suppress. We have witnesses waiting and we

can go on the legal matters after they have been excused.

MS. COHAN: I would inquire, prior to putting on

any testimony, whether this is being video taped. I

have undercover officers.

THE COURT: Would your feelings be offended

if you knew they were here for some other case even

though you have that beautiful red dress?

MS. COHAN: I understand who is currently in

trial. The problem I have is I have an undercover

officer.

App. 7

THE COURT: There is another trial. I am sure

they are not taping it. They may be monitoring it, but

my word does not mean much. I am just telling you.

MS. COHAN: I will stipulate there is no search

warrant in this case; however, I will not stipulate that

the defendant has standing.

We are relying on Rocha v. Illinois and a long line

of cases which are currently from the Supreme Court.

The evidence ceased in this case was ceased from

an infant.

THE COURT: Please, Mr. Finger, no circus routine

with the communications with the —

MR. FINGER: It is incongrous.

THE COURT: Sir, we will have no joking or

funny communications with the interns and other office

personnel.

MR. FINGER: I apologize. It was just a reaction.

It is sort of incredulous.

THE COURT: Let us react appropriately to the

evidence in the case and then we will take it up.

MR. FINGER: Has Your Honor found that we do

have standing?

App. 8

THE COURT: Iam going to hear the evidence in

the case and then everybody will have what they need

in the record no matter what I do.

Call your first witness.

MS. COHAN: The State calls Detective Wolfe.

THE COURT: Would somebody be good enough

to give me a copy of the motion to suppress.

Thereupon:

JODY WOLFE

was called as a witness on behalf of the State in the

motion to suppress and, having been duly sworn, was

examined and testified as follows:

DIRECT EXAMINATION

BY MS. COHAN:

Q State your name and occupation, piease.

A My name is Jody Wolfe. I am a police officer

with the Dade County Public Safety Department.

Q How long have you been so employed?

A Approximately six years.

Q Where are you currently assigned?

App. 9

A Iam assigned to the organized crime bureau,

narcotics section.

Q On August 9, 1979, were you so assigned?

A I was assigned to the narcotics section,

specifically, to the airport narcotics unit.

Q Have you received any specialized training in

the field of narcotics?

A Yes. I have.

Q_ Will you tell us what that has been.

A Commencing with basic training in narcotics

investigation at the police academy six years ago.

[objection overruled]

A [Continuing] Since then I have attended a number

of specialized seminars, some given by the Drug

Enforcement Administration, the Narcotics Law

Enforcement Narcotics Investigation, several given by

the Organized Crime Institute Program at Barry College,

dealing with, specifically, narcotics, conspiracy, cash

flow investigation, focusing on narcotics investigation,

advanced methods of narcotics investigation and so on.

In addition to that, we have have numerous seminars

with the prosecutor’s office in search and seizure and

other techniques that we use at the airport.

App. LO

Q On August 9, 1979, how long had you been

specifically assigned to the airport unit?

A

Q

A

Q

A

For over one year.

How long have you been a police officer?

For nearly six years.

What did your duties at the airport unit include?

The primary duty of the airport, or the primary

objective of the unit, is the identification and interception

of persons engaged in violating the narcotics law.

Q

Pursuant to your duties, did you have occasion

to w itch passengers at the airport?

A

Q

A

Q

That is correct.

How frequently?

Several days of a given work week.

Approximately how many passengers do you

watch in any given day?

A Of any given day, probably several hundred,

maybe a few thousand, depending on the time of day.

Q

Do you wear a uniform while you are working?

A No. I wear plainclothes.

App. 11

Q Do you have occasion to watch any specific

flights and, if so, why?

A We do watch flights to other major cities in

the United States. We do tend to watch, particularly,

non-stop flights outbound from Miami and the reason

for this, being narcotic investigators, we are interested

in the traffic flow of narcotics that leave Miami, source

narcotics from Miami, to the other major cities or

distribution points. Miami is a major source city.

[objection overruled]

A [Continuing] Miami being a major source city

for cocaine and marijuana throughout the United States

at this time.

Q Based upon your training and experience, have

you found anything peculiar to the airport as far as

Miami being a source city for cocaine and marijuana?

MR. FINGER: Objection, again, as to relevancy.

THE COURT: Are you getting involved in the

profile of this case? What is the relevancy?

MS. COHAN: In the experience at the airport

with her arrests for narcotics violation.

THE COURT: What does that have to do with

this particular one?

App. 12

—

—

MS. COHAN: This particular one, I wouid proffer,

was a bulge on a child consistent with narcotics and I

need to know her experience in arrests relative to the

bulge.

[objection overruled]

A Inthe period of time I have spent at the airport,

I have had occasion to arrest a number of people using

the airport, using air carriers to transport out of Miami

to other major cities.

This has been accomplished, as we have seen, in

three principal ways.

One of the ways and this is not in any particular

priority, but one major way is in luggage which is

taken on board the aircraft with the passenger.

Another major way is by use of a package or air

freight speed pack; and and third way is by use oi the

body carry.

Q Were you working on August 9, 1979, at the

airport?

A That is correct.

Q Who was your partner on that date?

A Detective Everett Titus.

THE COURT: Where is the defendant, please?

MR. FINGER: Inthe courtroom, Your Honor.

App. 13

THE COURT: Go ahead. She was not with you. I

wanted to be certain that there was not any issue

raised later that she was not present at a substantial

part of her trial.

MR. FINGER: On, no, Judge. She is here.

Q [By Ms. Cohan] At approximately 5:15 on August

9, 1979, did you have occasion to see someone who later

became known to you as Sherolyn Harrison?

A Well, not just at 5:15, a little bit later than

that, yes, I did.

Q Approximately what time did you first see

Sherolyn Harrison?

A Probably closer to 5:20, about five minutes

later than that. I didn’t notice her right initially at the

beginning of this investigation.

Q Did you see Miss Harrison in court today?

A I think I see her in back there. She is kind of

blocked to my view.

Q Can you please attempt to point her out?

A I think she is in the second row from the back

sitting to my right behind the man leaning over.

MS. COHAN: Indicating the defendant Sherolyn

Harrison.

App. l4

A [Continuing] Next to the lady with the baby.

MR. FINGER: Are we talking about to the right

or left of the lady with the baby?

THE WITNESS: To the right.

MR. FINGER: As you are looking at it?

THE WITNESS: To my right, sir.

Q [By Ms. Cohan] Prior to observing Miss Harrison,

did you observe anyone else at the airport that drew

your attention?

A Yes. I did.

Q Were you able to subsequently identify these

individuals?

A Yes. I was.

Q Can you identify them for us today?

A Neither of those individuals are in court, but

one was a man by the name of Evans and the other was

a woman by the name of Nancy Aphrodite Raymond.

Q What did you first observe?

A The first thing I observed was the man Evans

barging in front of a line of people at National Airlines’

ticket counter.

App. 15

Q Approximately how many people were in line?

A Probably fifteen or twenty.

Q Will you describe the National Airlines’ ticket

setup for us, please?

A The area where Evans was barging into is an

area of the ticket counter reserved for passengers

waiting to purchase tickets for flights that date. It is

not a regular check-in area if you already have your

ticket. It consists of a roped area where passengers

line up to wait their turn to approach the counter

whenever a ticket agent becomes available to help

them.

Did Mr. Evans get in line?

No. He didn’t.

& ~P 6

Tell us what he did.

A He climbed over the ropes and walked directly

to a ticket agent and there was some conversation

which I was not able to overhear, but then he stood to

one side and, eventually, spoke again with the ticket

agent and essentially proceeded with his transaction at

the counter.

Q After Mr. Evans had arrived at the counter

for the second time, what occurred?

A A moment or so after that, a woman, the woman

Nancy Raymond, approached him and I hadn't seen her

App. 16

at first. I hadn’t noticed her at first until she actually

went over and spoke with Evans.

The only part of the conversation that I heard

there was for a moment. He told her to wait in line and

then a few minutes later, as he was completing his

ticket transaction, he told her to go on toward the gate

and he would catch up with her.

Q Did you see the ticket transaction take place

at National Airlines?

A Yes. I did.

Q What did you observe?

A What I observed was Evans handing over a

number of one hundred dollar bills. I could not hear the

entire conversation, but he did request the flight leaving

shortly for Los Angeles.

He received some change. There was one ticket

handed to him and there was no luggage checked in.

Q Did Miss Raymond have any luggage which

you observed?

A She had a tote bag, small carry-on — very

small bag and I believe she had a purse.

Q_ Did Mr. Evans have any carry-on luggage?

A Healso had a small bag, a small tote bag.

App. 17

Q Approximately what time was the ticket

transaction completed?

A About 5:20 or a moment or so after that.

Q Approximately what time was the flight to

Los Angeles to depart?

A 5:30.

Q After Mr. Evans had obtained the ticket from

National Airlines, what occurred?

A He left the ticket counter and he began walking

very quickly, almost running. By this time I had watched

in the direction that Nancy Raymond had walked and

she had by this time met up with Sherolyn Harrison

who was carrying a baby, a toddler, I should say.

He caught up with her some distance — he caught

up with the two women some distance from the portion

of the counter where he purchased the ticket. They

turned and walked down the concourse together and

went up the escalator together.

Q When you say “toddler,” what do you mean?

A Achild approximately a year and a half to two

years old.

