Jurisdictional Statement — Florida v. Zafra

g2-867

- Supreme Court, ¥

FILED -

OCci 13 1982

NO ALEX uri) ta

CPFRK

\. STEVAS,

IN THE

Supreme Court of the United States

October Term, 1982

THE STATE OF FLORIDA

Petitioner,

vs.

SILVIO P. ZAFRA,

Respondent.

On Petition for a Writ of Certiorari

to the Florida Third District Court of Appeal

BRIEF OF PETITIONER ON JURISDICTION

JIM SMITH

Attorney General

CALVIN L. FOX

Assistant Attorney General

401 N.W. 2nd Averue

Suite 820

Miami, Florida 33128

(305) 377-5441

i

QUESTIONS PRESENTED

WHETHER THE DECISION OF THE FLORIDA

COURT LIMITING THE AUTHORITY OF THE

UNITED STATES CONGRESS AND CONSTRUING

THE UNITED STATES CONSTITUTION,

HOLDING THAT UNDER 19 U.S.C. $1581(a)

UNITED STATES CUSTOMS OFFICERS MAY

NOT BOARD A VESSEL IN CUSTOMS WATERS

FOR A ROUTINE DOCUMENT EXAMINATION

WITHOUT REASONABLE SUSPICION OR

PROBABLE CAUSE, IS IN DIRECT

DEROGATION OF THIS COURT'S OON-

STITUTIONAL ANALYSIS OF SEARCHES IN

PROXIMITY TO A BORDER AND IS IN

DIRECT OONFLICT WITH THE HIGHEST

FOS. CNT WS BE SOS JeRIeDIC-

TION IN UNITED STATES v. ALFREY

620 F.2d (5th Cir. 1980) HOLDING THAT

UNDER 19 U.S.C. §1581(a) UNITED

STATES CUSTOMS OFFICERS NEED NEITHER

REASONABLE SUSPICION NOR PROBABLE

CAUSE TO BOARD A VESSEL IN CUSTOM'S

WATERS FOR A ROUTINE DOCUMENT EXAMI-

NATION.

WHETHER THE TRIAL DISTRICT COURT'S

FLAT REJECTION OF THE STATE'S CUSTOMS

DRUG SMUGGLER PROFILE PRESENTATION

REASONABLE SUSPICION ANALYSIS IS IN

DIRECT CONFLICT WITH UNITED STATES v.

MENDENHALL, 446 U.S. 544 (1980) AND —

UNITED STATES v. CORTEZ, 449 U.S.

GIT (1981) AND IS AN ERRONEOUS CON-

STRUCTION OF THE UNITED STATES OON-

STITUTION.

ia

3. WHETHER THE EXCLUSIONARY RULE SHOULD

BE APPLIED TO NON-EGREGIOUS POLICE

CONDUCT. SEE, MICHIGAN v.

DEFILLIPPO, 443 U.S. 31 (1979), SEE,

ALSO, UNITED STATES v. WILLIAMS, 622

F.2d 830, at 840-847 (Sth Cir. 1980)

a. cert. den., 449 U.S. 1127

ii

TABLE OF CONTENTS

TABLE OF CITATIONS. ......

iii

TABLE OF CITATIONS

UNITED STATES CASES PAGE

Carroll v. United States,

a oh Cee CUMS «6 @ 6 © 6 a oe) We eee

24

Chambers v. wwii

ck Se! 2, ee ee

Texas v. White,

423 U.S. 67 (1975) . . 23

United States v. Cortez,

a wa. Gey Geeeise 6 6 6 ee 6 8 caus

3

United States v. Mendenhall,

446 U.S. 544 (1980) ......-s acs

3

United States v. Ramsey,

i eR ee 6 ee ee ee

CASES

Bonner v.

Casal v.

375

Hetland

366

Hetland

387

Morales

407

State v.

iv

TABLE OF CITATIONS

State,

City of Prichard, Alabama,

661 F.2d 1206 (11th Cir.

1981) .

So.2d 1077 (Fla. 3d DCA 1979).

v. State,

So.2d 831

v. State,

So.2d 963

v. State,

So.2d 321

Doyle,

(Fla. 2d DCA 1979)

(Fla. 1980) ...

(Fla. 3d DCA 1981)

409 So.2d 1168 (Fla. 3d DCA 1982).

State v.

Hayes,

333 So.2d 51 (Fla. 4th DCA 1976)

State v.

Zafra,

408 So.2d 745 (Fla. 3d DCA 1982)

United States v.

569 F.2d 924 (5th Cir. 1978) ..

United States v.

United States v. spe

630 F.2d 328 (Sch Cir. 19 0) —

Adams,

Alfrey,

620 F.2d (5th Cir. 1980) ....

pinosa-Cer

PAGE

11,20

i,11,18

20 ,21

v

TABLE OF CITATIONS

CASES

United States v. Forbicetta,

484 F.2d 645 (5th Cir. 1973) ..

United States v. Freeman,

579 F.2d 942 (5th Cir. 1979)...

United States v. Glaziou,

402 F.2d 8 (2d Cir. 1968). ....

United States v. bmw &

546 F.2d 139 (5th Cir. 1977) ..

United States v. Sandler,

644 F.2d 1163 (5th Cir. 1981)...

United States v. Williams,

617 F.2d 1063 (5th Cir. 1980).

PAGE

vi

TABLE OF CITATIONS

OTHER AUTHORITIES PAGE

Amendment IV, U. S. Constitution... 4

Amendment XIV, U.S. Constitution... 4&4

First Congress Act of July 31, 1789,

Gh.3, § Stat. 29 CUFGD). we ec ecevcee VW

Title 19, United States Code $1401(j). 17

Title 19, United States Code $1581(a). i,2,5,8

11,14

15,17

18,19

21,25

27

Title 19, United States Code $1582 .. 14

Title 21, United States Code $955. .. 15

Title 28, United States Code $1257(3). 2

vii

PREFACE

The Petitioner, THE STATE OF FLORIDA, was

the Petitioner in the Supreme Court of Florida;

the Appellant in the District Court of Appeal

of Florida, Third District and the prosecution

in the Florida trial court. The Respondent,

SILVIO P. ZAFRA, was the Respondent in the

Supreme Court of Florida; the Appellee in the

District Court and the Defendant in the trial

court. In this brief, the parties will be

referred to as they appeared in the Florida

trial court below.

