Petition for Writ of Certiorari — Abislaiman v. Florida

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JUN 18 1984

IN THE

SUPREME COURT OF THE UNITED sbereme-—SLEre

ALEXANDER L. STEVAS

—_

OCTOBER TERM 1983

NO.

JORGE ABISLAIMAN,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

EDWARD R. SHOHAT, ESQ.

BENEDICT P. KUEHNE, ESQ.

JOHN M. KIERNAN, ESQ.

BIERMAN, SONNETT, SHOHAT

& SALE, P.A.

Suite 500

200 Southeast lst Street

Miami, Florida 33131

Telephone: (305) 358-7477

Counsel for Petitioner

QUESTIONS PRESENTED FOR REVIEW

I. WHETHER THE DRIVER OF A MOTOR

VEHICLE WHOSE CAR IS LAWFULLY PARKED

IN A PRIVATE HOSPITAL PARKING LOT IN

THE MIDDLE OF THE NIGHT HAS A

REASONABLE EXPECTATION OF PRIVACY?

II. WHETHER EVIDENCE WHICH CAN ONLY

BE OBSERVED THROUGH USE OF A HIGH

POWERED TELESCOPIC CAMERA IS IN

PLAIN VIEW?

III. WHETHER A DEFENDANT HAS

STANDING TO CHALLENGE THE LEGALITY

OF HIS ARREST AND WHETHER EVIDENCE

SEIZED AS A RESULT OF THAT ILLEGAL

ARREST MUST BE SUPPRESSED AS BEING

THE FRUIT OF THE POISONOUS TREE?

LIST OF INTERESTED PERSONS

The only persons having an

interest in the outcome of this case are

the Petitioner, JORGE ABISLAIMAN, and

the State of Florida.

af iu

TABLE OF CONTENTS

Page

OPINIONS BELOW... . cc cccccccccces TeETery |

JURISDICTION... cc ccccccces eocccees ecoces®

CONSTITUTIONAL PROVISION

4 4th rr ee ee ee ee 4

STATEMENT OF THE eee

REASONS FOR GRANTING THE WRIT..........9

I. THE DRIVER OF A MOTOR

VEHICLE WHOSE CAR IS

LAWFULLY PARKED IN A

PRIVATE HOSPITAL PARKING

LOT IN THE MIDDLE OF THE

NIGHT HAS A REASONABLE

EXPECTATION OF PRIVACY.

II. EVIDENCE WHICH CAN ONLY BE

OBSERVED THROUGH USE OF A

HIGH POWERED TELESCOPIC CAMERA

IS NOT IN PLAIN VIEW.

III. A DEFENDANT HAS STANDING

TO CHALLENGE THE LEGALITY

OF HIS ARREST AND EVIDENCE

SEIZED AS A RESULT OF THAT

ILLEGAL ARREST MUST BE

SUPPRESSED AS BEING THE

FRUIT OF THE POISONOUS TREE.

eo 8 re ee

Ps Sesh ehoceeceéeddectecéddéccceae

-iii-

ee an

TABLE OF AUTHORITIES

Cases

Alderman v. United States,

394 U.S. 165,

SP SeSSe FSS CASED) ccccccecesessesesha

Berger v. New York,

388 U.S. 41,

87 S.Ct. 1873 (1967) ..ccccccccceeeee32

Brinegar v. United States,

338 U.S. 160,

69 S.Ct. 1302 (1949)............36, 38

Cady v. Dombrowski,

413 U.S. 433,

93 S.Ct. 2523 TAFaD cocececececeoseeoue

Cardwell v. Lewis,

417 U.S. 583,

94 S.ct. 2464 boy.) yaar rTrTrr

Carroll v. United States,

267 U.S. 132,

45 $.Cce. 280 Teas rceccceccesscesees 38

Chambers v. Maroney,

399 U.S. 42,

90 S.Ct. 1975 (1970) ..cccccccccceee el

Colorado v. Bannister,

449 U.S. l,

101 BeGee 42 FUSSS) ccccceccecceseseesl

Coolidge v. New Hampshire,

403 U.S. 443,

91 S.Ct. 2022 (1971) ..ccccccceeeeee el

-iv-

TABLE OF AUTHORITIES - Continued

Page

Dow Chemical Co. v. United States,

536 F.Supp. 1355 (E.D.Mich. 1982)...31

Dunaway v. New York,

442 U.S. 200,

99 S.Ct. 2248 (1979) ..ccccccceceeee 236

Harris v. United States,

390 U.S. 234,

88 S.Ct. 992 (1968)... cece eeeeeveeee2dl

Illinois v. Andreas,

463 U.S. ,

103 S.Ce. 3319 CASS S) ccocccececeseeeeal

Jones v. United States,

362 U.S. 257,

OO S.CE. F2S (1960) cccccccccccsesccedd

Katz v. United States,

389 U.S. 347,

@8 S.Ct. 507 (1967).........2-.-passim

Michigan v. Clifford,

464 U.S. P

104 S.Ct. 641 WSS d ccceccececesoeeeal

Oliver v. United States,

U.S. ’

