Petitioners Reply Brief — Florida v. Casal

SUPREME COURT OF THE UNITED l

OCTOBER TERM, 1981

NO. 81-2318

STATE OF FLORIDA,

Petitioner,

vs.

CONSTANTINO CASAL and

OMAR GARCIA,

Respondents.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

REPLY BRIEF OF PETITIONER

JIM SMITH

Attorney General

CAROLYN M. SNURKOWSK1

Assistant Attorney General

401 N. W. 2nd Avenue (820)

Miami, Florida 33128

(305) 377-5441

COUNSEL FOR PETITIONER

TABLE OF CONTENTS

SUMMARY * * * * * * * * * * * * * >. 1

A. Search Incident to

Arrest 64 2.62) Bo @) O=e' = 1-4

B. “Carroll Exception... . 4-5

C. Inspection Search“. 6-9

D. Other Issues e ee 9-21

I. The Florida Marine Patrol's

Initial Stop Of the San

Rafael Was Valid * . * . * 12-17

Il. The Florida Marine Patrol

Was Prohibited By Statute

From Searching The San

Beeeeh 4.6 bo e

III. Whether There Was Consent

To Search * on. oe 2.8: . 19-20

IV. Whether The Illegally Seized

Evidence Could Have Been

Admitted At Trial?. .. 21

CONCL*"'SION * * * * * * * + * * * * 22

ii

TABLE OF AUTHORITIES

Camara v. Municipal Court,

387 U.S. 523 PED econ seetute

Cardinale v. Louisiana,

394 U.S. 437 (1969)ÿh)7·

Carroll v. United States,

267 U.S. 132 r

Chimel v. Celifornia,

395 U.S. 752 „„

Delaware v. Prouse

440 U.S. 648 (197% 69₆te

Donovan v. Dewey,

452 U. 8. 3594 (1981.

Federal Energy Comm. v.

Algonquin S.N.G., Inc.,

4 6 U.S. 548 ere

Marshall v. Barlow's Inc.,

436 U.S. 307 CEOTE) cd eecebedoce

Michigan v. r of

3 U.S. 31 (19 eee

Michigan v. Thomas

U.S. „ 102 s. ct. 2079

„„ 606 6 60s bk dhs deeendie oe

PAGE

iii

TABLE OF AUTHORITIES

Mills v. Electric Auto Lite Co.,

396 U.S. 375 (1970)..... 606 00 0

New York v. Belton,

453 U.S. 454 „

Scott v. United States,

436 U.S. 128 (1978)...... ‘

State v. Casal,

410 80. 2d 153 (Fla. 1982)

Texas v. White,

423 U.S. 67 h. eee

United States v. Arra,

630 F.2d 836 (1st Cir. 1980)

United States v. Clark,

664 F.2d 1174 (11th Cir.

„ be ndbebe wecdibese és

United States v. Demanett,

629 F.2d 862 (3d Cir. 1980),

cert.den. 450 U.S. 910 (1981).

United States v. DeWeese,

632 F.2d 1267 (5th Cir. 1980).

PAGE

1

5, 9

9

9

iv

TABLE OF AUTHORITIES

PAGE

United States v. Freeman,

660 F.2d 1030 (5th Cir. 1981). 9

United States v. Goldfine,

538 F.2d 815 (9th Cir. 1976).. 9

United States v. Hayes,

653 F.2d 8 (ist Cir. 1981).... 9

United States v. Hilton,

619 F.2d 127 (ist Cir. 1980).. 9

United States v. Martinez-

Fuerte,

. e

United States v. Piner,

608 F. 2d 358 (9th Cir. 1979).

United States v. Prendergost,

585 F.2d 69 (3d Cir. 1978).... 9

United States v. Raines,

362 U.S. 17, 27 n. 7 (1960)... 11

United States v. Raub,

637 F.2d 1205 (9th Cir. 1980). 8

United States v. Ross,

U.S... 72 L.Ed.2d 572

% ²˙ ks baleewece 1, 4

Vv

TABLE OF AUTHORITIES

United States v. Watson,

678 F.2d 765 (9th Cir. 1982)..

United States v. Villamonte,

Marquez,

Case No. 81-1350...... eeeeee ee

Wainwright v. Stone,

414 U. 8. 21 e

FLORIDA STATUTES

§$371.041, Fla. Stat. ko)

$371.051(5) Fla. Stat. (1977).....

