Opposition Brief — Burdgick v. Florida

Office -Supreme Court, U.S.

FILED

-

9) NOY 1 1904

CASE NO. 83-2089 ALEXANDER L. STRVAS,

IN THE oo on

SUPREME COURT OF THE UNITED STATES Es

OCTOBER TERM, 1983

LARRY W. BURDGICK,

Petitioner,

STATE OF FLORIDA,

_ Respondent.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE DISTRICT

COURT OF APPEAL OF FLORIDA, FOURTH

DISTRICT.

JIM SMITH

Attorney General

RUSSELL S. BOHN

Assistant Attorney General

Counsel for Respondent

JOY B. SHEARER

Assistant Attorney General

Counsel of Record

111 Georgia Avenue - Suite 204

West Palm Beach, Florida 33401

(305) 837-5062

i

QUESTIONS PRESENTED

WHETHER THE SUPPRESSION OF EVIDENCE WAS

PROPERLY DENIED, AND WHETHER THIS ISSUE —

PRESENTS A SUBSTANTIAL FEDERAL QUESTION?

WHETHER FLORIDA'S LOITERING STATUTE IS

UNCONSTITUTIONALLY VAGUE?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT

CONCLUSION

iii

TABLE OF AUTHORITIES

PAGE

Bell v. Florida,

423 U.S. 1019 (1975) 6

Kolender v. Lawson,

U.S. , 103 S.Ct. 1855,

75 L.Ed.2d 903 (1983) 12,14,15

State v. Ecker, G, 7,435,489

311 So.2d 104 (Fla.), cert.

denied sub nom.

Terry v. Ohio,

392 U.S. 1, 21 (1968) 7

Watts v. State, 12

447 So.2d 271 (Fla. 2nd DCA

1983)

Watts v. State, 14,15

FSC Case No. 64,613

STATUTES

Fla.R.App.P. 9.030

(a) (2) (A) (i) 14

§ 856.021 Fla.Stat. (1973) 7

STATEMENT oF THE CASE

Ruanondenn accepts petitioner's state-

ment of the facts to the extent that it

presents an accurate, non-argumentative

recitation of proceedings in the state

trial court, with the following additions

and/or clarifications. (References will

be made to the transcript of the hearing

on the motion to suppress using the

symbol "T.")

Officer Henry E. Devlin testified that

the Port St. Lucie police had had con-

ferences within the department concern-

ing the unoccupied area west of town

being used as a landing strip for air-

planes and as a delivery point for nar-

cotics into the country (T 1ll, 12-13).

He explained that there was a painted

circle in the middle of the intersection

of Parr Drive and Port St. Lucie

Boulevard which could be observed from

2

the air and was used as a landmark (T 1l-

12). It was in this area that he saw

the vehicles and the people on the night

of January 7, 1981 at approximately 9:15

p.m. (T 13-14). There had also been re-

ports of cattle slaughtering, cattle

theft and property damage in that area

(T 17-18). On a prior occasion Devlin

had been called to that area as a backup

to another officer who had found flash=

lights placed in the center of the road

which were being used to guide in a plane

(T 23-24). - After he saw the people and

the vehicles on the night of: January 7,

1981, Devlin alerted other officers on

a scrambler channel of a police radio;

the scrambler channel waa used because

of the possibility of drug smuggling

(T 16-17).

Port St. Lucie police officer Charles

Sutton received the call from Devlin

TS ie ls Ne Nn i Ot

3

(T 30). Sutton testified that the

circle area had been identified as a

possible cite for drug trafficking by

either air or land (T 29). As he ap-

proached the area, he could see a van,

an automobile and the four defendants

(T 32-34). Sutton stood by his marked

police vehicle, identified himself as

an officer (T 34) and asked the men to

come to the center of the road (T 35)

since he was alone at the time and want-

ed to find out what they were doing in

that area at that time (T 80). Two of

the men ignored his request. One of

them walked twice to the side of the

road and placed something in the weeds,

and the other remained at the rear of

the van, apparently attempting to con-

ceal himself or items unknown to Sutton

at the tine, and eventually came forward

very hesitantly only when ordered to do

4

so (T 38-39, 78-79).

Officer Sutton asked the men indi-

vidually and as a group what they were

doing in the area, and none cf them re-

sponded (T 42, 71). Sutton then went to

the weeded area where he found an air to

ground aircraft transceiver with an an-

tenna and a mierophone attached to it,

five strobe lights, and a twenty-five

caliber automatic pistol (T 42-43).

Sutton also saw another transceiver and

several walkie-talkie radios on the floor

of the van (T 45-46). Based on his

training and experience, his knowledge

of the circle area, and the items which

he found, Sutton believed that the men

were planning to contact something in

the air from that location (T 43-44).

Sutton then arrested all four men for

loitering and prowling (T 47-48).

