Opposition — Gluesenkamp v. Florida

Office-Supreme Court, U.S,

0 he’ ae ae

JUN 22 1961

No. 80-1573 ALEXANDER L. STEVAS,

CLERK

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1980

DANIEL W. GLUESENKAMP,

Petitioner,

-ve-

STATE OF FLORIDA,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF FLORIDA

JIM SMITH

Attorney General

RAYMOND L. MARKY

Assisi.ant Attorney General

1502 The Capitol

Tallahassee, FL 32301

(904) 488-0600

COUNSEL FOR RESPONDENT

QUESTIONS PRESENTED FOR REVIEW

THE INITIAL STOP AND SUBSEQUENT ARREST

OF THE DRIVER OF PETITIONER'S TRUCK

WAS NOT ARBITRARY OR UNREASONABLE FOR

SAID ACTION WAS A LAWFUL EXERCISE OF

THE POLICE POWERS OF THE STATE OF

FLORIDA.

THERE IS NO CONFLICT BETWEEN THE DE-

CISION SOUGHT TO BE REVIEWED AND DE-

CISIONS RENDERED BY THIS COURT OR LOWER

FEDERAL COURTS REGARDING THE SEARCH OF

PETITIONER'S VEHICLE.

THE DECISION SOUGHT TO BE REVIEWED IS

SUPPORTED BY THE EVIDENCE AND SECTION

570.15(2) AS CONSTRUED AND INTERPRETED

BY THE FLORIDA SUPREME COURT DOES NOT

VIOLATE THE EQUAL PROTECTION CLAUSE OF

THE UNITED STATES CONSTITUTION.

ii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION OF THE COURT

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS WHY THE PETITION

SHOULD BE DENIED

QUESTION I

QUESTION Il

QUESTION III

CONCLUSION

iii

Page

Almeida-Sanchesa v. United States, 4,5,7

413 U.S. 266 (1973)

Arkansas v. Sanders, 15,16,19

442 U.S. 753 (1979)

mney v. State, 14

6 So.2d 72 (Fla.lst DCA 1975)

Carrol v. United States, 15

267 U.S. 132 (1925)

Chambers v. Maroney, 15

399 U.S. 42 (1970)

Delaware v. Prouse, 4,7

440 U.S. 648 (1979)

Dizon v. State, 15

343 So.2d 1345 (Fla.2d DCA 1977)

Eden v. State 5,16

370 So.2d 826 (Fla.lst DCA 1979)

Evans v. State, 16,17

368 So.2d 58 (Fla.lst DCA 1979)

Flyn v. State, 16

374 So.2d 1041 (Fla.lst DCA 1979)

Hicks v. Miranda, 6

422 U.S. 332 (1975)

Knoble v. State, 19

So.2d ,(Fla.lst DCA 1981),

Opinion filed May 28, 1981

Marshall v. Barlow's, Inc., 7

436 U.S. 307 (1978)

iv

Page

Rawlings v. Kentucky, 12

__-iU.S. ____, 65 L.Ed.2d 633(1980)

Rose v. Locke, 17

423 U.S. 48 (1975)

Shelton v. State, 15

349 So.2d 193 (Fla.2d DCA 1977)

State v. Bailey 8

120 Ariz. 399, 586 P.2d 648

(Ct. App. 1978)

State v. Toffolia, 15

349 So.2d 174 (Fla.lst DCA 1977)

Stephenson v. Department of Agri-

culture and Consumer Services, 6,13

342 So.2d 60 (Fla.1976)

Texas v. White, 15

423 U.S. 65. (1975)

United States v. Chadwick, 15,19

433 U.S. 1 (1979)

United States v. Jiminez, 15

626 F.2d 39 (7th Cir.1980)

United States v. Mackey, 15

626 F.2d 684 (9th Cir. 1980)

United States v. Martinez-Fuerte, 5,6,20

428 U.S. 543 (1976)

United States v. Schaffer, 7

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

STATUTES

Page

28 U.S.C. §1257(3) 1,18

§320.01, Fla.Stat. 1,18

§570.15(1)(a), Fla.Stat. 13,17,18

§570.15(2), Fla.Stat. a at et

OPINION BELOW

The decision of the Supreme Court of

Florida was rendered on October 16, 1980,

and is reported in 391 So.2d 192 (Fla.1981).