Q Was Miss Harrison in possession of any other

belongings?

A I think she may have had a purse with her. I

don’t recali any other luggage.

App. 18

Q Where did Miss Harrison meet up with Mr.

Evans and Miss Raymond?

A Miss Harrison met up with Raymond, the girl,

some distance from the National Airlines ticket counter

closer toward the entrance to the concourse, maybe, a

hundred feet away from where the ticket was purchased

and then Evans joined the two women near that area.

They had begun walking from that area and were

walking toward the concourse.

Q During the course of your observations, where

was Detective Titus?

A He was in the vicinity. He was watching along

with me.

Q After the three of them turned after the main

lobby, what then occurred?

A They went up the escalator and we continued

to follow and watch as he passed through the security

checkpoint at the concourse. After they cleared the

security checkpoint, Detective Titus went over and

spoke with Mr. Evans and I waited for a moment or so

to watch whatever reaction might occur or what might

happen on the part of the two women.

I observed as they looked back at Evans who had

stopped walking and had begun to speak with Detective

Titus, they looked quickly at each other and they

quickened their pace and continued walking down the

concourse.

App. 19

Q What did you do?

A After they had walked a distance of about ten

feet, I went over to them, introduced myself, and asked

if I could speak with them a few minutes.

Q How did you introduce yourself?

A Itold them that my name was Detective Wolfe

and that I worked for the police department and I

would like to ask them a couple of questions, if they

had no objection, before they caught the flight.

Q For what purpose did you identify yourself as

being from the sheriff's department?

[objection overruled].

A Quite simply said that they should know exactly

who I was and that I was — well, the main reason I

introduced myself, if I am the least bit suspicious of a

person in the airport, my experience has been that —

[objection overruled].

A [Continuing] It’s been my experience that people

who are sometimes carrying narcotics are afraid of a

ripoff from some other source and would be more likely

to be afraid of some stranger walking up to them and,

maybe, react violently.

Q When you first approached Miss Harrison and

Miss Raymond, did you have a firearm with you?

A Yes. I did. ‘=.

Q Where was it?

App. 20

A It was in a shoulder holster under a shirt

under my jacket.

Q Did you have handcuffs with you?

Yes. I did.

Where were they?

Under my belt under my jacket.

Did you use anything to identify yourself?

> © - O& Pp

Just my badge.

Q How did you display that to Miss Raymond

and Miss Harrison?

A Iopened my badge case and showed it to them

and, briefly, asked if I could speak with them just a

moment.

Q Did you pull your weapon on them?

A No.

Q Did you touch either Miss Raymond or Miss

Evans?

A Not at that point, no.

Q After you asked them if they would have any

objections to speaking to you, what did they say?

App. 21

A Miss Harrison, as I recall, did not say anything

very much at that time, but Miss Raymond said sure,

but she did not want to miss the flight. She did not

mind answering a couple of questions.

Q What was your conversation at that point?

A I briefly asked if they had identification and if

I could see it; if they would mind showing it to me.

Sherolyn Harrison said she would not mind showing

me any identification, but as it turned out, she did not

have any. Nancy Raymond said she had some and began

fumbling through her purse and opened up a purse and

wallet and did not come across any right off the bat.

I asked Sherolyn what her name was — or I asked

Miss Harrison what her name was and she said Harrison.

Q While you were talking to Miss Raymond and

Miss Harrison, where were you located on the concourse?

A About twenty-five or thirty feet beyond the

security checkpoint.

Q Were there other passengers in the area?

A Yes. There were people coming through the

checkpoint and walking by.

Q Were there other police officers with you?

A Not right with me. I am quite sure there was

an officer over at the checkpoint, but I am not positive.

App. 22

How far away from the checkpoint were you?

From the checkpoint or where the officer was?

The officer, I am sorry.

Probably about forty feet.

SD > &© PF ©

Did he take any part in your conversations?

A Well, I am not even sure he was there. He

certainly took no part in the conversation.

I am not sure — I am pretty sure there was one

there, but I don’t really remember.

Q Where were Mr. Evans and Detective Titus in

relation to where you and the females were?

A They were standing between ten and fifteen

feet closer toward the security checkpoint.

Q Whose back was to Mr. Evans and Detective

Titus?

A Thetwo women.

Q Did you notice anything about the behavior of

Miss Harrison and Miss Raymonmd while you were

talking to them?

A They were ill at ease. They kept turning over

— Miss Raymond looked over her shoulder twice to

look back at Evans to see what was going on and then

kept fumbling through her wallet.

App. 23

Harrison looked over two or three times to where

Evans was standing and then looked back and they

were both very ill at ease.

Q Did Miss Raymond show you identification?

A Before she showed me identification — no.

She did not.

Before she showed me identification, I asked both

women if I could have permission to look through their

belongings.

Q To which belongings were you referring?

A I was referring to two purses, the two purses

and a tote bag which they had with them.

Q What did either of them say?

A Miss Raymond replied that she had no objections

and all of the items were put down on a little bench

that was right there.

Sherolyn Harrison said she did not mind and Miss

Raymond went to open one of the purses and as she

was doing that, I stopped for a minute. I said, “I just

want to be sure that you understand that you do not

have to let me do this and this is up to you.”

And she said sure, there was no problem with it

and to go right ahead.

Q Did you do so?

App. 24

A Yes. I did.

Q What, if anything, did you find?

A I found, of significance to me, a National Airlines

ticket envelope with three one-way tickets, first class,

from Los Angeles to Miami four days earlier in the

names of Mr. and Mrs. Kahn and Mr. Jones. I found

identification from Miss Raymond that said her correct

name and, along with the tickets, were three used first

class boarding passes in the same ticket envelope and

there was a small cigarette case with one or two marijuana

cigarettes.

Q What, if anything, occurred at that point?

A I searched through the other belongings and

there was no contraband found and the women began

walking down toward — we all began walking down

toward the gate.

At this time Evans and Detective Titus had finished

their conversation and they more or less joined this

group of people who began to proceed down to the

gate.

Q Did you learn, during the course of your

conversation with Miss Raymond and Miss Harrison

where either of them was from?

A Sherolyn Harrison told me she was from Miami

and she was going to Los Angeles for a few days and

Nancy Raymond —

[objection overruled].

App. 25

Ge ahead.

A Nancy Raymond told me she lived in Los Angeles

and she was going home.

Q During the course of your conversations, did

you learn about any additional luggage either of them

might have?

A I asked if they had any checked luggage and

they said no, they did not. The ticket was in —

MR. FINGER: I object, Your Honor, at this point

as to who “she” is. Is she Nancy Raymond or my client?

THE COURT: Please identify.

A [Continuing] I asked both women if there was

additional luggage and the response was not, there

was no additional luggage from both women.

Q While you were conversing with Miss Harrison

and Miss Raymond, where was the toddler?

A The entire time the child was in Sherolyn

Harrison's arms. She was holding the child.

Q How was the child positioned?

A More or less straddling the front of her body.

She would move the child from one hip to the other.

Q Where were the legs?

A Either dangling or around her waist.

App. 26

Q ‘How was the child dressed?

A_ She was dressed in a two-piece outfit consisting

of slacks and a little smock top.

Q Was her entire body covered by that outfit

during the time you were talking to Miss Harrison?

A Pretty much, yes.

Q Was it a female child?

A Yes, a little girl

Q When she started walking down the concourse

with Miss Harrison and Evans, what occurred?

A I shared my observations with Detective Titus

who shares his observations with me of what he had

learned in his conversations and what I had learned in

my conversations.

Q What, if anything, did you learn?

[objection overruled].

A I learned that Detective Titus had looked at

the ticket in Evans’ possession and discovered that it

was in the name of Mr. and Mrs. Kahn and Mrs. Johnson

and that Evans said that he didn’t have any identification. I

learned that Detective Titus had asked Evans what his

name was and that Evans had told him that he was Mr.

Kahn, but when he was unable to find any identification,

he changed that story and told Detective Titus that his

name was Oswald.

App. 27

Detective Titus further told me that he had also

received permission to check the bag that was in Evans’

possession; checked it, found no contraband, but that it

had the name Harrison on it and that neither the name

Harrison or Oswald had anything to do with the names

on the ticket that these three people were flying under

and, obviously, I knew then, also, that the name Harrison

and Raymond had no similarity to Kahn — Kahn and

Johnson which were the names on the ticket, party of

three, that these three people were going to use to fly.

Q What, if anything, did all of these things mean

to you?

[objection overruled].

A The inconsistencies, the use — the

inconsistencies and the story that was given by Evans

coupled with the use of alias names for this trip to Los

Angeles coupled with such a small amount of luggage

for a party of three with a baby traveling across country

one way, suggested to me the possibility that there

was a Violation of narcotics laws going on; that, perhaps,

these people were smuggling narcotics.

Q At that point did you act on your suspicions?

A Not quite yet. We continued walking down

the concourse. We had checked the belongings and

there was no contraband.

Q At this time was Miss Harrison free to leave?

A Yes. She was.

Q_ As you were arriving at the gate, what occurred?

App. 28

*»

A Evans gave the ticket to Nancy Raymond who

proceeded to turn it in at the gate for her boarding

passes. When she handed the ticket to — as she was

handing that ticket over, I had a chance to observe the

names on the ticket and the spelling of this Mr. and

Mrs. Kahn was completely different from the Mr. and

Mrs. Kahn of the first ticket that I had seen, or the

first two tickets I had seen, in her purse which was

another inconsistency, a suggestion of another alias

being used.

