Opposition — Florida v. Casal

rr bas . — rye Ä— —— —ð3?*—̃ —— — —— — p——6— — - . 1 -

JUL 29 1982 |

Ot OF THE CLERK

Pt COURT, YS.

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No. 61-2318

In THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1961

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| RECEIVED

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| STATE OF FLORIDA,

| Petitioner,

-ve-

CONSTANTINO CASAL and

OMAR GARCIA,

Respondents.

ON APPEAL FROM THE SUPREME COURT

OF FLORIDA; ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE UNITED

STATES

BRIEF IN OPPOSITION

ARTHUR F. McCORMICK

COUNSEL FOR RESPONDENTS

7550 Red Road, Suite 203

South Miami, Fla. 33143

(305) 665-4819

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TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATUTES

PETITION UNTIMELY FILED

QUESTION PRESENTED FOR REVIEW

JURISDICTION

STATEMENT OF THE CASE

ARGUMENT

A. THE SEARCH INCIDENT TO ARREST

B. CARROLL EXCEPTION

C. INSPECTION SEARCH

CONCLUSION

CERTIFICATE OF SERVICE

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| TABLE OF CITATIONS

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Camara v Municipal Court 9

1 387 U.S. 523 (1967)

1

Carroll v United States 6

267 U.S. 132 (1925)

Chambers v Maroni 6

399 U.S. 42 (1970)

Chimel v California 4“

395 U.S. 752 (1969)

Frank v Maryland 9

359 U.S. 360 (1959)

Marshall v Barlow's Inc. 10

436 U.S. 307 (1978)

New York v Belton 6

U. 8. , 101 s et, 2660,

S39 L.Ed. Zd 768 (19861)

United States v Martinez-Fuerte 7

426 U.S. 543 (1976)

United States v Ross 8

U.S. 1 cr. 1301 (1982)

Florida Statute 371.58

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PETITION UNTIMELY FILED

The Petition for Writ of Certiorari filed by the

State of Florida was not filed within the time required by

Supreme Court Rule 20 nor was the application for an Extension

of Time filed within the time required by Supreme Court Rule 29. |

The Judgment of the Supreme Court of Florida in

favor of the Respondents was entered on January 14, 1962. The

Petitioner sought a rehearing which was denied on March 15, 1982

at which date the Mandate was issued. On May 14, 1982, 60 days

thereafter, the Petitioner filed a Motion for an Extension of

Time to file the Petition for Writ of Certiorari giving as «a

justification therefor the heavy caseload of the Attorney

General's Office. This request for an Extension of Time was

untimely filed in that it was not submitted at least 10 days

before the specified final filing date. A 30 day extension of

time was granted by this Court permitting the Petitioner to file

a Petition for Writ of Certiorari on or before June 13, 1962.

On June 10, 1982 the Petitioner agein filed a Motion for an

Extension of Time in which to file its Petition for Writ of

Certiorari. This Motion was also untimely and in violation of

the Supreme Court Rule 29.2 in that it was not submitted at

least 10 days before the specified final filing date. There-

after the Petition for Writ of Certiorari was filed on June 1/7,

1962. Said filing was not timely in that it was violative of

Supreme Court Rule 20.1 in that the filing occurred more than

90 days after the Order of the Supreme Court of Florida denying

the Petitioner's Motion for Rehearing.

For the foregoing reasons, the Petition for Writ of

Certiorari herein should be denied.

QUESTION PRESENTED FOR REVIEW

The “Question Presented for Review" by the

Petitioner does need correction in that it does not accurately

state what the case is about. The Respondents’ fishing vessel

was stopped by the Florida Marine Patrol for the purposes of

inspecting the boat's Registration Certificate. One of the

Marine Patrol Officers boarded the vessel and commenced to

search it without « search warrant. The Officer proceeded to

the forward portion of the vessel and attempted to gain entry

: into the forward hold. When the Officer was questioned by one

g of the Respondents as to the legality of the search and refused

to permit the Officer to further search the vessel unless the

N Marine Patrol had a search warrant, the Respondents were told

that they were under arrest and that « search warrant was not

necessary to search their vessel. The search that followed in

the forward hold of the vessel did produce the contraband which

. was the subject matter of the criminal proceeding. The “Question

Presented for Review" would more accurately and appropriately

be stated as follows:

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Supreme Court Rule 21.1(h) requires the Petitioner

to show that the Federal question being presented to this Court

was timely and properly raised so as to give this Court juris-

diction to review the Judgment on Writ of Certiorari. Although

that Rule requires pertinent quotations of specific portions

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of the record, or summaries thereof, with epecific references

to the pleces in the record where the matter appears, the

Petition for Certiorari is void in this regard. The reason

for this is that the specific question being raised by the

State was not asserted by the State nor was it asserted by the

Respondents before the Supreme Court of the State of Florida.