The following reference is made in this

brief:

(A) For the portions of the record below

sufficient to show jurisdiction in this court,

which are contained in the Petitioner's

Appendix and consist of pages Al-A30.

1

I.

OPINIONS BELOW

The opinion of the District Court of

Florida, Third District affirming the Florida

trial court's granting of the Defendant's

Motion to Suppress is reported at State v.

Zafra, 408 So.2d 745 (Fla. 3d DCA 1982). The

opinion of the Florida Supreme Court denying

the State's Application for review , is

contained in the Petitioner's Appendix at "A2"

and will be reported by the West Publishing

Company. The West Publishing Company citation

is the official reporter for citation to these

opinions.

2

Il.

JURISDICTION

On July 15, 1982, the Supreme Court of

Florida denied the State's timely application

for review. A2. On September 13, 1982, this

Honorable Court (by Justice Powell) extended

the time for filing the present petition up to

and including October 13, 1982. The

jurisdiction of this Court is invoked under the

provisions of Title 28, United States Code,

$1257(3); Title 19, United States Code

$1581(a); and Amendments IV and XIV of the

United States Constitution.

The interpretation of the Florida

Constitution and the United States Constitution

are identical for purposes of the application

of the criminal law and search and seizure

issues. Hetland v. State, 366 So.2d 831 (Fla.

2d DCA 1979) approved and adopted, Hetland v.

3

State, 387 So.2d 963 (Fla, 1980). The

constitutional issues herein were presented and

fully argued at all levels of the proceedings

below. See, State v. Zafra, 408 So.2d 745

(Fla. 3d DCA 1982); A25-A30.

The second issue in the present cause

regarding the use of a drug smuggler's

“profile” is pending on the merits before this

Court in Florida v. Royer, U.S.Sup.Ct. Case No.

80-2146. The issues of the authority of law

enforcement officers to conduct routine

document and inspections of watercraft in the

present case is pending on the merits in

Florida v. Casals, U.S.Sup.Ct. Case No.

81-2318, cert. granted October 4, 1982.

4

Ill,

CONSTITUTION AND STATUTORY PROVISIONS

Amendment IV of the Constitution of the United

States provides that:

"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."

Amendment XIV of the Constitution of the United

States provided that:

"All persons born naturalized in

the United States,and subject to

the jurisdiction thereof, are

citizens of the United States

and of the State wherein they

reside. No State shall make or

enforce any law which shall

abridge the privileges or

immmities of the citizens of

the United States; nor shall any

State ve any person of

life, liberty, or .

without due process law; nor

deny to any person within its

jurisdiction the

protection of the y

5

Title 19 United States Code §1581(a) provides

specifically that:

“Any officer of the customs

May at time go on board of

any ves or vehicle at any

place in the United States or

within the customs waters or, as

he amy be authorized, within a

customs enforcement area

established under the

Anti-Smuggling Act, or at any

other authorized place, without

as well as within its district,

and examine the manifest and

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."

6

IV.

STATEMENT OF THE CASE

The Defendant, Silvio P. Zafra, was

charged by information with three counts

consisting of one count of trafficking in

marijuana, arising out of his attempt on

October 10, 1980 to bring ashore one thousand

(1000) pounds of marijuana in a twenty five

(25) foot speedboat. The Defendant filed a

motion to suppress, which the Florida trial

court granted after a hearing.

At the hearing below the State produced

three witnesses. The Defendant did not testify

and produced no witnesses or evidence. United

States Customs Officer Richard Ogden said that

he had been trained by the Customs Service to

intercept contraband coming into the United

States by plane and boat. AIl0. On October 10,

1980 he went duty at six p.m. and began a

7

routine survey of boats in the Crandon boat

ramp area. Al2.

The customs officers at 3:00 o'clock a.m.

encountered the Defendant's boat in customs

waters. A25. It was undisputed below that the

customs officer thereupon decided to conduct a

routine customs boarding. Al5. Officer

Nassosis checked the boat's papers. A24,

Officer Ogden stepped onto the trailer fender

and looked into the boat. AI5. The deck was

much higher than the manufacturer had put in.

Al5. Ogden said that this was a characteristic

profile of smugglers. Al6. The trend among

smugglers had evolved from throwing contraband

into cabins to stowing contraband in hidden

compartments. Al6. Odgen testified that he

observed marijuana residue on the boat carpet.

Al7. There was also a rise in the carpet

evidently covering a hatch area. Al7. Odgen

testified that he considered this suspicious--

8

the way the vessel was constructed there should

not have been a hatch of that nature under the

carpet tacked to the deck. Al8. The boat had

no fishing gear and only tools and mechanics

tools om the deck. Al8. Odgen said he pulled

the carpet back and an odor of marijuana was

coming out. A21. The hatch was secured by

screws. AZ1. In the hatch were twelve (12)

bales of marijuana weighing one thousand

pounds. A22. The other custom's officers

testimony was similar.

Upon the foregoing the prosecutor argued

in part that the present custom's boarding was

proper under 19 U.S.C. §1581(a) even if neither

reasonable suspicion nor probable cause was

present. See, State v. Zafra, 408 So.2d 745

(Fla. 3d DCA 1982); A23. The Florida trial

court suppressed the evidence holding that

there was no reasonable suspicion or probable

cause for the seizure. Id.

9

On Appeal to the Third District Court of

Appeal the District Court affirmed the trial

court, holding that customs officers cannot

conduct routine customs boarding to check

papers without reasonable suspicion or probable

cause, to wit:

"We join the trial court in

rejecting the state's position

that the apparently unrestricted

authority conferred by the terms

-5.C, 1(a) is not

limited by the reasonableness

requirement of the fourth

amendment and that a customs

officer may therefore make an

investigative stop and

subsequent search of the vessel

in inland waters even though

there is neither (a) evidence of

a boarder cross or its

functional equi t, nor (b)

prior reasonable suspicion of

a. activity." [Emphasis

footnotes omitted].

On July 15, 1982, the Florida Supreme Court

denied the State's timely Petition for Review.

A2. On September 13, 1982 this Honorable Court

extended the time for filing the present

petition up to and including October 13, 1982.

10

V

SUMMARY OF ARGUMENT

The present cause presents a

constitutional crisis, which only this Court

can resolve, The Florida Third District Court

of Appeal in Miami, Florida, which is the

leading and controlling Florida state court!

for analysis of federal and state “boat law,"

see, e.g., Casal v. State, 375 So.2d 1077 (Fla.