1G BS.CE. 1738 CI9SE) cccccccccccesccsdd

Rakas v. Illinois,

439 U.S. 128,

aq BeGee 421 (1978) ...ceeeeeee-e- passim

-Vv~=

TABLE OF AUTHORITIES - Continued

Page

Smith v. Maryland

442 U.S. 735,

SO: SsCSs. 2S7r CASTS) ccccccccccsccecsed

South Dakota v. Opperman,

428 U.S. 364,

i: ates, SEE LEPTED cesccccecese 16, 17

State v. Barnes,

390 So.2d 1243

(Fla. lst DCA DLA eebebnseeeeesnee 30

Terry v. Ohio,

392 U.8. li,

88 BatcGe 1868 Be) a ee ee ee F

Texas v. Brown,

U.S. v

Les SeGt. 23s CA9BS) wcccccscdlye 20, 3

United States v. Bellina,

665 F.2d 1335 (4th Cir. 1981)...14, 29

United States v. Belton,

453 U.S. 454,

101 S.Ct. 2860 eee

United States v. Burns,

624 F.2d 95 (10th Cir. 1980)........29

United States v. Calandra,

414 U.S. 338,

94 es a 613 Carre Wes eure scesc'oececeke

United States v. Chadwick,

433 U.S. l,

97 §.Ct 2476 TESTE cece woes ones SRC

-vi-

TABLE OF AUTHORITIES - Continued

: Page

United States v. Crews,

445 U.S. 463,

100 S.Ct. 1244 (1980)...... eecccc eee 30

United States v. Glasgow,

652 F.2d 1036 (5th Cir. 1981).......19

United States v. Jacobsen,

466 U.S. ’

104 S.Ct. 1652 (1984)........... 27, 34

United States v. Kim,

415 F.Supp. 1252

Tea hU TO) woceccccccccccce ce 30, 32, 39

United States v. Knots,

460 U.S.

203 B.Gee 1081 Decks ensecesoccecedl

United States v. Lupo,

652 Pease fas (7th Cir. 1981)........14

United States v. Perez,

689 F.2d 1336 (9th Cir. 1982).......19

United States v. Place,

462 U.S.

103 Ps = 2637 DIPPER ce bbencesccccal

United States v. Posey,

663 F.2d 37 (7th Cir. 1981)

cert. denied, U.S. ’

EE MEE Pees decocsccoccccccncceclG

United States v. Ross,

U.S. :

102 S.Ct. 2157 Dt sacs eeeecece LO, 23

-vii-

TABLE OF AUTHORITIES - Continued

Page

United States v. Salvucci,

448 U.S. 83,

SF Ballec BSST CASSS) ccccccccceseddy, 12

United States v. Taborda,

491 F.Supp. 50 (E.D.N.Y.)

aff'd. in part snd remanded,

635 F.2d 131 (2d Cir. 1980).....passim

United States v. Webber,

668 F.2d 552 (lst Cir. 1981)

cert. denied,

102 S.Ct. 2904 (1982) .ccccccccccceccld

Wheeler v. State,

659 S.W.2d 381

(Tex.Crim.App. pt eee err errr Ty s

Won Sun v. United States,

371 U.S. 471,

83 S.Ct. 407 FEPOS) oes eccecessecessecee

Other Authorities

U.S. Constitution

Amendment a eee 10

-viii-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1983

NO.

JORGE ABISLAIMAN,

Petitioner,

STATE OF FLORIDA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF FLORIDA

The Petitioner JORGE

ABISLAIMAN respectfully prays that a

writ of certiorari issue to review the

judgment and opinion of the Florida

Third District Court of Appeal which

discretionary review by the Florida

Supreme Court was denied.

OPINIONS BELOW

On August 31, 1982, the

Honorable Gerald Kogan, Circuit Judge of

the Eleventh Judicial Circuit of

Florida, entered an order granting

Defendant's Motion to Suppress Illegally

Seized Evidence and Oral Statements.