As we had walked down the concourse, I had become

suspicious of a bulge which I observed in the front of

the child’s abdomen.

Q Would you describe the bulge, please.

A It was a thickness which I could see from the

side of the child. Her dress had ridden up and the top

portion of the little trousers which she was wearing

was completely visible now as well as a portion of the

abdomen over the top of the pants.

She looked as though she was wearing a diaper or

Pamper underneath the little trousers, but it was twice

or two and a half times as thick in the front around the

tummy or abdomen, as it was across her back.

Q Have you had occasion to diaper an infant or

toddler before?

A Yes, I have.

Q Was this bulge consistent with anything in

your experience of diapering infants?

App. 29

7%

-%

A No, not at all.

MR. FINGER: Objection. Personal experience is

irrelevant in this particular cause, Your Honor. That

bulge could have been caused by any a number of

things beyond her expertise as a mother.

THE COURT: Overruled. We will certainly give

you an opportunity to delve into that.

Q [By Ms. Cohan] When you noted the bulge,

based upon your training and experience, what did you

think it was?

A_ I suspected there was contraband in that bulge.

Q Why?

A Why?

Q Yes.

A I have had experience with the persons

transporting narcotics in baby’s diapers before.

Q On how many previous occasions, approximately?

A Personally, once before, but I am aware of

several occasions where — I am aware of six other

instances in the customs enclesure at Miami International

Airport where this method has been used.

Q Have you had previous occasion to observe

body carrys of narcotics?

App. 30

A Yes. I have.

Q Approximately how many prior occasions?

A About forty or fifty — about forty.

Q Was the bulge which you observed in this case

consistent with those bulges other than the fact that it

was on an infant?

A_ I would say so.

Q "What did you do when you noticed the bulge?

A Well, when this group arrived at the end of

the concourse, I asked Harrison to put the child down

on the floor and she did and I felt inside the front of the

waistband of the child’s trousers and I felt a plastic bag

containing a granular substance that was consistent

with cocaine. |

Q What did you do at that point?

A I told her that she was under arrest and I

verbally advised her of her Miranda rights.

A “Her” being Sherolyn Harrison?

A That is correct.

Q How did you advise Miss Harrison of her Miranda

rights?

A At that time, verbally, from memory.

App. 31

Q Did you at that point seize the cocaine?

A Well, I took the baby and carried the baby

from that point on. I did not remove the cocaine. I

checked where it was and it turned out there was a

Pamper in between the bag of cocaine and the baby’s

skin and I decided to leave it until we got back to the

station where I removed it.

Q For what reason did you check that baby initially?

In other words, after you had noticed the bulge, why

did you check the baby?

A I think once I become suspicious that that

bulge was cocaine, I was primarily interested in the

safety of the walfare of the child at that point.

Q Why is that?

A Ifthe wubstance that I suspected was — that

is, cocaine was actually in that child’s pants near her

skin or any mucous membranes or opening —

[objection overruled].

Q [By Ms. Cohan] Go ahead.

A I suspect that contact of this kind of a substance

in a small child, perhaps, in any fashion, could be quite

dangerous for that child.

Q Were you afraid for the baby’s safety?

A Iwas certainly very concerned about the baby’s

safety and welfare.

App. 32

Q After you had reached into the baby’s pants

and felt the substance, how long after that did you take

the baby into your custody?

A Immediately.

Q How did you do so?

A I picked her up.

Q Where were Miss Raymond and Mr. Evans?

A It was right about the time that I advised

Harrison that she was under arrest Raymond returned

with Detective Titus. He had been — I think they had

gone to a private area for a pat down or search of Mr.

Evans. I am not sure.

Miss Raymond was standing in the vicinity. She

walked over and I advised her whe was also under

arrest.

Q Had you at that point seen the cocaine?

I had not.

Why not?

I hadn't actually looked at it.

Go >» Oo PP

Why was that?

A I wanted to be able to remove it carefully and

I didn’t know exactly how it was placed; whether it

was secured with tape or exactly how it was secured

App. 33

inside the baby and I didn’t want to take a chance of

opening it quickly and having it spill all over and having

it get on the baby or, you know, get anywhere.

Q Did there come a point in time when Miss

Raymond and Mr. Evans were placed under arrest?

A Almost immediately, as soon as they were

back together there.

Q For what were they arrested?

A Conspiracy.

Q Was anything seized from Mr. Evans?

MR. FINGER: Objection as to its relevancy.

THE COURT: What is the relevancy at this point?

MS. COHAN: Your Honor, I would proffer that

the ticket in Miss Evans’ possession, the boarding passes

for the flight five days previously or four days previously

was, in fact, seized from Miss Evans and the State will

seek to introduce that as evidence.

THE WITNESS: From Miss Raymond.

MS. COHAN: Iam sorry. Yes.

THE WITNESS: The three passenger receipts

and boarding passes I found in Raymond's purse were

seized.

App. 34

Q Was anything seized from Mr. Evans?

[objection overruled].

Q [By Ms. Cohn] Based upon your training and

experience, with what was the substance you seized

from the infant consistent with?

A The substance was consistent with cocaine.

Q Did you seize anything else from the infant?

A The outside, the bag securing it more or less

to the baby, was a pair of pink plastic pants. We took

those, also.

Q At what point was Miss Harrison no longer

free to leave?

A At that point that I felt the substance in the

baggie in the baby’s pants.

Q Up until that point had you ever been

discourteous to her?

A No, ma’am.

Had you ever attempted to conceal your identity?

No.

Had you ever threatened her in any fashion?

> © pp ©

No. I had not.

App. 35

Q Had you ever demanded she do anything up

until the point you told her to put the baby down?

A No.I did not.

Q During the course of talking to Miss Harrison,

did she answer all of your questions in a coherent

fashion?

A There were a couple of questions she just didn’t

want to answer. She didn’t answer them.

MR. FINGER: I object unless this prosecutor

pins down what conversations we are talking about.

THE COURT: Sustained.

Q [By Ms. Cohan] During the course of your

conversation with Miss Harrison, did she appear to

understand what you were saying prior to being placed

under arrest?

A Yes. She did and she was cooperative.

MS. COHAN: I would proffer there is no motion

to suppress statements right now.

THE COURT: Unless there is something I have

not seen—

MR. FINGER: No, Judge.

THE COURT: Anything else?

MS. COHAN: One other question.

App. 36

Q [By Ms. Cohan] Other than yourself and Detective

Titus, until the time that Miss Harrison was placed

under arrest, were there any other officers involved in

that?

A_ No. There were not.

MS. COHAN: Thank you.

THE COURT: Mr. Finger.

CROSS EXAMINATION

BY MR. FINGER:

Q Detective Wolfe, the reason you initially —

approached the two young women is because you were

suspicious of the activity that you had witnessed earlier

involving, specifically, Mr. Evans and Miss Raymond.

Is that correct?

A I think that was part of it.

Q What is the other part?

A Well, some of it had to do with the fact that

the three people, the three individuals, seemed to me

to be trying to stay kind of far apart and not together

at the ticket counter purchasing the tickets.

Q Detective Wolfe, up to the point where you

walked up to the two young ladies and identified yourself,

what specifically did the defendant Sherolyn Harrison

do that aroused your suspicion? What did she do — not

App. 37

7%

7%

what the other people did — but what was she doing

that made you suspicious of her, specifically?

A_ I would say that what made me suspicious of

her, not so much an active thing she did, perhaps more

what she did not do.

Q What did she not do?

A That was — she was hanging very far away

from the other two people for the period of time the

ticket was being purchased as though to disassociate

herself. I was surprised to see her together with the

other two people.

Q In fact, right up until the time that Mr. Evans

caught up with the two women, you believed that Sherolyn

Harrison had nothing to do with Evans and Raymond?

A That is right. I didn’t see her enter the scene

until, really, quite at the end.

Q So your questioning or your introduction to

Miss Harrison initially was based upon the suspicion

which you had based upon the fact that she was being

aloof or apart from the other two people and, subsequently,

met up with and that is why you wanted to talk to

Sherolyn Harrison.

Correct me if I am wrong.

A That was part of it, certainly.

Q What else had she done besides that?

App. 38

A She had, herself, alone, apart from the other

two, not done anything else.

Q For all you know, she could have been seeing

those two people off at the gate, “See you around.

Have a nice trip to L.A.”

A Yes. That is possible.

Q Did the fact that she was carrying a baby

arouse your suspicions?

A Not initially, no.

Q You are not suspicious of young ladies in an

airport carrying babies, are you?

MS. COHAN: Objection. Argumentative.

A Of course not.

THE COURT: Overruled.

Q In fact, Detective Wolfe, you did not even notice

Sherolyn Harrison until after the tickets had already

been paid for by Mr. Evans.

A That is correct.

Q In fact, you did not notice Sherolyn Harrison

until Nancy Raymond spoke to her very briefly and

they started to walk off down the concourse.

A That is correct.

App. 39

Q And as the three of them were walking down

the concourse, Detective Titus approached the male,

Mr. Evans. Right?

A _ Yes, sir.

Q And the two women continued to walk on as

Titus stayed back to talk to the male. Right?

A Yes.

