Petition — Gluesenkamp v. Florida

Supreme Court brief1981

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fitiliy Su ome Pour,

80-1573 backs

No. WAR 26 VORP

7 : SER .. STEVA

CLER

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

DANIEL W. GLUESENKAMP,

Petitioner,

STATE OF FLORIDA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

JAMES K. JENKINS

Counsel of Record

STROUP, GOLDSTEIN, JENKINS

& PRITZKER

900 Flat Iron Building

84 Peachtree St., N.W.

Atlanta, Ga. 30303

(404) 524-4343

J.M. RAFFAUF

900 Flat Iron Building

84 Peachtree St., N.W.

Atlanta, Ga. 30303

Altorneys for Petitioner

THE CASILLAS PRESS, INC.-1717 K Street. N W.—Washington, 0. C.-223-1220

QUESTIONS PRESENTED

l. Whether the Fourth and Fourteenth

Amendments permit the arbitrary and un-

reasonable stopping of certain vehicles

that fit into a subjective profile that

government officials deem likely to contain

products subject to regulation by the Flor-

ida Department of Agriculture when there is

neither reasonable suspicion nor probable

cause to believe the vehicles contain any

proscribed products where the state's in-

terest in agricultural regulations does not

outweigh the resulting intrusion on the

privacy and security of the _ persons

detained.

2. Whether the court below erred in up-

holding the warrantless search and seizure

of a vehicle in the absence of probable

cause, exigent circumstances or articulable

suspicion.

3. Whether he court below erred by

failing to base its decision on the Motion

to Suppress on facts contained in the

record.

4. Whether the state statute which al-

lows law officers to arbitrarily stop

certain vehicles violates the Fourth and

Fourteenth Amendments to the United States

Constitution in that:

(a) the classification of regulated ve-

hicles is arbitrary and unrelated to the

purpose of the statute in vislation of the

Equal Protection clause;

(b) the statute violates the Privileges

and Immunities and Commerce Clause of the

Fourteenth Amendment; and

in that it leaves the enforcement of the

statute in the unbridled discretion of law

enforcement officers and fails to give per-

sons of ordinary intelligence fair notice

of the proscribed conduct.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED. .... .

TABLE OF CONTENTS. . .... «

TABLE OF AUTHORITIES .... .

OPINIONS BELOW. . «4 « « « «

JURISDICTION . . . «© «© «© «© « «

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED... .

STATEMENT OF THE CASE ... .

REASONS FOR ALLOWING THE WRIT.

I. THE DECISION BELOW IS CONTRARY

TO THE DECISIONS OF THIS COURT AND

THE UNITED STATES CONSTITUTION IN

THAT IT UPHOLDS A_ SEIZURE AND

SEARCH BASED ON THE ARBITRARY AND

UNREASONABLE STOPPING OF

PETITIONER'S VEHICLE THAT FIT A

SUBJECTIVE PROFILE OF VEHICLES THE

GOVERNMENT DEEMED LIKELY TO CONTAIN

PRODUCTS SUBJECT TO REGULATION BY

THE FLORIDA DEPARTMENT OF

AGRICULTURE WHEN THERE WAS NEITHER

REASONABLE SUSPICION NOR PROBABLE

CAUSE TO BELIEVE THE VEHICLE

CONTAINED ANY PROSCRIBED PRODUCTS

WHERE THE STATE'S INTEREST IN

AGRICULTURAL REGULATIONS DID NOT

OUTWEIGH THE RESULTING INTRUSION

ON THE PRIVACY AND SECURITY OF

THE PERSONS DETAINED. .... .

Il. THIS COURT SHOULD GRANT

CERTIORARI TO RESOLVE CONFLICTS

WITH LOWER COURTS THAT CONTINUE

TO ERODE THE FOURTH AMENDMENT'S

PROSCRIPTION AGAINST WARRANTLESS

VEHICLE SEARCHES AND SEIZURES IN

ABSENCE OF EITHER PROBABLE CAUSE

OR EXIGENT CIRCUMSTANCES. ... . 37

III. THE DECISION BELOW IS CON-

TRARY TO THE DECISIONS OF THIS

COURT AND WELL FOUNDED PRINCIPLES

OF APPELLATE REVIEW IN THAT THE

EVIDENCE FAILS TO SUPPORT THE

OPINION OF THE FLORIDA SUPREME

COURT . 7 ° . . 7 . . e . . . ° . 43

IV. THE DECISION BELOW UPHOLDING

THE CONSTITUTIONAL VALIDITY OF THE

STATE STATUTE WHICH ALLOWS

ARBITRARY STOPS BY GOVERNMENT

OFFICIALS WITHOUT ARTICULABLE

SUSPICION OR PROBABLE CAUSE IS IN

CONFLICT WITH DECISIONS OF THIS

COURT AND THE FOURTEENTH

AMENDMENT, AND CONTRARY TO THE

UNITED STATES CONSTITUTION. . . . 48

CONCLUSION . . «© « «© © © © © © © © © (64

TABLE OF AUTHORITIES

Cases «+6 +e ee ee © © © © 0 8 ew POZOS

Alladin's Castle, Inc. v. City of

Mesquite, 630 F.2d 1029 (5th

Cir. 198

0) See wee een eee es ee

Almeida Sanchez v. United States,

413 U.S. 266 (1973) . « « « « «© « 90,31

Arkansas v. Sanders, we U.S.

753 (1979) . « « « Soe a ee ee

Brock v. Florida, So.2d.

Fla. S. Ct. # 57, 718

a ee er ee,

Cady v. Dombrowski, 413 U.S. 433

(cg) eee ae ee ee ee ee

Camara v. Municipal Court, 387

Debs SS CLPOT) « «© 0 0 0 8 8 8 ot SMgae

Chambers v. Maroney, 399 U.S.

GZ UI97U) . « © © © © © « 036,42 ,45

Cline v. Frink Davis Co., 274

U.S. 445 (19Z5) . « « © © © © © © ot 062

Colonnade Catering Corporation

v. United States, hint U.S. 72

(1970) . . . . 7 . . . . . ae

Coolidge v. New Hampshire, 403

Mame GES GEOTE) « + cs eo 8 + + cee, 42,44

Connally v. General Construction

Company, 269 U.S. 385 (1926) . . . .64

Cox v. Lousiana, 379 U.S.

536 (1965) . . . . . 7 . . . . . . . 60

crayp v. Board of Education ‘

. oo - . . . . . . . . 0

Davis v. Weir, 497 F.2d shi

(Sth Cir. 1974). . . . . . . . . . 49

Delaware v. Prouse, 440 U.S. 648

(1979) . . . . . . . . . . . . 28,29 »30

32 990,09

Dorough v. Estelle, 457 F.2d

1007 (Sem Cir. 1974) . «2 so 0 0 © 86

Duke Power Company v. Carolina

‘Environmental Study Group, 438

of F 59 (1978) 7 7 . . . . . . . . . 47

Edwards v. California, 314 U.S.

460 C19G@1) «. « © ew wo o « s+ eee

Giaccio v. Pennsylvania, 382 U.S.

DEES 3 6 6 6 4 8 te lt wk tw OO

Katz v. United States, 389 U.S.

PTE s 6 6 6% © 6 «© ee eo 0 0

M. Kraus and Brothers v. United

tates, oBe pagpioomnge oon: agro gli

Lanzetti v. New Jersey, 306 U.S.

