Petition — Trepany v. Florida

in the

Supreme Court

of the

United States

LAURENCE EMERY TREPANY,

GARY LYNN SALZLEIN,

MICHAEL FRANK VINO, IR.,

and JAMES F. TASSMER,

Petitioners,

Us.

STATE OF FLORIDA.

Responde nt.

PETITION FOR WRIT OF CERTIORARI

TO THE FOURTH DISTRICT COURT

OF APPEAL OF FLORIDA

H. DOHN WILLIAMS, JR.

VARON and STAHL, P.A.

2432 Hollywood Boulevard

Hollywood, Florida

Telephone: (305) 923-1548

Attorneys for Petitioners

QUESTION PRESENTED

WHERE A SUSPECT WITH CONTRABAND

IS SEEN BY THE POLICE IN THE

SECLUDED, FENCED BACKYARD OF A

RESIDENCE FROM A NEIGHBOR'S YARD,

THE POLICE MAY NOT ENTER THE

BACKYARD, ARREST THE SUSPECT, AND

SEIZE THE CONTRABAND WITHOUT A

WARRANT, ABSENT EXIGENT CIRCUM-

STANCES. TO HOLD OTHERWISE WOULD

BE CONTRARY TO THE TEACHINGS OF

COOLIDGE vu. NEW HAMPSHIRE, 402 US.

443 (1971) AND PAYTON vu NEW YORE, 445

U.S. 573 (1980).

: TABLE OF CONTENTS

Page

Question Presented .. 2... 2c cccccdceccvscscies i

RES I RP ee eee ii

Table of Authorities iii, iv

Judgment and Opinion of the Court Below ........ 2

Statement of Jurisdiction ...................... 2

Constitutional Amendments Involved ............ 2

Statement of the Casas 3

Reasons for Granting the Writ .................. 4

/ (AA „„ „„.. 9

TABLE OF AUTHORITIES

Agnello u United States,

, ̃⅛ V

Coolidge u New Hampshire, *

... Fe

Fizel u Wainwright,

492 F.2d 489 (5th Cir. 1974) ..................

Huffer v. State,

344 So.2d 1332 (Fla.2 DCA 1977⸗ꝶ ).

Marcello v. United States,

328 F.2d 351 (5th Cir. 1964) ..................

Payton v. New York,

, ͥ

State u Morsman,

394 So.2d 408 (Fla. 1981 277999

State u Parker,

399 80. 2d 24 (Fla. 3 DCA 1981777

Taylor u United States,

, ̃ —Ä———J—T—x—x—yÄů ů Ä in Caw 6 440s 0's 2

TABLE OF AUTHORITIES (Continued)

United States ex. rel. Boyance v. Myers,

398 F.2d 896 (3rd Cir. 19680 üiꝝuĩVZʒi

United States v. Mullin,

329 F.2d 295 (4th Cir. 1964)..................

LAURENCE EMERY TREPANY,

GARY LYNN SALZLEIN,

MICHAEL FRANK VINO, IR.

and JAMES F. TASSMER,

Petitioners,

vs.

STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE FOURTH DISTRICT COURT

OF APPEAL OF FLORIDA

To: The Honorable Chief Justice and Associates Justices

of the Supreme Court of the United States.

Petitioners, Laurence Emery Trepany, Gary Lynn

Saldein, Michael Frank Vino, Jr., and James F. Tassmer,

pray a Writ of Certiorari issue to review a final judgment

of the Fourth District Court of Appeal of Florida reversing

the trial court's order (i.e., Circuit Court of the

Court of the Seventeenth Judicial Circuit of Florida)

order the Petitioners’ motion to suppress.

The Petitioners then filed a timely Petition for Writ of

Certiorari to the Supreme Court of Florida. The Supreme

Court of Florida declined to accept jurisdiction.

Accordingly, the order and opinion of the Fourtt: District

Court of Appeal of Florida stands final.

JURISDICTION OF THIS COURT

This Petition is filed within sixty (60) days of the

The jurisdiction of this Court is invoked, made

and conferred under Title 28 U.S.C. §1257(3) and this

Court’s Rules 17 through 23.

CONSTITUTIONAL AMENDMENTS INVOLVED

Fourth Amendment, United States Constitution

Fourteenth Amendment, United States Constitution

STATEMENT OF THE CASE

The Petitioners were charged by Information with

the offense of “Trafficking in Cannabis” contrary to

Florida Statute 893.135. The Petitioners moved to

or that any such escape, should it occur, could be

successful. The trial court went on to state that the

Petitioners were under surveillance at all times, there

was no reason to believe they were aware of their

The State of Florida appealed the trial court's

ruling to the Fourth District Court of Appeal of Florida.

The District Court in a written opinion reversed the

trial court’s order of suppression.

The Petitioners filed a timely Petition for Writ of

Certiorari to the Supreme Court of Florida; however,

the Court denied the Petition on September 2, 1982.

The police received an anonymous tip that a sailboat

“riding low in the water” was docked behind a house.

From a vantage point across the canal, they began

surveilling the sailboat. The sailboat was docked at the

rear of a single family dwelling.

After seven hours of surveillance, during the dark,

early morning hours the police by means of a night

vision scope, which enhances one's ability to see in the

small opening in the fence-hedge into the back yard on

into the back door of the house. The police never observed

any bundles being carried out the side gate of the back

yard which led to the front of the house where motor

vehicles were parked. The police never observed any

bundles being placed into any motor vehicles.