A petition for rehearing was filed and sub-

sequently denied on January 14, 1981.

JURISDICTION OF THE COURT

Respondent concedes that jurisdiction

is properly being sought pursuant to 28

U.S.C. §1257(3) and to the extent that a

substantial federal question is presented,

this Court can exercise its jurisdiction.

STATUTORY PROVISIONS INVOLVED

Statutes of the State of Florida rele-

vant to a disposition of the instant peti-

tion, in addition to those designated by

petitioner are:

320.01 Definitions, general.—In con-

struing these statutes, when applied

to motor vehicles, and when the context

permits, the word, phrase, or term:

(1) "Motor vehicle" includes:

* * *

(b) Recreational vehicle-type units

primarily designed as temporary living

quarters for recreational, camping, or

travel use, which either have their own

motive power or are mounted on or drawn

by another vehicle. As defined below,

the basic entities are:

1. "Travel trailer": A vehicular

portable unit, mounted on wheels, of

such a size or weight as not to require

special highway movement permits when

drawn by a motorized vehicle. It is

primarily designed and constructed to

provide temporary living quarters for

recreational, camping, or travel use.

It is of a body width of no more than

8 feet and a body length of no more than

35 a when factory-equipped for the

road.

2. “Camping trailer": A vehicular

portable unit mounted on wheels and con-

structed with collapsible partial side-

walls which fold for towing by another

vehicle and unfold at the campsite to

provide temporary living quarters for

recreational, camping, or travel use.

3. “Truck camper": A portable unit,

designed to be loaded onto, or affixed

to, the bed or chassis of a truck, con-

structed to provide temporary living

quarters for recreational, camping, or

travel use. Truck campers are portable

units designed to be affixed to a truck

chassis and constructed to provide tem-

porary living quarters for recreational,

travel, or camping use.

4. "Motor home": A vehicular unit

built on a self-propelled motor vehicle

chassis, primarily designed to provide

temporary living quarters for recreation-

al, camping, or travel use.

5. "Fifth wheel recreation trailer":

A vehicular portable unit mounted on

wheels of such size or weight as not to

require special highway movement permits.

It is primarily designed and constructed

to provide temporary living quarters for

recreation, camping, or travel use and

designed to be connected for towing

through the use of a fifth wheel device.

It is of a length and width not exceeding

the limitations provided in s. 316.515,

as the same may be hereafter amended.

* * *

(13) "Trucks" includes any motor

vehicle designed or used principally for

carrying things other than passengers

and includes a motor vehicle to which

has been added a cabinet box, platform,

rack, or other equipment for the purpose

of carrying merchandise other than the

person or effects of the passengers.

STATEMENT OF THE CASE

Respondent, for purposes of this reply,

accepts the statement of the case as stated

on pages seven through twenty-seven of the

petition as being substantially accurate.

Respondent will include in the argument

portion of its brief additional facts deemed

relevant for a proper determination of the

jurisdictional question.

REASONS WHY THE PETITION

SHOULD BE DENIED

QUESTION I

THE INITIAL STOP AND SUBSEQUENT ARREST

OF THE DRIVER OF PETITIONER'S TRUCK

WAS NOT ARBITRARY OR UNREASONABLE FOR

SAID ACTION WAS A LAWFUL EXERCISE OF

THE POLICE POWERS OF THE STATE OF

FLORIDA.

Petitioner, relying upon this Court's

recent decisions rendered in Delaware v.

Prouse, 440 U.S. 648 (1979) and Almedia-

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

(1973), urges the stopping of the G.M.C.

van being driven by Debra Cain was arbitrary

and unreasonable and violative of his Fourth

Amendment rights.

Petitioner has conveniently overlooked

numerous facts relative to this case the

most important of which was that the driver

failed to stop at a permanent agricultural

inspection station located on I-75 just

south of the Georgia-Florida state line in

violation of Section 570.15(2) which makes

it a misdemeanor of the second degree for

any "truck" to fail to stop at said desig-

nated permanent inspection station. Eden v.

State, 370 So.2d 826 (Fla.lst DCA 1979).

Pursuant to his statutory authority given

by Section 570.151(2), Fla.Stat., Inspector

Perry pursued petitioner's van. Upon stop-

ping said vehicle and returning it to the

inspection station, Perry placed Cain under

arrest for violating 570.15(2).