8) . . . . . . . . . . . . . 61

Lo-Ji Sales, Inc. v. New York

S47 U.S. 319, S27 (1979). » 2 45

vii

Pages

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

oe Bhs 6 0 « « « 26,393,958

Mason v. Lister, 562 F.2d ~~

(sth Cir. I 578) . . . . . . . . . 56

Papachristou v. City of

Jacksonville, 405 U.S. 156

. . . . . . . . . . . 7 . 59,62

Reed v. Reed, 404 U.S. 71 (1971) ... .49

Reid v. Georgia, U.S.__, +100

. Ge 1980) 7 . . - . . . o 36 Pe}

Roemer v. Board of Public Works

of Maryland, 426 U.S. 736 (1976). . .48

Royster Guano Co. v. Virginia, -

. . . . . . . . . . . 5

Shapiro v. Thompson, 394 U.S. 618

(1 969) . "Ss: OF 6" 2 68 oe + Se e 2 56

Stephenson v. Department of

Agriculture and Consumer

Services, O.

a) ep, | ees: eT

Terry v. Ohio, 392 U.S. 1 (1968) . . 32,36

United States v. Biswell,

U. . . . . . . . . . . 33

United States v. Cardiff, 344

Uebs 174 (1953). . . . . . . . . . ° 63

viii

United States v. Chadwick

433 U.S. 1, CI977) « 2 « «

United States Department of

Agriculture v. Moreno, 413

. . > . . . .

United States v. Garra

477 F.2d 1306 (5th Cir. 1973)

United States v. Harris,

United States v. L. Cohen

Grocery Co., 255 U.S. 18

United States v. Mersky,

Ue . . 7

United States v. National Dair

Products, 372 U.S. 29 (15633 :

United States v. Reese, 92 U.S.

2: See a

United States v. Shaefer, F.2d.

(3rd. Cir. 1980),

78 Cr.L.R. 2386 . . . o . .

United States v. United States

Gypsum Co., 333 U.S. 364 (1948)

Ward v. Maryland, 12 Wall 418

[eevee 6 6 eee leh le le ll lf

Pages

United States Constitution:

First Amendment .....+.++ +++ 5

Fourth Amendment. ......+.++-- 5

Fourteenth Amendment. ....... . 6

Statutes:

Florida Statutes § 320.06... .. .53

Florida Statues § 570.15 ... . 6,8,9

16 ,25,37

42,49 54

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1980

No.

DANIEL W. GLUESENKAMP,

Petitioner

STATE OF FLORIDA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

Comes now Petitioner, Daniel W. Glue-

senkamp, and respectfully prays that a Writ

of Certiorari issue to review the judgment

and opinion of the Florida Supreme Court

entered on October 16, 1989, rehearing de-

nied on January 14, 1981.

OPINIONS BELOW

Petitioner was convicted and sentenced

on October 12, 1978 in the Circuit Court of

Hamilton County, Florida for possession of

cannabis in excess of 100 pounds. On Octo-

ber 16, 1980 the Supreme Court of Florida

affirmed the conviction and judgment of the

trial court. A copy of this opinion is at-

tached to the Appendix accompany‘tng this

Petition as Exhibit A. Rehearing was de-

nied on January 14, 1981. A copy of this

order is contained in the Appendix accom-

panying this Petition as Exhibit B.

JURISDICTION

In the case below Petitioner challenged

the legality of the search and the validity

of Florida Statute § 570.15. After pretri-

al motions raising these issues were de-

nied, pursuant to Florida Criminal Proce-

dure, Petitioner pled nolo contendere while

-3-

reserving his right of appeal on these

issues.

On February 8, 1978, a two-count infor-

mation was filed in the trial court charg-

ing Petitioner with possession of cannabis

in excess of 100 pounds with intent to

sell, and possession of cannabis in excess

of 5 grams (App. 43)*. Petitioner subse-

quently entered his written plea of not

guilty (Id.).

Thereafter, Petitioner filed a Motion to

Suppress Evidence, and a Motion to Dismiss

challenging the constitutionality of Flori-

da Statute § 570.15. On June 16, 1978, the

trial court denied the Motion to Suppress

(T-101), and on July 17, 1978, the trial

court entered a written Order denying the

Motic 1 to Dismiss (App. 41).

*"App. refers to the Appendix filed

contemporaneously with this Petition.

References to the Motions hearing in the

Petition are referred to herein as "T".

On July 25, 1978, Petitioner and his

counsel appeared before the Circuit Judge,

for the purpose of entering a plea of nolo

contendere to Counts I and II of the infor-

mation, expressly reserving and preserving

his right to appeal the trial court's de-

nial of the Motions to Dismiss’ and

Suppress.

On October 12, 1978, the trial court ad-

judicated Petitioner guilty as charged in

the information and imposed a "split" sen-

tence of five (5) years, consisting of

eighteen (18) months imprisonment, followed

by 3-1/2 years of probation, together with

a fine of $5,000.00 (App. 43). Petitioner

appealed and on October 16, 1980, the Flor-

ida Supreme Court denied Petitioner's ap-

peal (App. 1). A motion for rehearing was

denied on January 14, 1981 (App. 38).

Petitioner's Motion to Stay Mandate was de-

nied by the Florida Supreme Court on Janvu~-

ary 27, 1981 (App. 40), and Petitioner has

been incarcerated since February 2, 1981.

The Jurisdiction of this Court is in-

voked pursuant to 28 U.S.C. § 1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States

Constitution provides:

Congress shall make no law respecting an

establishment of religion, or prohibiting

the free exercise thereof; or abridging the

freedom of speech, or of the press; or the

right of the people peaceably to assemble,

and to petition the Government for a re-

dress of grievances.

The Fourth Amendment to the United

States Constitution provides:

The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and seizures,

shall not be violated, and no Warrants

shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particu-

larly describing the place to be searched,

and the persons or things to be seized.

The Fourteenth Amendment to the United

States Constitution provides:

All persons born or naé*uralized in the

United States, and subject to the jurisdic-

tion thereof, are citizens of the United

States and of the State wherein they re-

side. No State shall make or enforce any

law which shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State deprive any

person of life, liberty, or property, with-

out due process of law; nor deny to any

person within its jurisdiction the equal

protection of the laws.

Florida Statutes 570.15 provides:

Access to places of business and vehicles

(1)(a) The commissioner, assistant com-

missioner, directors, counsel, experts,

chemists, agents, inspectors, road-guard

inspection special officers, and other em-

ployees and officers of the department

shall have full access at all reasonable

hours to all:

1. Places of business;

2. Factories;

- Farm buildings;

Carriages;

- Railroad cars;

- Trucks;

- Motor vehicles, other than private

passenger automobiles with no trailer in

NADUL Ww

tow, or any vehicle bearing an RV license

tag;

Be Truck and motor vehicle trailers;

9. Vessels; and

10. All records pertaining thereto;

used in the production, manufacture, stor-

age, sale, or transportation within the

state of any food product; any agricul-

tural, horticultural, or livestock product;

or any article or product with respect to

which any authority is conferred by law on

the department.

(b) If such access be refused by the

owner, agent, or manager of such premises

or by the driver of such aforesaid vehicle,

the inspector or roadguard inspection spec-

ial officer may apply for and may execute a

search warrant, which shall be obtained as

provided by law for the obtaining of search

varrants in other cases, or may conduct a

search of any of the aforesaid vehicles

without a warrant pursuant to s.933.19.

ees, and road-guard inspection special of-

ficers may examine and open any package or

container of any kind containing or be-

lieved to contain any article or product

which may be transported, manufactured,

sold, or exposed for sale in violation of

the provisions of this chapter, the rules

of the department or the laws which the de-

partment enforces anda may inspect the con-

tents. thereof and take therefrom samples

for analysis.

(2) It shall be unlawful for any truck

or any truck or motor vehicle trailer to

pass any official road guard inspection

station without first stopping for inspec-

tion. A violation of this subsection shall

constitute a misdemeanor of the second de-

gree, punishable as provided in s. 775.082

or s. 775.083.