Said Court was the highest Court of the State of Florida and

it is the decision of that Court which the Petitioner is seeking |

to have reviewed. The State's question being addressed to this

Court at this time was not addressed by the State to the Supreme

Court of Florida until after the Court entered its decision

and rendered its opinion affirming the decision of the Third

District Court of Appeal. The State raised the question before

the Supreme Court of the State of Florida in its Petition for |

a Rehearing which Petition was denied. (Appendix page 1)

The State has therefore not preserved its question as a point

for review by this Court.

STATEMENT OF THE CASE

Because of the nature of the question being

presented by the State to this Court for review, the Statenent |

of the Case as presented by it is deficient in cer in important

respects. In addition to that contained in the State's state“ |

ment of the Case, it should be noted that:

The vessel containing the contraband was 45-49 feet

long. (Appendix page 2 } The hold containing the contraband

was located in the forward portion of the vessel. It was

. covered by a heavy hatch which could not be lifted except by

the efforts of two men. Thies heavy hatch had on top of it

fish traps which firet had to be removed before the hatch could

be lifted. (Appendix page 2, 3, 4, 5, & 6)

, The Statement of the case should further contain the finding

| by the Florida Supreme Court that the Marine Patrol Officers

| @id not have consent or probable cause to conduct a search of

| the forward hold. (Appendix page 7 & 8)

The State is requesting this Court to review on

writ ot Certiorari the decision of the Florids Supreme Court for |

the stated reason that it decided a Federal question in 3 way

in conflict with a Federal Court of Appeals. The State in its

Petition for Writ of Certiorari to this Court asserted three |

reasons why the decision is in conflict:

A. The search was incident to the arrest, and

B. The Carroll Exception, and

Cc. It was an inspection search. :

It is the respondents position that no conflict exists between

the decision of the Florida Supreme Court and any Federal court

of Appeals case decision cited by the State. The cases cited

by the State are distinguishable and have no application to the

case at bar. The Respondents analysis of the asserted conflict

will coincide in this brief to the analysis of the State in its

Petition for Writ of Certiorari.

„ SEARCH INCIDENT TO ARREST. The State argues in its

| Petition for Writ of Certiorari that the search was proper 4s

being incident to the arrest and therefor in conflict with

Chimel v California, 395 U.S. 752 (1969). An examination of

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the facts of that case reveals that it is not iu conflict with

the decision of the Supreme Court of Florida. Instead it is

clearly distinguishable. It also could be used as authority

for the proposition that the search was not incident to the

arrest. The Chimel case involved a defendant suspected of |

burglary who was arrested in his home. Without « search warrant )

the arresting police officers conducted a search of his entire

three bedroom home, including the attic, the garage, « small

workshop and various drawers in dressers located therein. The

Supreme Court suppressed the evidence that was discovered as

a result of that search. In doing so it stated that under the

“search incident to arrest principal, when a arrest is made

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it is reasonable for the arresting officer to search the person

arrested in order to remove any weapons which the latter mignt

seek to use in order to resist arrest or effect his escape. It

is also reasonable for the arresting officer to search for

and seize any evidence on the arrestees person in order to

prevent its concealment or destruction. It is furthermore

reasonable to search the area into which an arrestee might

reach in order to grab a weapon or evidentiary items. The Court

went on to say that there is no comparable justification for

routinely searching rooms other than that in which an arrest occurs,

or for searching through all the desk drawers or other closed

or concealed areas in that room itself. Such searches, in che

absence of well recognized exceptions, may be made only under

the authority of e search warrant and the adherence to judicial i

process mandated by the Fourth Amendment requires no less. ia

the case at bar where the contraband was ultimately found, be

hold was in the forward area of the vessel and was = sured with

a heavy hatch which required two men to lift. on top of this

hatch was located fishing traps which also had to be removed

in order for entry to be had into the hold. The arrest did not

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occur in the hold. It occurred in the cockpit of the fishing

vessel which was located in the back of the boat. A search of

the cockpit would perhaps have been valid, but surely not «

search of the forward hold.