Conspicuously absent from petitioner's

brief is any reference to this Court's de-

cision rendered in United States v. Martinez-

Fuerte, 428 U.S. 543 (1976) which distin-

guished Almedia-Sanchez, because the latter

involved a roving patrol unit. In Martinez

this Court made it abundantly clear that

neither probable cause nor reasonable sus-

picion was required in order to conduct a

stop and legitimate visual inspection of a

vehicle because such would be totally im-

practical to protect the government's

legitimate interests. The Court rejected

the argument advanced herein relative to

the Fourth Amendment violations.

Also conspicuously absent from petitioner's

brief is any reference made to the fact

that in Stephenson v. Department of Agri-

culture and Coneumer Services, 342 So.2d

60 (Fla.1976), this Court dismissed an

appeal challenging the validity of the same

statute ". . . for want of a substantial

federal question. .. ." 434 U.S. 803 (1977).

The State of Florida in Stephenson relied

exclusively upon Martinez before this Court.

Nothing has changed since that ruling and

respondent submits there is still no sub-

stantial federal question regarding Sec.

570.15(2), Fla.Stat. Cf. Hicks v. Miranda,

422 U.S. 332 (1975).

Petitioner's reliance upon Prouee is

likewise unavailing for in said case, which

also involved roving-patrol wnits, this

Court was careful to note in footnote 8b

that: ;

"Nor does our holding today cast doubt

on the permissibility of roadside truck

weigh-stations and inspection check-

points, at which some vehicles may be

subject to further detention for safety

and regulatory inspection than are

others." 440 U.S. at 663

More importantly in Prouee this Court cor-

rectly observed that the methods employed

by Delaware was not essential to protecting

that State's admitted governmental interest.

440 U.S. at 659-661. Marehall v. Barlow's,

Ine., 436 U.S. 307 (1978) has no application

herein for this case does not involve a

business establishment where time and cir-

cumstances are not critical. This Court

recognized this distinction in Almedia-

Sanchez, supra. See also: United States

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

cert.denied, 409 U.S. 81 (1972) and State

v. Batley,120 Ariz. 399, 586 P.2d 645 (Ct.

App. 1978).

Quite obviously if the state and federal

government can require a particular type

vehicle to stop at inspection stations,

they may enact laws to enforce that govern-

mental activity. Surely one cannot ignore

the direction that they stop with impunity.

Counsel's statements that Inspector Perry

used the statute as an investigatory tool

rather than a regulatory one (Pet. at 29,

34) is totally unsupported by the evidence.

No where in Perry's testimony on pages 31,

38-42 are there any statements which even

remotely permit counsel to make such a claim.

Not surprisingly, Perry admitted it was

physically impossible to chase and arrest

every truck operator that failed to stop

at the inspection station and that the de-

cision to do so was based upon a number of

factors. As Mr. Perry stated:

. . [If I pursued every vehicle I

would probably be out there right now.

There is no way, you could get every

vehicle. (T 39)

Perry testified that in determining whether

to attempt to stop a truck that does not

voluntarily stop as required by the statute

it depended on how busy he was at the time

(T 38) and the visual observation of the

vehicle. He said he attempts to stop

rf . the panel type vans, or the ones

that you couldn't see through... [t]he

ones that's got curtains around it and

sitting down pretty low. . ." (T 39). These

were the reasons given by Perry for chasing

down petitioner's van when it failed to

stop at the inspection station (T 46).

Perry never asked for permission to search

the vehicle he only asked to let him look

inside to determine what he was hauling.

(T 55). After returning to the inspection

station and formally placing Debra Cain

10

under arrest, Inspector Perry called his

supervisor (T 56) and awaited his arrival.

He investigated nothing! Indeed, on cross-

examination he testified his duties were

to check agricultural products and not look

for marijuana (T 64-65). Counsel's state-

ment the statute in question is ". . . not

regulatory but an excuse to allow law en-

forcement officers to investigate suspect

vehicles. . ." (Pet. at 34) is pure nonsense.

The inspection station is to conduct a

limited inspection which is frequently

granted by those who do stop which serves

the public and legitimate governmental

interest or to secure a warrant if appro-

priate and necessary where a visual inspec-

tion is denied. The fact that petitioner's

vehicle did not stop and after the driver

was arrested, others were called to determine

what further actions should be taken does

not establish the statute is not a regula-

tory statute.

