# Opposition — Gluesenkamp v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1982%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1981 - **Citation:** 453 U.S. 924 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1982%3A3. Public record. Not legal advice.