5371.58, Fla. Stat. (1977).........

$371.65(5), Fla. Stat. (1977)

$371.131, Fla. Stat. (1977).......

vi

OTHER AUTHORITIES

PAGE

Rule 19.5 of the Supreme Court..... 9

R. Stern and E. Gressman, Supreme

Court Practice, 447-487 (5th ed.

e db oH Cob 68 he cece 11

Article I, Section 12, of the

Florida Constitut on 21

Fourth Amendment, of the United

States Const itut oununnmn 21

SUMMARY

The warrantless search of the San

Rafael was justified under at least three

exceptions to the Fourth Amendment

warrant requirement. The search was

incident to a lawful arrest, New York v.

Belton, 453 U.S. 454 (1981); a "Carroll"

exception United States v. Ross,

U. 8s. 72 L.Ed.2d 572 (1982); and

constituted a valid "inspection", United

States v. Martinez-Fuerte, 428 U.S. 543

(1976) and Delaware v. Prouse, 440 U.S.

648 (1979).

A. Search Incident To Arrest

Respondents have avoided Petitioner's

argument, misapprehended the issue, and

misconstrued the facts. Without

2

discussing the applicability of New York

v. Belton, supra, they have blindly

argued that "... the Martinez-Fuerte case

is therefor inappropriate to this

consideration,” and reason that .. if

a search were to be considered as

incidental to the arrest, the appropriate

area for such a search woulc probably be

in the cockpit of the vessel, but surely

not in the forward hold." (Brief of

Respondents p. 29).

The facts as set forth by the Florida

Supreme Court in State v. Casal, 410

So.2d 153 (Fla. 1982) are the historical

facts. (They are not in harmony with

Respondents’ skewed version.) The Court

found that once given leave to board the

San Rafael, Officer Soli accompanied by

Respondents went to the cabin to look for

registration papers.

3

She asked to look in the icebox as part

of her inspection and was told that would

be fine. Based on what she saw in the

icebox and prior statements made by

Respondents, she then sought permission

to look into the forward hold. Captain

Garcia asked whether she had a search

warrant and Officer Walker said they did

not need one since they were not

conducting a search. Respondents were

then placed under arrest for failure to

have registration papers on board and at

that point Garcia spontaneously said

“there was no need to go further and that

the boat was loaded with grass." State v.

Casal, 410 So.2d at 153. Miranda warning

were read and Garcia then confirmed that

marijuana was on board. He then assisted

Officer Soli in opening the forward hatch

where several bales of marijuana were

found.

4

In Belton, 453 U.S. at 460 the

“workable rule" announced validated the

scope of the search sub judice. Since

the propriety of Respondents’ arrests was

never specifically questioned, the search

of the hold immediately following the

custodial arrest was justified.

Michigan v. DeFillippo, 443 U.S. 31

(1979); Chimel v. California, 395 U.S.

752 (1969).

B. Carroll Exception"

Respondents dispute the applicability

of this Court's decision in Carroll v.

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

arguing that no probable cause existed to

justify the warrantless search.

Respondents contend without discussing

the impact of United States v. Ross,

supra, that the facts leading up to

5

and including Garcia's statements against

penal interest were insufficient to

establish the requisite probable cause.

Respondents seemingly contend that

since no probable cause existed at the

time of the initial stop, no probable

cause could have developed regardless of

what occurred aboard the San Rafael.

Once on board, Garcia's volunteered

statements against penal interest

provided the requisite probable cause to

search as surely as the strong aroma of

marijuana or marijuana in plain view.