The State then cites the case of New York v Belton,

__. U.S. ___, 101 S. Ct. 2860, 69 L. Kd. 24 768 (1981). The

facts of the Belton case were that an automobile was stopped

by a police officer because it was traveling at an excessive

rate of speed. The police officer upon approaching the auto-

mobile smelt burning marijuana and observed what he thought

was an envelope of marijuana on the floor of the car. Con-

temporaneous with the arrest of the occupants of the car, the

police officers searched the passenger compartment and found

incriminating evidence therein. The Court in ruling that the

evidence was admissible stated as follows on page 774 of its

opinion:

“When u person cannot know how « court will

apply a settled principle to a recurring

factual situation, that person cannot know

the scope of his authority. While the Chimel

case established that a search incident to

an arrest may not stray beyond the area

within the immediate control of the arrestee,

courts have found no workable definition of

“the ares within the immediate control of

the arrestee” when that area arguabl

included the interior of an automobi

2 en ot its recent t.

0 cases suggests the gen-

eralization that articles inside the rela-

tively narrow compass of the passenger con-

partment of an automobile are in fact gen-

erally, even if not inevitably, within

“the area into which an arrestee might

reach in order to grab a weapon or evident-

iery item,” Chimel, supra, at 763, 23 L Ed 24

685, 89 S Ct 2034. in order to establish

the workable rule this ca of cases

requires, we read Chimel’s definition of

the limits of the area that may be searched

in light of that generalization. Accord-

y, we hold that when « policeman has

a lawful custodial arrest of the

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As with the Chimel case, the Court in the Belton case felt that

the arresting police officer could lawfu'ly search without «a

warrant the immediate area where the arrestee was located. The

policy intended to be promoted by the Court in both of these

decisions was the protection of the police officer and the

preservation of evidence from destruction by the arrestee. The

hold in the front of the fishing vessel covered by a heavy

hatch and fishing traps was not in the immediate area of the

arrestees. The justification for the warrantless search in the

Chimel case and the Belton case did not exist in the case at

bar. The Chimel case and the Belton case could be cited as

authority for the proposition that the warrantless search by

the arresting officers in the case at ber was unlawful because

it could not be considered as incident to the arrest.

The State also suggested that the Court consider

U.S. » Martinez-Fuerte, 428 U.S. 543 (1976). This case con-

cerned itself with the legality of « search by border patrol

agents which search was conducted at a permanent check point.

The border patrol agents had statutory authority to search

vehicles. Wo statutory authority existed for the Florida

Marine Patrol Officers to search a vessel. The Martinez -Fuerte

case is therefor not a conflict decision.

B. CARROLL EXCEPTION. The State in advancing the argument of

the Carroll Exception assumes that probable cause existed. In

so doing it ignores the fact that both the Third District Court

of Appeal and the Supreme Court of the State of Florida found

that probable cause did not exist. The facts of the case,

summarized in the opinion of the Supreme Court of the State of

Florida and adopted by the State in its Petition for Writ of

Certiorari, revealed that the Marine Patrol Officers embarked

upon a search of the Respondents’ fishing vessel the moment they

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got on board. They had no suspicion of any kind while they

were conducting their search that the Respondents were involved |

in any form of criminal activity. The Respondents initially |

consented to the search, but when the Marine Patrol Officer

attempted to search the forward hold where the contraband was, |

the Respondents resisted the Marine Patrol Officers and told

them that they would not permit the search in absence of a

search ‘“arrant. It was only after the Police Officers mis- :

represented their authority by telling the Respondents chat

they did not need a search warrant to search the forward hold, ;

that the Respondents acquiesced to the Police Officers mis-

represented authority to search and admitted to the presence ’

of contraband in the foward hold. The Carroll v U.S., 267 U.S.

132 (1925), Chambers » Maroni, 399 U.S. 42 (1970) and U.S. „

Ross, U.S. ___, 31 Cr. 1.3051 (1982) cited by the State |

in its Petition for Writ of Certiorari are not conflict decisions

because there was probable cause in those cases to justify the

warrantless search. In the case at bar the Marine Patrol

Officers conducted their search without any probable cause.

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C. INSPECTION SEARCH. In order for the State to advance the

administrative inspection theory, it assumes that the stop of

the vessel and the search that followed was for the purpose

of checking the fishing permits and the safety equipment.

The statement of facts contained in the Petition for Certioreri

does not say this. The reason it does not is because the

vessel was not stopped nor was it searched for those reasons.