Q And that made you believe that the three of

them were traveling together?

A No. What made me think the three of them

were traveling together was I was expecting a party of

three based upon the amount of money Evans paid for

the ticket at the counter.

Q How much change did he get back? You did not

mention that in the direct examination.

A_ It was a small amount of change. He paid in all

one hundred dollar bills.

Q How many one hundred dollar bills?

A Four — I think four or five.

Q You did not notice how much change he got

back?

A It was a small amount of change, a few dollars.

I would expect it might have been — if I might look at

my notes.

App. 40

7.

A Sure.

A_ It was six one hundred dollar bills and he got

back — the total fare was about, in the vicinity of $565,

$575, so he got back $30 or $40 back.

Q You specifically recall him receiving $30 or

$40 back?

A Well, I knew then roughly what the fare was

for three people traveling. I saw him hand over the six

one hundred dollar bills.

Q_ Did you testify on direct that you did not have

an opportunity to look at the ticket from where you

were positioned; see the ticket, itself?

A That is correct.

Q So you could say at the time that you approached

the group of three individuals how many people that

ticket was for?

A The only reason I expected — you are correct.

The only reason I expected three people was from the

amount of money he paid for the ticket.

Q Could not have been four?

A_ I was expecting three.

Q Could it have been a ticket for four just as

easily as for three?

App. 41

re

7%

A Not based on the number of bills he handed

over. They were one hundred dollar bills.

Q So they are walking down the concourse and

Detective Titus comes up and introduces himself,

assumedly, to Mr. Evans, and then the two women

walk on.

A They continued. They looked back and continued

walking.

Q That is when you walked up and approached

them. Right?

A Yes, sir.

Q And they were walking along; they were walking

along down the concourse when you walked up and

_ identified yourself?

A Yes.

And they stopped and talked to you?

Yes. They did.

And you told them your name. Right?

>» DBD }

Yes.

Q And you told them you were from the sheriff's

office. Right?

o oe. *

App. 42

Q You told them you would like to ask them

some questions. Right?

A Yes.

Q And at that point, I believe you testified on

direct, Sherolyn Harrison did not say anything, did

she?

A I don’t remember her specific words. My

impression, my memory, is that she nodded in the

affirmative and Nancy Raymond did most of the talking.

Q You just forgot to mention that on direct

examination about the nod in the affirmative?

MS. CCHAN: Objection.

THE COURT: Sustained. You can argue it to me.

‘

Q [By Mr. Finger] You asked for identification

from the two young ladies?

‘1A Yes.

Q And you asked permission to search their

belongings that they were carrying. Is that correct?

A Yes, sir.

Q At the time that you approached the two young

ladies initially you had no idea, did you, whether or not

any of these tickets that Mr. Evans had purchased

were, in fact, for Sherolyn Harrison, did you?

App. 43

A No idea, no idea, a suspicion that the three

were traveling together and that he had the — it was

the only assumption I could make at that point.

. Q Hew about the fact that they were going to

meet a third person at the gate and Sherolyn Harrison

was there to see them off. Is that possible?

A Certainly.

MS. COHAN: Objection. Specuiative.

THE COURT: Overruled.

Q [By Mr. Finger] That third ticket could have

been for any third person. Is that right?

A_ It could have been.

Q Iam talking about after the time you approached

the two young ladies you did not know that Sherolyn

Harrison was going to take one of those tickets and

board the plane; she was just along with Nancy Raymond

who you saw talking to Mr. Evans.

A My best observations indicated these three

people were traveling together.

Q I appreciate your best observations. I am

concerned with your knowledge of the tickets that you

have seen Mr. Evans purchase in regards to whether

or not they were going to be used by the defendant

Sherolyn Harrison.

A That is correct.

App. 44

Q You mentioned when you approached Miss

Harrison and Miss Raymond they seemec ill at east.

A After a moment, yes.

Q How long have you been a police officer?

A Nearly six years.

Q You have had an opportunity to stop lots of

people in the course of our employment?

A Ihave, certainly, stopped and spoken to lots

of people, yes.

Q Iam not just talking about narcotics; in your

capacity as a police officer?

A Sure.

Q Is it unusual that a person is ill at east when

they are approached by a police officer, identified as a

police officer? Do you find that unusual?

A I don’t find it unusual among certain people.

Q What kind of people?

A People who, perhaps, are anxious about

somethiag they may be doing wrong, in violation of the

law. I think — I am not a very intimidating person.

Most people are not nervous when I speak to them.

App. 45

Q In your capacity as a police person, when you

are talking to them in the capacity and you stop even

an innocent person, they get nervous. Right?

A Not very often in my experience.

Q Ever make any traffic stops, pull people over

on traffic stops?

A Yes.

Q And have it turn out you really had no basis

for the stop or you let them go or things are not as you

assumed?

MR. COHAN: Objection.

THE COURT: Overruled.

A Idon’t understand.

Q [By Mr. Finger] Did you ever pull over on a

traffic stop and found you were mistaken, that the

taillight was not out or they were not speeding? Have

you ever made a mistake when you stopped and it

turned out your suspicions were not right?

A Yes.

Q Were these people nervous when you spoke to

them?

A Not consistently, no.

App. 46

Q The ticket stubs that you mentioned, those

were found in Nancy Raymond’s bag. Correct?

A Yes.

Q And that little bit of marijuana was found in

Miss Raymond’s bag. Correct?

A Yes.

Q In fact, nothing of any note was found in anything

that you could attribute to being in the actual or

constructive possession of Sherolyn Harrison, my client?

A Nothing was found except the cocaine in the

pants of the baby.

Q Iam talking about the search. We are now at

the point where you are searching the women’s purses.

A Their purses, no. That is correct.

Q The women, themselves, the two young ladies,

were wearing rather tight fitting clothes at that time,

were they not?

A Close fitting, yes.

Q_ So, at least, in your own mind you were satisfied

after you had made the search of the purses that these

women were not carrying contraband on their body?

A Yes.

App. 47

*%

Q And it was while you were walking along after

this search revealed nothing, that you noticed the bulge

in the baby?

A When you say “the search revealed nothing,”

it revealed a few things to me.

Q Who did you arrest after the search of the

purses?

A It didn’t reveal anything I based an arrest on

at that time, but it heightened my suspicions somewhat.

Q How did the fact that a small amount of

marijuana in Nancy Raymond’s purse heighten your

suspicion?

A The marijuana didn’t necessarily heighten my

suspicions about anything. It is very inconsequential.

THE COURT: I did not hear the last half of the

answer or the first part of the question.

MR. FINGER: Iam sorry.

THE WITNESS: The marijuana, a couple of

marijuana cigarettes, did not increase or decrease my

suspicions. It was rather an inconsequential amount of

contraband.

What caused me to be somewhat suspicious was

the three receipts for a cross country flight, first class,

from Los Angeles to Miami three or four days earlier

for three people in names which had nothing to do with

either of the two names of the two women.

App. 48

Q Found in Nancy Raymond’s purse?

A Found in Nancy Raymond’s purse. This

suggested to me aliases being used for travel and that

I have found to be very consistent with narcotic traffickers.

Q So the fact that you found stubs in Nancy

Raymond’s purse which indicated there were aliases

made you suspicious of Sherolyn Harrison?

\

A Yes, to an extent.

Q Why did you not arrest Nancy Raymond after

you searched the purse?

A I would arrest her for what?

Q Possession of marijuana.

A Incases where there is a misdemeanor or less

amount of marijuana, what I often will do is seize the

contraband, take the information of subject and present

the facts to the State Attorney.

Q And let the defendant get on a plane to fly to

L.A. while you are doing it?

A Sure. I do not really have to arrest somebody

for two marijuana cigarettes.

Q That is a crime in the State of Florida, is it

not?

A_Iknow, but I am not obligated to arrest somebody

for two marijuana cigarettes. I am obligated to seize

App. 49

the contraband and bring the facts of the case immediately

to the prosecutor.

Q You felt obligated to arrest Sherolyn Harrison,

did you not?

A I felt that that was — first of all, it was a

felony as opposed to a misdemeanor.

Q You decided you would make that determination

without talking to the State Attorney. Right?

A Well, yes, I did.

Q So you are walking down the concourse and

Sherolyn Harrison is carrying the toddler in her arms

and you noticed the bulge in the toddler —

[Discussion of other matters]

Q [By Mr. Finger] Have I got it back so far?

When you were waiking down the concourse is when

you noticed the bulge in the toddler?

A Yes.

Q At that point you were still pretty much

convinced in your own mind that there was narcotics

somewhere? Would that be safe to say?

A Well, yes. I think that is safe to say. I was

convinced that something was going on. My suspicions

were more increased rather than decreased, especially

as I conferred with Detective Titus.

App. 50

Q You just felt that there was some contraband

out there, but you just could not figure out where the

stuff was?

A Isure couldn’t, not immediately.

Q You say the bulge around the baby’s stomach

protruded about an inch to an inch and a half,

approximately.

A It was more than that.

THE COURT:

Bailey?

MR. FINGER:

THE COURT:

MR. FINGER:

Could I see the deposition, Miss

We are on Page 38 or 39.

Go ahead.

I will read them verbatim.

Q [By Mr. Finger] Do you recall giving a

deposition at the Public Defender’s Office on September

14 in my office?

A Yes.

Q You were sworn under oath to tell the truth?