(3) Every law enforcement officer is

authorized to assist employees of the de-

partment listed in subsection (1) in the

enforcement of subsection (2). Such offi-

cer is authorized to stop and detain any

vehicle and its driver who has failed to

comply with subsection (2) until an em-

ployee of the department arrives to conduct

the inspection required by law. Such law

enforcement officer or a road guard inspec-

tion special officer may require the driver

to return with his vehicle to the road

guard inspection station where the driver

failed to stop the vehicle for inspection.

(4) No civil or criminal liability

shall be imposed upon any person who is au-

thorized to enforce or assist in enforce-

ment of the previsions of this section and

who is lawfully engaged in such activity.

Amended by Laws 1975, c. 75-215, § 1, eff.

July 1, 1975; Laws 1978, c. 78-180, § 1

eff. June 8, 1978; Laws 1979, c. 79-371, §

1, eff. July 3, 1979.

STATEMENT OF THE CASE

Florida Statutes 570.15 (1977) (supp.

1978) allows the commissioner of the Flori-

da Agriculture Department and his employees

and agents "access at all reasonable hours"

to all trucks, truck and motor vehicle

trailers and motor vehicles, other than

private passenger automobiles with no trai-

ler in tow or any vehicles bearing an "RV"

license tag. Cars, recreational vehicles

and vans equipped as recreational vehicles

are exempt. All vehicles that fall within

the proscription of the statute must stop

at all Inspection Stations along Florida

highways (Fla. Statutes 570.15 and 933.19);

but absent probable cause and exigent cir-

cumstances the statute does not allow a

search. Giuesenkamp v. Florida, slip opin-

ion (App. 1).

Petitioner was a passenger in a 1975 GMC

van when he was stopped by an employee of

the. Florida Department of Agriculture

(T-29, 32, 79, 89). Florida Agriculture

Inspector Perry, as he saw the van drive

past the inspection station on Interstate

75 North, made a determination that the van

was not a car, recreational vehicle, nor a

van equipped as a _ recreational vehicle

(T-26, 27, 28, 29, 36). The van had an In-

diana tag where it was properly licensed

(T-79). To avoid having to stop at the

Florida Inspection Station would have ne-

cessitated that it have a Florida "RV" tag.

Vans can qualify for Florida "RV" tags.

Florida Statutes § 570.15 (App. 48, 50).

Inspector Perry testified that in a nor-

mal eight hour shift hundreds of vehicles

go by the station and do not stop as re-

quired by law (T-38). Perry said that

about half of all trucks and 85% of all

vans do not stop at the inspection station

(T-42); however, Perry testified that all

vehicles that violate the statute are not

stopped. "If I pursued every vehicle I

would probably be out there right now.

There is no way you could get every ve-

hicle." (T-39). Perry said the officers

are told to use their own judgement and ex-

perience in picking which vehicles to stop

(T-39). On cross examination he revealed

how he makes his decisions concerning which

vehicles to stop:

Q. [Mr. Jenkins] What goes into that

choice? How do you pick and choose out

of all those vehicles in violation of

the law, how do you pick and choose

which ones you are going to actually

chase down?

[Inspector Perry] It all depends on how

everything is situated there at the sta-

tion. If I'm not busy. If there's not

too many trucks on the ramp at the time.

If we have everything that we suppose to

do done. But everything was slow that

day.

But what I'm going at, Mr. Perry, when

you've got a bunch of vehicles to choose

from that are in violation of the law,

youve got to exercise some choice as to

certain vehicles, and what I want to

know is what in your mind goes into

choosing which vehicle to stop?

In my mind, is the ones like the panel

type vans, or the ones that you couldn't

see through. The ones that's got cur-

tains around it and sitting down pretty

low.

Q. Not being able to see in it and sit-

ting low are important factors?

A. Right. (T-39).

Perry said that even 60% of those ve-

hicles he does stop do not have proscribed

products in their van (T-44).

Cain, the driver of the van when stopped

by Inspector Perry, indicated she was not

aware that the type of vehicle they were

riding in, a GMC van, was required to stop

at the station (T-49, 50). This confusion

clearly had a rational basis as Perry tes-

tified the signs on Interstate 75 notifying

the public of the inspection requirements

were as follows:

A: [Inspector Perry] The first sign states

"Agricultural Inspection Station’ And

then the next sign states, ‘All trucks

and all trailers stop for inspection.'

Then the third sign says, ‘All trucks

and all trailers’ and ot an arrow

pointing at the exit (1-28)

Perry admitted that the signs did not say

anything about "vans" (T-43). Yet when

Perry stopped Petitioner's vehicle, he de-

scribed his actions as follows:

A: [Inspector Perry] I asked her, I said

"Ma'am you failed to stop for the in-

spection station back there about two

miles. And all trucks and trailers and

vans, which are considered as trucks ,

are required to pull in for inspection

(T-29).

Inspector Perry, using an official Flor-

ida Department of Agriculture automobile

with flashing blue-light, had stopped the

vehicle approximately two (2) miles north

of the Inspection Station (T-28-29). At

the time, Inspector Perry was wearing his

official Florida Department of Agriculture

uniform with hat, badge and service revol-

ver (1-47-48). Cain had observed the

flashing blue-light mounted atop Inspector

Perry's vehicle, and immediately pulled

over to the right side of the highway and

stopped the vehicle (T-29).

Perry advised Cain that she had failed

to stop at the Inspection Station, and she

indicated that she was not aware that a van

had to stop at the Inspection Station

(T-50). Inspector Perry then asked Cain if

he could look in the back of the van to see

what she was hauling. Cain responded that

she was hauling plants. Perry then asked

her if she had the "papers on the plants"

(T-50).

Cain returned to the van and apparently

had a brief conversation with Petitioner.

She and Petitioner returned to Perry and

she advised Perry that the van was not

hauling plants. At that point, Petitioner

advised Perry that they were hauling pot-

ting soil (T-30). The paperwork apparently

was not produced. Perry again inquired if

he could look into the rear of the van, and

received a negative response from Peti-

tioner (T-31).

Perry then advised Cain and Petitioner

that they would have to return to the In-

spection Station with him for inspection

(T-31), a distance of approximately ten

(10) miles from the location where the van

was originally stopped (T-37).

In order to return to the Inspection

Station, it was necessary to proceed on the

northbound lane to the next exit. Cain

stopped the van at a store located at the

exit interchange and advised Inspector Per-

ry that she wanted to use the restroom.

Inspector Tom Delegal, the shift manager of

the Inspection Station who had responded to

a radio call from Perry for ‘'back-up"

assistance advised Cain that there were

facilities back at the Inspection Station

(T-31). Delegal then asked Petitioner if

he (Delegal) could take a look into the

rear of the van. Again, Petitioner re-

sponded in the negative (T-81).

After a brief delay, Petitioner, Cain

and the Inspectors returned to the Inspec-

tion Station. Again, Inspector Perry asked

if he could look into the rear of the van,

and again he received a negative response

(T-33).

Thereafter (approximately 35 minutes af-

ter stopping the van) the caravan arrived

at the southbound Inspection Station and

Inspector Perry placed Cain under arrest

for failure to stop for inspection, a vio-

lation of Florida Statutes § 570.15 (2)

(T-33, 59). Both Cain's and Petitioner's

drivers licenses were taken from them, and

they were placed in the Inspection Station

(T-84). Perry's actions effectively se-

cured the van, located some 50 yards away

(T-83), as Perry’ related oon _ cross

-examination:

Q: (Mr. Jenkins] So, with your consent, he

(Appellant) couldn't have gotten in that

van and driven off?

A. (Inspector Perry): That van couldn't go

no where.

Q. Why couldn't the van go any place?

A. Because I had to find out what was on it

before I even let it go (T-58).

After placing Cain under arrest and de-

taining Petitioner and the van, Perry con-

tacted his Supervisor, Garth Nobles, at his

home in Live Oak, Florida, some twenty (20)

miles from the Inspection Station (T-59).