3d DCA 1979), affirmed in part, 410 So.2d 152

(Fla. 1982), cert. granted, Florida v. Casal,

U.S. Sup.Ct. Case No. 81-2318, opinion filed

October 4, 1982; State v. Doyle, 409 So.2d 1168

(Fla. 3d DCA 1982); Morales v. State, 407 So.2d

321 (Fla. 3d DCA 1981), has reached a directly

1All Florida trial courts are bound by the

9 decision of the Florida Third District

Court. See, State v. 333 So.2d 51 (Fla.

4th DCA 1976). Moreover with the present joint

federal and state task force on narcotics

traffick centered in Miami and Florida, the

impact of the present decision cannot be

gainsaid.

11

contrary result upon the authority of federal

officers under a federal statute, than has the

highest federal court in the same

jurisdiction? in United States v. Alfrey, 620

F.2d 551 (Sth Cir. 1980) and United States v.

Freeman, 579 F.2d 942 (Sth Cir. 1979). In sum,

the Florida Third District Court of Appeal has

told the United States Congress that it cannot

do in Florida that which the face of 19 U.S.C.

§1581(a) clearly states Congress intended to

do: to give customs officers authority in

“customs waters” to board vessels for document

and customs examination, irrespective of

reasonable suspicion or probable cause.

The Florida trial court's rejection and

the Florida Third District Court's absolute

2all decisions of the United States Fifth

Circuit Court of Appeals issued prior to

September 30, 1981 are binding upon the present

Eleventh Circuit Court of . Bonner v.

City of Prichard, Alabama, 661 F.2d 1206 (11th

Cir. (en banc).

12

refusal to accept the State's argument upon the

aspect of reasonable suspicion as predicated

upon a customs profile of drug smugglers and

the experience, training and observations of

the customs officers, is in direct conflict

with the proper constitutional analysis in

United States v. Mendenhall, 446 U.S. 544

(1980) and United States v. Cortez, 449 U.S.

411 (1981). The State specially argued below

the application of the Carroll doctrine. See,

A27- A28; A25-A26. The Florida District

Court's erroneous analysis of “profiles;" the

experience of law enforcement officers and

reasonable suspicion herein is a continuation

and extension of the error by the same court

presently pending on the merits before this

Court in Florida v. Royer, U.S. Sup.Ct. Case

No, 80-2146. Additionally on October 4, 1982,

this Court accepted jurisdiction in Florida v.

Casal, U.S.Sup.Ct. Case No. 81-2318, which

13

involves state marine patrol officers and their

authority under a state statute, together with

an application of the Carroll doctrine which

are the same issues herein with respect to

federal officers under a federal statute.

The present case is therefore a

significant case relating directly to pending

cases in Casal and Royer, which would serve as

a substantial basis for this Court's analysis

of an area of critical importance to both the

proper analysis of the Criminal law and the

security and safety of the citizens of the

nation, The matter of the extent of the

authority of federal officers under a federal

statute as it occurs in the interdiction of

drug traffic is of crucial importance to both

Florida and the nation. This Court therefore

has jurisdiction herein and should exercise it.

14

Finally the approach, document examination

and search herein was conducted by the officers

in the good faith belief, that their actions

were lawful under 19 U.S.C. §1581(a) and that

the observed facts together with their

experience and training amounted to reasonable

suspicion and probable cause. See, Michigan

v. DeFillippo, 443 U. 31 (1979); United

States v. Williams, 622 F.2d 830 (Sth Cir.

1980) (en banc), cert. den,, 449 U.S. 1127

(1981). The harsh result of the exclusionary

rule should not therefore be applied to

non-egregious conduct.

15

VI

ARGUMENT

The State stipulated below that this was

not a customs “border” search under 19 U.S.C.

$1582, but was a customs search under the

companion section, 19 U.S.C. $1581(a). A

border search by customs under 19 U.S.C. §1582

traditionally requires some degree of proof by

the prosecution that the vessel, vehicle,

aircraft or person has crossed a border. See,

e.g., United States v. Ivey, 546 F.2d 139 (Sth

Cir, 1977), cert. den. 431 U.S. 943, 97 S.Ct.

2662, 53 L.Ed.2d 263 (1977) (mere nexus); United

States v. Adams, 569 F.2d 924 (Sth Cir.

1978) (mere proof of nexus to border is

sufficient). The prosecutor herein for

whatever reason, did not argue that the matter

was a border search. But see, United States v.

Ivey; United States v. Adams, supra.

16

Through the enactment of 19 U.S.C. §1581(a)

Congress has also authorized customs officers

to stop and search vessels in customs waters,

to stem the importation of contraband or

undeclared merchandise to wit:

“Any officer of the customs may

See, United States v. Williams, 617 F.2d 1063

(Sth Cir. 1980)(en banc). Concurrent with 19

U.S.C. $1581(a) Congress has also provided

customs officers with authority to stem the

importation of narcotics, in 21 U.S.C. $955,

which provides that it is:

or the cus territory of the

United States, ———*

substance. . ." [Emphasis

added].

See, United States v. Espinosa-Cerpa, 630 F.2d

328, at 334 (5th Cir. 1980). These statutes

have been broadly construed with respect to the

statutory powers of customs officials. See,

United States v. Glaziou, 402 F.2d 8 (2d Cir.

1968), cert. den. 393 U.S. 1121, (1969). The

Supreme Court has only limited the historical

right of the sovereign to control its borders

to proximity to the border. Warrantless

searches in customs territory are deemed

reasonable within the meaning of the Fourth

Amendment by virtue of the fact that they occur

at the border. See, United States v. Sandler,

644 F.2d 1163 (5th Cir. 1981); United States v.

Freeman, 579 F.2d 942 (Sth Cir. 1978); approved

18

in, United States v. Williams, 617 F.3d 1063,

at 1081 (5th Cir. 1980)(en banc); see also,

United States v. Ramsey, 431 U.S. 606 (1977);

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

First Congress Act of July 31, 1789, Ch.5, 1

Stat. 29 (1789). As the Third District Court

conceded, the authority o” customs officers

under 19 U.S.C. $1581(a) in customs waters in

indeed, plainly on the face of the statute not

limited by traditional Fourth Amendment

analysis. See, A5.