A Yes.

App. 51

Q I am on Page 38 and it would be, like, the

second question from the bottom. Do you recall the

question:

“Q You couldn’t approximate how many it was

protruded? Did it protrude a couple of inches?”

Then you indicated.

“Q Are you indicating an inch and a half?”

And your answer:

“A You mean the overall bulge?

“Q My question is: The whole thing an inch and a

half to two inches? The front thickness was probably

protruding an inch and a half to two inches?

“A Yes.”

A Yes.I believe you just asked me if I said it was

an inch to an inch and a half and I said it was a little

more than that. I have a maximum here of two inches.

Q Okay. A maximum of two inches.

A That is probably about right.

THE COURT: Counsel, it is late in the day and

Mrs. Rock would really like to keep you under 300

words a minute.

Q [By Mr.Finger] You would say a maximum of

about two inches protrusion?

App. 52

A Maximum, yes, sir.

Q And you could not really tell how long the

bulge was, could you?

A No, sir.

Q You believed it was cocaine. Right?

A Not immediately.

Q When did you believe it was cocaine? After

you reached in?

A When I felt it.

Q You suspected it was cocaine at that point?

A_ I suspected there was contraband there. I

couldn’t believe it was cocaine until I felt it.

Q What kind of contraband did you suspect it

was?

A Narcotics.

Q What kind of narcotics?

A It could have been marijuana, heroin, cocaine,

pills, a packet that would form that bulge of that sort

and there are a number of different items that could

form that kind of a bulge.

Q There certainly are, are there not?

App. 53

A Yes.

Q You were afraid of that narcotic, whatever it

was, coming into contact with the baby’s skin, abdomen,

whatever it was. Right?

A_ I was concerned for a child being in contact

with any contraband of that sort in any fashion.

Q You have had occasion during the course of

your employment to touch lots of different types of

contraband, have you not? You pick it up, touch it,

have it come in contact with your skin, have you not?

A No.

Q You have not picked up a lot of contraband?

A Wetry to avoid touching contraband with our

bare hands as much as possible. It is a very bad idea to

do it.

Have you ever felt cocaine?

Through a bag.

You never touched it?

Once — twice.

Not on this occasion?

No. I did not

Go - © F- ©& PF

I mean, your actual hand?

App. 54

A I try most of the time to avoid touching any

contraband, any substance I do not know the physical

composition of with my bare hands. There are a number

of substances that could be very injurious to you and,

as a police officer, I come in contact with lots of them

and you try to avoid touching, especially narcotics,

heroin and cocaine, with your bare hands.

When we take samples for field tests, we use a

little paper snip or spoon or something like that. You

don’t touch it.

Q And you did not feel or touch the actual cocaine

in this particular case, did you?

A Except through the plastic bag.

THE COURT: She said she has had no direct

contact with any substance in this case. It was a plastic

bag or a piece of plastic that separated the finger.

Q All you felt was a plastic bag with something

swishy or soft in it. Would that be safe to say?

A A powdery substance with a few little crumbles

in it which is consistent to substances I felt before

which were subsequently found to be cocaine.

Q But no actual cocaine on the outside of the bag

or gritty substance?

A There may have been minute amounts. I did

not detect any, myself.

App. 55

Q You are not a medical doctor, are you?

A No, sir.

Q What narcotics, particularly, that you dea! with

in the course of your employment are particularly

hazardous to one’s touch, if you know?

A Well, any substance that we come in contact

with, if you do not know what the chemical composition

of it is — the ultimate chemical composition of, you

would take a precaution to avoid touching it.

Q In fact, you suspected this was cocaine. Is that

not what you thought that the baby was carrying; that

it was cocaine.

A Yes.

Q Do you know if cocaine causes any harm if you

touch it? Does it cause sores, peeling of the skin, chaffing?

Are you aware of that? Do you know?

MS. COHAN: Objection. It is beyond her

knowledge.

THE COURT: Overruled. She can say that. Do

not get lazy just because you are a lady. You want to be

treated just like everybody else. Up on the feet.

A Iam not specifically aware of cocaine being

absorbed into normal, unbroken skin. I am specifically

aware of the ability of cocaine to be absorbed through

mucous membranes of the body and if it comes in

App. 56

contact with various orifices, mouth, vagina, sinuses, it

can be absorbed and small amounts would be fatal to a

child.

I have had experience with people who have secreted

cocaine in body orifices where the package has ruptured

and the person was dead before they got to the hospital.

Q That was not at all the situation here. You had

no reason to believe anything was secreted in any

orifices of that baby, did you?

A. I had no reason to believe it wasn’t.

Q You had no reason to believe it was not secreted

in a body orifice of Nancy Raymond, did you?

A That is true.

Q Did you do a body cavity search of Nancy

Raymond to make sure it was not hidden there?

MS. COHAN: Objection.

THE COURT: Overruled.

A After she was arrested. She was searched.

Q How about prior to her arrest?

A No. She was not.

Q Do you know if a body cavity search was done

on Mr. Evans to make sure he was not hiding anything

in any orifice?

App. 57

A Ido not know.

Q Did you do a body cavity search of Sherolyn

Harrison to make sure she was not hiding anything in

any orifice?

A I did not do a body cavity search.

Q When you saw the bulge, you told Sherolyn

Harrison to put the baby down. Is that not what you

did?

Yes.

And she complied?

Yes. She did.

Go - O& Pe

That is when you reached in and felt the soft

bag?

A That is correct.

Q And you never ever got Sherolyn Harrison's

consent to reach into the baby’s pants to feel around in

there, did you?

A At notime did I receive her consent.

Q Obviously, the baby never gave you any consent,

did she, because she could not talk.

A No, sir.

Q MR.FINGER: That is all.

App. 58

>

rr

Q And from where you were looking at the side,

it came up about two or three inches?

A [Indicating] Yes.

Q So we have it protruding a couple of inches

and coming up about three inches?

A About.

Q At that point you were concerned with the

physical well being of that baby. Is that not what you

testified on direct?

A When I began to believe that there was

contraband secreted on the baby, that is the point at

which I began to be concerned about the welfare of the

child.

Q Because you were afraid because of any mucous

membranes that may be in contact with that suspected

narcotics might cause some sort of medical ailment to

the baby?

A I would be concerned any time a child might

be placed near a substance such as cocaine, marijuana,

heroin, pills, you name it.

Q Did you say something on direct examination

about a baby’s skin or mucous membranes coming in

contact?

THE COURT: She said that.

A Any part of the baby.

App. 59

Q In this case, it would be the baby’s abdomen

area. That is where you saw it. Right?

A That is where I saw most of the bulge.

THE COURT: Redirect. Do you have

anything?

MS. COHAN: Just a couple of questions.

REDIRECT EXAMINATION

BY MS. COHAN:

Q Based upon your training and experience at

the airport, do you know the price of a ticket to Los

Angeles, approximately?

A Yes. Well, it varies. It is varying, but at that

time it was approximately $150 to $125, something in

that vicinity.

Q Asa police officer, do you, in fact, have the

discretion to arrest a misdemeanor?

A Yes. I do.

RECROSS EXAMINATION

BY MR. FINGER:

Q You decide when you are going to exercise

that discretion and when you are not?

\

A No — Iam sorry. What?

App. 60

THE COURT: That is what discretion means.

MR. FINGER: That is what discretion means. I

am concerned with the witness’ understanding of what

it means.

A Yes.

Q You exercise your discretion at whim. At your

whim sometimes you will arrest for a misdemeanor

and sometimes you will not?

A_ I like to think I use a little more than whim

when I am doing something as serious as contemplating

somebody’s arrest.

Q You are a law enforcement officer sworn to

uphold the law.

A Yes, sir.

Q There is a law in the State of Florida that says

that possession of any amount of marijuana is, at least,

a misdemeanor.

A That is correct.

Q And you decided, not withstanding your oath

or duties as a law enforcement officer, you were not

going to arrest Nancy Raymond for possession of that

marijuana?

A The physical arrest of a misdemeanor amount

of marijuana is discretionary.

App. 61

|

<=

MR. FINGER: Nothing further.

THE COURT: Do you have another witness?

MS. COHAN: No, Your Honor. The State rests.

THE COURT: Counsel.

MR. FINGER: The defense rests.

[Witness excused]

MR. FINGER: We have some argument, Your

Honor.

Your Honor, I would move the Court to grant the

defendant’s motion to suppress the contraband seized

in this particular case. I really believe that it is the

analysis or the approach really calls for a two-step or,

almost, a three-step analysis of what went on.

I submit to the Court there were really two stops

and then a search. The initial confrontation when the

police officer walked up to the two young ladies walking

down, is, in fact, a stop or a seizure within the context

of the fourth amendment and, as such, that must be

based upon probable cause.

There are a number of cases, Your Honor, that

hold that the type of factors which gave rise to this

officer’s suspicion is not sufficient even to make the

approach. The prosecutor may contend that the initial

confrontation is not a seizure. However, in Brown versus

Texas, taken to the United States Supreme Court,

cited at 99 Supreme Court 2637, the Court held that

App. 62

whenever the police officers accosts an individual, refrains

his freedom to walk away, she has seized that person.

There are other cases.

There is the Elmo case which the State likes to

cite frequently in which an individual was seated at a

gate waiting for his plane to take off and the police

went up to him, introduced themselves, much as the

case is here. I think it is a Sixth Circuit —

MS. COHAN: Fifth.

