Record and brief — Speed v. Florida

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81-1926

Supreme Court, U.S.

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APR 16

NO. 1962

ALEXANDER L. STEVAS

in the CLERK

Supreme Court

of the

Bnited States

October Term, 1981

RONALD E. SPEED, RUSSEL F. KEARNEY,

and DONALD J. WILLIAMS

Petitioners

vs.

THE STATE OF FLORIDA

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE DISTRICT COURT OF APPEAL OF FLORIDA

FOURTH DISTRICT

THOMAS G. MURRAY

Suite 1002, Executive Plaza

3050 Biscayne Boulevard

Miami, Florida 33137

(305) 573-6622

HY SHAPIRO

950 South Miami Avenue

Miami, Florida 33130

MICHAEL H. BLCOM

Suite 600-C, 2699 South Bayshore Drive

Coconut Grove, Florida 33133

Attorneys for Petitioners

QUESTION PRESENTED FOR REVIEW

Should the Court address the Fourth

Amendment concerns posed by warrantless

searches and seizures in the context of “open

view” versus “plain view” situations, given

the extreme confusion among state and federal

courts on that subject, which confusion has

had far reaching deleterious effects on the

entire criminal justice system?

INDEX

QUESTION PRESENTED FOR REVIEW .......

ee BPE eee

ET 6645095 0060<sccucdaseuevenees

CONSTITUTIONAL PROVISIONS INVOLVED .

STATEMENT OF THE CASE AND FACTS .....

REASONS FOR GRANTING THE WRIT .......

1

TABLE OF CITATIONS

Page

Adoue v. State,

408 So.2d 567 (Fla. 1981) ................ 12,13

Bres v. State,

76 Wisc.2d 457, 251 N.W.2d 461 (1977) ........ 7

Cady v. Dombrowski,

ED og cence cesnacoenee 6

Carroll v. United States,

i kei eae omen 11,12

Christian vu. State,

303 So.2d 405 (Fla. 3rd DCA 1974)........... 7

Coolidge v. New Hampshire,

ED og gs ce vcsccavssceaes 10,13

Ensor v. State,

403 So.2d 305 (Fla. 1981) ................. 7,10,

11, 12,13

Gonzalez v. State,

588 SW 355 (Tex.Cr.App 1979) .............. 8

In re: Deborah C,

685 P.2d 446 (Cal. 1981) .................... 8

McGraw v. State,

387 So.2d 444 (Fla. lst DCA 1980) ........... 7

Payton v. New York,

es ed cccn cen teseuneeaenes 13

TABLE OF CITATIONS (Continued)

People v. Bradford,

423 NE2d 1179 (Il).App. 1981) ..............

People v. Gray,

37 Mich.App. 189, 194 NW2d 545 (1971) ......

Porchay v. State,

321 So.2d 439 (Fla. lst DCA 1975) ...........

Scales v. State,

13 Md.App. 474, 477, n.1, 284 A.2d 45,

eg eee earn een

State v. Crea,

305 Minn 342, 233 N.W. 736 (1975) ...........

State v. Day,

301 So.2d 469 (Fla. lst DCA 1974) ...........

State v. Gott,

456 S.W.2d 38 (Mo. 1970) ....................

State v. Jones,

283 S.E.2d 483 (N.C.1981)..................

State v. Seagull,

95 Wash.2d 898, 632 P.2d 44(1981)..........

United States v. Drew,

451 F.2d 230 (6th Cir. 1971) .................

iv

TABLE OF CITATIONS (Continued)

United States v. Ocampo,

650 F.2d 421 (2nd Cir. 1981).................

United States v. Rollerson,

491 F.2d 1209 (5th Cir. 1974)................

United States v. Story,

463 F.2d 326 (8th Cir. 1972) .................

United States v. Villoti,

323 F.Supp. 425 (S.D.N.Y. 1971) .............

United States v. West,

460 F.2d 374 (5th Cir. 1972) .................

MISCELLANEOUS

Page

Article V, Section 3(b)3,

Florida Constitution, 1980 ..................... 6

Florida Statute 893.135(1MaMii) ................. 5

Fourteenth Amendment,

United States Constitution .................... 1,5

Fourth Amendment,

United States Constitution .................. i,1,5

L.W. LaFave, Search and Seizure,

creeds ee bs 6ebcnennes dees 10

EG a 5

Rule 17, Rules of the Supreme Court of

Nt odeweeuaen 14

68 Am.Jur.2d Searches and Seizures,

esos bios 0eseusévecesees 10

Tee eee sold ddd6eeeees oeess 1

THE DECISION BELOW

Review is sought of the decision of the District

Court of Appeal of Florida, Fourth District, dated

December 9, 1981, rehearing denied January 27, 1982.

The decision has not been reported, but a copy is included

in the appendix.

JURISDICTION

The Jurisdiction of the Court is invoked under 28

U.S.C. §1257(3). The decision sought to be reviewed

was rendered December 9, 1981, rehearing denied January

27, 1981. By an order entered by the Honorable Justice

Lewis F. Powell, Jr., on March 24, 1982, the petitioners

were granted until April 16, 1982, to file this petition.

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves interpretation of the Fourth

and Fourteenth Amendments to the United States

Constitution.

STATEMENT OF THE CASE AND FACTS*

At some time prior to August 30, 1979, Agent Rick

Look of the Florida Department of Law Enforcement,

hereinafter referred to as “FDLE”, was furnished

information from a then confidential informant,

subsequently revealed to be Lee Crowell, that a smuggling

venture was going to be conducted in the Lighthouse

Point area of Broward County, Florida. Crowell supplied

*The facts were largely agreed to by the litigants in the state

appellate court.

Agent Look with the names of three specific vessels

and three specific addresses, but Crowell had no

knowledge or information with reference to the vessel

“Wahoo III” or the address 2731 Northeast 36 Street,

Lighthouse Point. The initial information on the “Wahoo

III” was received by the Lighthouse Point Police

Department from United States Customs Officers CPO’s

Hill and McGinty. CPO McGinty initially observed the

“Wahoo III” enter the Hillsboro Inlet at approximately

11:15 a.m. on August 1, 1979. According to McGinty,

the vessel seemed bow heavy and had salt spray around

the window area and front section of the vessel. Customs

Officers DID NOT conduct continuous surveillance on

the “Wahoo III”.

Officer Gary Nurkiewicz of the Lighthouse Point

Police Department was familiar with the “Wahoo III”

because he lived immediately across the canal where

the “Wahoo III” was usually moored. Based upon the

information supplied by Officer Nurkiewicz, the “Wahoo

III” was located and observed by CPO Hill at 2731

Northeast 36th Street, Lighthouse Point, at approximately

3:00 p.m. on August 1, 1979. Surveillance was maintained

by Officer Richard Huott of the Lighthouse Point Police

Department from approximately 4:00 p.m. on August

1, 1979, and continued until 2:00 a.m. on August 2, 1979.

Officer Huott’s suveillance position was located in the

backyard of Officer Nurkiewicz’ home which is across

the canal from 2731 Northeast 36th Street. Officer

Huott did not observe any suspicious activity, but did

observe the occupants of the house watching television.

The evidence with regard to the distance between the

Nurkiewicz house and the “Wahoo III” is conflicting,

but it is believed to be in the vicinity of approximately

200 feet. The surveillance was terminated at

approximately 2:00 a.m. on August 2, 1979.

At approximately 3:00 a.m., Agent Look, Officer

Nurkiewicz, and Lee Crowell, while sitting on the seawall

immediately behind Officer Nurkiewicz’ home, observed

some activity in the area of the “Wahoo III”. It was a

dark night. The Petitioners were observed running from

the vessel to the house carrying objects. No observations

could be made as to the sex, color of skin or any description

of the individuals. Moreover, it could not be determined

by these observations from across the canal how the

objects were packaged or the color of the packages. No.

marijuana was ever seen in plain view and no odor of

marijuana was ever detected. As a matter of fact, with

the naked eye, you could not distinguish anything. The

confidential informant, Lee Crowell, actually testified

that from his vantage point, which was exactly the

same as that of Officer Nurkiewicz and Agent Look, he

“. . . could see them carrying large objects. What they

were I could not actually tell.”

During the course of the surveillance, a task force

comprised of FDLE, U.S. Customs, Lighthouse Point

Police Department, and a contingent of the Fort

Lauderdale Police Department had been assembled.

This conglomerate included approximately thirty officers,

at least three or four official vehicles, and a SWAT

team. As the observations were being made from the

seawall across the canal from the “Wahoo III”, a command

decision was made to “hit the house”. The task force

approached the front of the house in their unmarked

vehicles and immediately piled out and ran toward the

rear of the residence, approaching the house from the

front (south), east and west. Agent Look, Officer

Nurkiewicz and Crowell were due north across the

canal with other members of the contingent force. As a

practical matter, prior to executing the raid, the house

in question was completely surrounded.

When the task force approached 2731 Northeast

36th Street, no attempt was made by any of the petitioners

to leave the residence. The only vehicle known to the

officers to be at the house was a black Corvette parked

in front of the house. The vessel, the “Wahoo III”, was

moored along side the rear of the residence facing due

west. The only exit out of the canal was due east

approximately 1700 feet away and could easily have

been secured given the manpower and vehicles available

to the task force.