In the case at bar, and for all purposes,

"customs waters" are defined in 19 U.S.C.

1401(j) as, “the waters within four leagues [12

nautical miles) of the coast of the United

States." Within such a definition for purposes

of international law, the area from the coast

to three (3) nautical miles is also nom as

“territorial sea" and the area from three (3)

nautical miles to twelve (12) nautical miles is

19

also known as the “contiguous zone." See,

United States v. Williams, 617 F.2d at 1073,

n.6.

In the case at bar, it is undisputed that

the vessel, which was searched was encountered

by the Customs officer's herein in customs

waters. Al4; A25 (prosecutor argument). Under

19 U.S.C. §1581(a) the customs officers herein

were not required to have either reasonable

suspicion nor probable cause for a detention or

search, See, United States v. Alfrey, 620 F.2d

551 (Sth Cir. 1980); United States v. Freeman,

579 F.2d 942 (Sth Cir. 1979), approved, United

States v. Williams, 617 F.2d 1063 at 1081 (Sth

Cir. 1980)(en banc). In Alfrey, supra, the

court held specifically that:

[T]he recent decision of this

Court in United States v.

Whitaker, 592 F.2d 826 (5th Cir.

1979), rehearing en banc denied,

601 F.2d 586, cert. denied, 444

U.S. 950, 100 S.Ct. 422, 62

L.Ed.2d 320, clearly holds that

20

United States Customs Officers

have authority under 19 U.S.C.

§1581(a) tos and board

vessels initially cited in

customs waters for document

check even in the absence of a

modicum of suspicion or le

cause. See also United States

v. Freeman, 579 F.2d 942, 945

(5th Cir. 1978). This

intepretation of section 1581(a)

does not offend the Fourth

Amendment. Whitaker, supra, 591

F.2d at 829; Freeman, supra, 579

F.2d at 946." [Emphasis added].

Similarly in Freeman, the customs officers

encountered, a sailboat within the three mile

limit with no indication whatsoever that it had

crossed any border, The Freeman Court noted

that there was no warrant, no probable cause

for a warrant and no reasonable suspicion to

stop the vessel, 579 F.2d at 945. However, the

court upheld the warrantless search of the

vessel pursuant to the express language in 19

U.S.C. $1581(a) explaining that:

21

"(T]he authority embodied within

§1581 may be traced back to the

commencement of the Republic

when the First Congress

statutorily granted Customs

officials powers. The

historical significance of the

enactment of such Customs

statutes by the same Congress

which proposed the Fourth

may st has been ——e by

Supreme Court. early,

members of the First

regaried neither seizures nor

° zed

by $1581 unreasonable’ or

embraced py the prouminen of

" is

added}.

Id. at 946-947.

Both Alfrey and Freeman are binding law for the

present federal jurisdiction. See, Bonner v.

Pritchard, supra, at n.2.

In the case at bar, it was undisputed that

after observing the circumstances, the Customs

officers decided to conduct a routine boarding

(A15) and that Officer Nasossis checked the

vessel's papers (A24). Under the express

22

authority of §1581 and the foregoing federal

substantive law, the initial detention and

search herein was without constitutional

defect. The District Court's holding that

under 19 U.S.C. §1581(a) that the federal

officers must show reasonableness under the

Fourth Amendment cannot be reconciled and is in

direct conflict with the interpretation of the

United States Constitution in United States v.

Alfrey and United States v. Freeman, supra.

The present conflict presents a grave

constitutional crisis between the highest

federal appellate court having jurisdiction in

Florida and the Florida Third District Court of

Appeal which is the leading court for the

interpretation of 19 U.S.C. §1581(a) and "boat

law" in Florida. See, Florida v. Casals; State

v. Doyle; Morales v. State, supra. Furthermore

all Florida trial courts are bound by the pre-

sent decisions. State v. Hayes, supra, at nl.

23

Furthermore, the State would note that the

federal officers did indeed have reasonable

suspicion, based upon both their experience

with smugglers and their observations, to board

the vessel. See, United States v. Cortez, _

U.S.__, 101 S.Ct. 690 (1981); see, also,

United States v. Mendenhall, U.S. _, 100

S.Ct. 1870, 64 L.Ed.2d 497 (1980) (approving use

of profile characterisics); United States v.

Forbicetta, 484 F.2d 645, 646 (Sth Cir.

1973) (approving use of “profile”

characteristics at border search). Im Cortez

the Court repeated its approval of an officer's

use of his experience for probable cause and

art culable suspicion thus:

"The idea that an assessment of

the whole picture must yield a

particularized suspicion

contains two elements, each of

which must be present before a

stop is permissible. First, the

assessment must be based upon

all the circumstances. The

analysis proceeds with various

24

objective observations,

information form police reports,

if such are aailable, and

consideration of the modes or

patterns of operation of certain

kinds of lawbreakers. From

these data, a trained officer

draws inferences and makes

deductions--inferences and

deductions that might well elude

an untrained perrson."” [Emphasis

added]. 101 S.Ct. at 695.

Additionally, after the officers were on the

vessel, they certainly acquired probable cause

to search the hold from the presence and smell

of marijuana on the deck. When the officers so

clearly had probable cause to search the hold,

the warrantless search was obviously justified

by the exigency exception for vehicles and

boats. See, Carroll v. United States, 267 U.S.

132 (1925); See also, Texas v. White, 423 U.S.

67 (1975); Chambers v. Maroney, 399 U.S. 42

(1970).

The Florida District Court's and the trial

court's flat rejection of the States argument

25

upon articulable suspicion which was based upon

the customs "profile" and the observations,

training and experience of the officers, is

patently erroneous in the face of the correct

constitutional analysis in Mendenhall and

Cortez. The fact that the events transpired in

the proximity of a border is additionally a

fact, which the Florida courts erroneously

absolutely refused to credit. See, Cortez.

The Florida District Court's erroneous analysis

of "profiles" reasonable suspicion and “boat”

law is a direct continuation and extension of

the same erroneous analysis presently on review

upon the merits in Florida v. Royer, U.S.