United States v. Clark, 664 F.2d 1174

(11th Cir. 1981); Texas v. White, 423

U.S. 67 (1975); Michigan v. Thomas, _

U. 8s. 102 S. ct. 2079 (1982).

6

C. Inspection "Search"

Respondents argue that the "search"

can not be justified as an administrative

inspection because Camara v. Municipal

Court, 387 U.S. 523 (1967) and Marshall

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

"both involved administrative inspections

authorized by statute. In the case at

bar the search was prohibited by

statute." (Respondent's Brief p. 32)

Respondents are incorrect.

Section 371.58 Fla.Stat. (1977)

authorizes safety inspections for all

boats “when the owner or operator is

aboard an officer may board a vessel with

consent or when he has probable cause or

knowledge to believe that a violation of

a provision of this part has occurred or

7

is occurring." Section 371.041 Fla. Stat.

(1977) requires all motorboats to be

registered and Section 371.051(5) Fla.

Stat. (1977) requires such registration

to be aboard and available. Section

371.65(5) Fla.Stat. (1977) impose a

misdemeanor penalty for not having a

current registration.

Officer Soli and Officer Walker,

Marine Patrol officers, had the right to

inspect the San Rafael, first, because

permission was granted to board and

second, because Respondents could not

produce registration papers, a clear

violation of Section 371.051(5) Fla.Stat.

(1977).

Respondents completely ignore this

Court's decision in Donovan v. Dewey, 452

8

U.S. 594 (1981) which balanced the

protected Fourth Amendment rights of a

proprietor of commercial property against

the government's need to develop

"legislative schemes authorizing

warrantless administrative searches of

commercial property. . ." 452 U.S. at

598.

Where, as here, the need is paramount

to protect the boating and fishing

industries of Florida, the legislative

scheme authorizing warrantless

administration searches pursuant to

Section 371.058 Fla.Stat. (1977) does not

impermissibly infringe on Respondents’

Fourth Amendment rights. See United

States v. Raub, 637 F.2d 1205 (9th Cir.

1980); United States v. Watson, 678 F.2d

765 (9th Cir. 1982); United States v.

9

Hilton, 619 F.2d 127 (ist Cir. 1980);

United States v. DeWeese, 632 F.2d 1267

(5th Cir. 1980); United States v. Clark,

supra. 664 F.2d at 1175; United States

v. Freeman, 660 F.2d 1030 (5th Cir.

1981); United States v. Goldfine, 538

F.2d 815 (9th Cir. 1976); United States

v. Prendergast, 585 F.2d 69 (3d Cir.

1978); United States v. Arra, 630 F.2d

836 (ist Cir. 1980); United States v.

Hayes, 653 F.2d 8 (ist Cir. 1981); United

States v. Demanett, 629 F.2d 862 (3d Cir.

1980), cert. den. 450 U.S. 910 (1981);

and Scott v. United States, 436 U.S. 128

(1978).

D. Other Issues

Respondents contrary to Rule 19.5,

Rules of the Court, have argued alterna-

tive claims without filing the requisite

10

cross-petition. Respondents advance a

reply to the validity of the warrantless

search in Argument IV of their brief.

The others, Arguments I through III, and

Argument V. either are not properly

before the Court or fail to state a

cognizable claim which is of sufficient

general importance to justify the

granting of review." 1

T The record is void of any evidence

that Respondents filed a cross-petition

challenging the validity of the initial

stop of the San Rafael. The Florida

Supreme Court in State v. Casal, 410

So.2d 152 (Fla. 1982) specifically found

the initial stop to be valid. Pursuant

to United States v. Raines, 362 U.S. 17,

27 n. 7 (1960); Mills v. Electric Auto

Lite Co., 396 U.S. 375, 381 n. 4 N

Federal Energy Comm. v. * uin 8. N. G

Inc, 426 U.S. 548, 560 n. 71976)

Respondents were required to file a

timely cross-petition challenging the

propriety of the initial stop and satisfy

all requirements respecting an appeal as

to the portion of the decision rendered

adverse to then.

11

See United States v. Raines, 362 U.S.

17, 27 n. 7 (1960); Mills v, Electric

Auto Lite Co. 396 U.S. 375, 381 n. 4

(1970); Federal Energy Comm. v.