The garage area of the house was closed, and it is

clear that from outside the house, there was no view of

the inside of the garage area. Further, there was never

an attempt to move the alleged marijuana from inside

the house into any of the vehicles located at the house.

It is also clear that the issue of obtaining a search

warrant was discussed approximately fifteen (15) minutes

before the raid with regard to 2731 Northeast 36th

Street.

Based upon the information supplied by the

Confidential Informant, Crowell, all four law enforcement

agencies had inside subjective knowledge that the

Defendants were not going to leave the house or attempt

to move the alleged contraband until approximately

8:00 or 9:00 o'clock in the morning. At this time, the

marijuana, if any, was to be moved by van (no vans

were observed prior to the raid at the 36th Street

house) to a shopping center where the van was to be

picked up by someone else, offloaded and returned to

the shopping center. All of the objective facts observed

by all of the officers who testified at the hearing on the

motion to suppress are consistent with the modus operandi

of the group as related by the Confidential Informant,

Crowell.

The purpose of the large number of manpower

was to raid the house in the event any activities started.

Upon notification of the activity between the house

and boat, the raiding party mentioned above hit the

house and seized the dark objects which had been

carried, and later arrested the Petitioners, SPEED,

KEARNEY and WILLIAMS. Customs Officer Jerome

Summers arrived after the seizure of the contraband

and the arrest of the petitioners and boarded the “Wahoo

III” pursuant to 19 U.S.C. 1582. However, it is clear

that neither the initial entry into the residence nor the

vessel was made pursuant to Customs’ authority, but

was made pursuant to State officers raiding the house.

Subsequent to the arrest of Petitioner SPEED, he

was advised of his constitutional rights pursuant to

Miranda and executed a waiver of rights form. SPEED

subsequently gave a statement to Agent Van Trunk.

The petitioners were charged by Information with

trafficking in cannibis, in an amount two thousand pounds

or more, but less than ten thousand pounds, contrary

to Florida Statute 893.135(1)(a\ii). The petitioners filed

a motion to suppress, alleging that the evidence seized

at the time of the arrest was seized in violation of the

Fourth and Fourteenth Amendments in the United

States Constitution. A hearing was conducted on the

motion on August 14, 1980, and denied on that date. In

denying the motion, the state trial court ruled that the

objects seized were in plain view. Interestingly, despite

denying the motion, the court found that there were no

exigent circumstances.

Each petitioner entered a plea of nolo contendere,

specifically preserving the right to appeal the denial of

the motion to suppress. On appeal to the District Court

of Appeal of Florida, Fourth District, the petitioners

again raised the federal constitutional issue.

On December 9, 1982, the state appellate court

affirmed without opinion. The petitioners requested

rehearing, or in the alternative to clarify the basis of

the opinion. The alternative request was denied by the

appellate court on January 27, 1982. This petition follows.

REASONS FOR GRANTING THE WRIT

As Justice Rehnquist noted in Cady v. Dombrowski,

413 U.S. 433, 440 (1973), this Court's decisions dealing

with the constitutionality of warrantless searches suggest

that “this branch of the law is something less than a

seamless webb”. With the past year, the Supreme Court

of Florida has joined other state and federal courts

which have grappled with the issues surrounding

warrantless searches where seized evidence was in

“open view” rather than “plain view”. The Court’s

efforts will be seriously undermined if the decision in

the instant case is allowed to stand.' This Court should

‘Because the state appellate court failed to write an opinion

to reveal the efficacy vel non of its thought processes, the Supreme

Court of Florida is without jurisdiction to review the decision.

Article V, Section 3(b)3, Florida Constitution (1980).

grant its writ of certiorari if for no other reason than to

clarify the parameters of the “plain view doctrine” and

of its stepchild, the “open view doctrine”.

The Supreme Court of Florida originally addressed

the problem in Ensor vs. State, 403 So.2d 350 (Fla.

1981). In that case, police officers stopped an automobile

occupied by the driver and the defendant. Peering through

the window of the automobile with a flashlight, one of

the officers observed the handle of a pistol protruding

from under the passenger side floor mat. The officer

entered the vehicle and retrieved the weapon. The

prosecution successfully argued at the trial and appellate

level that the police officer acted within permissible

constitutional limitations because the weapon seized

was in plain view. The Supreme Court, while affirming

the defendant’s conviction, noted that the prosecution,

the defense, the trial court and the appellate court had

all confused the plain view doctrine with what was in

reality “open view”. The Court noted that such confusion

was not at all unusual, citing many judicial decisions

which betrayed similar confusion.’ The Court quoted at

*See, e.g., United States v. Rollerson, 491 F.2d 1209 (5th Cir.

1974); United States v. Story, 463 F.2d 326 (8th Cir. 1972); United

States v. West, 460 F.2d 374 (5th Cir. 1972); United States v. Drew,

451 F.2d 230 (5th Cir. 1971); McGraw v. State, 387 So.2d 444

(Fla.lst DCA 1980); Porchay v. State, 321 So.2d 439 (Fla. lst DCA

1975); Christian v. State, 303 So.2d 405 (Fla. 3d DCA 1974); State v.

Day, 301 So.2d 469 (Fla. lst DCA 1974); People v. Gray, 37 Mich.App.

189, 194 N.W.2d 545 (1971).

In addition to these cases cited by the Florida Supreme

Court, several other state and federal courts have confused the

two terms. United States v. Villoti, 323 F.Supp. 425 (S.D.N.Y. 1971);

United States v. Ocampo, 650 F.2d 421 (2d Cir. 1981); State v. Crea,

305 Minn. 342, 233 N.W. 736 (1975); State vu. Gott, 456 S.W.2d 38

(Mo. 1970); Bres v. State, 76 Wise.2d 457, 251 N.W.2d 461 (1977);

length from an opinion of the Maryland Special Court

of Appeals which properly defined and distinguished

the terms:

In this context, we studiously avoid the

phraseology “in plain view” to avoid any

implication that the so-called “plain view

doctrine” is being invoked. That doctrine is

not here applicable. Needless confusion is

frequently engendered by the employment in

many opinions of the same phrase —“in plain

view” —to describe two visually similar but

legally distinct situations. The “plain view

doctrine” as described in Coolidge v. New

Hampshire, 403 U.S. 443, 91 S.Ct. 2022,29

L.Ed.2d 564, refers exclusively to the legal

justification—the reasonableness —-for the

seizure of evidence which has not been

particularly described in a warrant and which

is inadvertently spotted in the course of a

constitutional search already in progress or in

the course of an otherwise justifiable intrusion

into a constitutionally protected area. It has

no applicability when the vantage point from

which the “plain view” is made is not within a

constitutionally protected area. It is, therefore

literarily discreet to use for such latter situations

some alternative phraseology such as [“open

” 6

view” ], “clearly visible”, “readily observable”,

(Footnote 2 Continued)

Gonzalez v. State, 588 S.W. 355 (Tex.Cr.App. 1979); In re Deborah

C., 635 P.2d 446 (Cal. 1981); State v. Jones, 283 S.E.2d 483 (N.C.

1981); People v. Bradford, 423 N.E.2d 1179 (Ill.App. 1981).

“open to public gaze”, etc., rather than to employ

the words “in plain view” in their purely

descriptive capacity, lest the unwary reader

read them in their other and talismanic capacity

as an invocation of the doctrine of the same

name in nonintrusive situations where it is

not applicable.

Scales v. State, 13 Md.App. 474, n.1, 284 A.2d

45,47 n.1 (1971)

More recently, in State v. Seagull, 95 Wash.2d 898,

632 P.2d 44 (1981), Supreme Court of Washington, sitting

en banc, conducted a similar analysis of the problem,

and in turn quoted from a decision by the Supreme

Court of Hawaii:

This “open view doctrine” is to be distinguished

from the visually similar, but legally distinct,

“plain view doctrine”. As noted in State v.

Kaaheena, 59 Haw. 23, 28-29, 575 P.2d 462,

466-67 (1978):

In the “plain view” situation “the view takes

place after an intrusion into activities or areas

as to which there is a reasonable expectation

of privacy.” The officer has already intruded,

and, if his intrusion is justified, the objects

in plain view, sighted inadvertently, will be

admissible.

In the “open view” situation, however, the

observation takes place from a non-intrusive

vantage point. The governmental agent is

either on the outside looking outside or on

the outside looking inside to that which is

knowingly exposed to the public. See Moylan,

The Plain View Doctrine: Unexpected Child

of the Great “Search Incident” Geography

Battle, 26 Mercer L.Rev. 1047, 1096, 1097

(1975). The object under observation is not

subject to any reasonable expectation of

privacy and the observation is not within

the scope of the constitution.

(Emphasis by court) Jd. at 46-47 (citations

omitted).