Sup.Ct. Case No. 80-2146 and Florida v. Casal,

U.S. Sup.Ct. Case No. 81-2318, cert. granted,

October 4, 1982. Casal involves a state

statute authorizing document and safety checks

by state marine officers and the application of

26

the Carroll doctrine to that event. The

present cause involves precisely the same

authority and the Carroll doctrine in the

context of a special federal statute and

federal officers. This Court has never written

a definitive “boat" case opinion or explained

the parameters of 19 U.S.C. §1581(a). ‘The

State submits that the extraordinary federal

and state interest in resolving these issues is

cogently and timely presented by the present

cause and Casal. Florida with the presense of

a massive federal and state joint task force on

narcotics traffick; the greatest coast line and

the most geographic vulnerability to drug

traffic, is the ideal situs for consideration

of these issues. Certainly, the nation's stake

in Florida | a recognized corridor of drug

traffic is paramount. See, SELECT COMMITTEE ON

NARCOTICS ABUSE AND CONTROL, 95th CONG. 2D

SESS., REPORT ON PROBLEMS OF LAW ENFORCEMENT

27

AND ITS EFFORT TO REDUCE THE LEVEL OF DRUG

TRAFFICKING IN SOUTH FLORIDA. (Com. Print

1978). This Court should also exercise its

jurisdiction herein in the context of Florida

v. Royer, and the Florida Third District's

absolute rejection of any “profile” analysis

and refusal to credit the experience and

training of federal and state officers and the

proximity of the present transaction to the

nation's border, in its analysis. The issue of

the profile and reasonable suspicion for these

highly trained officers was raised at all

levels below. See, A25-A30.

Finally, the State submits that the cause

herein is in direct contravention to the good

faith analysis of this Court in Michigan v.

DeFillippo, 443 U.S. 31 (1979) where despite

the unconstitutional nature of the statute this

Court nevertheless sustained the seizure where

the officers were relying in good faith upon

28

the statute and its validity. The relationship

of DeFillippo to the present circumstance is

direct. The federal officers herein were

relying upon 19 U.S.C. $1581(a) and that, which

even the Florida District Court admits that the

statute plainly says the officers can do:

board any vessel in customs waters for document

and customs inspection. For Florida and all

federal customs officers in state court, the

present ruling squarely conflicts with Michigan

v. DeFillippo. Moreover, the officer's good

faith reliance upon their observations,

training and experience to conclude that a

detention was necessary, presents a

circumstance herein of plainly non-egregious

police conduct, to which the harsh penalty of

the exclusionary rule should find no

application. See, California v. Minjares, 443

U.S. 916 (1981) (Rehnquist, J. and Burger, J.,

dissenting); Stone v. Powell, 428 U.S. 465, at

29

496-502 (1976) (Burger, J., concurring); Id, at

537-542 (White, J., dissenting); Brewer v.

Williams, 430 U.S. 419, at 420-429

(1977) (Burger, J. dissenting; Brown v.

Illinois, 422 U.S. 590, at 610-612 (Powell, J.

concurring); United States v. Williams, 622

F.2d 830 (Sth Cir. 1980)(en banc), cert. den.,

449 U.S. 1127 (1981).

30

VII

CONCLUS ION

The Florida Third District Court of Appeal's

holding that under 19 U.S.C. §1581(a) that the

State must show reasonableness under the Fourth

Amendment cannot be reconciled and is in direct

conflict with the proper interpretation of the

United States Constitution and §1581(a) in,

United States v. Alfrey, and United States v.

Freeman, supra. At the same time, the decision

of the Florida Third District Court is binding

on all Florida trial courts and emanates from

the leading Florida state court in the

construction and analysis of “boat” law and

drug courier case law. The present matter is

plainly governed by the federal law and the

federal interest in maintaining the integrity

of the borders and “customs waters” of the

United States. This Court should take

jurisdiction of the present matter. Florida

31

has the greatest coastline of any state and a

grave interest in the consistent interpretation

of “boat law." The inconsistent and erroneous

analysis of the Florida District Court presents

a conflict on a matter of substantial public

and national importance, warranting the

exercise of this Court's jurisdiction. The

present decision's direct effect upon a

national federal and state effort in Florida to

stem the tide of drug traffic manifestly

supports the propriety of the exercise of this

Court's jurisdiction. The present cause

presents a most cogent and timely companion

Case on the question of federal officer's

authority under federal statutes together with

the issue of a state officer's authority and

the Carroll doctrine in Florida v. Casal, cert.

granted, October 4, 1982. Finally, the

extraordinary penalty of the exclusionary rule

should not be applied, to the federal officer's

32

good faith reliance upon the plain language of

the statute and where their actions are

non-egregious.

RESPECTFULLY SUBMITTED on this _ day of

October, 1982, at Tallahassee, Leon County,

Florida.

JIM SMITH

Attorney General

CALVIN L. FOX, Esquire

Assistant Attorney General

APPENDIX

Al

CONTENTS

PAGE

Opinion, Supreme

Gemee OG PROUEEB. « oc ew ee et se ek

Opinion Florida

Third District

Court of Appeal. ......+-+-+ A&-A7

EXCERPTS: Hearing

On Motion to Suppress. ..... A8=-24

EXCERPT: Argument of Prosecutor. A25-A26

EXCERPT: State's Brief on Appeal. A27-A30

A2

SUPREME COURT OF FLORIDA

THURSDAY, JULY 15, 1982

STATE OF FLORIDA,

Petitioner, $

CASE NO. 61,844

vs. : District Court of

Appeal 3d District

SILVIO P. ZAFRA, : Case No. 81-474

Respondent. :

This cause having herefore been

submitted to the Court on jurisdictional

briefs and portions of the record deemed

necessary to reflect jurisdiction under

Article V, Section 3(b), Florida Consit-

tution (1980), and the Court having de-

termined that it should decline to accept

jurisdiction, it is ordered that the Pe-

tition for Review is denied.

No Motion for Rehearing will be en-

tertained by the Court. See Fla.R.App.P.

9.330 (d).

ALDERMAN, C.J., ADKINS, BOYD, OVFRTON, and

McDONALD, JJ., Concur

TC

cc:

A3

Hon. Louis J. Spallone, Clerk

Hon. James R. Jorgenson, Judge

Hon. Richard P. Brinker, Clerk

Calvin L. Fox, Esquire

Paul Morris, Esquire

William A. Clay, Esquire

A4

IN THE DISTRICT COURT

OF APPEAL OF FLORIDA

THIRD DISTRICT

JANUARY TERM, A.D. 1982

THE STATE OF FLORIDA, ak

Appellant, ae

vs. ** CASE NO. 81-474

SILVIO P. ZAFRA, ae

Appellee. ae

Opinion filed January 12, 1982.