After observing a few of these trips, the officer

The persons at the house would be arrested. The house

and sailboat would be seized and secured. Then, a

warrant would be obtained. Consistent with their plan,

the police with guns drawn rushed into the secluded,

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.

:

3

The physical setting of the property, house, and

back yard is important. The house is located on the

southwest side of a peninsula. There is one roadway off

west intersecting roadway. The waterway behind the

residence is a dead end canal, with only one exit.

Departure from the canal can be easily observed.

property with only the minimum easement on each

side. Thus, one cannot observe the back yard from the

front street. Along each side of the back yard there

was a fence and dense hedges which prevenied

formed an additional barrier along the sea wall side of

the back yard which already had the seven foot high

hedgerow to block the view.

In Coolidge u New Hampshire, 403 U.S. 443 (1971),

this Court set forth the “plain view” doctrine as an

exception to the warrant requirement. This Court held

warrant. This Court emphasized that it is critical under

the “plain view” doctrine for the officer to be aiready

inside the constitutionally protected area when he

inadvertently discovers the contraband.

situations where both the officer and the contraband

are in a non-constitutionally protected area such as an

open field or in a public place. Because no

area is involved, the resulting seizure has no Fourth

Amendment ramifications. Nonetheless, courts have

characterized this as a “plain view” search.

The “plain view” doctrine has also been applied to

the pre-intrusion situation. In such a case, the officer is

located outside a constitutionally protected area and is

looking into such an 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. The officer’s mere acquisition of probable

cause by means of an “open view” does not justify his

warrantless intrusion into the constitutionally protected

area. “. . . Plain view alone is never enough to justify

the warrantless seizure of evidence. This is simply a

corollary of the familiar principle . . that no amount

of probable cause can justify a warrantless search or

seizure absent ‘exigent circumstances’.” Coolidge, supra.

Assuming arguendo in the case sub judice that the

officer's observations were lawful and provided probable

cause, “It is settled doctrine that probable cause for

belief that certain articles subject to seizure are in a

dwelling cannot itself justify a search without a warrant.”

Agnello u United States, 269 U.S. 20 (1925); Taylor u

United States, 286 U.S. 1 (1932).

The secluded, fenced back yard enclosed by high

hedges was a constitutionally protected area. The courts

have historically extended the Fourth Amendment's

protection to the area immediately surrounding and

closely related to the dwelling. The curtilage has come

to mean the yard, courtyard or other piece of ground

included within the fence surrounding a dwelling house.

Fizel u Wainwright, 492 F.2d 489 (5th Cir. 1974); Marcello

u United States, 328 F.2d 351 (5th Cir. 1964); United

States u Molkenbur, 430 F.2d 563 (8th Cir. 1970); United

States ex. rel Boyance u Myers, 398 F.2d 896 (3rd Cir.

1968); United States u Mullin, 329 F.2d 295 (4th Cir.

1964). The Florida Supreme Court and Florida Appellate

Courts have held the “back yard” of a residence is a

constitutionally protected area. State u Morsman, 394

So. Ad 408 (Fla. 1981); Huffer u State, 344 So.2d 1332

(Fla. 2 DCA 1977); State u Parker, 399 So.2d 24 Fla. 3

DCA 1981).

The quertion is then, did the police have some

justification for entering this constitutionally protected

area? The other exceptions to the warrant are: (1)

consent, (2) search incident to — “yy ney

cause plus exigent circumstances, (4) hot pursuit, (5)

stop and frisk, and (6) inventory searches of automobiles.

Cleerly, consent, hot pursuit, stop and frisk, and the

inventory search of an automobile would be inapplicable.

The “search incident to a lawful arrest exc: gtion

would be inapplicable because in Payton u New York,

445 U.S. 573 (1980), this Court held one cannot be

lawfully arrested within the sanctity of one’s home,

nor may the police cross the threshold of one’s home

without a warrant, absent exigent circumstances. The

trial court found there were no exigent circumstances

because there was no basis to conclude that the Petitioners

were going to remove the contraband from the residence.

Nor was there reason to believe the Petitioners

themselves would escape, or that if any such escape

should occur that it could be successful. The trial court

found the Petitioners were under surveillance at all

times; there was no reason to believe that they were

aware of the surveillance or of their imminent arrest;

and any attempt to escape could have been easily

frustrated. Because of the large amount of contraband,

there was no reason to believe that the contraband

would be destroyed.

Lastly, “probable cause plus exigent circumstances”

would be inapplicable because the trial court found no

exigent circumstances. Further, because the case involved

a home, the law of Payton u New York, supra, would

control.

CONCLUSION

In conclusion, the police in Florida have developed

an investigative technique whereby vessels docked behind

private homes are periodically surveilled. If suspect

contraband is observed being off-loaded and taken into

the residence, without any effort being made to first

obtain a warrant, the police immediately converge on

the residence. The persons at the residence are arrested,

the house seized and secured, and then the police obtain

a warrant. Such an investigative technique is an affront

to the basic principle of Fourth Amendment law that

warrantless searches or seizures of homes are

presumptively unreasonable.

Respectfully submitted,

H. DOHN WILLIAMS, JR.

VARON and STAHL, P.A.

2432 Hollywood Boulevard

Hollywood, Florida 33020

Telephone: (305) 923-1548

Attorneys for Petitioners