That Order is reproduced in the

Appendix. On direct appeal by the State

of Florida, the Florida Third District

Court of Appeal affirmed in part,

reversed in part, and remanded. State

v. Abislaiman, 437 So.2d 181 (Fla. 3d

DCA 1983). That Opinion is reproduced

in the Appendix. A Motion for Rehearing

and Alternative Motion for Rehearing En

Banc or Certification of Question of

Great Public Importance was denied on

September 28, 1983. That Order Denying

Defendant's Motion for Rehearing is

reproduced in the Appendix. On April

18, 1984, the Supreme Court of Florida

denied ABISLAIMAN's Petition for

Review. That Order Denying ABISLAIMAN's

Petition for Discretionary Review in the

Supreme Court of Florida is reproduced

in the Appendix.

JURISDICTION

Jurisdiction of this Court is

invoked under 28 U.S.C. §1257(3). This

Petition is filed within the authorized

time period following the Florida

Supreme Court's Order denying

discretionary review.

CONSTITUTIONAL PROVISION INVOLVED

U.S. Constitution, Amendment IV:

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....

STATEMENT OF THE CASEL/

At 2:30 A.M. on January 21,

1980, JORGE ABISLAIMAN ("ABISLAIMAN")

drove his car into the private parking

lot of the Mercy Hospital emergency

room. He parked the car at the far end

of the lot in a legal parking space and

remained there for three to five

minutes, with no one entering or exiting

the car. (T. 5-7). These actions were

observed via a security camera by

Officer Carlos Nieto ("Nieto"), an off-

duty City of Miami policeman who worked

part-time as a hospital security

guard. (T. 4-6).

i/ The following symbols are utilized

throughout this brief: "R" denotes

Volume I of the Record on Appeal of the

State court proceedings (pages 1-57)

which contains pleadings, orders, and

other documents filed with the trial

court; and "T* indicates a reference to

the transcript of the Motion to Suppress

hearing contained in Volume II (pages l1-

S7}%

Nieto's attention became

focused upon the people inside

ABISLAIMAN's car, but he could not tell

what those people were doing. (T. 7-

8). Nieto neither observed any illegal

activity in or about the vehicle, nor

did he believe that any hospital

regulations were being violated. (T.

24-26). Using remote control equipment

located in the monitor room, Nieto

purposely activated the zoom lens on the

camera to look inside the vehicle. (T.

8, 26-27). The zoom lens capabilities

are so powerful that Nieto was able to

peer into the vehicie and observe all

movement therein without leaving the

hospital security office. (T. 26).

Nieto‘s use of the zoom lens allowed him

to make observations and movements that

he could not otherwise see with his

eyes. By using the zoom lens, Nieto

observed ABISLAIMAN rolling what

ale

appeared to be a cigarette. (T. 9, 28-

29). Nieto further observed what

appeared to be a revolver in

ABISLAIMAN's waistband when he lifted

his shirt. (T. 10, 28-29).

Based on the above

observations, Nieto radioed for a marked

unit to assist him in a possible

arrest. (T. 10). When Officer Raymond

Castillo arrived, the two officers

approached the vehicle and asked both

occupants to exit the vehicle. (T. 12,

31-34). After frisking ABISLAIMAN for

weapons, Nieto immediately reached into

the vehicle for the revolver. (T. 12-

13). A further search of the vehicle

disclosed five methaqualone tablets on

the floor of the vehicle wrapped in a

napkin and 3.3 grams of marijuana on or

near the passenger seat. (T. 14-35).

When Nieto asked ABISLAIMAN about the

gun, ABISLAIMAN said that the gun was

-7-

there because of Miami's high crime

rate. (T. 17).

JORGE ABISLAIMAN was charged

with carrying a concealed firearm,

possession of three grams of marijuana,

and possession of five methaqualone

tablets. ABISLAIMAN's Motion to

Suppress physical evidence and

statements was granted by the trial

court, which ruled that the warrantless

use of a high powered “zoom" lens camera

by a police officer to peer into the

otherwise unseen interior of an

automobile lawfully parked on private

property was inconsistent with

constitutional protections against

unreasonable searches and seizures.

On appeal by the State of

Florida, tie Third District Court of

Appeal reversed the order suppressing

the physical evidence, not by addressing

the crucial issue involving the law

enforcement use of this sophisticated

technology, but by holding that

ABISLAIMAN "had no reasonable

expectation of privacy even from such an

intrusion as occurred here." State v.