In turn, the Hamilton County Sheriff's Of-

fice was contacted, and that office asked

Charles Tompkins, an Investigator with the

State Attorney's Office, to accompany Dep-

uty Sheriff Frank Copeland to the Inspec-

tion Station to assist in handling the sit-

uation (T-4). Tompkins then contacted Bob

Dekle, an Assistant State Attorney in Lake

City, Florida and requested that Dekle go

to the Inspection Station to advise the law

enforcement officers in their handling of

the situation, (T-11), and to help in ob-

taining a search warrant (T-31).

Approximately 45 minutes after Perry

contacted him, Nobles arrived at the In-

spection Station (T-50). Shortly there-

after, Tompkins arrived, and Dekle arrived

approximately 10 to 15 minutes’ later

(T-13).

When Tompkins arrived, he immediatley

approached the van and attempted to open it

(T-62-63). Finding the door locked, he at-

tempted to look into the van through the

window on the passenger's side of the van.

Because the glare from the sun on the win-

dow made it impossible, Tompkins could not

see inside the van. Therefore, he placed

his head against the window and shielded

his eyes with his hands in order to look

into the van (T-13-14).

Tompkins testified he was able to see

inside the van. Tompkins testified he saw

a blanket tied on a string behind the seats

(T-5), and according to his testimony, be-

cause the blanket had slipped away some

four or five inches from the passenger side

of the van, he was able to see burlap

-colored plastic bags in the rear of the

van (T-15). Although he could not see what

the opaque bags contained, based upon past

experiences, Tompkins stated he knew such

bags to contain marijuana (T-5). In addi-

tion, Tompkins testified he could smell the

odor of marijuana emanating from a closed

door of the van, by placing his nose up

against the door (T-5). He said that he

intentionally began sniffing for marijuana

and he smelled it when he came to the door

(T-16). Although Tompkins testified on the

Motion to Suppress hearing that he told the

other officers immediately that he smelled

marijuana, he admitted that on a previous

occasion he testified, under oath, that the

first time he told anyone about smelling

marijuana was some three (3) months after

the arrests (T-18). Moreover, Tompkins

testified that the entire case file of his

office (which contained his written report

from the day of the incident) had been

lost and that the copy of the statement

normally submitted to the State Attorney's

Office was likewise "missing" (T-18, 21).

Assistant State's Attorney Dekle testi-_

fied that when he arrived on the scene, he

approached the van and was told that he

would be able to see the bags by looking

through the passenger window. Because of

the glare from the sun, he could not see

into the van even with the aid of a coat he

held up to shield the sun's glare. Dekle,

the investigator, then moved to the wind-

shield of the van, and by having the coat

held over the passenger's window and plac-

ing his face against the windshield and us-

ing his hands as an additional shield,

Dekle testified he observed a drawn curtain

across the back of the van, behind the

seats, and a gap of 6 to 12 inches between

the curtain and the left, or driver's side

of the vehicle (T-74). Dekle testified he

could see through the gap and observed two

(2) bags, which he believed to contain mar-

ijuana (T-21).

Significantly, Inspector Perry, the of-

ficer who originally stopped and detained

the vehicle and its occupants, gave yet an-

other version of what could be seen or

smelled from outside the vehicle. Perry

testified that "the only way you could see

in it was from the front" (T-33-34). As to

the cargo area behind the curtain, Perry

stated:

A: [Inspector Perry] I couldn't see inside

the vehicle. As far as I could see was

where the passenger and the driver's

seat was. That's as far as I could see.

They had a curtain up to shield off the

rest of it (T-34).

Perry was likewise unable to perceive the

same smell of marijuana that Tompkins was

able to obtain, despite Perry being as

close as one or two feet from the van at

times (T-64). After failing to observe the

area behind the curtain, Perry was ordered

hy the other officers to return to the sta-

tion and complete his paper work (T-34,

64).

After Dekle, Tompkins, Deputy Copeland

and Nobles had been at the inspection Sta-

tion examining the vehicle for approximatly

30 to 45 minutes (T-62), Tompkins and Dekle

entered the Inspection Station and asked

Petitioner who owned the van. Petitioner

indicated that he was the owner (T-65).

Dekle then told Tompkins that he felt

there was probable cause to believe there

was marijuana in the van solely on the ba-

sis of seeing the burlap bags, and because

it was a vehicle, he did not think it would

be necessary to obtain a search warrant

(T-72). Dekle made it clear that any smell

of marijuana did not enter into his prob-

able cause determination (T-71-73).

Tompkins then asked the Petitioner for the

keys to the vehicle. Again, Petitioner

stated that he was not giving permission to

search the van (T-7). Tompkins told Peti-

tioner that his permission was not needed

because he (Tompkins) was going to search

the van even if he had to "pull the door

ose fe” (8-7, 73, 87). Tompkins then

assured Petitioner that the act of giving

him the keys would not be considered as a

consent to search the vehicle (Id.)

Petitioner gave the keys to Tompkins

(T-8), who proceeded back to the van, and

in the presence of Deputy Copeland, Inspec-

tor Perry and Dekle, opened the van, and

saw the bags in the rear of the van (T-8).

Marijuana wii not in plain sight and was

not seen until Tompkin opened, and looked

into one of the bags and saw what he

believed to be marijuana (T-8). Shortly

thereafter, Deputy Copeland arrested Cain

and the Petitioner, and transported them to

the Hamilton County Jail (T-8).

The trial court upheld the _ statute,

saying:

That section 570.15 of the Florida Sta-

tutes is constitutional and that said

statute does not generally or as applied

to the facts of this case, deprive peti-

tioner of due process or equal protec-

tion of the laws. (App.41).

The trial court found probable cause for

the search (T-100).

The Florida Supreme Court upheld the

validity of the statute applying the "'con-

ventional standard" since it found the sta-

tute "does not infringe upon any funda-

mental rights...but is a valid exercise of

the police power."' (App. 24). The court

rejected Petitioner's equal protection

arguments although admitting that only

"some vans'' fall within the statutory

definition of a truck and _ that_ the

distinction was clear and not vague for

indefiniteness (App. 13, 14):

Vans designed to carry cargo are trucks

and are required to stop at Agricultrual

Inspection Stations. Vans described as

passenger vehicles are not. (App. 16).

As to the search and seizure the Florida

Supreme Court found probable cause:

We believe, however, that the conduct

of Cain and Gluesenkamp in illegally

proceeding past the inspection station,

together with the contradictory state-

ments they made to the inspection offi-

cer regarding their cargo, provided

probable cause supporting the limited

intrusion by the law enforcement offi-

cers who subsequently arrived, looked in

the van's windows, and saw the bundles

which strongly suggested to them the

presence of contraband (App. 28).

The Court found that Petitioner had the

keys and could have driven away thereby af-

fording exigent circumstances (App. 30).

Smell was not a factor in its decision.

In ruling, the Florida Supreme Court

held the purpose of the statute was

investigatory, not regulatory: |

The reason for requiring certain vehic-

les to stop at the inspection stations

is to allow the inspectors a little time

in which to decide if there is probable

cause for searching. Once a determina-

tion is made, a search should either be

made or the driver should be allowed to

continue. The fourth amendment prohib-

its unreasonable seizures as well as un-

reasonable searches. Detaining a driver

and his vehicle for an inordinate amount

of time is an unreasonable seizure. If

the inspector is unsure of whether suf-

ficient probable cause exists, he may

detain the vehicle and seek assistance

as was done in this case.

The seizure in this case was not un-

reasonable. Although close to two hours

had passed from the time the vehicle was

stopped to the time it was_ searched,

there was no evidence of undue delay.

Most of the time was spent in contacting

and waiting for a deputy sheriff and an

assistant state attorney, men who were

more qualified to decide if sufficient

probable cause existed. (App. 31)

(Emphasis supplied).