An Appeal from the Circuit Court for

Dade County, James R. Jorgenson, Judge.

Jim Smith, Attorney General, for

appellant.

Paul Morris; Rosen,Portela, Bronis,

Angueira & Clay and William A. Clay, for

appellee.

Before HUBBART, C.J. and BARKDULL AND

SCHWARTZ, JJ.

Schwartz, setes.

We join the trial court in rejecting

the state's position that the apparently

unrestricted authority conferred by the

terms of 19 U.S.C. §1581 a te not

limited by the reasonableness requirement

of the fourth amendment and that a customs

officer may therefore make an investigation

1. $1581. Boarding vessels

(a) Any officer of the customs may at

any time go on board of any vessel or vehi-

cle at any place in the United States or

within the customs waters or, as he may be

authorized, within a customs-enformecenmt

area established under the Anti-Smuggling

Act, or at any other authorized place, with-

out as well as within his district, and ex-

amine the manifest and other documents and

papers and examine, inspect, and search the

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.

A6

stop and subsequent search of a vessel

[2]

in inland waters even though there

is neither (a) evidence of a border cross-

ing or its functional equivalent, (Snore

(b) prior reasonable suspicion of illegal

activity. It is clear that this contention

is incorrect and that, under the stated

circumstances, such activity is not con-

stitutionally permissible. United States

v. Villamonte-Marquez, 652 F.2d 481, 484

(Sth Cir. 1981); United States v. Guillen-

Linares, 643 F.2d 1054 (5th Cir. 1981);

United States v. D'‘Antignac, 628 F.2d 428,

432-33 (Sth Cir. 1980), cert. denied,

2. Compare United States v. Freeman, 579

2d 942 ‘Sth Cir. 1978) (stop and boarding

on open waters for document check; sub-

sequent search based on probable cause dis-

covered thereafter); Morales v. State,

So.2d (Fla. 3d DCA Case nos. 80-248, 80-

249, opinion filed, December 15, 1981).

3. Compare United States v. Sandler, 644

F.2d 1163 (5th Cir. 1981); State v. Smith,

399 So.2d 22 (Fla. 3d DCA 1981).

A7

___U.S.__, 101 S.Ct. 1485, 67 L.Ed.2d

617 (1981); Morales v. State, _So.2d

_____ (Fla. 3d DCA Case nos. 80-248, 80-

249, opinion filed, Decemler 15, 1981)

(dictum); Earnest v. State, 293 So.2d 111

(Fla. lst DCA 1974); see, United States v.

Brignoni-Ponce, 422 U.S. 873, 95 S.Ct.

2574, 45 L.Ed.2d 607 (1975). In the pos-

ture in which the case was presented and

decided below, we need and do go no further

in determining the outcome of this appeal.

Affirmed.

A8

IN THE CIRCUIT COURT

OF THE ELEVENTH

JUDICIAL CIRCUIT IN

AND FOR DADE COUNTY,

FLORIDA

CRIMINAL DIVISION

THE STATE OF FLORIDA )

Plaintiff, )

vs. ) No. 80-19386

SILVIO ZAFRA, )

Defendant. )

Metropolitian Justice

Building,

Miami, Florida,

Friday, 9:00 a.m.,

February 20, 1981.

The above-entitled case came on for

motions before The Honorable James R.

Jorgenson, Circuit Judge, pursuant to

Notice.

A9

APPEARANCES:

JANET RENO, State Attorney, by

ELYSE TARG, Assistant State Attorney,

Attorney for Plaintiff.

ROSEN, PORTELA, BRONITS, ANGUELRA, &

CLAY, by WILLIAM A. “SLAY, Esq. of

counsel.

Attorneys for Defendant.

A10

[EXCERPT OF TESTIMONY]

RICHARD D. OGDEN was called as a

witness and, having been previously sworn,

was examined and testified as follows:

DIRECT EXAMINATION

BY MS. TAEG:

Q Would you please state your

name and official capacity for the

record.

A Richard D. Ogden. I ama

patrol officer for the United States

Customs Service.

Q How long have you been so

employed as a Customs Patrol Officer?

A For approximately eighteen

months.

Q Pursuant to that job, did you

have any training?

A Yes, ma'am, I did.

Q What training was that?

A I attended a seven week integ-

rated law enforcement course of the

All

Federal Enforcement Center in Glencoe,

Georgia. In addition, I attended a four

and a half week course at the same location,

which dealt with specific duties assigned to

Customs Patrol Officers.

Q Officer, what are the duties of

a Customs Patrol Officer--and, for the

record, I will use a CPO.

What are the duties of a CPO?

A To intercept the flow of con-

traband coming into the United States,

primarily narcotics, and to enforce

other customs and related laws.

Q Are your powers basically deal-

ing with boats, airplanes or what?

A Yes, ma‘am.

A high percentage of our work

deals with boats and aircraft coming

into the country.

Q Were you employed on August 10,

1980?

A Yes, ma‘an.

Al2

Q Were you employed as a CPO then?

A Yes, ma‘anm.

Q Did you come on to duty that

day?

A I came--reported for duty at

6:00 p.m. on October °.

Q What were you going to do that

night?

A Generally that night we conducted

a routine servey--myself and my partners

--of the public boat ramps situated in

the local Miami area going from Key

Biscayne up to Bakers Haulover and

making an analysis on the different

types of trucks and boat trailers park-

ed at these locations.

Q How many boat ramps did you in-

vestigate that night, approximately?

A Approximately eight.

Q At any of these ramps did you

notice anything unusual or was anything

brought to your attention?

Al3

A Yes, ma‘am.

Q What was that?

A At Crandon Boat Ramp, I would

estimate at approximately eight to

nine p.m. that evenin:;, we observed

two pick-up trucks with trailers at~-

tached which attracted our attention.

Q Why did they attract your at~

tention?

A Based on my prior experience as

well as the documented experience of

all the other officers in our office,

this particular trailer, which was a

three axle float on, fit somewhat of a

profile commonly used in smuggling ac-

tivities.

Q Why did this seem suspicious?

What was it about this type of trailer

which seemed suspicious?