Abislaiman, 437 So.2d 181, 183 (Fla. 3d

DCA 1983). The Third District Court of

Appeal did not address the merits of the

search issue. 3

ABISLAIMAN sought

discretionary review in the Supreme

Court of Florida. That court denied

ABISLAIMAN's Petition for Review. All

proceedings have been stayed pending

disposition of certiorari review by the

Supreme Court of the United States.

REASONS FOR GRANTING THE WRIT

I. THE DRIVER OF A MOTOR VEHICLE

WHOSE CAR IS LAWFULLY PARKED IN A

PRIVATE HOSPITAL PARKING LOT IN THE

MIDDLE OF THE NIGHT HAS A REASONABLE

EXPECTATION OF PRIVACY.

II. EVIDENCE WHICH CAN ONLY BE

OBSERVED THROUGH USE OF A HIGH

POWERED TELESCOPIC CAMERA IS NOT

IN PLAIN VIEW.

III. A DEFENDANT HAS STANDING TO

CHALLENGE THE LEGALITY OF HIS ARREST

AND EVIDENCE SEIZED AS A RESULT OF

THAT ILLEGAL ARREST MUST BE

SUPPRESSED AS BEING THE FRUIT OF THE

POISONOUS TREE.

THE DRIVER OF A MOTOR VEHICLE WHOSE

CAR IS LAWFULLY PARKED IN A PRIVATE

HOSPITAL PARKING LOT IN THE MIDDLE

OF THE NIGHT HAS A REASONABLE

EXPECTATION OF PRIVACY

The Fourth Amendment to the

United States Constitution guarantees to

all people the right “to be secure in

their persons, houses, papers, and

effects against unreasonable searches

and seizures." When a Fourth Amendment

violation takes place, the exclusionary

rule may be asserted as one form of

remedy. Rakas v. Illinois, 439 U.S.

128, 99 S.Ct. 421 (1978); United States

v. Calandra, 414 U.S. 338, 347, 94 S.Ct.

613, 619 (1974). However, the doctrine

-10-

of standing limits application of the

exclusionary rule in that “only

defendants whose Fourth Amendment rights

have been violated [may] benefit from

the [exclusionary] Rule's

protections." United States v.

Salvucci, 448 U.S. 83, 87 100 S.Ct.

2547, 2550 (1980), citing Rakas vy.

Illinois, supra at 134, 99 S.Ct. at 425;

Alderman v. United States, 394 U.S. 165,

171, 89 S.Ct. 961 (1969).

The Constitution protects only

legitimate expectations of privacy.

When deciding standing questions, the

focus is on the defendant's legitimate

expectation of privacy in the premises

searched. United States v. Salvucci,

supra at 94, 100 S.Ct. at 2553; Rakas v.

Illinois, supra at 143, 99 S.Ct. at 430;

Katz v. United States, 389 U.S. 347,

353, 88 S.Ct. 507, 512 (1967); see

United States v. Chadwick, 433 U.S. l,

olie

7, 97 S.Ct. 2476, 2481 (1977).

The scope of the privacy

interests relevant to the Fourth

Amendment is only that which a free

people may legitimately expect. This

expectation of privacy must be "one that

society is prepared to recognize as

‘reasonable'". Katz v. United States,

supra at 361, 88 S.Ct. at 516 (Harlan

J., concurring). No single factor is

determinative when assessing the

reasonableness of the asserted privacy

expectation. Although property

ownership is an important factor in

considering whether an individual has an

expectation of privacy, it is neither

the beginning nor the end of the Court's

examination. United States v. Salvucci,

supra at 93, 100 S.Ct. at 2553.

However, generally, one who has the

right to exclude others from the

property will in all likelihood have a

-i12-

legitimate expectation of privacy. Such

an ability to exclude is consonant with

the authority of one who lawfully

possesses, controls or owns the area in

question. See Rakas v. Illinois, supra

at 146 n. 12, 99 S.Ct. at 431 n. 12.

This Court in Rakas discussed

the key factors which constitute proof

of an expectation of privacy as

determined in Jones v. United States,

362 U.S. 257, 80 S.Ct. 725 (1960) and

Katz v. United States, supra. In Jones,

the Court emphasized that Jones had a

key to the subject premises and kept

possessions there as a sufficient

indication that he had dominion and

control over the apartment and could

exclude others from it. Rakas v.