(Appendix page 9, 10 & 11) Assuming for argument sake that the

Marine Patrol Officer was conducting a safety inspection when

she was searching the vessel, it must be recognized that the

Florida Legislature has by statute prohibited a Florida Marine

Patrol Officer from boarding or searching a vessel unless he has

ae

the consent of the owner or operator or probable cause or

knowledge to believe that a violation of the safety law has

occurred. Even without taking into account said Florida

Statute, the cases cited by the State do not constitute a con-

flict with the decision of the Supreme Court of the State of

Florida. Camera v Municipal Court, 387 U.S. 523 (1967) and

Frank v Maryland, 359 U.S. 360 (1959) are authority for the

State's position that a lesser degree of probable cause is

needed to conduct safety inspection searches. It should be

noted initially that the Supreme Court of the United States in

the Camera case specifically overruled the Frank case. The

Camere case concerned itself with a San Francisco housing code

which attempted to authorize building inspectors to inspect

residences without a warrant. The defendant brought an action

for a Writ of Prohibition claiming that the ordinance author-

izing such inspections was unconstitutional. The Supreme Court

of the United States in its opinion stated in part:

FE

significant intrusions upon the interest

protected by the 4th Amendment, that such

searches when authorized and conducted

without a warrant procedure lack the

traditional saf which the 4th

Anendmen

these warrantless searches are ficient

to justify so substantial a weakening of

the 4th Amendment's protections.”

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371.58 Safety inspections; ified. --

any vessel to make a safety tion if the owner or operator

is not aboard. When the owner or operator is an officer

may board « vessel with consent or when he has probable cause

or know to believe that a violation of a provision of

this part occured or is occurring.

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Camera case stands for the proposition that if the Florida

Marine Patrol wished to conduct an administrative search of

the kind that is an issue here, it would need a search warrant |

and this would only be issued if there was probable cause.

The Camera case is consistent with and does support the decision |

of the Supreme Court of the State of Florida if one is to

mistakenly assume that the Marine Patrol Officers were con-

ducting a safety inspection.

The State then cites Marshall v Barlow's Inc.

436 U.S. 307 (1978) to support its contention that probable

cause was not necessary for the Florida Marine Patrol to

search the vessel. The Barlow's case involved a business man

who refused to permit an inspector from the Occupation Safety

and Health Administration to conduct a warrantless search of

his business premises which warrantless search was apparently

authorized by a statute. The Supreme Court ruled that such

an inspection could only be made with a search warrant. The

Supreme Court stated in part as follows:

“The authority to make warrantless searches

devolves almost unbridled discretion upon

executive and administrative officers,

particularly those in the field, as to when

to search and whom to search. A warrant,

by contrast, would —＋ assurances from

a neutral officer that the inspection is

reasonable under the Constitution, is

authorized by statute, and is pursuant to

an administrative plan containing specific

neutrial criteria. Also a warrant would then

and there advise the owner of the and

ebjects of the search, beyond which limits

the inspector is not expected to .

These are tant functions for a warrar:

to perform, tions which underly the

Court's prior decisions that the warrant

clause lys to inspections for liance

Ny cd a as ka

Court, 7 v. 8. 523. We

concerns essed by the secretary do n

suffice to — warrantless inspect fo

under 0.8. H. A. or vitiate the general con-

at tut tonal ement that for a search

to be reasonable a warrant must be obtained.”

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The Barlow's case is not in conflict with the decision of the

Supreme Court of the State of Florida. It is consistent with

it and could be used as additional authority if one were to

again assume that the Marine Patrol Officer was conducting a

safety check.

In summary the Camera and the Barlow's case both

involved administrative inspections authorized by statute. The

Supreme Court in both of those cases held that in order for the

inspection to be lawful two things were required:

1. Probable cause must exist that a violation has

occurred, and

2. A search warrant must first be obtained by the

inspector in order for him to lawfully conduct his inspection.

In the case at bar there was neither probable cause nor a search

warrant.

CONCLUSION

For the foregoing reasons the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

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2 .

. McCORMICK

At for Re dents

5 Red noed, Suice 703

South Miami, Fla. 33143

Phone : 305-665-4819

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy ot

the foregoing Brief in Opposition was mailed this day |

of July, 1982 to the Office of Attorney General, Anthony C. |

| Musto, Assistant Attorney General, 401 N.W. 2nd Avenue, Suite 820

Miami, Fla. 33128.

