# Petitioners Reply Brief — Florida v. Casal

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0206%3A7

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Reply Brief
- **Published:** January 1, 1983
- **Citation:** 462 U.S. 637

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0206%3A7. Public record. Not legal advice.