A That this particular type of

trailer has the capability of carrying

a very large vessel as opposed to what

Al4

would be used just for fishing around the

bay.

* a *

Q Opportunity when was the next time

you saw somebody approach that trailer?

A The first and only time we saw some-

one approach that trailer was when one of

two persons boarded the 25 foot Bertram,

which arrived at Crandon Marina.

Q What time was that, approximately?

A I believe that was a little after

three o'clock in the morning.

Q Was that on October 10?

A Yes, ma‘am.

Q Was the length of time between which

you had first seen it and the fact that it

was three o'clock--did that affect you in

any way?

[Objection overruled].

A Yes, ma‘am.

Q How so?

Al4a

A From the time we first spotted the

truck and trailer until the time someone

approached it, it was nearly seven hours.

That, to me, aroused my suspicions

in that it would have been an unusually

long fishing trip, in my opinion.

Q Would it have any other influence on

you, as to the length of time?

A Yes, ma'am.

We have made notes in our office and

calculated on several occasions that it

generally takes vessels approximately four

and a half to five hours to go from here

to any of the islands in the Bimini area

and to return. This affected my thinking

in that they had more than sufficient time

to go to any of the islands, which could

be used as a stash site--and there are

intelligence bulletins that we have with

indicate that that is a common method--

store the marijuana on a vessel and return.

Al4b

Q Did you have occasion to see anybody

on the boat?

A Yes, ma‘am.

Q Who was that?

A The defendant, Mr. Silvio Zafra, and

one other individual.

* x *

Q Officer Ogden, was there anything

else about the appearance of these two

Latin males which you found to be suspi-

cious?

A Yes ma‘anm.

Q What was that?

A On the initial glance at the two

individuals they appeared to be some-

what--excuse the term--weatherbeaten.

They looked like they had been out for

some time engaging in perhaps heavy work

or something.

Their clothes were somewhat dirty.

They just looked like they had really

been worked over.

Al4c

Q Did there come a time when you stopped

the two individuals?

A Yes, ma‘am.

Q When was that?

A A few minutes after we first stopped

the boat coming up to the dock.

Q What was the purpose of the stop?

AlS5S

A. The purpose of the stop was

to conduct a routine Customs boarding.

Q Pursuant to that, what did you

do?

A My two partners went up to talk

to the incividuals and to obtain the

necessary registration forms. I went

to the vessel, which was already

aboard the three axle float-on trailer

and had already been pulled out of the

water. I stepped on the fender above

the wheels of the trailer and looked

over the gunwale of the vessel into

the boat.

Q At that time did you notice any-

thing unusual about that boat?

A Yes, ma‘am.

Q What was that?

A I noticed that the main deck of

the vessel was considerably higher than

what I would believe the manufacturer

would have put it. This is also a

Al6

profile which has become quite common

among smugglers.

The trends have changed over the

years. They have gone from just throw-

ing it into the cabin and loading it

in remote spots along the coast to

using secret compartments and bring-

ing it on to the public boat ramps.

Q Have you ever encountered boats

like this in your experience?

A Yes.

Q Have you encountered contraband

in these boats?

A Yes, ma'am.

Q How many seizures have you made

in boats of this type?

A I would approximately maybe

fifteen.

Q What did you do next?

A I climbed aboard the vessel, took

a quick glance into the cabin area to

assure myself that there was no other

Al7

persons on board the cabin, and it was

more or less a visual--just a quick visual

check,

I looked down at the deck and got down

on my hands and knees where I could get a

closer look at it.

I had one flashlight and I did observe

marijuana residue embedded in the carpet.

You could not see it until you got

down on your hands and knees and looked

really close and spread the pieces of car-

pet, you know, apart.

Q Did you find anything else?

A Yes, ma‘am.

Prior to finding the residue, I

did run my hand over the carpet itself in

an effort to determine if I could feel any-

thing underneath and I did feel what appear-

ed to be a small rise underneath the carpet.

Due to its shape and size it led

me to believe that there was a hatch under-

neath the carpet.

A18

Q This was covered by the carpet

though?

A That is correct.

Q In your experience, was that

suspicious?

A Yes, ma‘am, it was.

Q Why?

A Because, the way the vessel was

constructed, there shouldn't have been a

hatch of that nature under carpet tacked

down to the deck.

Q Was there anything else about

what you saw on the deck of that boat which

made you suspicious?

A Yes, ma'am. There were several

tools and a lot of odds and ends wa the

deck that really had nothing to do with

any fishing expedition, as far as I could

tell--the tool boxes, odds and ends, mech-

anics’ tools and things that I, ordinarily,

would not expect to see on a boat, especially

for a fishing expedition.

Alg9

To the best of my recollection,

there was no fishing gear on board the

boat. I believe there might have been

an ice chest, but I didn't see any fish

nor did I see any bait.

Certainly anyone engaging in a

fishing trip for six or seven hours would,

in my opinion, at least come back with some-

thing.

Q What led you to believe that

these people might have been on a fishing

trip?

You said that anyone on a fishing

trip would have had something there.

What led you to believe that they

might have been cn a fishing trip?

A. Generally--it was just an assump-

tion on my part at that point that they

were.

Generally, when we stop boats and

ask the routine questions, they generally

are fishing or they're taking the boat out

A20

for a test run to test it out.

Q In your experience, when you

find this residue on the ground what do

you usually find?

A Usually when we find residue,

in my experience, we'll either find a stash

of marijuana on the vessel or we'll find a

secret compartment which has other residue

in it which is an indication that perhaps

at one time or another it did carry mari-

juana.

Q What did you do after you had

gotten down on your hands and knees?

A After I had gotten on my hands

and knees and picked up a little residue

and saw the incongruency in the deck below

the carpet, I asked my partner, Richard

Nasossis, to come aboard the vessel and

give me a hand.

Q Did he?

A Yes, ma‘am, he did.

Q What happend then?

A21

A I told him what I had found

and he agreed that there was definitely

something amiss.

We pulled back the carpet off

the deck, which was--it was just lightly

tacked down with a little adhesive, and

he put his nose---

We did dind a hatch. It was

basically rectangular in shape and secured

by probably a dozen or more screws.

He got down on his hands and

knees and put his nose to one of the seams

in the hatch and took a whiff and came up

and said yeah--he could smell what he

thought was marijuana.

Q What did you do then?

A We proceeded to remove the screws

from the hatch and lifted the hatch and the

marijuana was visible--immediately visible--

below the deck.