At “for ts

| Fd Acca suree 263

! South Miami, Fla. 33143

il Phone : 305-665-4819

LLL Oe

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INDEX TO APPENDIX

On Petition for Writ of Certiorari 1

to the District Court of Appeal of

Florida Third District

Brief of Petitioner on Merits

i Transcript of Hearing on Motion to 2-6

Suppress Evidence Confession

in the Circuit Court of the l6th

Judicial Circuit in and for Monroe

County, Florida

| Testimony of Mark Walker

State v Casal 7-8

Transcript of Testimony of Jenna Soli 9-11

| gt Hearing on Motion To Suppress

| Evidence and Confession in the Circuit

Court of the 16th Judicial Circuit in

and for Monroe County, Florida

TO THE DISTRICT COURT OF APPEAL OF

FLORIDA THIRD DISTRICT

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ON PETITION FOR WRIT OF CERTIORARI .

BRIEF OF PETITIONER ON MERITS - Page 5

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| WHETHER RESPONDENTS LACKED STANDING

TO CHALLENGE THE LEGALITY OF THE

| SEARCH AND SEIZURE?

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WHETHER DELAWARE V. 5901. Ke 440 U.S.

648, 99 . Cr. -Ed2d 660

(1979) CONCERNS AUTOMOBILES ONLY AND

DOES NOT APPLY TO RANDOM STOPS OF

VESSELS BY THE FLORIDA MARINE PATROL

FOR DOCUMENT AND SAFETY INSPECTIONS?

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WHETHER DE * SHOULD BE

APPLIED

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WHETHER THE DETENTION AND BOARDING OF

THE “SAN RAFAEL” WAS PROPER SINCE SUCH

ACTIONS ARE WITHIN THE SCOPE OF A

MARINE PATROL OFFICER'S NORMAL PATROL,

SURVEILLANCE AND INVESTIGATORY DUTIES?

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Q. State your name and occupation, please?

A. Mark Walker, I'm employed with the Florida

Marine Patrol.

Q. Were you employed by them on the 18th of

September, of last year?

A. Yes, sir, I was.

Q. Did you have occasion on the early morning hours

of that date to be on marine patrol?

A. Yes, sir, I was.

Q. What area were you patrolling?

A. I was patrolling from Key West on the ocean side

to Munson Island.

Q. Did you have occasion to approach a boat in the

early morning hours of the 18th?

A. Yes, sir, the evening of the 17th, I was on

patrol, it was the morning of the 18th that I encountered the

boat.

Q. Will you describe the boat, please?

A. Yes, sir, it is approximately a 45 foot, 45 .

49 foot commercial type of vessel, it has a wheel house on the

beck, as we approached and put the light on it, it had a large

number of wired traps that are commonly used for fish traps,

it had a puller on the side of the boat that is used to pull

different types of traps.

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Page 23 - 27

Q. Okay, so now you just told me that when Officer

Soli said that she wanted to go up and check the forward part

of the boat, right?

A. She asked consent to check the forward hole, yes,

sir.

Q. Amd he said no and wanted to know if you all

had a search warrant?

A. Yes, sir.

Q. You then replied to him, after you evaluated

the circumstances, you told him that you did not need a search

warrant, right?

A. Yes, sir, we were not searching the vessel, I

stated that earlier.

Q. But you told him you did not need a search

I stated that earlier, I said...

Just answer my question. |

I advised him I didn't need a search warrant.

Okay, in reply to my question, you've given us

@ narrative and now I want to go through with it, okay?

A. All right, sir.

. You told him after evaluation that you did not

need a search warrant, that you weren't searching the vessel.

A. Right.

Q. Okay, yet Officer Soli had informed him that he

wanted to go and check the forward ice hole, right?

A. She asked if she could check the forward ice

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hole.

AS

Q. She was not given permission to check the

forward ice hole.

A. Wo, sir.

Q. So then you informed him that you did not need

@ search warrant, did you inform him that you intended to

search the vessel any way, that you didn't need a search

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A. My intent wasn't to search the vessel. |

| Q. Okay, you then placed him under arrest for not

F on Saand, ehanel |

A. Yes, sir. |

„ Q. Subsequently to placing him under arrest for

f not having a search warrant, did Officer Soli or you communicate |

your intent to go check the forward ice hole.

THE COURT: He did not arrest him for not having |

@ search warrant.

Q. Excuse me, you arrested him for not having |

registration on board, right? |

A. Yes, sir. |

Q. Did you or Officer Soli then communicate your

intent to check the forward ice hole of the vessel? |

A. Wo, sir, I didn't, 1 don't know wherher Officer

Soli did or not.

Q. Did you make any apparent attempt, or did

Officer Soli make an attempt to go check the forward ice hole

at that time?