MR. FINGER: A Fifth Circuit Court case and

they walked up to him while he was seated waiting for

a plane, introduced themselves. Subsequently, a search

ensued and they found contraband.

That is distinguishable here, Your Honor, from

this situation. The situation applies to the Brown case,

the Supreme Court case, because Miss Harrison’s freedom

of movement was, in fact, restrained. That makes a

seizure under Brown versus Texas.

They were walking down the concourse and they

were approached by an officer and, when asked by the

officer, they stopped and talked to her. What happened,

in fact, is that they believe they have got to stop.

Cases such as United States versus Pope at 561

Federal 2nd 663 in 1977 stands for the proposition that

the satisfaction of the drug courier profile,

notwithstanding what the police officer may have said,

that they did not use a profile, what she had was a

suspicion which I really would contend to the Court is

not well founded. It is suspicion by association.

App. 63

I asked her specifically what Sherolyn Harrison

had done which aroused her suspicion and the answer,

Judge, was that she was with a couple of other people

she was really suspcious about and, while we may have

to agree that the suspicions were well founded as to

Mr. Evans and Miss Raymond, what does that have to

do with Sherolyn Harrison? All she did was wait off at

a distance. Who knows whether she was waiting for

them or not.

She was off in the distance holding the baby when

she was approached by these two other individuals

who the police were suspicious of. Sherolyn Harrison

had not done anything up to the point she was met by

these two other people. I do not think you can carry

the suspicions as to two other people over to Sherolyn

Harrison. She had done nothing.

They proceed down the concourse. They were —

and I use this word — accosted by the detective who

goes up and presents herself and asks to speak to

them. In State versus Frost, a Third District Court of

Appeals case — I do not have the official cite. It is in

the Florida Law Weekly of August 24, 1979 — Judge

Tanksley suppressed a seizure at the Miami Airport

under very similar facts. The State took an appeal to

the Third District Court of Appeals and the Court was

affirmed in granting the suppression in Frost.

Your Honor, there was a consent subsequent to

the stop which we do not even have here. The suspicion

on the part of the police officer in Frost and the initial

confrontation between the police officers and the subject

in Frost was because Mr. Frost, in that case, appeared

to be nervous and in a hurry and generally exhibited

App. 64

characteristics the officer considered to be indicative

of a possible drug courier.

I believe, also, in the Frost case, although I am not

certain, that there was some discrepancy — yes, there

was, Your Honor, a name discrepancy as to the driver's

license Mr. Frost was carrying versus the ticket. So it

is similar to what we had here as to the discrepancy of

the names on the ticket and the nervous manner and

walking hurriedly and, also, paying in cash. Everything

the same. In that case the police confronted Mr. Frost

and Mr. Frost subsequently gave his permission to

search the suitcase from which the contraband was

seized and the Court held that that initial confrontation

when they came up to Mr. Frost and said, “We are

police. We would like to talk to you,” was, in fact, a stop

and everything that flowed from that should be

suppressed because the officers had neither probable

cause to arrest Frost nor well-founded suspicions. In

other words, those characteristics, nervous, walking

hurriedly, inconsistent names, was not sufficient probable

cause.

The Third District Court of Appeals applied an

objective test in determining whether or not the police

officers’ confrontation is, in fact, a seizure because

Elmo says under those certain circumstances it is not

and what the Third District Court of Appeals says is

that the crucial consideration is whether the person

was under a reasonable impression that he was not

free to leave the officers’ presence.

We would only add that in determining whether

such a reasonable impression existed, the test must be

App. 65

what a reasonable man, innocent of any crime, would

have thought had he been in the defendant’s shoes.

The Court goes on to say that it was the opinion of the

Court that when an officer makes a show of authority

he accosts the subject and takes advantage of social

pressures which inhibit the subject from declining to

deal with them. They are saying that when a police

officer approaches you and says, “I am a police officer. I

would like to talk to you,” it is not likely that that

person will respond by saying, “No, sir. I do not want

to talk to you. I will not talk to you. I am walking

away.”

The Court realizes that when someone is confronted

by a police officer, he does not have in his mind, “I am

free to leave. I am approached for a casual conversation

and I am free to leave.” It is not reasonable to think

that a person would think that in that situation.

Your Honor, I submit it would be naive for the

Court to find that because the officer comes in and

says, “Hey, they are free to leave. She did not have to

talk to me,” that that is what the defendant thought.

“Here is my badge. I am a police officer. I want to talk

to you.” The average person in the defendant's shoes

or anybody sees it as a situation, “Here is the police. I

have to deal with him. I have to talk to them.”

Incidentally, Your Honor, in the Frost case

subsequent to the ‘stop, Mr. Frost gave consent to

search his bag, “Go ahead and search it,” and they

found the contraband. They do not even have that in

this case. They do not have anybody’s permission to go

into the baby’s diaper. The baby couldn't give permission

and the mother did not. That was very specific.

App. 66

I would submit to the Court that the initial

confrontation is, in fact, a seizure and is a restraint to

the freedom of movement and a seizure under Brown

versus Texas and that anything they seize subsequent

to the initial seizure must be suppressed. Everything

must follow if the initial stop is bad. That assumes, of

course, for purposes of this argument, that the initial

stop was bad, and I think under Frost and under Brown

it was bad.

The possibility exists, Your Honor, that it could be

a Terry type of stop, but, again, in United States versus

Pope, the Sixth Circuit Court of Appeals, United States

Court of Appeals, held that although meeting a drug

courier profile does not establish probable cause, facts

known to agents which corresponds to characteristics

in the profile may be considered along with information

obtained from other sources in determining whether

the agents did have probable cause to believe that an

offense was being or had been committed.

In other words, even to justify the Terry type of a

stop and frisk situation, an investigator-stop, you need

more than they were nervous; they paid in cash; and it

was inconsistent names. That does not even allow them,

under the rationale of the Court in Pope to make a

Terry stop. You need more besides nervous, in a hurry

and the defendant was with other people of whom they

were suspicious. This is a case of suspicion by association.

Sherolyn Harrison has not done anything.

THE COURT: Let me see Frost. Hand it up.

[Repititious Argument omitted].

App. 67

MS.COHAN: Very briefly, initially, I would direct

the Court’s attention to Rocha v Illinois which holds,

primarily, that a defendant’s fourth amendment rights

are personal rights which can only be exercised by the

individual aggrieved by the search and seizure. Here

the individual aggrieved by the search and seizure

Here the individual from whom the contraband was

seized was a child. That child is not seeking to assert

her own fourth amendment rights; rather, Sherolyn

Harrison is seeking to assert the fourth amendment

rights of another individual.

THE COURT: I have a pretty hard time buying

an argument that the defendant does not have standing

for the purposes of this case, if that is what you are

getting at.

MS. COHAN: It is, Your Honor. I would also

allege, as far as the boarding passes which were seized

from the possession of Miss Raymond, that clearly

Harrison has no standing to assert any fourth amendment

claim as to those. Those, in fact, were not from her

child. They were not from anyone who has any type of

legal relationship to Sherolyn Harrison.

They were, in fact, seized from the custody of

Miss Raymond. I would argue that that is controlled by

Rocha v. Illinois.

As far as the issue of how this particular criminal

episode is viewed, the State would argue, first of all,

that Brown versus Texas; Elmo, U.S. v. Pope, Battlement,

have all turn on a factual determination by the Court.

If, in fact, in Frost there was a ticket seizure by the

two officers who did not return the ticket. It as the

App. 68

same thing that the Elmo Court said developed into

the exact point of the seizure.

THE COURT: Let me get this verdict and then

you can argue without being rushed, if you do not

mind.

(Thereupon, a recess was had after which the

following proceedings were had:]

MS. COHAN: Your Honor, the State’s position

is, first of all, that the factual situation in Frost as well

as Battlement and Hayes — Battlement and Hayes

being a decision as to consent and the trial court believing

the testimony of one of the co-defendants who testified

— Battlement and Hayes and the factual situation in

Frost, which is completely dissimilar to the factual

situation at bar, our factual pattern indicates that, in

fact, Sherolyn Harrison was free to go and did proceed

to the ticket gate in the company of Miss Raymond and

Mr. Evans and that Miss Raymond was given the ticket

folder and was in the process of checking in at the gate,

getting boarding passes, when the child was searched

and the contraband seized.

Consequently, our factual pattern is completely

different than Frost, or, indeed, any of the other cases.

It is most similar, if at all, to U.S. v. Pope which held

that a bulge in the profile is equal to an articulable

suspicion. I would argue that in this case what we do

have is an initial contact with the defendant Sherolyn

Harrison. From that contact the defendant walked away.

She walked to the gate and while she was walking to

the gate, Detective Wolfe was conversing with Detective

Titus, comparing notes, as it were.

App. 69

During the course of their comparing notes, she

learned of additional suspicious circumstances, that

being, that Mr. Evans who had the ticket for the three

of them was carrying a bag with the name Harrison on

it and, also, at that point saw the bulge in the child.

It is the State’s position that Detective Wolfe had

no less than a duty to investigate what that bulge was,

not only, because she believed it to contain contraband,

but for the health, safety and welfare of the toddler

that Sherolyn Harrison was carrying.