11

The initial stopping of the van and

arresting Debra Cain for violating Sec.

570.15(2) presents no substantial federal

question.

QUESTION II

THERE IS NO CONFLICT BETWEEN THE DE-

CISION SOUGHT TO BE REVIEWED AND DE-

CISIONS RENDERED BY THIS COURT OR LOWER

FEDERAL COURTS REGARDING THE SEARCH OF

PETITIONER'S VEHICLE.

Petitioner is in error in stating that

he was detained and the testimony of Inspec-

tor Perry clearly established that fact.

Perry testified he arrested Debra Cain and

detained the van (T 58) and he did not have

anything to do with petitioner (T 60). The

record shows the following:

Q You had Ms. Cain. Your had Mr.

Gluesenkamp, and you had a van. Were

you to do anything with them until

Garth got there?

A I only had the driver and the van.

I don't have much to do with the pas-

sengers. (T 60)

12

Of course he detained Ms. Cain and the

van for she drove the vehicle past the

station without stopping, but petitioner

was never detained against his will, until

after the seizure of the marijuana. The

Florida Supreme Court so noted in its opinion.

Since it is clear that the petitioner was

not detained by the authorities, the argu-

ment that the delay violated his rights

simply cannot be maintained. Rawlings v.

Kentucky, ___'U.S. ___, 65 L.Ed.2d 633

(1980).

QUESTION III

THE DECISION SOUGHT TO BE REVIEWED IS

SUPPORTED BY THE EVIDENCE AND SECTION

570.15(2) AS CONSTRUED AND INTERPRETED

BY THE FLORIDA SUPREME COURT DOES NOT

VIOLATE THE EQUAL PROTECTION CLAUSE OF

THE UNITED STATES CONSTITUTION.

The argument under this point is really

a claim that Section 570.15 is unconstitu-

tionally vague and denied petitioner equal

protection of the law.

13

Respondent submits that this issue also

fails to present a substantial federal

question. It should be observed that the

equal protection claim was presented to this

Court in Stephenson and was rejected and

this petitioner has presented nothing new

for this Court to consider.

Section 570.15(2) requires all trucke

to stop. Recreational vehicles are not

"trucks" and are not required to stop. This

case does not deal with the access pro-

visions of Sec. 570.15(1) (a).

The officers never entered the vehicle

until after probable cause was established

and petitioner has not and does not question

the existence of probable cause after the

officers smelled the odor of marijuana

eminating from the cargo door and observing

the portion of burlap bag seen through the

window of the van and the curtain. Peti-

tioner, who stated he installed "plants in

14

stores and restaurants" which is what his

van was used for, testified the curtain was

tied to block the view into the back of

the van (T 85). The witnesses for the

state testified they did see the burlap

because there was a crack in the curtain

(T 5,7,71).

The trial judge in this case in denying

the motion to suppress found:

". . . I find that probable cause is

there for them to make a warrantless

search, and I might add to this that

it is satisfactory to me that they did

view the sacks of marijuana in there

and smell it. There was some question

as to the difference of testimony. I

rule that that is what I believe from

the facts, and that these sacks, from

the description of them, that we've

had so many cases come through here of

similar things, and the testimony has

always been that they've been the same

type. So eventhough they didn't see

the marijuana material itself, their

observation together with the smell

is sufficient, and [I] overrule the

motion. .. a (T 100-101)

That finding of probable cause is clearly

correct. Berry v. State, 316 So.2d 72 (Fla.

15

lst DCA 1975); State v. Toffolia, 349 So.2d

174 (Fla.lst DCA 1977); Dizon v. State,

343 So.2d 1345 (Fla.2d DCA 1977) and

Shelton v. State, 349 So.2d 193 (Fla.2d

DCA 1977).

Given the existence of probable cause,

petitioner's van could be searched without

a warrant and without regard to exigent

circumstances and the Florida Supreme Court

properly so held. Carrol v. United States,

267 U.S. 132 (1925); Chambere v. Maroney,

399 U.S. 42 (1970); Texae v. White, 423

U.S. 65 (1975).

Petitioner's reliance upon this Court's

decisions in United States v. Chadwick,

433 U.S. 1 (1979) and Arkaneae v. Sanders,

442 U.S. 753 (1979) is totally without merit.

Garbage bags and burlap bags are not pro-

tected by Chadwick and Sanders. United

States v. Mackey, 626 F.2d 684 (9th Cir.