A. She was already standing on the forward part of

the boat.

Q. Okay, then subsequently to being arr. sted is |

when Mr. Garcia told you that there was no sense checking the

forward ice hole because there was grass in it, right? Isn't

| that what you told me a couple of minutes ago?

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Sooo

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Rr rr 2 ů——

AS

A. eit a minute now, will vou rephrase that

question, I mean, will you state that question again.

Q. After being arrested, after you told hia,

‘you're under arrest for not having registration on board,

Officer Soli is up in the front on top of the ice hole, isn't

that when you told him, isn't that after you told him, ‘you're

under arrest for not having registration om board, right, and

Officer Soli is up there, isn't that when he replied to you,

well, there is no sense checking the forward ice hole, because

there is marijuana on board?

A. When Officer Soli asked to check the forward

hole. Mr. Garcia asked about the search warrant.

Q. It's a real simple question, I want to know if

the arrest didn’t come before the statement, ‘there is no

sense checking the forward ice hole, there is marijuana on

board’. isn’t that what you told me about two minutes ago?

A. That the arrest occurred before?

Q His statement.

A. Yes, sir.

Q. Okay, the arrest happened first, then he came

out with his statement

A. Yes, sir.

Q. And said, ‘no sense checking the forward ice

hole, there's marijuana in it, right?

A. Yes, sir.

Q. and then you asked him or he scquiesces with

your direction to go help Officer Soli lift up whatever covered

the forward ice hole, right?

A. After he had been advised of his rir’ ts he said

again, that there was marijuana on the boat.

Q. Okay, but the firet time that he said there was

marijuana on the boat was after the arrest and prior to the

| warning of rights, right?

A. Yes, sir.

Q. Okay, so he had already been arrested, he told

you thet and you then formally warned him of his rights and

then you asked him again, is there marijuana on board, right?

A. 1 asked him what was on the boat and he stated,

‘marijuana’, the first time he said, ‘the boat is loaded

with grass’.

Q. Okay, and subsequent to ali that you then

directed, he wasn't free to move, you weren't going to let

him take the boat anywhere, were you?

A. Wot at that time, no, sir, I was not.

q. You then, you or Officer Soli through you went

ahead and searched the forward hole?

A. With the assistance of the mate and the captain |

of the vessel, they went up and they moved the fish traps off |

the top of the ice hole where the hatch was at and they lifted |

the hatch themselves, like I say, the hatch was too heavy for

Officer Soli to lift by herself, I don't know whetner I could ’

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have lifted it by myself or not.

State v Casal

410 So 2nd 155, 156

We next consider an issue the district court did

not need to reach. That is the question whether the marine

patrol officers, having lawfully stopped respondents’ vessel, )

had probable cause to search it. As we have held earlier,

after the initial stopping and boarding a vessel the marine

patrol must have probable cause before conducting any further

search or inspection. Tingley v Brown; Hill v State. With

respect to safety inspections, the legislature has decided

that not even the initial boarding may be conducted ne,

consent or probable cause. 371.58, Fla. Stat. (1977). In this

case consent was freely given to board the vessel and to look

in the icebox.

However, respondents did not consent to any further

search, as was clearly indicated when they asked Officer Soli

if she had a search warrant. Villari v State, 372 So. 2d 522

(Fla. lst DCA 1979). Respondents’ subsequently opening the

forward hatch for Officer Soli did not constitute consent since

they were told that a search warrant was not needed. See

Taylor » State, 355 80. 24 180 (Fla. 3d DCA, cert.denied, 361

80. 2d 835 (Fla. 1978).

Without consent, the officers were precluded from

further searching the vessel unless they had probable cause to

believe that a crime was being or was about to be committed.

Tingley v Brown. Probable cause cannot be based on mere

suspicion. Bailey v State, 319 So. 24 22 (Fla. 1975). There

must be facts showing « probability of criminal activity. '

State v Smith, 233 So. 2d. 396, (Fla. 1970). in this case che

as

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facts were insufficient to show that respondents were probably |

commicting or about to commit a crime. That respondents could |

| not produce a registration certificate and that, although they

| said they were going to the Bahamas, their icebox did not

| contain ice may have been suspicious circumstances but did not |

| eonstitute probable cause. That respondents inquired about

| a search warrant is irrelevant in determining whether the

| officers had probable cause. Since the officers lacked probable |

cause, their search of the vessel was unreasonable and the

evidence they obtained should have been suppressed.