Illinois, supra at 154, 99 S.Ct. at

433. In Katz, the Court was examining

the question of whether defendant had a

legitimate expectation of privacy in a

-13-

telephone booth. The Rakas court, in

discussing Katz, viewed his closing the

door to the telephone booth behind him

to exclude all others and paying the

toll as significant indications of his

expectation of privacy. Id. Other

factors to be considered in determining

an expectation of privacy are whether

the defendant has taken measures to

insure his privacy, and whether the

items seized were in plain view. See

United States v. Weber, 668 F.2d 552,

558-59 (lst Cir. 1981) cert.denied

U.s. , 102 S.Ct. 2904 (1982); United

States v. Bellina, 665 F.2d 1335 (4th

Cir. 1981); United States v. Lupo, 652

F.2d 723, 727 (7th Cir. 1981)

U.S. , cert.denied, 102 S.Ct. 2964

(1982). See, e.g.,United States v.

Chadwick, supra at 1l, 97 S.Ct. at 2483

(defendant locking personal effects

inside footlocker manifests expectation

-14-

of privacy).

The fundamental constitutional

error involved in the present case is

the process of eliminating all

legitimate privacy interests in a motor

vehicle and its contents. In this

regard, the Florida District Court of

Appeal has gone too far in creating a

totally new rule of law which

substantially departs from existing

constitutional law.

Although the court has

recognized certain differences between

one's expectation of privacy in

automobiles and one's expectation of

privacy in a residence and other

property ,2/ an individual still may have

2/ ‘he Court has recognized several

reasons for the distinction between

automobiles and other private

property. First, the mobility of

automobiles makes it impractical to

obtain a warrant. See, e.g., United

States v. Chadwick, supra at 12, 97

‘(fn.cont.)

=}5—

a legitimate expectation of privacy in

an automobile which the Court is willing

to recognize as reasonable. United

States v. Ross, U.S. , 102 S.Ct.

2157, 2171 (1982) (the Court stated that

although an individual has an

expectation of privacy in a vehicle and

its contents, such an expectation does

not survive if probable cause is given

S.Ct. at 2484; Chambers v. Maroney, 399

U.S. 42, 49-50, 90 S.Ct. 1975, 1980

(1970); Carroll v. United States, 267

U.S. 132, 45 S.Ct. 280 (1925). Second,

an automobile "‘'travels public |

thoroughfares where its occupants, and

contents are in plain view.'" United

States v. Chadwick, supra at 12, 97

S.Ct. at 2484 citing Cardwell v. Lewis,

417 U.S. 583, 590, 94 S.Ct. 2464, 2469

(1974). Third, states and localities

regulate the condition and manner in

which automobiles may be operated. Cady

v. Dombrowski, 413 U.S. 433, 441, 93

S.Ct. 2523, 2528 (1973). In short, the

configuration, use, and regulation of

automobiles may dilute one's expectation

of privacy. See Rakas v. Illinois,

supra; United States v. Chadwick, supra;

South Dakota v. Opperman, 428 U.S. 364,

368, 96 S.Ct. 3092, 3096 (1976);

Cardwell v. Lewis, supra at 590, 94

S.Ct. at 2469; Cady v. Dombrowski, supra

at 441-442, 93 S.Ct. at 2528.

~16<

to believe that the vehicle is

transporting contraband); United States

vy. Chadwick, supra at 12, 97 S.Ct. at

2484; Rakas v. Illinois, supra at 149-

150, 99 S.Ct. at 433-434 (if the

passengers of the vehicle could have

established a legitimate expectation of

privacy in the areas of the vehicle

searched, they would have been granted

standing to contest the search); South

Dakota v. Opperman, 428 U.S. 364, 96

S.Ct. 3092 (1976) (defendant had

expectation of privacy in automobile

sufficient to challenge inventory search

of vehicle after it was impounded).

The cases which discuss the

differences between automobiles and

- other private property do so in the

context of discussing the automobile

exception to the warrant requirement.

However, the automobile exception does

not automatically apply whenever

-17=

automobiles are searched. As noted by

the court in Coolidge v. New Hampshire,

403 U.S. 443, 461-462, 91 S.Ct. 2022,

2035 (1971), “(t]he word ‘automobile' is

not a talisman in whose presence the

Fourth Amendment fades away and

disappears." In the same sense, simply

because one has a diminished expectation

of privacy in-an automobile does not

mean that one can never have a

legitimate expectation of privacy which

society is willing to call reasonable.

For example, in United States

v. Posey, 663 F.2d 37 (7th Cir. 1981),

cert.denied, U.S. , 102 S.Ct.