REASONS FOR ALLOWING THE WRIT

l. THE DECISION BELOW IS CONTRARY TO

THE DECISIONS OF THIS COURT AND THE

_.UNITED STATES CONSTITUTION IN THAT IT.

UPHOLDS A SEIZURE AND SEARCH BASED ON

THE ARBITRARY AND UNREASONABLE STOPPING

OF PETITIONER'S VEHICLE THAT FIT A

SUBJECTIVE PROFILE OF VEHICLES’ THE

GOVERNMENT DEEMED LIKELY TO CONTAIN

PRODUCTS SUBJECT TO REGULATION BY THE

FLORIDA DEPARTMENT OF AGRICULTURE WHEN

THERE WAS NEITHER REASONABLE SUSPICION

NOR PROBABLE CAUSE TO BELIEVE THE

VEHICLE CONTAINED ANY PROSCRIBED

PRODUCTS WHERE THE STATE'S INTEREST IN

AGRICULTURAL REGULATIONS DID NOT

OUTWEIGH THE RESULTING INTRUSION ON THE

PRIVACY AND SECURITY OF THE PERSONS

DETAINED.

Stopping a vehicle and detaining its oc-

cupants constitutes a seizure within the

meaning of the Fourth and Fourteenth Amend-

ments “even though the purpose of the stop

is limited and the resulting detention

quite brief". Delaware v. Prouse, 440

U.S. 648, 653 (1979). The essential pur-

pose of the proscription of the Fourth

Awendment is to impose a standard of rea-

sonableness upon the exercise of discretion

by government officials, in order "'to safe-

guard the privacy and security of individ-

uals against arbitrary invasions." Marsh-

all v. Barlow's, 436 U.S. 307, 312 (1978),

citing Camara v. Municipal Court, 387 U.S.

523, 528 (1967).

Thus, the permissibility of a particular

law-enforcement practice is judged by

balancing its intrusion on the indivi-

duals' Fourth Amendment interests

against its promotion of legitimate gov-

ernmental interests. Implemented in

this manner, the reasonableness standard

usually requires, at a minimum, that the

facts upon which an intrusion is based

be capable of measurement against "an

objective standard,'' whether this be

probable cause or a less stringent test.

In those situations in which the balance

of .interests precludes insistence upon

"some ‘quantum of individualized suspi-

cion,'' other safeguards are generally

relied upon to assure that the individ-

uals reasonable expectation of privacy

is not "subject to the discretion of the

official in the b> agile , Deleware Vv.

Prouse, supra, at 654, quoting Camara v.

Municipa ourt, supra, 387 U.S. at

932.

The stop of Petitioner's vehicle in the

instant case was completely and totally ar-

bitrary. The use of the statute here was

not regulatory but investigatory (App. 31).

The inspector who stopped the vehicle said

that 85% of all vans do not stop at the

station but that the inspectors do not de-

tain every vehicle that does not stop. In-

stead they arbitrarily decide which vans to

stop looking for such factors as panels,

curtains, windows, ones that set down low

(T-39).

The holding in Delaware v. _ Prouse,

supra, at 661, is applicable here:

This kind of standardless and _ uncon-

strained discretion is the evil the

Court has discussed when in previous

cases it has insisted that the discre-

tion of the official in the field be

> acide at least to some extent.

I _

In Almeida Sanchez v. United States, 413

U.S. 266 (1973) this Court was faced with

the exact situation presented by Petitioner

herein--a statute authorizing the stopping

of vehicles that were within 100 miles of

the United States border without any show-

ing of probable cause. The instant case

involves a statute authorizing the stopping

of all vehicles except cars and recrea-

tional vehicles, again without regard to

the existence of probable cause. The pur-

pose of the statute in the Almeida Sanchez

case was to stop the flow of illegal

aliens. The purpose of the statute here is

to stop the flow of illegal agricultural

products. Stephenson v. Department of

Agriculture and Consumer Services, 329 So.

2d 373 (Fla. 1976). In Almeida-Sanchez,

this Court ruled that neither "a stop and

search of a moving automobile can be made

without a warrant", probable cause or con-

sent. Id., 413 U.S. at 269, going on to

state:

Since neither this Court's automobile

search decisions nor its administrative

inspection decisions provide any support

for the constitutionality of the stop

and search in the present case, we are

left simply with the statute that pur-

ports to authorize automobiles to be

stopped and searched, without a warrant

and within a reasonable distance from

any external boundary of the United

States. Id., at 272.

This Court went on to delineate the nar-

row circumstances under which vehicle stops

and searches might be permissible:

But those lawfully within the country,

entitled to use the public highways,

have a right to free passage without in-

terruption or search unless ‘there is

known to a competent official, author-

ized to search, probable cause for be-

lieveing that their vehicles are carry-

ing contraband or illegal merchandise.'

Id., at 274.

Here as in Delaware v. Prouse, supra,

661, the purported state interest in

regulation does not outweigh the constitu-

tional infringements resulting therefron,

this Court held:

To insist upon neither an appropriate

factual basis for suspicion directed at

a particular automobile nor upon some

other substantial and objective standard

or rule to govern the exercise of dis-

cretion "would invite intrusions upon

constitutionally guaranteed rights based

on nothing more substantial than inar-

ticulate hunches..." Id., quoting Terry

v. Ohio, supra, at 22.

These constitutional protections do not

disappear simply because a vehicle is sub-

ject to state regulations. Cady v. Dom-

browski, 413 U.S. 433, 441 (1973). "[I]f

the government intrudes...the privacy in-

terest suffers whether the government's mo-

tivation is to investigate violation of

criminal laws or breaches of other statu-

tory or regulatory standards."' Marshall v.

Barlow's, Inc., supra, 312, 313. There are

certain "relatively unique circumstances"

in which consent to regulatory restrictions

is presumptively concurrent with participa-

tion in the regulated enterprise. Id., at

313. See also, United States v. Biswell,

406 U.S. 311 (1972) (federal regulation of

firearms); Collande Catering Corp. v. Uni-

ted States, 397 U.S. 72 (1970) (federal re-

gulation of liquor). Otherwise, regulatory

inspections unaccompanied by any quantum of

individualized, articulable suspicion must

be undertaken pursuant to previously speci-

fied "neutral criteria." Marshall v.

Barlow's, Inc., id., at 313.

In fact the statute here is not regula-

tory but an excuse to allow law enforcement

officers to investigate suspect vehicles.

As the Florida Supreme Court said: "The

reason for requiring certain vehicles to

stop at the inspection stations is to allow

the inspectors a little time, in which to

decide if there is probable cause for

searching."" (App. 31). The agricultural

inspector who stopped the vehicle testified

his stop was of ar “investigatory nature"

(T-38-42). He stated he stopped the ve-

hicle because it fit a subjective profile

of vehicles likely to eouibe proscribed

products (T-38-40). Thus it was. not

stopped simply because it passed the in-

spection station in violation of the law.

The facts of this case are similar to

United States v. Shaefer, 28 Cr.L.R. 2386,

where a Pennsylvania statute authorized law

enforcement officials to require the driver

of any vehicle to stop and submit to

weighing in order’ to _ see whether it

exceeded weight limitations. In striking

down the stop and resultant search and

seizure under the statute the Court of

Appeals for the Thix~d Circuit found that a

general roadblock of all trucks had not

been set up and held, citing Delaware v.

Prouse, supra, Marshall v. Barlow's, supra,

and Camara v. Municipal Court, supra, that

",...the Courts will not countenance

pretextual use of a regulatory statute for

an investigatory purpose unrelated to the

statutory scheme." Shaefer, supra, 28

Cr.L. 2387.