Algonquin S.N.G., Inc., 426 U.S. 548, 560

n. 11 (1976) and R. Stern and E.

Gressman, Supreme Court Practice, 447-487

(5th ed. 1978).

Only a cursory analysis of Respon-

dents' arguments has been undertaken.

Argument in response to Respondents’

Arguments I through III and Argument V

Moreover, certain arguments presented

suffer vitality in that they are being

argued for the first time, Cardinale v.

Louisiana, 394 U.S. 437 (1969); or are

barred pursuant to Wainwright v. Stone,

414 U.S. 21 (1973).

12

is made only assuming arguendo that this

Court preliminarily review same despite

their infirmities.

I. The Florida Marine Patrol's

Initial Stop Of the San Rafael

Was Valid.

Citing to Delaware v. Prouse, supra,

and United States v. Piner, 608 F.2d 358

(9th Cir. 1979) Respondents take issue

with the Florida Supreme Court's holding

in State v. Casal, supra at 410 So.2d

155, that the initial stop was not an

impermissible intrusion of their Fourth

Amendment rights. The Court held:

the state's interest

in random stopping and

brief detention of motor-

boats for the limited

2 gehen of checking

ishing permits,

registration certificate

and safety equipment

outweighs a person's

13

interest in being complete

ly free from such limited

intrusion. In Light of

the absence of less

restrictive alternatives

which would accomplish the

state's goals, spot checks

of motorboats are not

unreasonsble under the

Fourth Amendment. The

district court erred in

holding that State Marine

officers must have proba-

ble cause to stop a vessel

for the Limited purposes

discussed above.

410 80. 2d at 155

The Court recognized that this

Court in Delaware v. Prouse, supra did

not preclude development of a spot check

system and further observed that the

Court went so far as to suggest the

possibility of setting up roadblocks

where all traffic is stopped." 410 So.2d

155. See also United States v.

Martinez-Fuerte, supra.

14

In United States v. Watson, supra,

distinguishing United States v. Piner,

supra, (relied upon by Respondents), the

Ninth Circuit Court noted:

"The intrusion must be

measured in terms of both

the] objective intru-

sion--the stop itself, the

questioning, and the

visual inspection--. ..

[and] the subjective

intrusion--the generating

of concern or even fright

on the part of lawful

travelers--. . .'" Prouse,

440 U.S. at 6565.

The governmental interest,

on the other hand, must be

evaluated in light of

“alternative mechanisms

available, both those in

use and those that nigb t

be adopted, to accomplish

the legitimate government

objectives. Prouse, 440

U.S. at 659, 99 S.Ct. at

1399."

678 F.2d at 767-768.

15

In setting forth this balancing

test the Court rejected its previous

decision in Piner, finding that in Watson

a similarly circumstanced case, the

intrusion was minimal and the

government's interest great.2

Respondents’ argument that the Marine

Patrol officers had no authority to stop

the San Rafael is ill-conceived. The

facts reject Respondents’ contention that

there was no "“articulable and reasonable

evidence of registration and only

2 While the initial stop is not properly

before the Court, it should be noted that

this issue is before the Court in United

States v. Villamonte-Marquez, Case No.

81-1350 set for oral argument February

23, 1983. The question presented

concerns the validity, under the Fourth

Amendment, of Customs' statutorily

authorized practice of boarding vessels

on inland waters, in the absence a

reasonable suspicion of a violation of

law, to check the vessel’s documentation.

16

suspicion that the vessel" was "not

registered." (Respondents Brief p. 13).

Indeed, Respondents could not produce any

evidence of registration and only

tendered tax receipts and other

unidentified "documentation". The Ninth

Circuit in Watson, supra, in response to

a similar contention held:

"Defendants have not shown

any feasible, less intru-

sive means for policing

compliance with safety and

documentations regula-

tions. A requirement that

the Coast Guard have a

founded suspicion of non-

— — efore boarding

would completely frustrate

Coast Guard efforts to

enforce compliance, simply

because most documentation

and safety violations

cannot be detected without

boar ding

678 F.2d at 772.

17

The Court concluded that "the modest

Fourth Amendment interests implicated by

the stop and boarding in this case are

outweighed by the government's strong

interests in securing compliance with

document and safety regulations." 678

F.2d at 773.3

SLikewise the Court in United States

v. Watson, supra found a pretext argument

to be wanting. Citing to a host of cases

the Court held:

„. . „ We assume that the adminis-

trative plan which led to the stop

of the GLOBE TROTTER was motivated

partly by suspicion of drug

smuggling.