See also, 68 Am.Jur.2d Searches and Seizures

§§23, 88 (1973); I. W. LaFave Search and Seizure

§2.2 at 240 (1978)

Continuing its analysis in Ensor v. State, supra.

the Supreme Court of Florida identified three distinct

factual situations in order to properly limit the plain

view doctrine espoused in Coolidge v. New Hampshire,

403 U.S. 443 (1971).

The first factual situation we identify as a

“prior valid intrusion”. In this situation, an

officer is legally inside, by warrant or warrant

exception, a constitutionally protected area

and inadvertently observes contraband also

in the protected area. It is this situation for

which the United States Supreme Court created

the “plain view doctrine” in Coolidge and held

that an officer could constitutionally seize the

contraband in “plain view” from within this

protected area. We emphasize that it is critical

under this doctrine for the officer to be already

10

within the constitutionally protected area when

he inadvertently discovers the contraband.

We identify the second factual situation as a

“non-intrusion”. This situation occurs when

both the officer and the contraband are in a

non-constitutionally protected area. Because

no protected area is involved, the resulting

seizure has no fourth amendment ramifications,

and, while the contraband could be defined as

in “plain view”, it should not be so labeled to

prevent any confusion with the Coolidge “plain

view doctrine”.

The third situation concerns a “pre-intrusion”.

Here, the officer is located outside of a

constitutionally protected area and is looking

inside that area. If the officer observes

contraband in this situation, it only furnishes

him probable cause to seize the item. He must

either obtain a warrant or have some exception

to the warrant requirement before he may

enter the protected area and seize the

contraband. As with the non-intrusion situation,

the term “plain view” should not be employed

here to prevent confusion. For clarity, we label

an observation in the latter two non-Coolidge

situations as a legally permissive “open view”.

Ensor v. State, 403 So.2d at 352.

The court upheld the search in Ensor despite the

absence of a warrant, finding “exigent circumstances”.

Carroll v. United States, 267 U.S. 132 (1925).

11

Despite the clarity of its analysis in Ensor, the

Supreme Court of Florida felt compelled to once again

stress the distinction between “open view” and “plain

view” in Adoue v. State, 408 So.2d 567 (Fla. 1981). In

Adoue, police officers examined the inside of an airplane

through a window with the aid of a flashlight. They

observed a number of white plastic garbage bags, one

of which bags was torn. Through the tear a green leafy

substance was observed. Subsequently the officers entered

the plane and seized the bags, which were found to

contain marijuana. Once again the Court found that the

lower courts had mistakenly relied upon the plain view

doctrine to uphold the search. The Court stated that

when the officers looked through the window of the

plane, they stood in a nonconstitutionally protected

area where they had a lawful right to be; thus, the

marijuana was observed in “open view”. The subsequent

warrantless search was upheld, again based upon a

finding that exigent circumstances existed. Adoue v.

State, supra at 571. Carroll v. United States, supra.

The common denominator of those decisions which

recognize the distinction between “open view” and “plain

view” is the very important realization that in an “open

view” situation, no intrusion upon a constitutionally

protected area has occurred as yet, but that a warrant

requirement is necessary before the police may proceed

to invade the protected area. Conversely, in an “open

view” situation, the invasion has already occurred, but

it has occurred with justification (a search warrant,

emergency, exigent circumstances, etc.). No additional

justification is needed for the seizure of items in plain

view.

12

Given this fundamental distinction, and the vast

number of courts which have failed to appreciate it,

this Court should grant its writ of certiorari to correct

the widespread erroneous belief that the distinction is

insignificant. Such a belief is apparent in the instant

case. The cavilier affirmance by the state appellate

court of the petitioners’ convictions without an opinion

suggests not only a myopic failure to appreciate the

carefully analyzed decisions of the Florida Supreme

Court in Ensor and Adoue, but an ostrich-like

unwillingness to perform the requisite constitutional

analysis.

Without belaboring the facts of the case, it should

be beyond cavil that the instant case presents an example

of “open view” as opposed to “plain view”, the ruling of

the state trial court to the contrary notwithstanding.

The observations of the police officers were made from

a considerable distance from the petitioners and were

not made from within a constitutionally protected area.

Assuming without conceeding that those observations

furnished the officers with probable cause, more was

needed to justify the officers’ subsequent actions of

entering the petitioners’ property. In order to satisfy

constitutional scrutiny, the actions of the officers must

necessarily have been conducted pursuant to a warrant,

or within one of the carefully limited exceptions to the

warrant requirement. Clearly, the officers did not have

a warrant, despite more than ample time to procure

one. Just as clearly, the state trial judge was correct in

finding that there were no exigent circumstances to

excuse the lack of a warrant, and none of the other

exceptions to the warrant requirement were even

remotely relevant. See, Coolidge v. New Hampshire,

supra; Payton v. New York, 445 U.S. 573 (1980). The

13

decision of the trial court to excuse the absence of a

warrant on the theory of “plain view” and the decision

of the District Court of Appeai of Florida, Fourth District,

upholding that decision not only were erroneous but

provide this Court with compelling reasons to grant its

writ of certiorari in this case. See Rule 17, Rules of the

Supreme Court of the United States. It is earnestly

hoped that this Court will grant certiorari review in

this cause and quash the decision of the District Court

of Appeal of Florida, Fourth District.

Respectfully submitted,

/s/ Thomas G. Murray

THOMAS G. MURRAY

Suite 1002, Executive Plaza

3050 Biscayne Boulevard

Miami, Florida 33137

(305) 573-6622

Counsel for Petitioners

14

’

es

eS ee ee ne ae

NO.

in th

Supreme Court

of the

United States

October Term, 1981

RONALD E. SPEED, RUSSEL F. KEARNEY,

and DONALD J. WILLIAMS

Petitioners

VS.

THE STATE OF FLORIDA

Respondent

APPENDIX

INDEX TO APPENDIX

EXHIBIT Page

1. Order Extending Time to File Petition for Writ

EE cei eeaaeskexcccsceanes sees 1

2. Motion to Suppress—Kearney and Williams.. 2

3. Motion toSuppress—Speed................ 7

4. Supplemental] Motion to Suppress and

Memorandum of Law—Speed............ . =

5. Excerpts of Transcript—Oral Denial of Motion

hs se aenaseaacueueenenes 31

6. Decision of District Court of Appeal of Florida,

civcdecedesebseseceueseuses 34

7. Motion for Rehearing and/or Clarification of

DE eLctidundandbhadun vnenestesnaneks 36

8. Order Denying Motion for Rehearing and/or

ED co nedied bGetese6testnsbaskunus 43

App. i

SUPREME COURT OF THE UNITED STATES

No. A-825

RONALD E. SPEED, ET AL.,

Petitioners

v.

FLORIDA

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

UPON CONSIDERATION of the application of counsel

for petitioner(s),

IT IS ORDERED that the time for filing a petition

for writ of certiorari in the above-entitled cause be,

and the same is hereby, extended to and including

April 16, 1982.

/s/ Lewis F. Powell, Jr.

Associate Justice of the Supreme

Court of the United States

Dated this 24th

day of March, 1982

App. 1

IN THE CIRCUIT COURT OF THE

17TH JUDICIAL CIRCUIT IN AND FOR

BROWARD COUNTY, FLORIDA

CASE NO. 79-6027-CF

THE STATE OF FLORIDA,

Plaintiff,

vs.

RUSSELL FRANCIS KEARNEY

and DONALD JAY WILLIAMS,

Defendants.

MOTION TO SUPPRESS PHYSICAL

EVIDENCE

COME NOW, the Defendants, RUSSELL FRANCIS

KEARNEY and DONALD JAY WILLIAMS, by and

through their undersigned counsel, pursuant to Florida

Rule of Criminal Procedure 3.190(h), and respectfully

move this Honorable Court to enter an Order suppressing

as evidence in this cause, any and al! items seized by

members of the Lighthouse Point Police Department;

United States Customs; Fort Lauderdale Police

Department; Florida Department of Criminal Law

Enforcement; and/or Agents acting within their control,

and particularly those named tangible items contained

in the Information and in the State’s Answer to

Defendants’ Demand for Discovery dated September

26, 1979, and particularly as to Paragraph 3, said items

being seized as a result of an unlawful search and

seizure on August 2, 1979. Aa grounds for the Court’s

App. 2

granting of Defendants’ motion in this cause, the

Defendants would show the following:

1. Allitems aforementioned were illegally seized

without the benefit of a valid search warrant.

2. There was no probable cause to justify any

search and seizure in the above-styled cause.

3. The Defendants did not consent to said search.

4. Said search was not incident to a lawful arrest

and the evidence seized thereby represents the “fruit

of the poisonous tree”. Wong Sun vs. United States,

371 U.S. 407 at 488 (1963).

5. The search and seizure conducted by members

of Lighthouse Point Police Department, United States

Customs, Fort Lauderdale Police Department, Florida

Department of Criminal Law Enforcement, and/or Agents

acting within their control, was beyond the scope of

that permitted when incident to a lawful arrest. Chimmell

vs. Culifernia, 395 U.S. 752 (1969). In fact, the search

occurred prior to any arrest of the Defendants.

6. There was sufficient opportunity to obtain a

search warrant for said search.