1473, the defendant did not own the

vehicle searched or the gun seized,

However, the defendant did have his

wife's permission to use the vehicle at

the time of the search. The court

concluded that the defendant had a

legitimate expectation of privacy in the

-18-

automobile because he was exercising

exclusive control of the vehicle

pursuant to his wife's permission at the

time of the search. Id. at 41.

Moreover, in United States v. Perez, 689

F.2d 1336 (9th Cir. 1982), the

defendants, who did not own the vehicle

in question, met their burden of

establishing a reasonable expectation of

privacy in the truck. The defendants in

Perez made formal arrangements for

transportation of narcotics in the

vehicle. To make sure no one interfered

with delivery of the narcotics, the

defendants kept the truck under

surveillance by riding in it or

following it in another vehicle. The

court determined that the foregoing

factors were sufficient to establish a

reasonable expectation of privacy in the

truck. Finally, in United States v.

Glasgow, 658 F.2d 1036 (5th Cir. 1981),

~19a

the court recognized that lawful

possession and control with the right to

exclude others indicates that a

defendant had a legitimate expectation

of privacy in an automobile. Id. at

1044.

The foregoing principles, when

considered together with the opinion of

the Third District Court of Appeal in

this case, strongly suggest that the

Florida courts misunderstood the

constitutional expectation of privacy

standard. The case under review

effectively rules that automobiles can

never be repositories of an expectation

of privacy, notwithstanding one's

careful attempts to keep the contents

thereof hidden from view. This judicial

elimination of a piivacy interest in

such a class of cases cannot be

tolerated.

ABISLAIMAN clearly held a

-20-

~ CATA sede PGS adhe Aces Ss eas Vin AME eee a

PRESS ERS oR eR SSUES AT

Pa . ™ See eee eee ee. 7

legitimate expectation of privacy with

respect to his ectivities in the vehicle

on the night in question. In fact, that

such a privacy expectation existed was

so obvious that the trial court ruled

that there was no “standing” problem.

Questioning [by defense counsel]:

---it is my understanding there is a

question in this case as to the

defendant's standing to contest the

search of his vehicle.

The Court: I don't think that is

necessary at all. It is obvious the

car was under his control, in his

possession....

[Fs . are

Every conceivably relevant

factor to the issue of a reasonable

expectation of privacy existed in this

case. Abislaiman lawfully possessed the

vehicle. He had @& right to be in the

private parking lot, and he legally

parked the car. (R. 9-10). Abislaiman

did not bandy his activities about in

full view of the vehicle windows or

-21-

conduct his actions in an area streaming

with public traffic. Nor was he

situated in an environment where people

can expect their activities to be

noticed. Instead, the location of his

car, the nature of his activities, the

fact that his actions were all

accomplished at waist level below the

visibility through the windows, and the

time of day, all serve to underscore his

legitimate belief that he was not

exposing himself to public view.

Society would approve of this

expectation.

This issue commands even

greater importance when it is understood

that the analytical approach utilized by

the Florida courts is a total rejection

of the Fourth Amendment with respect to

automobiles. This rule emanating from

the Florida court system is inconsistent

with this Court's constitutional

-22-

framework. If it is constitutionally

correct that a driver possesses no

societally acceptable privacy

expectation in an automobile, then this

Court's decisions in United States v.

Ross, supra, and Belton v. New York, 453

u.S. 454, 101 S.Ct. 2860 (1981) were

unnecessary in that the merits of the

underlying searches and seizures should

never have been addressed. Moreover,

there would be no need to resolve a

vehicle search question by resorting to

an “incident to arrest" standard if the

interior of the car is not a

constitutionally protected area.

This Court is now being called

upon to resolve this issue, which is of

critical concern to law enforcement

interests as well as the general

public. Can it be said that society is

willing to delcare that motor vehicles

are open to public view in the same way

-23—

that an open field is considered

accessible? See Oliver v. United

States, U.S. ___, 104 S.Ct. 1735

(1984). Moreover, when an intrusion

takes the form of the technological

surveillance utilized in this case, then

most certainly the Constitution must

protect against the continuation of this

law enforcement conduct.

EVIDENCE WHICH CAN ONLY BE OBSERVED

THROUGH USE OF A HIGH POWERED

TELESCOPIC CAMERA IS NOT IN PLAIN

VIEW.