However, the stop and search had an

independent administrative justifi-

cation, and did not exceed fn scope

what was permissible under that ad-

ministrative justification. There-

fore, we need not consider any

criminal enforcement interest the

nog ges may have had." 678 F.2d

at °

18

Il. The Florida Marine Patrol Was

Prohibited By Statute From

Searching The San Rafael.

Respondents for the first time argue

that the San Rafael was a "documented

vessel" and therefore not subject to

registration pursuant to Section 371.131,

Fla.Stat. (1977).

This argument is totally barred from

consideration in that 1) the validity of

the stop is not before the court and 2)

this argument has never been tendered

prior to said brief. Pursuant to

Cardinale v. Louisiana, 394 U.S. 437

(1969), Respondents are barred from

relying on same .4

4Moreover, the record does not support

Respondents contention that the San

Rafael had a valid marine document issued

the United States Bureau of Customs.

e only references to document paper was

19

Respondents assert that the State's

statutes do not authorize and sanction

safety equipment checks is totally

erroneous. See Section 371.58, Fla.Stat.

(1977). Wainwright v. Stone, 414 U.S. 21

(1973).

III. Whether There Was Consent

To Search

Although the Florida Supreme Court in

State v. Casal, supra concluded ". ..

consent was freely given to board the

made by the Marine officers who testified

that in response to a request for

registration papers, Respondents tendered

tax receipt and “documentation paper for

the vessel" which did not have either

Respondents" name on them. (A-15-16, 55).

Even assuming documentation paper were

presented, a valid marine documentation

does not M the State s — 1 to

require safet uipment or compliance

with the State's fishing and boating

regulations.

20

vessel and to look in the icebox. . ."

410 So.2d at 156, it reversed because no

consent was obtained to search the entire

vessel and there was insufficient

probable cause to justify said search.

It is unclear how the majority

reached the finding that the evidence was

insufficient to support probable cause.

The dissent however, speaking through

Justice Alderman correctly reasoned that

the facts squarely placed this case

either under the Carroll exception, or

a search incident to a lawful arrest.

Respondents submit nothing in their

arguments which refute the position

tender in Petitioner's Brief on the

21

Merits that the search was valid under

the aforenoted exceptions. In fact

Respondents fail to specifically discuss

any of the authorities which support

Petitioner's justification for the

search.

IV. Whether The Illegally Seized

Evidence Could Have Been

Admitted At Trial?

Respondents lastly assert that not

only does the case concern a violation of

the Fourth Amendment, “but also a

violation of Article I, Section 12, of

the Florida Constitution." (Respondents'

Brief p. 33) Wainwright v. Stone, supra,

controls adversely to Respondents’

position.

5. Petitioner has renumbered Respondents’

Argument V to IV since Argument IV was

initially discussed pp. 1-9.

22

CONCLUSION

The Florida Supreme Court's opinion in

State v. Casal, supra failed to apply

controlling decisions of this Court in

its review of the warrantless search of

the San Rafael. The search was valid as

a search incident to a lawful arrest,

probable cause existed under the Carroll

exception and Officers Soli and Walker

were authorized to conduct a safety

inspection and registration check of said

vessel. Based on the pleading,

Petitioner would urge this Court to

reverse the decision rendered in State

v. Casal, supra.

Respectfully submitted,

JIM SMITH

Attorney General

CAROLYN M. SNURKOWSKI

Assistant Attorney General

23

401 N. W. 2nd Avenue (820)

Miami, Florida 33128

(305) 377-5441

COUNSEL FOR PETITIONER