7. The connection between the unlawful search

and the discovery of evidence sought herein to be

suppressed has not become sufficiently attenuated as

to dissipate the taint of the original lawless conduct of

the Lighthouse Point Police Department, United States

Customs, Fort Lauderdale Police Department, Florida

Department of Criminal Law Enforcement, and/or Agents

App. 3

acting within their control. Nardone vs. United States,

308 U.S. 338, 341 (1939); Wong Sun vs. United States,

371 U.S. 407, 487 (1963).

As further grounds for this motion, the Defendants

by and through their undersigned counsel, would show

the following reasons for suppression of the

aforementioned evidence together with a general

statement of the facts upon which this motion is based

as required by State vs. Butterfield, 285 So.2d 626 (4

DCA 1973):

STATEMENT OF FACTS

On August 1, 1979, a vessel described as a 42 foot

Hatteras, named Wahoo III, was seen docked behind a

residence located at 2731 N.E. 36th Street, Lighthouse

Point, Florida. Officers from the Lighthouse Point Police

Department believed that the vessel was carrying

contraband. Surveillance w~s setup near the residence

across the canal and both the vessel and the residence

were observed for several hours. The vessel did not

appear to be unusual as it sat in the water, nor was

there anything unusual about the residence in question.

As a matter of fact, there was no information whatsoever

possessed at the time of the original surveillance

concerning the Wahoo III or the residence at 2731 N.E.

36th Street.

For several hours the vessel and residence were

observed from a house owned by Officer Nurkiewicz of

the Lighthouse Point Police Department, located across

the canal from where the Wahoo III was docked. There

was no activity observed from the vessel or the residence

App. 4

until approximately 4:00 A.M., the morning of August

2, 1979. At that time ail lights in the residence were

out and nothing at al] could be seen. However, with the

use of binoculars, the officers were able to observe

individuals leaving the house and walking to the boat.

These individuals could be seen carrying what appeared

to be large objects, rectangular in shape, from the boat

to the house.

After making these observations frem across the

canal, one of the officers radioed to a stakeout which

was located across the street from the residence at

2731 N.E. 36th Street. The broadcast over the radio

was “Move in now”. Nothing else was said.

After receiving this broadcast several officers from

the Lighthouse Point Police Department, Fort Lauderdale

Police Department, and U.S. Customs, left the stakeout,

crossed the street and without the benefit of a search

warrant, immediately entered the rear yard of the

residence at 2731 N.E. 36th Street. At that time the

three defendants were arrested.

Subsequent to making these arrests, members of

the aforementioned departments, without the benefit

of a search warrant, conducted an exploratory search

of the residence, boat and packages, and found what

they believed to be marijuana.

WHEREFORE, the Defendants respectfully request

this Honorable Court to grant this Motion to Suppress

Physical Evidence and/or any and all evidence obtained,

App. 5

procured, or otherwise gained by the aforementioned

departments.

Respectfully submitted,

/s/ Peter F. K. Baraban

PETER F. K. BARABAN,

ESQUIRE

Attorney for Defendants

950 South Miami Avenue

Miami, Florida 33130

371-2566 Dade

467-3477 Broward

I HEREBY CERTIFY that a true and correct copy

of the foregoing Motion to Suppress Physicial Evidence

was mailed to the Office of the State Attorney, Broward

County Courthouse, 201 S.E. 6th Street, Fort Lauderdale,

Florida 33301, this 20th day of February, 1980.

/s/ Peter F. K. Baraban

PETER F. K. BARABAN,

ESQUIRE

App. 6

IN THE CIRCUIT COURT OF THE

17TH JUDICIAL CIRCUIT IN AND FOR

BROWARD COUNTY, FLORIDA

CRIMINAL DIVISION

CASE NO. 79-6027-CF (Judge Futch)

STATE OF FLORIDA,

Plaintiff,

vs.

RONALD E. SPEED,

Defendant.

MOTION TO SUPPRESS CONFESSION

OR ADMISSION

COMES NOW the Defendant, RONALD E. SPEED,

by and through his undersigned attorney, and files

this, his Motion to Suppress a Confession or Admission

illegally obtained, pursuant to Rule 3.190(i) of the Florida

Rules of Criminal Procedure, and as grounds would

show:

1. In the early morning hours of August 2, 1979,

the Defendant was arrested and charged with trafficking

in cannabis in an amount of two thousand pounds or

more but less than ten thousand pounds, contrary to

Florida Statute 893.135.

2. Subsequently, the Defendant was transported

to the Lighthouse Point Police Department where he

was interrogated by Agent Manny Funes and Agent

App. 7

John Van Tronk of the Florida Department of Law

Enforcement.

3. It is submitted that the Defendant’s arrest

and subsequent search and seizure that resulted in the

confiscation of the cannabis aforementioned took place

approximately one-half hour prior to the in-custody

interrogation.

4. It is further submitted that the arrest of the

Defendant and seizure of the contraband was illegal,

and in violation of the Defendant’s Constitutional rights

under the Fourth Amendment to the United States

Constitution and Article I, Section 12 of the Florida

Constitution.

5. That the Defendant’s confession or admission

was so tainted by the Constitutional violations aforesaid

that the confession or admission becomes the fruit of

the poisonous tree as recognized in Wong Sung v. United

States, 371 U.S. 471 (1963).

6. It is submitted that the Defendant’s confession

must be suppressed as the Defendant could not be

effectively appraised of his Miranda rights given the

existence of his illegal arrest and the subsequent illegal

search and seizure of the cannabis aforementioned.

7. The Defendant's confession was therefore fatally

poisoned by the initial unconstitutional acts of the State

officers and there was not a sufficient break in the

action thereafter to purge the illegal taint from the

confession to make the confession independently

admissible. Brown v. Illinois, 95 Sup. Ct. 2254 (1975).

App. 8

WHEREFORE, the Defendant respectfully moves

this Honorable Court for an Order Suppressing any

and all statements or confessions made by the Defendant

pursuant to the custodial interrogation of the Defendant

by State officers.

LAW OFFICES OF MICHAEL

H. BLOOM

Attorney for Defendant

2699 South Bayshore Drive

Suite 600-C

Coconut Grove, Florida 33133

BY: /s/ Michael H. Bloom

MICHAEL H. BLOOM

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy

of the above and foregoing Motion was mailed this 8th

day of August, 1980, to MARK SPISER, ESQUIRE,

Office of the State Attorney, 600 Broward County

Courthouse, 201 S. E. 6th Street, Ft. Lauderdale, Florida,

33301.

BY: /s/ Michael H. Bloom

MICHAEL H. BLOOM

App. 9

[FILED 8/13/80]

IN THE CIRCUIT COURT OF THE

17TH JUDICIAL CIRCUIT IN AND FOR

BROWARD COUNTY, FLORIDA

CRIMINAL DIVISION

CASE NO. 79-6027-CF (Futch)

THE STATE OF FLORIDA,

Plaintiff,

vs.

RONALD E. SPEED, et al,

Defendants.

SUPPLEMENTAL MOTION TO SUPPRESS

TANGIBLE EVIDENCE AND

MEMORANDUM OF LAW

COMES NOW the Defendant, RONALD E. SPEED,

pursuant to Rule 3.190(h) of the Florida Rules of Criminal

Procedure, and files this, his Motion to Suppress certain

tangible evidence seized from him and states as his

reason that the evidence was illegally seized without a

warrant.

THE RELIEF SOUGHT

Defendant, RONALD E. SPEED, seeks suppression

and exclusion of the marijuana which is the subject

matter of the charge against him, and which was seized

from him by agents of the State of Florida on or about

App. 10

August 2, 1979. The Defendant’s claim for relief is

grounded on the Fourth Amendment to the United

States Constitution’ and Article 1, Section 12 of the

Florida Constitution.’

THE FACTS

Most of the events leading up to the arrest of the

Defendant, SPEED, and the co-defendants, and the

subsequent seizure of the marijuana are undisputed

since, to a large extent, those events are unknown to

the Defendant and only discovered by the Defendant in

the course of his pre-trial discovery.

On or before August 1, 1979, agents of the Florida

Department of Law Enforcement (F.D.L.E.) received

information from a then confidential source, Lee Crowell

a/k/a John Jacobs, that a certain smuggling organization

headed by John Giles, was going to smuggle large

quantities of marijuana into Broward County by the

use of three or four large seagoing vessels.°

‘The Fourth Amendment 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, supported by Oath

or affirmation, and particularly describing the place to be searched,

and the persons or things to be seized.” The Fourth Amendment is

applicable to the states. Mapp v. State, 367 U.S.643 (1961).

*Although similar to the Fourth Amendment to the United

States Constitution, Florida's protection against unreasonable search

and seizure has a built-in exclusionary rule: “Articles or information

obtained in violation of this right shall not be admissible in evidence.”

Art. I, §12.

"Deposition of Rick Look, page 14-16.

App. 11

Avent Look was advised that the modus operandi

to be ivllowed by the Giles organization was that, if the

vessels went out of the inlet the previous day, they

would return the following day laden with pot.‘ Agent

Look was further advised by Crowell of the possible

names of the vessels and the addresses at which they

were presently moored and subsequently to be off-

loaded.°

At this time, various law enforcement agencies

conducted an in-depth surveillance operation on the

vessels and addresses supplied by the confidential

informant, Crowell. On or about July 31, 1979, one of

the vessels supplied by Crowell, the Miss Candee, left

Lighthouse Point and headed south on the Intracoastal

Waterway. This vessel was surveilled by United States

Customs.’ According to Crowell, the smuggling operation

had commenced.