It is the State’s position that that search of the -

toddler was entirely reasonable and that is mainly

what the fourth amendment prohibits. The fourth

amendment prohibits unreasonable search and seizures.

In this case, given the totality of Detective Wolfe's

knowledge of the facts and circumstances and the bulge

appearing on the toddler, the State would argue that it

is unreasonable to expect Detective Wolfe to stand by

and take no action. It would have been the course

which would have been most injurious to the child and,

indeed, would have frustrated all law enforcement efforts

to protect that child’s safety.

(Repititious argument omitted]

THE COURT: I am aware of the neighborhood

cases, of course, and aware of the fact that we are to

look to the reasonable application of criminal law and

you know, relatively strict compliance with the law

with infringement rights given to us by constitution

and that there has to be some pretty good, valid reason,

factually and legally, before somebody’s rights can be

infringed upon.

App. 70

Frost is interesting because — and I cannot say

that I disagree with the Third District on that — Mr.

Frost was standing there. He had no place to go. They

had his ticket and they had everything else that was

his and they were not about to give it back to him. I

think that is what Judge Schwartz was so offended by

and I think rightfully so.

The totality of these circumstances, the facts that

led up to a grouping of three being together, the initial

discussion, which I think was lawful by the police officers

with the two people in one section, the two ladies and

the child and ‘he gentleman in the other, and then their

going about their business and thereafter the police

officer’s action relating to the child, all authorize the

police officers under these circumstances and keeping

in mind the tender age of the child, the location of the

package of the contraband, to seize that which was

within and next to the abdomen of the youngster in

this case and I find that there was probable cause for

the purpose of the initial stop and inquiry.

I find that that had terminated and that the officer

had probable cause to believe that the contents inside

the clothing of the youngster was, in fact, contraband

based upon her background insofar as the propensity

of drugs in skin areas certainly would have led to some

action in that regard.

[Thereupon other matters not relevant here were

discussed and the proceeding concluded].

App. 71

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JULY TERM, A.D. 1980

CASE NO. 79-2269

SHEROLYN DENISE HARRISON,

Appellant,

vs.

THE STATE OF FLORIDA,

Appellee.

Opinion filed October 14, 1980.

An Appeal from the Circuit Court for Dade County,

Richard S. Fuller, Judge.

Bennett H. Brummer, Public Defender and Peter

Raben, Assistant Public Defender, for appellant.

Jim Smith, Attorney General and Calvin L. Fox,

Assistant Attorney General, for appellee.

Before HUBBART, C.J., and BARKDULL and BASKIN,

JJ.

PER CURIAM.

The conviction under review will be reversed because

the trial court erred in denying the motion to suppress

App. 72

the contraband. See: Royer v. State, __ So.2d ___ (Fla. 3d

DCA 1980), opinion filed September 9, 1980; United

States v. Mendenhall, US. ,: | |:

64 L.Ed. 497 (1980); Reid v. Georgia, — US. i

pee ot 8 : L.Ed.2d ___ (1980); case No. 79-448,

opinion filed June 30, 1980.

Reversed and remanded for further proceedings

not inconsistent herewith.

HUBBART, Judge (concurring)

I concur in the court’s reversal in this cause solely

on the ground that there was no reasonable basis on

this record for the police to have conducted a full

blown search of the defendant — even assuming, as

the state contends, that the police either effected no

prior temporary stop of the defendant at the airport or

did so based on founded suspicion. As such, the search

here was unreasonable and its fruits should have been

suppressed by the trial court upon the defendant's

timely motion. Sibron v. New York, 392 U.S. 40, 88

S.Ct. 1889, 20 L.Ed.2d 917 (1968); Isham v. State, 369

So.2d 103 (Fla. 4th DCA 1979), cert. denied, 381 So.2d

770 (Fla. 1980); Schnick v. State, 362 So.2d 423 (Fla. 4th

DCA 1978); Meeks v. State, 356 So.2d 45 (Fla. 2d DCA),

cert. denied, 364 So.2d 892 (Fla. 1978); Carr v. State,

353 So.2d 958 (Fla. 2d DCA 1978); Harris vu. State, 352

So.2d 1269 (Fla. 2d DCA 1977); Conner v. State, 349

So.2d 709 (Fla. lst DCA 1977).

App. 73

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA,

THIRD DISTRICT

CASE NO. 79-2269

SHEROLYN HARRISON,

Appellant,

vs.

THE STATE OF FLORIDA,

Appellee.

MOTION FOR HEARING EN BANC

AND MOTION FOR REHEARING

COMES NOW, the Appellee, THE STATE OF

FLORIDA, by and through its undersigned counsel

submits this Motion for Rehearing, En Banc, and Motion

for Rehearing, to wit:

I.

1. That in compliance with Rule 9.331 the Appellee

hereby subraits that rehearing en banc is necessary

herein in order to maintain uniformity with this Court’s

previous decisions in Jones v. State, 360 So.2d 1293

(Fla. 3d DCA 1978); Collier v. State, 353 So.2d 1219 (Fla.

3d DCA 1977); Jester v. State, 339 So.2d 242 (Fla. 3d

DCA 1976); Rodriguez v. State, 189 So.2d 656 (Fla. 3d

DCA 1966); Bush v. State, 369 So.2d 674 (Fla. 3d DCA

1979) and Myles v. State, 374 So.2d 83 (Fla. 3d DCA

1979).

App. 74

2. That the testimony this Court has overlooked

the fact that the evidence presented by the state in the

case at bar was undisputed. It was undisputed that the

defendants were travelling under aliases. Mitchell holds

that such a circumstance amounts to articulable suspicion.

It was also undisputed that Detective Wolfe based

upon her observations of forty previous “body carrys,”

including six (6) previous occasions that the body carry

was on a child, that the bulge in the child’s diaper was

extraordinary and consistent with a body carry of

narcotics. Bush held that an officer may rely upon his

observations, training and experience to reach a

determination of probable cause for arrest. Finally,

contrary to Collier and Jester, this Court has overruled

the trial court’s findings upon undisputed questions of

fact.

3. That the undersigned counsel expresses a belief,

based upon a reasoned and studied professional judgment,

that the panel decision is contrary to the foregoing

decisions of this Court noted at paragraph 1 and that a

consideration by the full Court is necessary to maintain

uniformity of decisions in this Court.

II.

4. That this Court has overlooked the fact that

the facts in the case at bar bear no relationship whatsoever

to those in, Royer v. State, and Royer is on its face

confined to its peculiar facts. See, Slip opinion, at pp. 2

(court opinion) and pp. 11-21 (Hubbart, J., concurring).

This Court’s opinion of ‘reversed, see Royer, must

necessarily be incorrect.

App. 75

5. Further, this Court has overlooked the fact

that Royer does not dispute any question of contact or

consent in the airport context. See, Hubbart, J.,

concurring. Clearly, there may be consent after even a

primary illegality and the Defendant was repeatedly

warned of his right to refuse consent herein. See, Husted

v. State, 370 So.2d 853 (Fla. 3d DCA 1979). This Court

has manifestly erred in failing to reach the decisive

factor below, that the trial court affirmatively found

that the transaction was pursuant to the Defendant's

voluntary consent. See, Husted v. State; Schneckloth v.

Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed. 854

(1973). This Court should not reverse the trial court

herein based upon obiter dicta in Royer. See, Royer v.

State, at pp. 11-21 (Hubbart, J., concurring). The trial

court’s ruling upon an issue of consent should not be

disturbed where in the case at bar, substantial competent

evidence, which the trial court chose to believe, supports

the trial court’s view. See e.g., United v. Fike, 449 F.2d

191 (5th Cir. i971), cert. den., 404 U.S. 943, 92 S.Ct. 943,

30 L.Ed.2d 257 (1971); State vu Nova; Husted v. State,

State v. Battleman, supra.

6. That in the holding of the Royer court, the

court acknowledges that the opinion of the United States

Supreme Court in United States v. Mendenhall, _U.S._,

100 S.Ct. 1870 (1980), is contrary to the facial holding of

the Royer court. Slip opinion, at p. 8, line 5; p. 4, n. 6.

Furthermore, the concurring opinions of two (2) members

of this Court specially rejected the obiter dicta of the

Royer court opinion and four (4) respected members of

this Court did not participate in the en banc rehearing.

Indeed, the State submits that Royer is erroneous in

the face of Mendenhall, 100 S.Ct. at 1877-1879, and

App. 76

Reid v. Georgia, _ U.S. _, 100 S.Ct. 2752 (1980). Contrary

to the Royer court’s view, Reid did not categorically

reject all so called “profiel” transactions. See also, Slip

opinion at pp. 11-21 (Hubbart, J., concurring). In Revd v.

Georgia, the holding of the court is confied to the

premise that JF THE JUDGMENT OF THE COURT

IS TO BE PREDICATED UPON TERRY A “STOP”

UPON THE FACTS STATED BY THE GEORGIA

APPELLATE COURT, THE “STOP” WAS NOT

LAWFUL. This proper analysis of Reid is found upon

the face of the Reid opinion, thus:

“{Holding]: The Appellate court’s conclusion

in this case that the DEA agent reasonably

suspected the petitioner of wrongdoing rested

on the fact that the petitioner appeared to the

agent to fit the so-called “drug courier profiel”

a somewhat informal compilation of charact-

eristics believed to be typical of persons

unlawfully carrying narcotics. Specifically the

court thought it relevant that (1) the petitioner

had arrived from Fort Lauderdale, which the

agent testified is a principal place of origin of

cocaine sold elsewhere in the country, (2) the

petitioner arrived in the early morning, when

law enforcement activity is diminished, (3) he

and his companion appeared to the agent to be

trying to conceal the fact that they were

travelling together, and (4) they apparently

had no luggage other than their shoulder bags.