1980); United States v. Jiminez, 626 F.2d

16

39 (7th Cir.1980); Flyn v. State, 374 So.

2d 1041 (Fla.lst DCA 1979); Evans v. State,

368 So.2d 58 (Fla.lst DCA 1979) and Arkansas

v. Sanders, supra, 442 U.S. at 764, n. 13.

Petitioner's vagueness claim based upon

the notion that a van is not a "truck" is

absurd. A "van" is nothing more than a

fancy label attached by manufactures, dis-

tributors and advertisers to what everyone

of common understanding knows is a panel-

type truck. It should come as no surprise

that the Florida courts have held that a

"van" is a "truck", Eden v. State, 370 So.

2d 826 (Fla.lst DCA 1979) unless it is

designed or used principally for carrying

passengers and their effects--a bus either

large or small or a recreational vehicle.

Petitioner's contention that the statute

failed to provide adequate notice is legally

17

untenable for in 1977 the statutes of

Florida authoritatively defined that term

and the judicial interpretation in both

Evans and the instant case was clearly

forseeable. Rose v. Locke, 423 U.S. 48

(1975).

Interestingly, petitioner never contended

his van was not a truck for the evidence

and its use demonstrated the contrary.

Respondent respectfully submits the

Statute defining a "truck" as well as

common sense would inform anyone of reason-

able intelligence that a van such as involved

in this case was a truck. In short, a rose

by any other name smells the same.

Petitioner's claim that the "access" pro-

vision of Sec. 570.15(1)(a)7 to vehicles

“other than private passenger automobiles

with no trailer in tow or any vehicle bearing

an RV license tag" creates an arbitrary and

18

unreasonable classification is superficially

appealing but legally erroneous.

Section 570.15(1)(a) pertains to the

department's general right of access to

certain places and things and is not limited

to the road-guard inspection stations.

Subsection (2) is what commands vehicles

to stop at a road-guard inspection station

for inspection and it only requires a

"truck" or "motor vehicle trailer" to stop.

Recreational vehicles in Florida are

defined as units designed as temporary

living quarters for recreational, camping

or travel use and defined as a "travel

trailer", "camping trailer", "truck camper",

"motor home" or "fifth wheel recreation

trailer." Section 320.01(1)(b)1.-5., Fla.

Stat. These vehicles are not "trucks" as

defined by Section 320.01(13) and are not

required to stop whether they are Florida

vehicles bearing a RV license plate or

19

out-of-state vehicles. Out-of-state recre-

ational vehicles are not required to stop

and their operators may not be*arrested for

failing to do so. Knoble v. State, __ So.

2d __—s (Flla.1lst DCA 1981), Opinion filed

May 28, 1981. Neither do in-state recrea-

tional vehicles stop.

Of course, the reason the Florida Legis-

lature has seen fit to exempt automobiies

and recreational vehicles from stopping

and being inspected, even though smugglers

do in fact successfully transport marijuana

and other controlled substances in those

kinds if vehicles is very understandable

as well as rational. First, the owners

and operators of recreational vehicies, be-

cause they are "temporary living quarters",

have a greater expectation of privacy in

them. United States v. Chadwick and

Arkansas v. Sanders, supra. Secondly, be-

cause of their character the brief visual

20

inspection which is all that could legally

be authorized would not serve any useful

purpose. The authorities would have to

conduct a search of the various compartments

and that simply would be beyond the police

powers of the State of Florida. United

States v. Martinez-Fuerte, supra, at 567.

The Florida Supreme Court's conclusion

that the distinction between vehicles de-

signed, maintained, or used for the carriage

of property on the one hand and vehicles

designed to carry people and effects of its

passengers is reasonably related to the

Department of Agriculture's legitimate

inspection function and does not violate

the equal protection clause is sound indeed.

21

CONCLUSION

Petitioner has totally failed to show

the existence of a substantial federal

question which merits the exercise of this

Court's discretionary consideration. Ac-

cordingly, the petition should be denied.

Respectfully submitted,

JIM SMITH

Attorney General

RAYMOND L. MARKY

Assistant Attorney General

1502 The Capitol

Tallahassee, FL 32301

(904) 488-0600

COUNSEL FOR RESPONDENT