Since the information supplied by Crowell was

incomplete, all law enforcement agencies were looking

for any boats of comparative size, leaving at a given

time, that may be in association with the Miss Candi.’

The vessell, Wahoo III, a forty-two foot Hatteras

sport fisherman, similar to the Miss Candi, was initially

spotted on the afternoon of August 1, 1979, in the

‘Deposition of Rick Look, page 15-16.

‘Deposition of Rick Look, page 18.

"Deposition of Ronald C. McGinty, page 10.

"Deposition of Rick Look, page 20.

App. 12

canals of Lighthouse Point not far from where the Miss

Candi was initially spotted.* It should be emphasized

that prior to spotting the Wahoo III, no law enforcement

agency had any information concerning the name Wahoo

III or the address at which it was docked.’

After the Wahoo III was initially spotted on the

afternoon of August 1, 1979, surveillance was established

at each address. Crowell had previously advised that

the boats would stay moored with no activity around

them throughout the entire day of August Ist, and

then at approximately 1:00 a.m. the marijuana would

be off-loaded.” Officer Richard Huott of the Lighthouse

Point Police Department was assigned the duty of

surveilling the residence of 3731 N. E. 36th Street, the

address where the Wahoo III was docked. Huott

commenced his surveillance from approximately 4:30

p.m., on August Ist to 2:00 a.m., on August 2nd, without

observing any unusual activity." Surveillance on the

Wahoo III was maintained from across the canal and

was terminated from approximately 2:00 a.m., on August

2nd until 3:30 a.m., on August 2nd.

At approximately 3:30 a.m., on August 2nd, Officer

Huott arrived back at the surveillance house and again

"Deposition of Rick Look, page 21-22.

*Deposition of Rick Look, page 14, 20-22; Deposition of Malcolm

James, page 20. Agent Look specifically states at line 5 on page

21, “I have received no information from the Wahoo III”.

"Deposition of Rick Look, page 25-26.

“Deposition of Richard Huott, page 10.

App. 13

commenced surveillance of the Wahoo III.” After a

short time the surveillance officers observed activity

in the rear of 3731 N. E. 36th Street around the Wahoo

III. It should be noted that these observations were

made at night from a distance of about 200 to 250 feet.”

According to Officer Gary Nurkiewicz, 2 surveillance

officer for Lighthouse Point, he observed some activity

with the aid of binoculars and observed large, square

or oblong objects that “looked like” bales of marijuana.

However, Nurkiewicz could not tell how these objects

were packaged (boxes or burlap) the color of these

objects, nor did he observe any marijuana or marijuana

residue in plain view and could not smell anything

from where he was."

Based upon the foregoing, Nurkiewicz advised all

other law enforcement agencies that were in the area

to “hit the house”. It is important to note that after

these observations and before the house was “hit” all

surveillance officers went back to the police station to

get their equipment i.e. their radios, their guns, their

other men. According to Huott, “at that point, everybody

that was involved, drove down in a caravan from the

police department to 3731 N. E. 36th Street see -

“hit the house”.

® Deposition of Richard Huott, page 14.

“Deposition of Richard Huott, page 8; Deposition of Malcolm

James, page 15-18.

“Deposition of Gary Nurkiewicz, page 30-34.

“Deposition of Richard Huott, page 21.

App. 14

In all, there were representatives from F.D.L.E.,

City of Fort Lauderdale Police Department, City of

Lighthouse Point Police Department and United States

Customs. There were approximately a dozen men from

all agencies in four or five cars."* According to one

version of the “HIT”, officers converged from the front

of the house and from the east side and from the west

side. There was also a group of surveillance officers

surveilling the entire situation from the south or across

the canal.”

According to the pre-trial depositions, there were

two of the Defendants’ cars parked in front of the

house at the time the caravan arrived, a black Corvette

and a Toyota Celica. No other vehicles could be observed.”

As a result of the “hit”, the Defendant SPEED

and co-defendants KEARNEY and WILLIAMS were

arrested and evidence was seized and confiscated

including, but not necessarily limited to, the marijuana,

the vessel Wahoo III, and other miscellaneous personal

property. It is this evidence that the Defendant SPEED

seeks to suppress and exclude from evidence at trial.

For purposes of this Motion only, the Defendant SPEED

concedes that the substance seized from him at the

time of his arrest was cannabis.

“Deposition of Richard Huott, page 21.

"Deposition of Richard Huott, page 22.

“Deposition of Russell Smith, page 25; deposition of Cherokee

McDonald, page 42; deposition of Richard Huott, page 23.

App. 15

PREMISES

(1) This was a warrantless search, and:

[Sjearches conducted outside the judicial process,

without prior approval by judge or magistrate,

are per se unreasonable under the Fourth

Amendment sub—only to a few specifically

delineated exceptions . . . [T]he burden is on

those seeking the exemption to show the need

for it. Coolidge v. New Hampshire, 403 U.S.

443, 455, 29 L.Ed.2d 564, 576 (citations omitted).

See also Raleigh v. State, 365 So. 2d 1048 (Fla.

4th DCA 1978); Ingram v. State, 364 So. 2d 821

Fla. 4th DCA 1978); Sheppard v. State, 343 So.

2d 1349 (Fla. lst DCA 1977); Mann v. State,

292 So. 2d 432 (Fla. 2d DCA 1974.”

(2) There are six exceptions to the Fourth

Amendment’s warrant requirement:

a. In ‘plain view’ see Coolidge v. New Hampshire,

403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564

(1971);

b. With ‘consent’ voluntarily, intelligently and

knowingly given, see Bumper v. North Carolina,

391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed. 2d 797

(1968); Johnson v. Zerbst, 304 U.S. 458, 88 S.Ct.

1019, 82 L. Ed. 1461 (1938);

‘Ultimate burden of proof as to the validity of a warrantless

search is on the state. . .” Mann v. State, 292 So. 2d 432 (Fla. 2d

DCA 1974).

App. 16

. As ‘incident to a lawful arrest’, see Abel w.

United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.

Ed. 2d 668 (1960); Draper v. United States, 358

US. 307, 79 S.Ct. 329, 3 L. Ed. 2d 327 (1959).

. In ‘hot pursuit’ or ‘emergency’ situations, see

Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642,

18 L. Ed. 2d 782 (1967); Johnson uv. United States,

333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1947);

. Where ‘exigent circumstances’ exist coincidental

with ‘probable cause’ (as in the case of movables

see Chambers v. Maroney, 399 U.S. 42, 90 S. Ct.

1975, 26 L.Ed. 2d 419 (1970); and

. In ‘stop and frisk’ situations, see Terry v. Ohio,

392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 24889 (1968).

THE LAW

A. Border Search

It is axiomatic that a search is not a valid border

search unless it appears by a preponderance of the

evidence, direct or circumstantial, that a border crossing

has occurred. U.S. Customs has authority, purusant to

Title 19 U.S.C. § 482 to conduct border searches given

a “reasonable cause to suspect there is merchandise

which was imported contrary to law. ...” Furthermore,

under Title 19 U.S.C. 1581(a) Customs has absolute

authority to stop or search vessels in “Customs waters”

for the purpose of examining the vessels papers/documents

and/or safety check.”

"United States v. Freeman, 579 Fed. 2d 942 (5th Cir. 1978)

App. 17

The law aforementioned is clear under both of the

aforementioned authorities, however, the burden is on

the State to show that (1) there existed a reasonable

suspicion that the vessel crossed an international border

or had been in contact with those who have done so; (2)

that there has been continuous and uninterrupted

surveillance so as to convince the trier of fact with

reasonable certainty that there has been no change in

condition from the border to the stop/search and whatever

was in the vessel when stopped and searched was in

the vessel at the border.”

In the case sub judice the record is completely

void of any objective standard that would give rise toa

reasonable suspicion that the Wahoo III had ever crossed

an international border. The confidential informant,

Crowell, had supplied the agents with the names of

three vessels, to wit: the Havelock, the Jon-Jon, and

the Miss Candi and the addresses that they would be

docked at. The Wahoo III was not mentioned nor was

the address of 3721 N. E. 36th Street given to the

agents.”

"U.S. v. Fogeiman, 586 Fed. 2d 337 (5th Cir. 1978); U.S. v.

Woodard, 531 Fed. 2d 741 (5th Cir. 1976); U.S. v. Storm, 480 Fed. 2d

701 (5th Cir. 1973).

“Deposition of Rick Look, page 20-23; 32, 33. Agent Look

specifically states that he received no information on the Wahoo

III but simply was looking for any boat of comparative size. In

checking the canals, not far down the road from the supplied

address is where they found the Wahoo III. It was initially spotted

the afternoon of August Ist tied behind the address on 36th

Street.

App. 18

Furthermore, under the doctrine of extended border

search, if there is a border crossing, there must be

continuous and constant surveillance of the vessel from

the border to the stop.” In the instant case, there is no

evidence of when the Wahoo III crossed the international

border, if, in fact, it ever did. Moreover, not only did

the agents not know when the Wahoo III returned, the

surveillance on the Wahoo III did not commence until

approximately 4:30 p.m., on August 1, 1980, and was

interrupted for approximately an hour and a half on

August 2, 1980, prior to the arrest.”