This Court has upheld limited profile

searches "

++-Supported at least by a rea-

sonable and articulable suspicion that the

person seized is engaged in criminal activ-

ity."' Reid v. Georgia, U.S. ___, 100 S.

Ct. 2752, 2753 (1980). But here, as in

Reid, supra, the agent's belief that Peti-

tioner was violating agricultural laws was

no more than an "inchoate and unparticular-

ized suspicion". Terry v. Ohio, 392 U.S.

1, 27 (1968). Here, as in Reid, the cir-

cumstances and actions leading to the stop

"...describe a very large category of pre-

sumably innocent travelers, who would be

subject to virtually random seizures were

the Court to conclude that as little foun-

dation as there was in this case could

justify a seizure.'"' Reid, supra, 100 S.

Ct. at 2754.

2. THIS COURT SHOULD GRANT CERTIORARI

TO RESOLVE CONFLICTS WITH LOWER COURTS

THAT CONTINUE TO ERODE THE FOURTH AMEND-

MENT'S PROSCRIPTION AGAINST WARRANTLESS

VEHICLE SEARCHES AND SEIZURES IN ABSENCE

OF EITHER PROBABLE CAUSE OR EXIGENT CIR-

CUMSTANCES.

Assuming, without admitting, the consti-

tutionality of the Florida Statutes Section

570.15, the warrantless search of the Peti-

tioner's van nearly two (2) hours after it

had been stopped by Agricultural Inspector

Perry, and after the van had been escorted

to the next exit and then back to the

southbound inspection station (a distance

of approximately ten miles) (T-37), and

held, along with Petitioner, for 60-90

minutes until other officers arrived and

decided to search the van without warrant,

was nonetheless clearly illegal.

A warrantless search is per se unreason-

able,and subject only to a few specifically

delineated exceptions. Coolidge v. New

Hampshire, 403 U.S. 443 (1971); Katz v.

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

States v. Garay, 477 F.2d 1306 (Sth Cir.

1973). These exceptions include: (a) a

search incident to arrest; (b) the exis-

tence of probable cause coupled with exi-

gent circumstances; and (c) the plain view

doctrine. In Coolidge this Court said

these exceptions ".

-.are jealously and

carefully drawn..." id., at 455.

In Chambers v. Maroney, 399 U.S. 42,

(1970), this Court restated the necessity

for probable cause in warrantless searches

of automobiles, and clearly defined the

circumstances under which a warrantless

search of an automobile is constitutionally

permissible.

Application of the foregoing authorities

to the facts of this case make it abun-

dantly clear that there were no exigent

circumstances which could conceivably jus-

tify a warrantless search of the Peti-

tioner's van.

First, Petitioner and Cain were detained

in the Inspection Station, under’ the

control of Inspector Perry and _ other

officers (T-57, 58). The van was located

some fifty (50) yards from the station (T-

83), after it had been stopped on the open

highway and escorted approximately’ ten

miles to the station (T-37). As Inspector

Perry testified neither the Petitioner nor

the van was going tc leave until he,

Inspector Perry, had found ou. what was in

the van (T-58).

Second, the record reflects that approx-

imately two (2) hours elapsed between the

time Petitioner was detained and the time

of the warrantless search of the vehicle (T

59-61, 66).

Third, the Inspection Station where Pe-

titioner and his vehicle were detained was

located twelve (12) miles from the City of

Jasper, the County Seat of Hamilton County,

Florida. Even assuming arguendo the exis-

tence of probable cause, any one of several

persons (i.e., Inspector Perry, Nobles,

Deputy Copeland, Investigator Tompkins, or,

especially, Assistant State's Attorney

Dekle) had ample opportunity to travel to

Jasper (or stop on the way to the scene) to

make application for a search warrant. In-

spector Perry testified that a Judge was

available in Hamilton County for obtaining

a search warrant, and that other judges

lived in Suwannee County, about eighteen

(18) miles away, and in Lake City, about

twenty (20) miles away (T-67, 68). Coinci-

dentally, Lake City is the same town which

Assistant State Attorney Dekle left to come

to the station to assist in the warrantless

search (T-70).

Finally, regardless of how the Court re-

solves the serious inconsistencies between

the various versions of seeing or not see-

ing burlap colored containers (T-15, 34,

71, 73), and smelling or not smelling the

odor of marijuana (T-5, 18, 64), it is un-

deniable from the testimony adduced that

the officer who originally seized Peti-

tioner and his vehicle, Inspector Perry,

held both on the basis of the fact that (1)

the van failed to stop at the inspection

station and (2) it "was kind of heavy"

(T-27). That officer saw no_ suspicious

packages (T-34) and smelled no odor of mar-

ijuana (T-64). Yet the van was held not for

the purpose of obtaining a search warrant

which is specifically mandated by the Sec-

tion 570.15(2), Florida Statutes, but for

the arrival of more experienced officers.

Assistant State's Attorney Dekle, who made

the decision to search made it solely on

the fact that he saw burlap bags when he

looked through the van's window (T-71-73).

Clearly, the warrantless search failed

to meet the requirements clearly set forth

by this Court in Coolidge, supra, and

Chambers, supra. The decision in

Petitioner's case is an important and

radical departure from this Court's long

line of decisions in this area, and is

already being applied by the appellate

Courts of Florida to uphold similar

searches. See, e.g., Gordon Corbett Brock

v. State of Florida, Supreme Court of

Florida Case No. 57,718 (March 5, 1981).

3. THE DECISION BELOW IS CONTRARY TO

THE DECISIONS OF THIS COURT AND WELL

FOUNDED PRINCIPLES OF APPELLATE REVIEW

IN THAT THE EVIDENCE FAILS TO SUPPORT

THE OPINION OF THE FLORIDA SUPREME

COURT.

The decision of the Florida Supreme

Court upholding the search rests on factual

assumptions by the court unsupported by the

record. This factual assumption is criti-

cal to a correct application of Fourth

Amendment principles. In its opinion the

Florida Supreme Court stated:

The facts in this case are even more

compelling; Gluesenkamp, who owned the

van, was not the one who was arrested

for failing to stop at the inspection

station...Since he had the keys, he

could have attempted to drive away at

any time (App. 30).

But while Petitioner did, indeed, have the

keys initially, they were surrendered to

the deputy sheriff after being ordered to

do so when taken to the inspection station

(T-7, 73, 87). More importantly, Inspector

Perry testified Petitioner could not have

moved the van, saying "That van couldn't go

no place...(b)ecause I had to find out what

was in it before I even let it go.'(T-58).

The Florida Supreme Court also made a

factual determination that an Assistant

State Attorney was qualified to make a

probable cause determination and that the

detention of the van and the Petitioner un-

til he could come on the scene to assess

probable cause was legal (App. 31). Such a

holding is contrary to the clear holding of

Coolidge v. New Hampshire, 403 U.S. 443

(1977) where the Supreme Court held that a

state's attorney or law enforcement offici-

als are™~ not qualified to make a probable

cause determination: "[P]rosecutors and

policemen simply cannot be asked to main-

tain the requisite neutrality with regard

to their own investigations - the 'competi-

tive enterprises' that must rightly engage

their single-minded attention." Id., at

450. Even a judicial officer, when he is

too close to the events, has been held not

to fulfill the role that the Constitution

reserves for a neutral and detached magis-

trate to review probable cause before any

intrusion into a protected space. See,

Lo-Ji Sales, Inc. v. New York, 447

U.S.319, 327 (1979).

In Petitioner's case the record clearly

demonstrates that the officer who original-

ly detained Petitioner's vehicle for fail-

ure to stop at the inspection. station

clearly did not have probable cause to

search at the roadside. Both Carroli,

supra, and Chambers, supra, at 399 rely

heavily on the concept of a car stopped “on

the highway" which is "movable" where "the

opportunity to search is fleeting..." Id.