Use of high powered camera

equipment to observe that which the

naked eye could not alone discern

constitutes an unlawful search. United

States v. Taborda, 635 F.2d 131, 138-139

(2d Cir. 1980). As the trial court held

in the present case, Officer Nieto

intruded onto ABISLAIMAN's

constitutionally protected area by

-24-

spying directly into the automobile with

a sophisticated electronic device

capable of making observations not

readily available to a human being.

The plain view doctrine cannot

be utilized to justify a search of an

area only observable through the use of

a high powered telescopic camera.

Numerous cases, when considering the use

of ultra-sophisticated spy technology,

resolve search and seizure issues by

finding that the Constitution does not

permit such gross intrusion without the

prior acquisition of a warrant. E.gq.,

United States v. Taborda, supra; United

States v. Kim, 415 F.Supp. 1252 (D. Ha.

1976); State v. Barnes, 390 So.2d 1243

(Fla. lst DCA 1980), cert.denied, 399

So.2d 1145 (Fla. 1981); See also Wheeler

v. State, 659 S.W.2d 381 (Tex. Crim.

App. 1983) (After using an array of

surveillance enhancement techniques,

-25-

officers employed a 600 millimeter lens

and were able to peer through louvers to

see contraband. The court found use of

the lens went beyond the general rule

allowing warrantless use of binoculars

and therefore violated defendant's

expectation of privacy).

The analysis used in these

cases is correct, and is based on the

approach taken by this Court in Katz v.

United States, supra, which involved the

determination of the boundaries of what

was then state of the art law

enforcement technology. In that seminal

decision, this Court enunciated the

principle that one has no legitimate

expectation of privacy in any object

which is exposed to plain view. The

court in Katz stated “(wJhat a person

knowingly exposes to the eubite; even in

his own home or office, is not a subject

of Fourth Amendment protection." 389

~26-

U.S. at 351, 88 S.Ct. at 511.3/

As this Court declared in

Harris v. United States, 390 U.S. 234,

236, 88 S.Ct. 992, 993 (1968), "[i]t has

long been settled that objects falling

in the plain view of an officer who has

a right to be in the position to have

that view are subject to seizure and may

be introduced in evidence." The

justification for this reasoning is that

one who places an item in plain view has

not “exhibited an actual (subjective)

3/ This Court's most recent decisions

continue to rely on the conception of

the purpose and scope of the Fourth

Amendment that was enunciated in Katz.

.See, e.g., United States v. Jacobsen,

466 U.S. ‘ 104 S.Ct. 1652, 1659,

(1984); Michigan v. Clifford, 464

U.S. je 104 S.Ct. 641, 646,

(1984): Illinois v. Andreas, 463

U.s. 7 103 S.Ct. 3319, 3323,

(1983); United States v.Place, 462

g.S. 9 103 S.Ct. 2637, 2641,

(1983); Texas v. Brown, 460 U.S.

S.Ct. 1535, 1542, (1983);

United States v. Knotts, 460 U.S.

, 103 S.Ct. 1081, 1085, (1983).

-27@-

expectation of privacy” in the object.

Katz v. United States, supra at 361, 88

S.Ct. at 516.

Needless to say one does not

expose to the public those items in a

vehicle which may be viewed only through

employment of a powerful sophisticated

camera which enables its operator to

monitor events and make visual

observations which could not be done

with the naked eye or the use of

conventional instruments such as

binoculars and flashlights. See State

v. Barnes, supra at 1244. This is not a

case in which the monitoring officer

could have changed his position, bent

down, or adjusted his view to a

different angle so he could see inside

the automobile. This is also not a

situation like the one suggested in

Texas v. Brown, U.S. » aoe 8.Ct.

1535, 1542 (1983), wherein this Court

-28-

stated:

..-There is no legitimate

expectation of privacy, Katz v.

ee States, supra, 389 U.S., at

P ~-Ct., at 516 (1967)

(Harlan, J., concurring); Smith v.

Maryland, 442 u.S. 735, 739-745, 99

S.Ct. 2577, 2579-2583 (1979),

shielding that portion of the

interior of an automobile which may

be viewed from outside the vehicle

by either inquisitive passersby or

diligent police officers.

Where a law enforcement

officer is stationed in a location which

is outside a constitutionally prohibited

area and that officer is looking inside

a constitutionally protected area, he

has not made an illegal search within

the Fourth Amendment. United States v.

Bellina, supra at 1342; United States v.

Burns, 624 F.2d 95, 100 (10th Cir.