It is therefore abundantly clear that the State

cannot maintain its burden of showing by a preponderance

of evidence that the Wahoo III was ever engaged in a

border crossing and, further, that given the totality of

the circumstances of the unknown departure and arrival

dates and interrupted surveillance once it began, the

State cannot come under the doctrine of extended border

search.”

*U.S. v. Fogelman, supra; U.S. v. Mitchell, 525 Fed. 2d 1275

(Sth Cir. 1976); U.S. v. Brennan, 538 Fed. 2d 711 (5th Cir. 1976).

*Deposition of Richard Huott, page 10.

*U.S. v. Johnson, 588 Fed.2d 147 at 154 (5th Cir. 1979). A

particular search removed from the border may be the functional

equivalent of the border search if the object of the search has

been kept under constant surveillance from the border to the

point of the search. [Emphasis added]. See also Almeida-Sanchez

v. U.S. 413 U.S. 266 (1973).

App. 19

The State cannot justify the instant search under

Title 19 U.S.C. § 1581(a).” Customs waters has been

defined by Title 19 § 1401 (j) as “the waters within four

(4) leagues [twelve nautical miles] of the Coast of the

United States”. Under the facts of the instant case, the

Wahoo III was clearly not in “Customs waters” but

docked in a canal off of the inland waterway. Additionally,

the vessel had been docked for almost twenty-four

hours prior to the search.”

The search in question cannot be justified under

Section 1581(a) because factually, no Customs officer or

any other officer for that matter ever requested to

examine the ship’s manifest or other documents or

safety equipment.”

"U.S. v. Jones, 528 Fed. 2d 303 (9th Cir. 1975); U.S. v. Brennan,

538 Fed. 2d 711 (5th Cir. 1976); U.S. v. Ingham, 502 Fed. 2d 1287

(5th Cir. 1975). Any officers of the Customs may at any time go on

board any vessel or vehicle at any port in the United States or

within Customs waters . . . and examine the manifest and other

documents [emphasis added] and papers and examine, inspect,

and search ihe vessel or vehicle and every part thereof and any

person, trunk, package or cargo on board and to this end may hail

and stop such vessel or vehicle and use all necessary force to

compel compliance.

“Deposition of Sgt. Cherokee McDonaid, page 30-31. Sgt.

McDonald testified that he was the first officer on the scene and

he and numerous other officers responded to a radio broadcast by

either Lt. James or Sgt. Nurkiewicz of the Lighthouse Point

Police Department that “they were unloading and that’s where

they are, so let’s hit them. [Emphasis added.]

*See also U.S. v. Fogelman, supra, page 343.

App. 20

B. EXIGENT CIRCUMSTANCES?

The rationae for the exigent circumstances exception

to the warrant requirement of the Fourth Amendment

is founded in the decision of Carroll v. U.S., 267 U.S. 132

(1924). Carroll holds a search warrant unnecessary where

there is probable cause to search an automobile/airplane/

vessel (moveables). In Carroll, the car was moveable,

the occupants alerted, and the cars contents may never

be found again if a warrant must be obtained.” The

Supreme Court in Payton v. New York, ___. U.S. ___

(decided 4/15/80) recently held that, absent exigent

circumstances, police officers may not forcibly enter a

suspect’s home unless they had previously obtained a

warrant. It has long been established that those seeking

the exception must show the need.” Furthermore, the

exceptions to the warrant requirement are narrowly

drawn.”

It should be noted that the Supreme Court of the

United States has never approved a warrantless entry

of premises to prevent eminent destruction or removal

of evidence. Entry will only be justified when the exigency

is absolutely compelling and the destruction is certain.

[emphasis added]”

"U.S. v. McDonald, 335 U.S. 451 (1948); U.S. uv. Jeffers, 342

USS. 48 (1951).

"Ker u. California, 374 U.S. 23 (1963); Coolidge u. New Hampshire,

403 U.S. 443 (1971).

"U.S. v. McDonald, supra; U.S. v. Jeffers, supra.

App. 21

In Vale v. Louisiana, 399 U.S. 30 (1970) the Supreme

Court refused to justify a warrantless entry of a home

and seizure of evidence because “the goods ultimately

seized were not in the process of destruction.” This

conclusion was reached notwithstanding that in Vale,

supra, the relatives of the Defendant were in the house

and were alerted to the fact that Vale had been arrested

outside his home while engaged in a drug transaction.

The important issue under the exigency exception

is that the officers must show that it was not realistically

feasible for them to have obtained a warrant prior to

entering the suspect premises to make the arrest.

Using an objective standard, the officers had the

house and vessel under surveillance since 4:30 p.m., on

August 1, 1980, and therefore had approximately twelve

hours before any activity commenced to notify the

State Attorney as to their information and put into

operation the mechanics of drafting the affidavit in

support of the search warrant for a judge to subsequently

execute. Furthermore, the vessel was, as a practical

matter, landlocked.”

“The Wahoo III was tied up facing west in a finger cana! off of

the inland waterway. The only escape back to the inland waterway

and high seas was a narrow opening of this canal into the inland

waterway which was approximately 500 yards due east of where

the Wahoo III was docked. Therefore, to effectuate an escape the

the Defendants would have had to board the Wahoo III, untie the

vessel, push off the seawall, and make a U-turn in a narrow canal

and proceed through that narrow mouth of the canal into the

inland waterway.

App. 22

In addition, the only two vehicles at the residence

of 3721 N.E. 36th Street, were a Corvette and a Toyota.”

It is submitted that these vehicles are not customarily

used to transport large quantities of marijuana.

Further, none of the Defendants were alerted to the

fact that they were being surveilled and no one’s safety

was in jeopardy.

The police had sealed off any escape routes as there

were policemen on the « «st side of the house, the west

side of the house and in: -nt of the house. There were

approximately four or five police vehicles in the immediate

area and approximately twelve officers from all agencies.”

Also, Rick Look and Gary Nurkiewicz were observing

all of the activity from the original surveillance point

directly across the canal from where the Wahoo III was

docked.

The aforementioned facts were the “objective”

facts known to the officers immediately prior to “hitting”

the house. However, using a subjective standard to

determine exigent circumstances, the officers had a

great deal more on which to base their decision. The

confidential informant, Crowell, had advised Special

Agent Look of the modus operandi of this group of

smugglers that he had inflitrated. Crowell had specifically

advised that the marijuana would be off-loaded during

the early morning hours and subsequently moved during

“Deposition of Richard Huott, page 33.

“Deposition of Richard Huott, page 21.

App. 23

early morning rush-hour traffic to avoid undue

observation.”

The Fourth D.C.A. in Rizzo v. State, So. 2d (4th

D.C.A. 1980) [1980 F.L.W. 468] considered a case almost

exactly on point. In Rizzo, the police had no subjective

standard similar to the one sub judice. In addition, a

van was backed up to the house “which could be used

to make a getaway.” The District Court held that exigent

circumstances must be perceived by the police prior to

the entry onto private premises. [Emphasis added]. In

addition the vehicle could not have gotten away while

an officer was absent procuring a search warrant as

the police had all avenues of departure covered.

Accordinly, the Court found an absence of exigent

circumstances and reversed the trial Court.”

It is submitted that in the case at bar the burden

is on the State to prove that probable cause existed

and, exigent circumstances neccesitated the warrantless

entry to arrest the Defendant and seize the tangible

evidence. It is submitted that given all of the knowledge

and information that was available to the police, the

manpower and surveillance units that were deployed

in the area, the fact that the police had at least twelve

hours of surveillance prior to the “hit” and knew that

they had approximately four more hours before the

marijuana would be moved and that no Defendant was

alerted or anyone’s safety in danger, that no exigency

“Deposition of Stephanie Wright, page 12.

"See State v. Santamaria, ____ So. 2d ____ (1st D.C.A. 1980);

[1980 F.L.W. 1319] U.S. vu Fogelman, supra.

App. 24

existed as a matter of objective or subjective fact or

law and therefore a warrant was required prior to

entry onto the premises to effectuate the arrests and

seizures.

C. PLAIN VIEW

The plain view doctrine as defined in Coolidge v.

New Hampshire, 403 U.S. 443 (1971) consists of three

basic requirements that must be satisfied in order for a

valid seizure of evidence to result from a plain view

observation conducted without a warrant. These

requirements are aptly set forth in Pomerantz v. State,

372 So. 2d 104, 110 (Fla. 3rd D.C.A. 1979):

“In a long line of cases, the Florida and Federal

Courts have held that it is not a search for the

police to discovery evidence in plain sight.

The warrantless seizure of such evidence is

Constitutionally permissible providing three

requirements are met:

(1) The police must observe the evidence in plain

sight without the benefit of a search [i.e., without invading

one’s reasonable expectation of privacy;

(2) The police must have a legal right to be where

they are when they make the plain sight observation,

and;

(3) The police must have probable cause to believe

that the evidence seen constitutes contraband, or

instrumentalities or evidence of a crime.