Clearly, Petitioner's case does not present

an immediate, roadside search by an officer

who clearly possessed probable cause. Re-

gardless of any consideration as to prob-

able cause, the law absolutely requires a

search warrant as to an immobilized ve-

hicle, removed from the roadway and under

the exclusive control of law enforcement

authorities. The Supreme Court has clearly

held in United States v. Chadwick, 433 U.S.

1 (1979) that where an object comes under

police control, exigency ceases to exist,

and the officers must get a search warrant.

A warrantless search--regardless of how

strong the probable cause, see Chadwick,

supra--is illegal. In reaffirming Chad-

wick's holding, the Supreme Court recently

emphasized in Arkansas v. Sanders, 442 U.S.

753, (1979):

But as we noted in Chadwick, the exigen-

cy of mobility must be assessed at the

point immediately before the search--

-after the police have seized the object

to be searched and have it securely

within their control. Id., at 763.

This Court's decision in United States

v. United States Gypsum Co., 333 U.S. 364

(1948) long ago established the ground

rules for appellate review of fact find-

ings: findings of fact will not be set

aside unless "clearly erroneous." "A find-

ing is ‘clearly erroneous’ where although

there is evidence to support it, the re-

viewing court on the entire evidence is

left with the definite and firm conviction

that a mistake has been committed."' Id. at

395. It follows that a "clearly erroneous"

ruling is demanded where there is a total

absence of evidence. See Duke Power

Company v. Carolina Environmental Study

Group, 438 U.S. 59 (1978).

Similarly, this Court stated in Roemer

v. Board of Public Works of Maryland, 426

U.S. 736 (1976) that "[i]Jt is not our

place, however, to reappraise the evidence,

unless it plainly fails to support the

findings of the trier of facts." Id. at

758. (Emphasis added).

The Court below violated well-founded

principles of appelate review by failing to

base its opinion on the record in the case

as to critical facts related to the search

and this Court should issue its writ to re-

affirm these principles.

4. THE DECISION BELOW UPHOLDING THE

CONSTITUTIONAL VALIDITY OF THE STATE

STATUTE WHICH ALLOWS ARBITRARY STOPS BY

GOVERNMENT OFFICIALS WITHOUT ARTICULABLE

SUSPICION OR PROBABLE CAUSE IS IN CON-

FLICT WITH DECISIONS OF THIS COURT AND

THE FOURTEENTH AMENDMENT, AND CONTRARY

TO THE UNITED STATES CONSTITUTION.

Under the Florida Statute § 570.15, as

interpreted by the Supreme Court of the

State of Florida, vehicles bearing "RV"

license plates were exempt from inspection,

while vehicles in precisely the same cir-

cumstances which do not display "RV" li-

cense plates were subject to inspection.

The equal protection clause of the Four-

teenth Amendment to the United States Con-

stitution has long been held to prohibit

unequal treatment of persons similarly sit-

uated. In Davis v. Weir, 497 F.2d 139

(5th Cir. 1974) the Court of Appeals quotes

Reed v. Reed, 404 U.S. 71, 75 (1971), no-

ting that this Court has consistently and

repeatedly explained that:

-++The Equal Protection Clause of that

amendment does, however, deny to States

the power to legislate that different

treatment be accorded to persons placed

by a statute into different classes on

the basis of criteria wholly unrealted

to the objective of that statute. A

classification ‘must be reasonable, not

arbitrary, and must rest upon some

ground of difference having a fair and

substantial relation to the object of

the legislation, so that all persons

similarly circumstanced shall be treated

alike.' Id., at 144.

Under traditional equal protection anal-

ysis, a legislative classification is per-

missible if it is rationally related to a

legitimate state interest, United States

Department of Agriculture v. Moreno, 413

U.S. 528, 533 (1973).

Thus, this Court has long held that a

law creating distinct classifications with-

out a fair and substantial rational rela-

tion to the purposes of the legislation re-

sults in a denial of constitutionally guar-

anteed equal protection of the laws. See

Royster Guano Co. v. Virginia, 253 U.S.

412 (1920):

But the classification must be

reasonable, not arbitrary, and not rest

upon some ground of difference having a

fair and substantial relation to the ob-

ject of the legislation, so that all

persons similarly situated shall be

treated alike. Id., at 415.

The purpose of § 570.15(1) was construed

in Stephenson v. Department of Agriculture

and Consumer Services, 329 So.2d 373,

(Fla. lst D.C.A. 1976), wherein that court

noted:

Appellee has full authority under the

police power of the State of Florida to

conduct agricultural inspections of the

vehicles mentioned in the above statutes

provided such inspections are made pur-

suant to the terms of said statutes.

The inspections are necessary in order

that Appellee may carry out its respon-

sibilities relating to disease control,

fruit and vegetable grading and other

similar matters required by law, Appel-

Tee's regulations and Federal marketing

orders. Id., at 3/6. (Emphasis

added).

The effect of the statute was to create

a legal distinction in the absence of a

significant and meaningful factual differ-

ence between those motor vehicles having

"RV" tags and those which do not bear such

tags. Assuming that the legislature had a

legitimate purpose for regulating’ the

transportation of agricultural products

within the State, it has exceeded the per-

missible limits of the equal protection

clause of the Constitution of the United

States by classifying those vehicles which

are subject to inspection solely upon the

basis of whether or not the vehicle bears

an "RV" license tag.

The differing treatment cf "RV" and non-

"RV" licensed vehicles bears no legitimate

relationship, rational or otherwise, to the

health purposes of the inspection statute.

Excluding vehicles registered as recrea-

tional vehicles from possible inspection by

state officials looking for illicit fruits

while subjecting others situated in pre-

cisely the same circumstances except for

the license plate on the vehicle, results

in a constitutionally deficient disparity

of treatment.

The totally unreasonable distinction be-

tween motor vehicles with "RV" tags and

those without such tags is further revealed

in Section 320.06(1)(a), (A) Florida Sta-

tutes, which provides in material part:

Registration license plates and certifi-

cates of registration shall be issued

to, and remain in the name of, the owner

of each vehicle registered and may be

transferred by the owner from the ve-

hicle for which the registration license

plate was issued to any vehicle which

the owner may acquire within the same

classification...

Thus, the owner of a_ fully-equipped

truck camper bearing an "RV" license tag

can sell his vehicle, purchase a Ford F-150

pick-up truck within the same weight class,

and lawfully transfer his "RV" license tag

to the truck. Thereafter, he can transport

agricultural produce or other cargo, all

without being subjected to an inspection by

Florida Department of Agricultural em-

ployees--simply because the pick-up truck

has an "RV" license tag.

It should be noted that § 570.15(1) and

§ 570.15(2) were not entirely consistent.

Subsection (1) granted access to, among

other things, "motor vehicles, other than

vehicles bearing an "RV" license tag".

Subsection (2) makes it a misdeameanor for

any truck to pass an official road guard

inspection station without first stopping

for inspection.

Due to the transferable nature of motor

vehicle license tags in Florida, the owner

of an "RV" license tag may affix the same

tag to his truck. If that vehicle passed

an inspection station without stopping the

truck for inspection, he has committed a

misdemeanor [i.e., violation of Florida

Statutes § 570.15(2)]; even though Section

570.15(1) expressly exempted the truck from

inspection solely because it bore an "RV"

license tag.

The question presented herein is whether

a state under the guise of it police power

may enact such legislation as will seri-

ously burden, hinder and impede the conm-

merce and trade agreement between the

states. The statute imposes a duty on ev-

ery driver, if not occupant, passing along

Florida Highways to determine for himself

whether it falls within the proscription of

the statute in order to escape criminal li-

ability. This the driver must do even

though he has no notice nor does the

statute define the types of trucks or vans

that might fit the proscription.