Q Have you seen marijuana before?

A Yes, ma'am.

Q To your trained eyes, this was

marijuana?

A22

A Yes, ma‘an,.

Q Did you run any test on it?

A Yes, ma'am, we did run a field

test.

Q What did you do?

A We have a small test tube fill-

ed with a chemical agent whch, when exposed

to THC, which is in marijuana and hashish,

will turn bright red.

We removed a few leaves. I tore

open one of the bales and removed a few

leaves and a couple of seeds, put them in

the tube, mixed it with the chemical , shook

it up, and it tested positive and turned

bright red.

Q How much marijuana was there?

A We found twelve bales and we

estimated the weight to be approximately

1000 pounds.

These were somewhat large bales.

Q Did all of this take place in

Dade County, Florida?

A Yes, ma‘am.

A23

(EXCERPT: CUSTOMS OFFICER CARLIN }

Q What did you do?

A As we approached in the vehicle,

Officer Butchko, who was the Dade County

man there, was sort of--I think he was

getting ready to leave, and we identified

ourselves as Custom Officers to him and we

approached the vessel.

We informed the--well, I had

what we call a Customs Raid jacket. It's

a nylon windbreaker with the Customs badge,

you know, embossed on it, and on the back

it says, "U.S. Customs" I think in two inch

lettering. It has a Customs patch on each

sleeve.

So, they more or less knew who

we were, but we identified ourselves with

our badge holder in the case and told them

we were from U.S. Customs and that we would

like to inspect their vessel and check their

documents on the vessel.

Q What happened next?

A24

A I believe Mr. Zafra identified

himself as the master of the vessel and he

was asked for documents, I think, by--I

believe Officer Nasossis who asked him for

his documents in English, and I think I

also asked him in Spanish, you know, to

further clarify what we wanted.

At that time I returned to our

vehicle to begin filling out a search and

boarding form, which we routinely do in

most cases involving Custom seizures.

MS. TARG: I have no further

questions of this witness, Your Honor.

A25

(EXCERPT: ARGUMENT OF PROSECUTOR

fl. Customs Search}

MS. TARG: I will argue that it was

a Customs search and, in determining whe-

ther the search was good or not good, you

just have to look at the federal law on

searches and the federal law on boarding

on vessels.

Customs authority 19 U.S.C. 1581A

provides that Customs has a right to board

any vessel in Customs water to ask for doc-

uments or other papers regarding the boat

within twelve miles of the coast of the

United States, and this boat was seen com-

ing from the waters.

The officers testified that it was

only a few miles outside the Atlantic

Ocean. It was clearly in Customs waters.

a * A

2. Articulable Suspicion]

The Court cases have held that, in de-

ciding whether there is reasonable suspic-

ion, a Customs Patrol Officer is entitled

A26

to assess the facts in the light of their

experience, and you must look at the total-

ity of the circumstances.

We would, for those reasons, argue

that the test to be given is: Did these

CPO's, in their experience in the Customs

Service, have articulable facts together

with rational inferences from these facts

to engender a reasonable suspicion that the

vessel in this case was being used for nar-

cotics trafficking and, again, we rely on

those cases and on U.S. versus Brignoni-

Ponce, a Supreme Court case cites at 95

Supreme Court 2574.

A27

[EXCERPT OF STATES BRIEF ON APPEAL

TO FLORIDA 3d DCA)

B. Furthermore, the State would note

that the officers did indeed have reason-

able suspicion, based upon both their ex-

perience with smugglers and their observa-

tions, to board the vessel. See, United

States v. Cortez, U.S. » 401 $.Ce.

690 (1981); see, also, United States v.

Mendenhall, U.S. » 100 S.Ct. 1870, 64

L.Ed.2d 497 (1980) (approving use of pro-

file characteristics); United States v.

Forbicetta, 484 F.2d 645, 646 (5th Cir.

1973) (approving use of “profile” charact-

eristics at border search). In Cortez the

Court repeated its approval of an officer's

use of his experience for probable cause

and articulable suspicion thus:

“The idea that an assessment of

the whole picture yield a par-

ticularized suspicion contains

two elements, each of which must

be present before a stop is per-

missible. First, the assessment

A28

must be based upon all the cir-

cumstances. The analysis pro-

ceeds with various objective

observations, information from

police reports, if such are

available, and consideration

of the modes or patterns of

operation of certain kinds of

lawbreakers. From these data,

a trained officer draws in-

ferences and makes deductions

-~-inferences and deductions that

might well elude an untrained

person." Emphasis added .

101 S.Ct. at 695,

Additionally, after the officers were on

the vessel, they certainly acquired pro-

bable cause to search the hold from the

presence and smell of marijuana on the

deck . (Citations Omitted]. When the

officers so clearly had probable cause to

search the hold, the warantless search was

obviously justified by the exigency excep-

tion for vehicles and boats. See, Carroll

v. United States, 267 U.S. 132, 54 S.Ct.

280, 69 L.Ed. 543 (1925), adopted by statute

in Florida Statute §933.19. See also,

Texas v. White, 423 U.S. 67, 96 S.Ct. 304,

A29

46 L.Ed.2d 209 (1975); Chambers v. Maroney,

399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed. 419

(1970); State v. Lopez, 369 So.2d 623 (Fla.

2d DCA 1979). In Chambers v. Maroney, the

Court explained the exigency requirement

thus:

"Arguably, because of the

preference for a magistrate's

judgment, only the immobiliz-

ation of the car should be

permitted until a search warrant

(sic) is obtained; arguably,

only the ‘lesser’ instrusion is

permissible until the magistrate

authorizes the ‘greater’. But

which is the ‘greater’ and which

the ‘lesser’ intrusion itself a

debatable question and the an-

swer may depend on a variety of

circumstances. For constitution-

al purposes, we see no difference

between on the one hand seizing

and holding a car before present-

ing the probable cause issue to a

magistrate and on the other hand

carrying out an immediate search

without a warrant. Given probable

cause to search, either course is

reasonable under the Fourth Amend-

ment”. [Emphasis added) 399 U.S.

at p. 51-52.

Undoubtedly the exigency exception to the

warrant requirement was manifest in the

case at bar. The trial court's suppression

A30

of the evidence is therefore erroneous

even under traditional search and seizure

analysis and must be reversed.