App. 25

Under the facts and circumstances of the instant

case, the surveillance officers were observing the

Defendants’ activity in the area of the Wahoo III at

nighttime from across the canal at a distance of

approximately two hundred feet.”

According to one surveillance officer, Gary

Nurkiewicz, he could not describe the individuals as to

height, weight, color of clothing, etc., even with the use

of binoculars. Furthermore, all Nurkiewicz observed

was that the individuals were carrying large, square

oblong objects. He could not describe the color of the

objects or how they were packaged.

Agent Look, the only other surveilling officer,

observed three males carrying objects or large bales

and specifically stated that he did not have any confidential

information concerning the Wahoo III.” His observations

were similiar to those of Nurkiewicz in that Look observed

large bales that could not be distinguished as to color.

The most revealing deposition on the plain view issue

is that of the confidentia! informant, Crowell, who was

the third person on the seawall observing the alleged

off-loading. Crowell, an admitted smuggler, testified

that he could not see what was being off-loaded.”

“Deposition of Gary Nurkiewicz, page 28-35.

"Deposition of Rick Look, page 30-37.

“Deposition of Lee Crowell, page 113. Crowell testified as

follows: Q. “Could you see what the color of the bales were?” A.

“No.” Q. “So you really had no idea what they were. Is

that correct?” A. “That is correct.” Q. “You couldn't smell

anything?” A. “No.”

App. 26

Recent decisions have held that a police officers

observations of the outer packing of a suspected

marijuana, standing alone, is insufficient to constitute

probable cause.”

In Morsman wv. Siate, 360 So. 2d 137 (Fla. 4th D.C.A.

1978) marijuana plants were observed growing in

Defendant’s backyard. The Court held that marijuana

plants growing in plain view in a backyard of a Defendant's

residence were seized from a zone closed by reasonable

expectation of privacy and therefore the Fourth

Amendment.

In Morsman, the Court adopted the rule of Coolidge

v. New Hampshire, supra, in that plain view alone is

never enough to justify the warrantless seizure of

evidence; for if “reasonable expectation of privacy”

dissipates upon “plain view”, then every warrantless

intrusion following a “plain view” observation is lawful.

The Court went on to hold that no amount of probable

cause can justify a warrantless search or seizure absent

“exigent circumstances.” Even where the object is

contraband, the Fourth D.C.A. has repeatedly stated

and enforced the basic rule that police may not enter

and make warrantless seizures.” The Defendant herein

relies on the doctrine of United States v. Kim, 415 Fed.

Supp. 1252 (U.S.D.C. D. Hawaii 1976). In Kim, Government

agents had a right to be where they were during their

“Harris v. State, 352 So. 2d 1269, 1270 (Fla. 2d D.C.A. 1977);

Carr v. State, 353 So. 2d 958, 959 (Fla. 2d D.C.A. 1978).

“Hornblower v. State, 351 So. 2d 716, (Fla. 1977); Fixel wu

Wainwright, 492 Fed. 2d 480 (5th Cir. 1974).

App. 27

surveillance of Kim in his apartment. However, the

Government used artificial viewing aids to enhance

their vision, to wit: binoculars and a telescope. Kim

was observed and based upon those observations the

Government was able to show probable cause for a

Court-approved wire intercept order.

The Kim Court equated the sophisticated visual

aids available to the Government to those sophisticated

electronic surveillance aids used by the Government in

wire and oral intercept cases. See Katz uv. United States,

389 U.S. 347 (1967). A plain view of the backyard of

3721 N. E. 36th Street and of the Wahoo III, given the

darkness and distance, was impossible; only an aided

view could penetrate. The Court in Kim, supra, held

that “plain” in plain view must be interpreted as

permitting only an unaided plain view. Therefore, the

District Court suppressed all evidence that was derived

solely from the telescopic surveiliance of Kim's apartment.

The Defendant in the case sub judice adopts the rationale

of U.S. vu. Kim, supra, and the supporting authorities

and urges this Court that, since the Katz decision, the

concept of curtilage and the presence or absence of a

physical intrusion have “no Constitutional significance”

in determining whether or not a search has taken place.

It is therefore submitted that the telescopic

observation made by Nurkiewicz and Look must be

suppressed as they are tantamount to a search. Without

“Accord, People v. Arno, 90 Cal. App. 3rd 505 (1979); U.S. v.

Fisch, 474 Fed. 2d 1071, 1078 (9th Cir. 1973); Ponce vu. Craven, 409

Fed. 2d 621, 625 (9th Cir. 1969).

App. 28

these observations, there is no issue as to probable

cause and plain view, and the Defendants Motion to

Suppress must be granted.

Respectfully submitted,

LAW OFFICES OF

MICHAEL H. BLOOM

Attorney for Defendant

2699 S. Bayshore Drive,

Suite 600-C

Coconut Grove, Florida 33133

854-1531

BY: /s/ Michael H. Bloom

MICHAEL H. BLOOM

App. 29

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy

of the above and foregoing was delivered to:

MARK SPISER, ESQUIRE

State Attorney’s Office

700 Broward County Courthouse

Ft. Lauderdale, Florida 33301

PETER F.K. BARABAN, ESQUIRE

950 South Miami Avenue

Miami, Florida

JOSEPH KELINSON, ESQUIRE

2699 South Bayshore Drive — Suite 400B

Coconut Grove, Florida 33133

this 13th day of August, 1980.

BY: /s/ Michael H. Bloom

MICHAEL H. BLOOM

App. 30

State of Florida )

)SS. M. Daniel Futch, Jr., J.

County of Broward )

IN THE CIRCUIT COURT OF THE

SEVENTEENTH JUDICIAL CIRCUIT

No. 79-6027 ABC

Plaintiff,

vs.

RONALD EDWARD SPEED, RUSSEL

FRANCIS KEARNEY and DONALD

JAY WILLIAMS,

Defendants.

Proceedings had and taken before the Honorable

M. Daniel Futch, Jr., one of the judges of said court, at

the Broward County Courthouse, Room 840, commencing

at or about 9:30 a.m., Thursday, August 14, 1980, in the

City of Fort Lauderdale, County of Broward, State of

Florida, and being closing arguments of counsel and

findings of the Court, pages 3 to 28.

APPEARANCES:

MARK SPEISER

Assistant State Attorney

appearing on behalf of the State of Florida

MICHAEL H. BLOOM, ESQ.

appearing on behalf of Defendant, Speed

Hy Shapiro, Esq., Co-Counsel

JOSEPH H. KELINSON, ESQ.

appearing on behalf of Defendants, Kearney

and Williams

App. 31

Lastly, there is a line of cases that stand for the

proposition that it is not illegal entry for a trespass for

a police to enter on private property during a lawful

performance of their duty. The police were in fact

conducting a lawful performance of their duty by going

ahead and arresting these three gentlemen without a

warrant, based upon their observations on the evening

in question. Those cases in that line—I will cite, Your

Honor, U.S. vs. Knight, a Fifth District opinion at 451

So.2d 275, more specifically Page 278 and two other

cases in that vein, Your Honor, are State of Florida vs.

Belcher at 317 So.2d 842 and State vs. Roker at 290

So.2d 525.

The last point I would make, Your Honor, even

though there may not have been a van observed from

the outside of the house, it is understandable under the

circumstances that the house in question had a garage,

and the testimony indicates that the van may very well

have been parked in the garage, and the testimony

indicates there was in fact a van parked in the garage

and even though there may not have been any bales of

marijuana in the van at that time, it is apparent they

had a van there and it was at their disposal for immediate

transportation.

THE COURT: That wasn’t immediately apparent

after they made their entry. Let me put everybody at

ease. I will deny the Motion to Suppress. I am not—I

think the Customs deal is just like you said. This was a

long case. There is no Customs search, but they had

the drug information. The drug deals were going on

that day. The Customs officers say the Wahoo III was

heavy, coming in about the same time, they had the

other boats, they had the information, they had plain

App. 32

view from across the canal. I think they had probable

cause to arrest at that moment. They arrested the

people out in the yard and had a plain view from the

yard then and made the arrest into the house and I

think it is reason to seerch the house for additional

personnel because of the safety situation. Motion denied.

MR. BLOOM: Would Your Honor make a finding

as to exigent circumstances?

THE COURT: I don’t think there are any exigent

circumstances. I think I agree, they could have blocked

off that whole city of Lighthouse Point with the help

they have. For your information, we have got 48 judges

in this county.

MR. BLOOM: It has grown since I was a regular

here.

THE COURT: Thirty-three circuit and 15 county

and three more circuit judges the first of the year. We

have judges running out of our ears.

App. 33

{NOT FINAL UNTIL TIME EXPIRES

TO FILE REHEARING PETITION

AND, IF FILED, DISPOSED OF.]

IN THE DISTRICT COURT OF APPEAL OF

THE STATE OF FLORIDA FOURTH DISTRICT

JULY TERM 1981

CASE NO. 80-1449.

RONALD E. SPEED, RUSSEL

FRANCIS KEARNEY, and

DONALD JAY WILLIAMS,

Appellants,

v.

STATE OF FLORIDA,

Appellee.