We disapprove the district court's decision insofar

as it held that the initial stop was unreasonable and required

probable cause. However, since we hold that the subsequent

search was unreasonable because it was not based on probable

cause, we approve the district court's reversai of the confic-

tion. In accordance with the mandate of the district court of

appeal, this cause is remanded to the cireuit court with

directions to discharge the defendants.

It is so ordered.

As

facts were insufficient to show that respondents were probably

committing or about to commit a crime. That respondents could

not produce a registration certificate and that, although they

said they were going to the Bahamas, their icebox did not

contain ice may have been suspicious circumstances but did not

constitute probable cause. That respondents inquired about

a search warrant is irrelevant in determining whether the

officers had probable cause. Since the officers lacked probable |

cause, their search of the vessel was unreasonable and the

evidence they obtained should have been suppressed.

We disapprove the district court s decision insofar

as it held that the initial stop was unreasonable and required

probable cause. However, since we hold that the subsequent

search was unreasonable because it was not based on probable

cause, we approve the district court's reversal of the confic-

tion. In accordance with the mandate of the district court of

appeal, this cause is remanded to the circuit court with

directions to discharge the defendants.

It is so ordered.

Page 37 39

Q. So, you didn't have any reason to believe that

that specific vessel was involved in any trap robbing, right?

A. Wo.

Q. What was your purpose in going aboard the vessel?

A. 1 telt that I was doing as a Marine Patrol

Office Officer in checking boats that were on the water and the

boat couldn't produce the registration and I went aboard the

boat for routine safety check.

Q. That's why you went aboard the vessel to per foru

that routine safety inspection check at midnight, is that why

you went aboard this vessel?

A. It doesn't make any difference what time it is.

Q. Okay, I just want to know specifically why you

went aboard the San Rafael.

A. In ay mind?

Q. Yes.

A. To me, I wes just doing my job, I had no suspi-

cions when I went aboard the boat, the gentlemen could not pro-

duce the paper, I went on board the boat.

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Q. When the gentleman could not produce the regis~-

tration papers, did you or anyone else place him under arrest

at chat time?

A. Wo. sir.

Q. When you went in the wheelhouse, you were look-

ing for what, the papers?

of * *

wf 8 7 5 on

4 ee ae “So Seer ioe ns i 4

Al0

A. 1 would have helped them Lock further for papers, |

we didn't dig in anywhere.

Q. You went aboard but you didn't actually look

for any. Did you or any other officer place the gentleman under

arrest for any safety violation, any lack of safety equipment?

A. Wot as of that point.

Q. At any point, did you?

| A. Wo.

Q. You didn't make any arrest aboard the San Rafael )

| for lack of safety devices.

A. 1 didn't do a search for safety equipment, |

just said 1 didn't see any in plain view.

| Q. Okay, but that was your purpose on going on

| board, though.

A. There's many reasons why I went on board.

a. I asked you why you went on board, did you

perform a search for safety devices?

A. Wo, 1 didn't search for then.

Q. Were you looking for safety devices or documen-

tation papers when you looked in the ice box on the back of the

boat?

il A. Wo, sir, I was looking for any kind of seafood |

products that he might have aboard the dat. 7

Q. Hadn't the captain told you that there was no

euch seafood on board?

A. Well, often people do that and we etill say

we'd like to see your catch.

Q. Okay, is that why you were searching the vessel

looking for safety, I mean, looking for seafood products, was |

that your purpose in searching the vessel?

A. 1 asked him if I could see.

—

— = — ——

. All

Q. What was your purpose of searching the vessel?

A. 1 didn't feel like I was searching, I was doing

a routine check.

Q. For what?

A. For any kind of seafood product he might have

| had on board, in my mind, I was fresh out of school, I was

checking the boat and doing my job.

Q. What about when you looked in the grocery box?

Were you looking for seafood products or papers then?

|

A. hot for papers, for seafood products, yes.

| Q. Where the groceries were, okay.

: A. It was a regular catch box that is why I asked

| him if I could see it. |

nia

RECEIVED |

N IN THE SUPREME COURT OF THE UNITED Stages JUL 20 1982 |

'

oer ct OF THE CLERK

SLOWEME COURT, US. |

STATE OF FLORIDA, |

petit toner - Appel lant No. 81-2318 |

| vs

| CONSTANTINO CASAL and OMAR GARCIA

| Respondent -Appellee

;

}

MOTION FOR LEAVE TO PROCEED IN

| FORMA PAUPERIS

|

! The respondent, CONSTANTINO CASAL, asks leave to |

file the attached Brief in Opposition without the |

prepayment of costs and to proceed in forma pauperis. Respondent's

affidavit in support of this motion is attached hereto and made |

a part hereof and marked Exhibic “A”.