“We conclude that the agent could not as a

matter of law, have reasonably suspected the

petitioner of criminal acitivity on the basis of

these observed circumstances. Of the evidence

App. 77

relied on, only the fact that the petitioner

preceded another person and occasionally looked

backward at him as the proceeded through

the concourse relates to their particular conduct.

“FOR THESE REASONS, THE JUDGMENT

OF THE APPELLATE COURT CANNOT BE

SUSTAINED INSOFAR AS IT RESTS ON

THE DETERMINATION THAT THE DEA

AGENT LAWFULLY SEIZED THE PETI-

TIONER WHEN HE APPROACHED HIM

OUTSIDE THE AIRLINE TERMINAL.

Accordingly, the judgment of the Georgia Court

of Appeals is vacated and the case is remanded

to that court for further proceedings not

inconsistent with this opinion.”

100 S.C.t at 2753-2754.

It is quite clear that Reid simply states that ‘if this is

considered to be a ‘stop’ it is not lawful. THE UNITED

STATES SUPREME COURT NEVER REACHED THE

ISSUES OF CONSENT OR CONTACT upon the facts

in Reid. See, 100 S.Ct. 2754-2755 (Powell, Burger and

Blackmun, J.J. concurring).

7. A proper analysis of Reid thus centers upon

the fact that the Court did not reverse the Georgia

appellate court, but REMANDED FOR FURTHER

CONSIDERATION. How this is essential to a proper

evaluation of Reid centers upon the fact that the Georgia

appellate court rested its holding upon two (2) distinct

alternative grounds, numbered “1” and “2”. See, State

v. Reid, 149 Ga.App. 685, 255 S.E.2d 71 (1979), cert.

den. June 20, 1979. The Georgia appellate court, noting

App. 78

‘hat South Florida is a notorious drug traffick terminal,

first of all, held that the facts as developed from the

drug courier profile were articulable suspicion, but

relevant to the immediate discussion also held that:

“9. Inits ruling on the motion, the trial court

found “that at the time the officer suggested

these men go back into the airport with him

that by that time they were quote under arrest

end quote.” The only evidence heard by the

trial court was that given by the agent of the

Drug Enforcement Administration who testified

that the defendant and his companion consetned

to return to the terminal The Agent was not

dressed in a uniform, although he did not produce

his credentials. He was wearing blue jeans

and a light weight jacket. He had a gun in the

rear area of his waistband, covered by his

jacket, and not visible to the defendant and

his companion. He was alone. There is no

suggestion that the defendant was ruluctant

to return to the terminal. There is also no

evidence of coercion, youth, lack of education,

low intelligence, harsh questioning, or use of

physical force. State v. River, 142 Ga.App. 96,

235 S.E.2d 383 (1977). Whether consent was

given to be determined from the totality of

the circumstances. Schenkckloth v. Bustamonte,

412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854

(1973). At the conclusion of the state’s evidence

on the motion, both sides when questioned by

the trial judge, indicated they had nothing

further to present. The evidence of consent is

unrebutted. Therefore, we hold that the trial

App. 79

court erred in finding that the defendant was

under arrest.” (emphasis added).

255 S.E.2d at 72-73.

The United Staes Supreme Court left the foregoing

alternative holding in the Georgia appellate court, intact

_ even though the transaction may have begun with a

“profile”. The undersigned has conferred with the

Attorney General’s Office and the prosecutor in Reid

and would indicate to this Honorable Court that the

matter would be returning to the United States Supreme

Court upon the contact/consent issue after remand and

consideration by the Georgia appellate court.

8. Indeed, the Appellee submits that Mendenhall

and Reid are entirely consistent with each other and

contrary to the Royer court’s opinion. See, also, Slip

opinion, at pp. 11-22 (Hubbart, J. concurring). This Court's

opinion has overlooked the fact that the Royer panel

properly refused to substitute its judgment for that of

the trial court where the evidence, clearly supports a

finding of free and voluntary consent. See, Husted v.

State, 370 So.2d 853 (Fla. 3d DCA 1979); compare, State

v. Battleman, 374 So.2d 636 (Fla. 3d DCA 1979). With

respect to search and seizure, there is no difference

between Florida law and the Florida Constitution and

the United States Constitution. See, Hetland v. State,

366 So.2d 831 (Fla. 2d DCA 1979), approved and adopted,

Hetland v. State, __ So.2d ___ (Fla. 1980), S.Ct. Case No.

56,245, opinion filed September 11, 1980. This Court

has overlooked the fact that the views of the Mendenhall

court are therefore, binding upon this Court. Most

respectfully, the state submits that under Mendenhall,

App. 80

this Court should not substitute its judgment for that

of the trial court.

9. This Court has overlooked the fact that these

officers had a duty to act and were undisputably acting

in good faith. The exclusion of the evidence herein as

this Court has stated it in its opinion, would serve no

purpose except to frustrate the interdiction of narcotics

traffic. See, United States v. Williams, 622 F.2d 830

(5th Cir. 1980) en banc, cf., also, slip opinion, at pp.

14-21 (Hubbart, J. concurring, urging balancing of the

substantial competing interests herein).

10. The issue herein as to the constitutional balance

that should be struck in the airport context herein is of

major and compelling statewide importance in Florida.

The Florida Supreme Court has a related issue in an

airport case pending before it in Shapiro v. State, Fila.

S.Ct. Case No. 54,097. In view of the circumstances of

this Court’s opinion, and in view of Mendenhall and

Reid, this Honorable Court should certify the precise

questions of law and fact herein as ones of great public

importance.

WHEREFORE, upon the foregoing, the Appellee,

THE STATE OF FLORIDA, prays that this Honorable

Court will grant rehearing en banc and/or rehearing.

App. 81

RESPECTFULLY SUBMITTED, on this 29th day

of October, 1980, at Miami, Dade County, Florida.

JIM SMITH

Attorney General

CALVIN L. FOX, Esquire

Assistant Attorney General

Suite 820

401 N.W. 2nd Avenue

Miami, Florida 33128

(305) 377-5441

App. 82

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JULY TERM, A.D. 1980

FRIDAY , NOVEMBER 14, 1980

CASE NO. 79-2269

SHEROLY HARRISON,

Appellant,

THE STATE OF FLORIDA,

vs.

Appellee.

Counsel for appellee having filed in this cause -

motion for rehearing, and same having been considered

by the court which determined the cause, it is ordered

that said motion be and it is hereby denied.

A True Copy

ATTEST:

\

Clerk District Court of

Appeal, Third District

ec: Calvin L. Fox

Peter Raben

App. 83

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

THIRD DISTRICT

CASE NO. 79-2269

SHEROLYN HARRISON,

Appellant,

-VS-

THE STATE OF FLORIDA,

Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT OF FLORIDA

IN AND FOR DADE COUNTY

INITIAL BRIEF OF APPELLANT

BENNETT H. BRUMMER

Public Defender

Eleventh Judicial Circuit of Florida

1351 N.W. 12th Street

Miami, Florida 33125

PETER RABEN

Assistant Public Defender

Counsel for Appellant

App. 84

TABLE OF CONTENTS

8 ing gt. a ae Cera

STATEMENT OF THE CASE..............-..

STATEMENT OF THE FACTS...............

Aer eer rns res)

THE TRIAL COURT ERRED IN DENYING

THE DEFENDANT'S MOTION TO SUPPRESS

EVIDENCE ILLEGALLY SEIZED IN

CONTRAVENTION OF THE FOURTH AND

FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION AND

ARTICLE I, SECTION 12 OF THE CONSTI-

TUTION OF THE STATE OF FLORIDA.....

A

The Trial Court Erred In Denying A Motion

To Suppress Evidence Seized From The

Defendant Where The Initial Stop Of The

Defendant Was Not Based Upon A Reasonable

Suspicion That She Was Engaged In Criminal

Activity, And The Contraband Seized From

The Defendant During The Course Of The

Stop Was Therefore Obtained In Violation Of

The Fourth and Fourteenth Amendment To

The Constitution Of The United States And

Article I, Section 12 Of The Constitution Of

12

The State Of Florida..................... 13-21

App. 85

B

The Trial Court Erred In Denying A Motion

To Suppress Evidence When The Contraband

Was Seized Without Probable Cause, In Violation

Of The Fourth And Fourteenth Amendments

To the United States Constitution And Article

I, Section 12 Of The Florida Constitution.... 21-24

II

THE TRIAL COURT ERRED IN DENYING

THE DEFENDANT'S MOTION FOR JUDG-

MENT OF ACQUITTAL WHEN THE STATE

FAILED TO PROVE THE ESSENTIAL OF

FELONIOUS KNOWLEDGE BY DIRECT

EVIDENCE, WHEN PROOF OF POSSESSION

WAS COMB TRUCTAYV Bel iw. ccc clev eens 25-26

I Fags. Pl i eS han eae oF 27

CERTIFICATE OF SERVICE................. 28

App. 386

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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