Another officer arrived and assisted in

5

advising all of the defendants of their

rights (T 46). The officers remained in

the area with the four defendants, and

approximately one hour and ten minutes

after Sutton first encountered them

(T 57), he heard a low-flying plane

approach (T 48). Sutton gave the pilot

landing instructions using the trans-

ceiver (T 51). The persons inside the

plane were never apprehended, but over

1,000 pounds of methaqualone tablets

were found inside the plane (T 52).

6

REASONS FOR DENYING THE WRIT

I

THE SUPPRESSION OF EVIDENCE WAS PRO-

PERLY DENIED, AND THIS ISSUE PRESENTS

NO SUBSTANTIAL FEDERAL QUESTION.

Petitioner argues that his arrest for

loitering and prowling was illegal, and

that any evidence derived therefrom

should have been suppressed. In his

statement of the issue, he inadvertently

implies that the evidence was admitted

at trial. Of course, since petitioner

pled nolo contendere, there was no trial.

At any rate, respondent maintains that

the facts of this case support the

validity of the arrest and the denial of

suppression.

The constitutionality of Florida's

loitering statute was upheld by the

Florida Supreme Court in State v. Ecker,

311 So.2d 104 (Fla.), cert.denied sub

nom. -Bell v. Florida, 423 U.S. 1019

7

(1975). The version of the statute con-

strued in Ecker, § 856.021, Fla.Stat.

(1973), is identical in number and

language to the statute in effect at the

time suppression was sought in the in-

stant case, and remains unchanged today.

See § 856.021, Fla.Stat. (1979 and 1983).

The court in Ecker noted that the statute

had been patterned after the Model Penal

Code and that the question of its consti-

tutionality “requires a delicate bal-

ancing between the protection of the

rights of individuals and the protection

of individual citizens from imminent

criminal danger to their persons or pro-

perty."” Id. at 107.

The court rejected a challenge to the

statute based on vagueness and over-

breadth, borrowing the words of this

Court in Terry v. Ohio, 902. 0:.6. 1, 21

(1968), by specifying that "'the police

3

officer’: must be able to point to

specific and articulable facts which,

taken together with rational inferences

from those facts, reasonably warrant’

a finding that a breach of the peace is

imminent or the public safety is

threatened" in order to justify an

arrest for the offense of loitering.

Id. at 109. The requisite facts and

inferences were clearly present in the

instant case.

The statute states that it is “unlaw-

ful for any person to loiter or prowl in

a place, at a time or in a manner not

usual for law-abiding individuals, under

circumstances that warrant a justifiable

and reasonable alarm or immediate con-

cern for the safety of persons or pro-

perty in the vicinity." The statute

also lists among the circumstances which

may be considered in determining whether

9

such alarm is warranted the fact that

the person “manifestly endeavors to con-

ceal himself or any object." § 856.021

(1) & (2). In the instant case, both

Officers Devlin and Sutton testified

that the area where they encountered pe-

titioner was an unoccupied, rural area

which was a suspected landing site for

planés involved in drug trafficking.

The police had also had reports of cattle

slaughtering and theft, and property

damage in the same area. The defendants

in this case were found at 9:30 p.m. ~

with two vehicles in a remote area. At

the beginning of the encounter, one of

the men ignored the officer's request to

come to the center of the road, and in-

stead walked two times to hide items in

a weeded area along the side of the road.

Another of the men also ignored the

officer, and appeared to be attempting

10

to conceal objects inside the van. In

the course of the encounter, Officer

Sutton determined that the concealed

items were transceivers, strobe lights,

walkie-talkie radios and a twenty-five

caliber automatic pistol. In light of

his experience and the police knowledge

of the use of the area for drug traffick-

ing, petitioner cannot credibly argue

that Officer Sutton could not point to

specific and articulable facts which re-

asonably warranted his alarm. Perhaps

that is why petitioner does not address

all of the facts in his argument.

Petitioner also alleges in his brief

that the defendants "were held for over

two hours, having been placed face down

in the street under the drawn guns of

the police." Here again, the facts do

not support petitioner. Officer Sutton

arrived at the scene at 9:30 or 9:35 p.m.

(T 56), and.the eS. IG occurred at

10:33 p.m..(T 54). The. plane landed ap-

proximately one hour and ten minutes

after Sutton's arrival at the scene

(T 57). Part of that time was spent

gathering the defendants after two of

them ignored the officer's request to

come to the center of the road, and sur-

veying the scene, during which the

transceivers and other items were seen

in phain.view in the weeded area along

the side of the road and through the

windows of the van (T 118-119). In

short, respondent maintains that the

facts of this case do not support pe-

titioner's claim of illegality, and

therefore, the issue presented here does

not pose a substantial federal question.

II

FLORIDA'S LOITERING STATUTE IS NOT

UNCONSTITUTIONALLY VAGUE.