The right of a citizen to travel from

state to state uninhibited by _ statutes

which burden or unreasonably restrict such

movement is a fundamental right. Shapiro

v. Thompson, 394 U.S. 618, 630 (1969). The

right to associate freely and "to go where

one pleases" are also fundmental rights

protected by the First and Fourteenth

Amendments. Alladin's Castle, Inc. Vv.

City of Mesquite, 630 F.2d 1029, 1041 (5th

Cir. 1980). Because of these fundamental

rights, strict scrutiny is called for and

the state must demonstrate a compelling

interest to justify the classification.

Mason v. Lister, 562 F.2d 343, 346 (Sth

Cir. 1978); Dorough v. Estelle, 457 F.2d

1007, 1010 (5th Cir. 1974).

This statutory classification fails to

satisfy even the ‘rational basis' test;

however, the constitutional infirmity of

the statute is even clearer when the

stricter test is applied. Not only is

there no substantial or rational basis for

the classification, but even if some ra-

tional basis were to be arguably present,

the requisite "compelling state interest"

could not be found.

The vehicle in the instant case was a

van without an "RV" license tag. The ve-

hicle was registered and properly licensed

“in the State of Indiana (T-79). Thus, the

statute's classification offends the Con-

stitution, as the effect of the application

fo the statute to Petitioner was to subject

him to inspection on the basis of his ve-

hicle license not being from Florida, or to

punish an interstate traveler for not

re-licensing his vehicle in the visited

- state.

The citizens of each state shall be en-

titled to all privileges and immunities of

the citizens in the several states, and of

the United States. Article IV, Section 2,

Fourteenth Amendment. As discussed infra,

freedom to move from state to state is a

fundamental liberty. Edwards v. Califor-

nia, 314 U.S. 160 (1941). In Ward v. Mar-

yland, 12 Wall 418, 430 (1870), the Court

concluded that the commerce clause "...

plainly and unmistakeably secures and pro-

tects the rights of a citizen of one State

to pass into any other State of the Union

for the purpose of engaging in lawful com-

merce, trade or business without

molestation."

The lack of a precise definition of rec-

reational vehicles in the statute leaves

the stopping of vans within the unbridled

discretion of the law enforcement officers.

Decisions on who to stop cannot be left in

the unfettered discretion of law enforce-

ment officials "because it encourages

arbitrary and erratic arrests and convic-

tions.'' Papa- christou v. City of Jackson-

ville, 405 U.S. 156, 162 (1972). This

practice of leaving who to stop in the

hands of law enforcement officials was con-

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

(1979):

This kind of standardless and _ uncon-

strained discretion is the evil the

Court has ddiscussed when in previous

cases it has insisted that the discre-

tion of the officials in the field be

circumscribed at least to some extent.

Id., at 661.

In a vehicle of the type Petitioner was

driving due to the fact it was licensed by

another state, how could the state tell

whether it was a recreational vehicle or

cargo van unless the unwarranted intrusion

‘and stop was followed by an unwarranted

look inside the van?

The definition of a crime is the exclu-

sive function of the legislature and the

exercise of such unfettered and unqualified

discretion in construing statutes cannot be

left in the hands of law enforcement offi-

cers or jurors. Giaccio v. Pennsylvania,

382 U.S. 399 (1966).

It is well established that a law fails

to meet the requirements of Due Process

clause if it is so vague and standard-

less that it leaves the public uncertain

as tw the conduct it prohibits or leaves

judges and jurors free to decide, with-

out legally fixed standards, what is

prohibited and what is not in each par-

ticular case." Id.

The constitutional deficiency of the

statutes here is similar to the statutes

struck down by the Court in Cox v. Louisi-

ana, 379 U.S. 536, 579 (1965):

Such a statute does not provide for gov-

ernment by clearly defined laws, but ra-

ther for government by the moment to mo-

ment opinions of a policeman on his

beat.

Imperative to the proper construction of

the statute here is the Supreme Court's

holding in Cramp v. Board of Education, 368

U.S. 278, 287 (1961): "...the vice of un-

constitutional vagueness is further aggra-

vated where, as here, the stetute in ques-

tion operates to inhibit the exercise of

individual freedoms affirmatively protected

by the constitution."

The statute here "

.--fails to give a

person of ordinary intelligence fair notice

that his contemplated conduct is forbidden

the statute.'' United States v. Harris, 347

U.S. 612, 617 (1954). All persons "are en-

titled to be informed as to what the State

commands or forbids." Lanzetta v. New

Jersey, 306 U.S. 451, 453 (1938). As ar-

gued infra, a driver of a van does not know

he falls within the proscription of the

statute nor is he given notice that he must

stop at the inspection station.*

*Florida Statutes § 570.15 has’ been

amended since Petitioner's conviction, and

subsection 7 now reads: 'Motor vehicles,

except private passenger automobiles with

no trailer in tow, travel trailers, campin

trallers, and motor homes as defined in F

320.06(1) (b).

Lanzetta is but one of a long e2stab-

lished line of cases insisting that the law

give fair notice of the offending conduct.

See Cline v. Frink Davis Co., 274 U.S. 445

(1928); United States v. L. Cohen Grocery

Co., 255 U.S. 81 (1920).

The statute here is to be judged by the

principles set out in Papachristou v. City

of Jacksonville, 405 U.S. 156 (1972).

Here, as in Papchristou, the statute pro-

scribes activities which by prevalent stan-

dards is normally innocent. There, night

walking was proscribed. Here, driving a

cargo van without an "RV" tag past an in-

spection station is proscribed. Just as

"walkers and strollers and wanderers may be

going to or coming from a burglary" id.,

405 U.S. at 844, occupants of vans might be

carrying illegal fruit or other contraband,

but as the Court said in United States v.

Reese, 92 U.S. 214 (1871):

It would certainly be dangerous if the

legislature could set a net large enough

to catch all possible offenders, and

leave it to the courts to step inside

and say who could be rightfully de-

tained, and who should be set at

large."' Id., at 221.

"(C]riminal responsibility should not at-

tach where one could not reasonably under-

stand that his contemplated conduct is pro-

scribed."' United States v. National Dairy

Products, 372 U.S. 29, 32 (1963).

While the sign at the interstate said

"all trucks" must stop, the state concedes

passenger trucks and recreational vehicles

are not trucks within the meaning of the

Florida statute. "Words which are vague

and fluid...may be as much of a trap for

the innocent as the ancient laws of Caligu-

la."' United States v. Cardiff, 344 U.S.

174, 176 (1953). Florida authorities

stated that they have the most trouble with

getting vans to stop at inspection stations

(T-71-73). Numerous Supreme Court

decisions have struck down both criminal

and regulatory schemes upon a finding that

"men of common intelligence must necessar-

ily guess at is meaning and differ as to

its application." Connally v. General

Construction Company, 269 U.S. 385, 391,

(1926). See also, United States v. Mersky,

361 U.S. 431, (1960); M. Kraus and Brothers

v. United States, 327 U.S. 614, (1946).

CONCLUSION

For the foregoing reasons, Petitioner

respectfully reuvests that this Court issue

a writ of certiorari to review the judgment

of the Florida Supreme Court.

Respectfully submitted,

James K. Jenkins

STROUP, GOLDSTEIN, JENKINS

& PRITZKER

900 Flat Iron Building

84 Peachtree St., N.W.

Atlanta, Ga. 30303

(404) 524-4343

J. M. Raffauf

900 Flat Iron Building

84 Peachtree St., N.W.

Atlanta, Ga. 30303

(404) 524-4343

CERTIFICATE OF SERVICE

I hereby certify that I have sent a copy

of the foregoing Petition for Writ of Cer-

tiorari to the Florida Supreme Court upon

the Florida State's Attorney, Jim Smith,

The Capitol, Tallahassee, Florida.

This /e““day of March, 1981.

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.