Decision filed December 9, 1981

Appeal from the Circuit Court

for Broward County;

M. Daniel Futch, Jr., Judge.

Michael H. Bloom of Law Offices

of Michael H. Bloom, Coconut

Grove, and Hy Shapiro of Law

Offices of Hy Shapiro, Miami,

for appellants.

App. 34

Jim Smith, Attorney General,

Tallahassee, and Max Rudmann,

Assistant Attorney General,

West Palm Beach, for appellee.

PER CURIAM.

AFFIRMED.

GLICKSTEIN and HURLEY, JJ., GREEN, OLIVER

L., Associate Judge, concur.

App. 35

IN THE FOURTH DISTRICT COURT OF

APPEAL OF THE STATE OF FLORIDA

CASE NO. 80-1449

RONALD E. SPEED, RUSSELL

FRANCIS KEARNEY and DONALD

JAY WILLIAMS,

Appellants,

vs.

STATE OF FLORIDA,

Appellee.

MOTION FOR REHEARING AND/OR

CLARIFICATION OF DECISION

COMES NOW the Appellants, RONALD E. SPEED,

RUSSELL FRANCIS KEARNEY and DONALD JAY

WILLIAMS, and respectfully move this Honorable Court

pursuant to Rule 9.330(a) of the Florida Rules of Appellate

Procedure, to rehear their appeal and/or to clarify its

decision, and in support of this Motion, the Appellants

would show:

On November 30, 1981, a panel of this Court heard

oral argument in this appeal. The judges were the

Honorable Hugh S. Glickstein, the Honorable Daniel T.

K. Hurley and the Honorable Oliver L. Green, Associate

Judge. On December 9, 1981, the aforementioned panel

of this Court issued a per curiam order affirming

Appellants’ convictions. The judges that were listed on

the per curiam order were the same judges that were

present for oral argument. No actual opinion, explanation

App. 36

or statement of reasons supported this summary

disposition. A copy of the panel’s opinion is marked

Appellants’ Exhibit “A”, attached hereto and incorporated

herein.

Prior to this panel’s opinion, but subsequent to

oral argument, the Supreme Court of Florida decided

Adoue vs. State, ___. So.2d ____ (Fla. 1981) [1981 FLW

646]. The Court in Adoue, supra, adopted its earlier

position in Ensor vs. State, ___. So.2d ____ (Fla. 1981)

[1980 FLW 374], with regard to the plain-view doctrine

as an exception to the warrant requirement of the

Fourth Amendment as described in Coolidge vs. New

Hampshire, 403 U.S. 443 (1971). Plain view as defined

by the Florida Supreme Court applies when an officer

observing contraband is legally inside, by warrant or

warrant exception, a constitutionally-protected area,

when he inadvertently observes contraband within the

protected area. Adoue, supra, at P-647. [Emphasis added}.

Adoue, supra, held quite explicitly that an officer may

constitutionally seize contraband in “plain view” from

the constitutionally-protected area.

The Supreme Court had previously addressed an

“open-view” situation in Ensor, supra. The police in

Ensor saw a firearm in “open view” through an open

car. The Court ruled that this viewing gave the officers

probable cause to believe that a felony was being

committed, to wit: carrying a concealed firearm. In

Ensor, supra, the Court held that the open-view situation

occurs when an officer is located outside a constitutionally

protected area and is looking inside that area. In “open-

view” situations, the observation ONLY furnishes the

officer with probable cause to seize the contraband.

The Adoue Court stated at P-647 that, “either he must

App. 37

obtain a warrant or an exception to the warrant

requirement must exist to justify his entry into the

protected area and his seizure.” [Emphasis added].

Chief Justice Sandberg in his concurring opinion

crystalized the law in stating,

“When a police officer stands outside a vehicle

or structure and looks inside, his constitutionally

permissible observation ONLY gives rise to a

basis for probable cause, which he can then

utilize in securing a warrant.” Adoue, supra,

at P-649 citing with approval Coolidge vs. New

Hampshire, 403 U.S. 443, 468 (1971) [Emphasis

added].

The Chief Justice further added at P-649 that, “in the

case of fixed premises, the additional requirement needed

for entry, in absence of any exigent circumstances, is a

warrant.” See Steele vs. United States, 267 U.S. 428

(1925), and Taylor vs. United States, 286 U.S. 1 (1932).

It is clear from the facts sub judice that the officers

viewed the Appellants from across the canal using

Star-Bright binoculars after several hours of surveillance.

These actions and facts give rise to an “open-view”

situation. The Court in Ensor and Adoue, supra, held

that an open-view situation exists under the circumstances

of those respective cases. However, in both of the

aforementioned cases and in EVERY case cited which

sustains an “open-view” seizure without a warrant,

there must exist a well-recognized exception to the

warrant requirement. In Ensor and Adoue, supra, as

well as Albo vs. State, 379 So. 2d 648 (Fla. 1980), the

doctrine of Carroll vs. United States, 267 U.S. 132

App. 38

(1925), was held to be applicable because of the motor

vehicle, movable or exigent circumstance exception to

the warrant requirement. The Court in Adoue, supra,

acknowledged at P-647 a necessary difference between

the search of a structure where a warrant normally

must be obtained and the search of a vehicle where,

because of the inherent mobility of the vehicle, it is not

practical to secure a warrant.

It is respectfully submitted that given the findings

by the trial court that there were no exigent

circumstances, that the premises searched was a home,

that the officers were presented with a “open-view” as

opposed to “plain-view” situation, the subsequent

warrantless intrusion on to the Defendant’s premises

was constitutionally impermissible and violative of the

Appellants rights guaranteed them by the Fourth

Amendment to the United States Constitution in Article

I, Section 12 of the Florida Constitution.

The Appellants herein respectfully suggest that

the Court of Appeals, Fourth District, may have entered

an erroneous order in light of the subsequent ruling in

Adoue, supra, and other case authorities referred to

herein. The Appellants now submit their Petition for

Rehearing to aid the Court in its decision-making process.

The Appellants ask this Court to set forth its reasons,

at least briefly, so that:

(1) all counsel and lower courts will know whether

this Court approved or disapproved of what happened

at the Motion of Suppress hearing below and be guided

appropriately in the future;

App. 39

(2) defense counsel can explain to his client and

his family why he lost this appeal;

(3) the entire Court of Appeals can understand

the panel’s decision and judge whether an en banc

rehearing is advisable;

(4) the Florida Supreme Court can monitor the

work of the Court of Appeals and exercise its own

discretion where appropriate;

(5) the United States Supreme Court can likewise

have the information necessary to perform its function;

(6) any federal court reviewing on habaes corpus

can know the thinking of this Honorable Court, and

thus pay its appropriate deference to it; and

(7) the Bar and the public in general can assess

the work of this Court and its Judges.

The Appellants ask this Court to render a written

opinion in light of Adoue, supra, and other case authorities

referred to herein and as a matter of courtesy, fairness

and as common-law tradition. See generally, N.L.R.B.

vs. Amalgamated Cloth Workers of America, AFL-CIO,

L. 990, 430 F.2d 966, 972 (5th Cir. 1970). Appellants also

contend that it is required to do so in the instant case

as a matter of due process of law and in fulfillment of

the right to access to all courts, as guaranteed by

Article I, Sections 9 and 21, and Article V of the

Constitution of the State of Florida and by the Fourteenth

Amendment to the United States Constitution.

App. 40

CONCLUSION

Based upon the foregoing citations of authority

and principles of law, it is respectfully submitted that

the Trial Court’s Order denying the Appellants’ Motion

to Suppress be reversed with directions to enter an

Order granting said Motion and discharging the

Appellants herein.

Respectfully submitted,

MICHAEL H. BLOOM, P.A.

Attorney for Appellants

2699 South Bayshore Drive

Suite 600-C

Coconut Grove, Florida 33133

Telephone: 305/854-1531

BY: /s/ Michael H. Bloom

MICHAEL H. BLOOM

App. 41

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing

was mailed this 17th day of December, 1981, to Max

Rudman, Assistant Attorney General, Department of

Legal Affairs, Office of the Attorney General, Palm

Beach County, Regional Service Center, 111 Georgia

Avenue, Room 204, West Palm Beach, Florida 33401;

and Hy Shapiro, Esquire, 950 South Miami Avenue,

Miami, Florida 33130.

/s/ Michael H. Bioom

App. 42

[RECEIVED JAN 27 1982]

IN THE DISTRICT COURT OF APPEAL OF

THE STATE OF FLORIDA FOURTH DISTRICT

CASE NO. 80-1449

RONALD E. SPEED

RUSSEL FRANCIS KEARNEY and

DONALD JAY WILLIAMS,

Appellant,

Vv.

STATE OF FLORIDA

Appellee.

January 27, 1982

BY ORDER OF THE COURT:

ORDERED that Appellants’ December 18, 1981

Motion for Rehearing and/or Clarification of Decision

is denied.

I hereby certify the foregoing is a true copy of the

original court order.

/s/ Clyde L. Heath

CLYDE L. HEATH,

CLERK.

ec: Michael H. Bloom, Attorney

Hy Shapiro, Attorney

Max Rudmann, Assistant Attorney General

cms

App. 43