Appendix — Florida v. Harrison
Supreme Court brief1981
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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
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