2

Petitioner argues that § 856.021 is

unconstitutionally vague in light of

this Court's recent opinion in Kolender

v. Lawson, | vise , 103 S.Ct. 1855,

75 L.Ed.2d 903 (1983). Respondent dis-

agrees. A review of the Florida statute

(set forth in the appendix to this brief)

in comparison with the California statute

at issue in Kolender, 75 L.Ed.2d at 906

n.l, will demonstrate that the Florida

statute is considerably more detailed

than the California statute.

Furthermore, respondent respectfully

maintains that disposition of this issue

by this Court is premature. In Watts v.

State, 447 So.2d 271 (Fla. 2nd DCA 1983),

the Second District Court of Appeal of

Florida rejected a challenge to the

facial constitutionality of § 856.021

which was predicated on this Court's

decision in Kolender. The appellate

13

court held that while some of the reason-

ing relied upon in State Vv. Ecker, supra,

has been disapproved in Kolender, the

Florida statute "is so much more defini-

tive than the California statute as to

render the result in Ecker still valid."

Id. at 272. For example, the Florida

statute applies to persons loitering or

prowling “in a place, at a time or in

a manner not usual for law-abiding indi-

viduals.:.," while the California statute

applied to every person who "loiters or

wanders upon the streets or from place

to place without apparent reason or

business...."

After the second district's decision

in Watts, the defendant in that case

successfully requested review by the

Florida Supreme Court pursuant to a.

provision of the Florida appellate rules

which allows the court to assume discre-

14

tionary jurisdiction to review decisions

of district courts of appeal which ex-

pressly declare valid a state statute.

See Fla.R.App.P. 9.030(a)(2)(A)(i). The

issue now pending in that case, Watts v.

State, FSC Case No. 64,613, is exactly

the same issue as that raised here, that

is, whether § 856.021 is facially uncon-

stitutional in light of this Court's op-

inion in Kolender v. Lawson. Oral argu-

ment was heard in that case on September

4, 1984. Thus, the Florida Supreme Court

will soon be answering the same question

now presented to this Court.

In Kolender, this Court emphasized that

a facial challenge to a state statute is

evaluated in light of any limiting con-

struction that a state court has proff-

ered. 75 L.Ed.2d at 908. Thus, while

respondent respectfully maintains that

this Court should deny the writ on the

15

ground raised here, if the Court is

nevertheless disposed to entertain the

issue, it should not do so at this time.

State v. Ecker was decided by the

Florida Supreme Court in 1975, and this

Court denied certiorari review that sauie

year. If the Kolender case occasions

a reevaluation of the statute's consti-

tutionality, that reevaluation should

take place first in the Florida Supreme

Court in the Watts case. If the statute

fone not survive that proceeding, this

case can be returned to the Fourth

District Court of Appeal for redetermi-

nation in Light of Kolender and the

Florida Supreme Court's opinion. If the

Florida Supreme Court re- aaftires the

statute's constitutionality, then its

opinion will become the authoritative

one for purposes of defining the meaning

of § 856.021, and petitioner's juris-

dictional claim ake Be determined in

light of that opinion. See 75 L.Ed.2d

at 908 n.4.

For these reasons, along with this

brief respondent is requesting by se~-

parate motion that if the writ is not

denied at this time, consideration of

the instant petition should be deferred

pending the Florida Supreme Court's de-

cision in the Watts case.

CONCLUSION

For these reasons, respondent respect-

fully requests that the instant Petition

for Writ of Certiorari to the District

Court of Appeal of Florida, Fourth Dis-

trict, be denied.

17

Respectfully submitted,

JIM SMITH

Attorney General

RUSSELL S. BOHN

Assistant Attorney General

Counsel for Respondent

JOY B. SHEARER

Assistant Attorney General

Counsel of Record

111 Georgia Avenue - Suite 204

West Palm Beach, Florida 33401

(305) 837-5062

*

A-1

§ 856.021, Fla.Stat. (1979) Loitering

or prowling; penalty.-

q) It is unlawful for any person to

loiter or prowl in a place, at a time or

in a manner not usual for law-abiding

individuais, under circumstances that

warrant a justifiable and reasonable

alarm or immediate concern for the

safety of persons or property in the

vicinity.

(2) Among the circumstances which may

be considered in determining whether

such alarm or immediate concern is

warranted is the fact that the person

takes flight upon appearance of a law

enforcement officer, refuses to identi-

fy himself, or manifestly endeavors +o

conceal himself or any object. Unless

flight by the person or other circum- |

stance makes it impracticable, a law

enforcement officer shall, prior to any

A-2

arrest for an offense under this section,

afford the person an opportunity to dis-

pel any alarm or immediate concern which

would otherwise be warranted by request-

ing him to identify himself and explain

his presence and conduct. No person

shall be convicted of an offense under

this section if the law enforcement

officer did not comply with this proce-

dure or if it appears at trial that the

explanation given by the person is true

and, if believed by the officer at the

time, would have dispelled the alarm or

immediate concern.

(3) Any person violating the provi-

sions of this section shall be guilty

of a misdemeanor of the second degree,

punishable as provided in s. 775.082 or

s. 775.083. |