Logos an tne Cee f

I HEREBY CERTIFY that a Motion for

Leave to Proceed in Forma Pauperis has not been sought in any

other Court. I also do hereby certify that a true and correct

copy of the Motion For Leave to Proceed in Forma Pauperis and

attached Affidavit was mailed this g day of July, 1982 to

the Office of the Attorney General, Anthony C. Musto, Assistant

Attorney General, 401 N.W. 2nd Avenue, Suite 820, Miami, Fle

33128.

——

— — —

torney for Responden

7550 Red Road, Suite 203

South Miami, Fla. 3

Phone : 305-665-4819

ss

RECEIVED

JUL 20 1982

IN THE SUPREME COURT OF THE UNITED STATES HNA.

SUPHEWE COURT, US.

| STATE OF FLORIDA,

! Petitioner-Appellant No. 81-2318

vs

| CONSTANTINO CASAL and OMAR GARCIA,

i Respondent -Appellee

MOTION FOR LEAVE TO PROCEED IN

FORMA PAUPERIS

The respondent, OMAR GARCIA, asks leave to file

the attached Brief in Opposition without prepayment of costs

and to proceed in forma pauperis. Respondent's affidavit in

support of this motion is attached hereto and made a part

hereof and marked Exhibit A“.

I HEREBY CERTIFY that a Motion for Leave to Proceed

in Forma Pauperis has not been sought in any other Court.

I also do hereby certify that a true and correct copy of the

Motion for Leave to Proceed in Forma Pauperis and attacned

_ Affidavit was mailed this day of July, 1982 to the Office

ot the Attorney General, Anthony C. Musto, Assistant Attorney

General, 401 M. U. 2nd Avenue, Suite 320, Miami, Fla. 33128.

F Attorney kor Respondent

7550 Red Road, Suite 203

4 South Miami, Fla. 33143

: Phone : 305-665-4819

*

‘

7

'

'

|

’

—— — —

‘

'

|

1

‘

’

—— —

I, OMAR GARCIA, being first duly sworn according

to law, depose and say that I am the respondent in the above-

entitled case; that in support of my motion to proceed without |

being required to repay fees, costs or give security therefor,

I state that because of my poverty I am unable to pay the costs

of said case or to give security therefor; and that I believe

I am entitled to redress.

I further swear that the responses which I have

made to the questions and instructions below relating to my

ability to pay the cost of proceeding in this Court are true.

any questions in this affidavit will ject me to penalties for

perjury.

1. Are you presently employed?

Answer: No.

2. Have you received within the past twelve montns )

any income from a business, profession or other form

of self-employment, or in the form of rent payments,

interest, dividends or other source?

Answer: I am a student and also self employed

building lobster traps. I make about $250.00 to

$300.00 per month.

3. Do you own any cash or checking or savings ,

account? |

Answer: No.

4. Do you own any real estate, stocks, bonds, notes,

automobiles or other valuable property (excluding |

ordinary household furnishings and clothing)? |

Answer: I own a 1981 Oldsmobile. It has a present

value of approximately $8,000.00,but I owe that |

much on the automobile.

5. List the persons who are dependent upon you for

support and state your relationship to those persons.

Answer: None

I understand that a false statement or answer to

— - ee

1

I, CONSTANTINO CASAL, being first duly sworn

according to law, depose and say that I am the respondent in

the above-entitled case; that in support of my motion to proceed .

without being required to prepay fees, costs or give security

therefor, I state that because of my poverty I am unable to pay

the costs of said case or to give security therefor; and that

I believe I am entitled to redress.

I further swear that the responses which I have made

to the questions and instructions below relating to my ability

to pay the cost of proceeding in this Court are true.

1. Are you presently employed?

Answer: Yes, I work as a fisherman for many persons

on different boats. I earn approximately $300.00

per month.

2. Have you received within the past twelve months

any income from a business, profession or other

form of self-employment, or in the form of rent

payments, interest, dividends or other source?

Answer: No.

3. Do you own any cash or checking or savings

account?

Answer: Wo

4. Do you own any real estate, stocks, bonds, notes,

automobiles or other valuable property (excluding

ordinary household furnishings and clothing)?

Answer: Wo

5. List the persons who are dependent upon you for

support and state your relationship to .uose persons.

Answer: None |

I understand that a false statement or answer to

any questions in this affidavit will subject me to penalties for

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