1980). However, as the trial court held

in the present case, Officer Nieto

intruded onto ABISLAIMAN's

constitutional rights by spying into a

lawfully parked automobile in a private

=29—

location by using a sophisticated

electronic device capable of making

observations not otherwise available to

a human being. The issue is not so

readily resolved. The critical factor

here is that the sophisticated

technology utilized here does not simply

enhance one's senses, but effectively

gives that person the ability to do

things that could not be otherwise

done. While the Constitution does not

reject the use of new technology, it

certainly does not condone the use of

highly advanced developments which

effectively do away with constitutional

rights.

Furthermore, ABISLAIMAN wholly

agrees that the use of flashlights,

searchlights, binoculars, and marine

glasses are not prohibited by the

Constitution. Texas v. Brown, supra

at , 103 S.Ct. at 1541. However,

=30-

this case does not involve the use of

any of the above instruments. The

device used here is of a much more

offensive nature. It did not simply

enhance the use of the naked eye.

Rather, it gave the officer ability far

beyond sensory enhancement. Officer

Nieto through the use of the high

powered camera was able to be in more

than one place at one time and could do

things that could not otherwise be

done. 4/ Through use of the camera,

4/ this impermissible action is

analogous to that involved in Dow

Chemcial Co. v. United States, 536

F.Supp. 1355 (E.D.Mich. 1982), where the

court stopped the warrantless aerial

photography of the Dow manufacturing

plant by the EPA. The court was

especially concerned with the use of

high technology vision enhancers,

holding that society would find it

reasonable to limit the authority of a

government with its “expanding arsenal

of technologically advanced surveillance

equipment.... This Court is not

prepared to conclude that Dow must build

a dome over its entire plant before it

can be said to have manifested or

(fn.cont.)

@3)-

Officer Nieto could zoom into the

vehicle -- in effect placing him inside

a constitutionally protected area.

Courts have not been reluctant

to suppress observations obtained

through the use of telescopic

instruments. For instance, in United

States v. Kim, 415 F.Supp. 1252 (D. Ha.

1976), that federal court suppressed

observations made by government agents

who utilized a high powered telescope

without a warrant to peer into a

defendant's apartment one quarter mile

away. The court recognized that:

[Tlhe sophisticated visual aids

available to the government can

intrude on individual privacy as

severely as the electronic

surveillance in Katz [v. United

States, 389 U.S. 347, 88 S.Ct. 507

(1967)] or the wiretapping in Berger

v. New York, 388 U.S. 41, 87 S.Ct.

1873 (1967).... If government

agents have probable cause to

suspect criminal activity and feel

the need for telescopic

exhibited an expectation of privacy."

o32<

surveillance, they may apply for a

warrant; otherwise, they have no

right to peer into people's windows

with special equipment not generally

in use.

Id. at 1255-1256 (footnote omitted).

Similarly, in United States v.

Taborda, 491 F.Supp. 50 (E.D.N.Y.),

aff'd. in part and remanded, 635 F.2d

131 (2d Cir. 1980), the trial court

suppressed evidence initially observed

in the defendant's apartment through the

use of high powered telescopic

equipment. DEA agents conducted their

surveillance by using a sophisticated

telescope to look through the open

windows of the defendant's apartment. A

search warrant was issued by a

magistrate based upon the telescope

assisted observations. Suppressing the

fruits of the subsequent search, the

court held, at 52:

[A] ‘high powered' Ee is

hardly less intrusive and offensive

than a hidden microphone. Both

=33-

devices could force us to close our

lives in order to escape the

government's watchful eyes and

attentive ears. This Court

therefore holds that this case is

governed by the Katz decision and

that the government must first

obtain judicial sanction before

using a telescope. (emphasis

added).

The Taborda court carefully pointed out

that leaving the window shades open did

not diminish the defendant's legitimate

expectation of privacy. The use of the

high powered telescope made the search

unreasonable because it permitted the

observation of objects not readily

discernable by the naked eye from 200

feet away. Id. at 53. On appeal by the

government, the Second Circuit affirmed

the conclusion that the use of high

powered optical equipment to observe

that which the naked eye could not alone

discern constituted an unlawful

search. United States v. Taborda, 635

F.2d 131, 138-139 (2d Cir. 1980).

The evidence in question here

-34-

was not in plain view, for the

Petitioner never exposed his conduct to

others, whether private citizens or

government officials. Cf. United States

v. Jacobsen, U.S. , 104 S.Ct.

1652 (1984) (warrantless field test of

substance contained in package

discovered during a search by private

freight carrier did not infringe upon

any legitimate expectation of

privacy). Therefore, the plain view

doctrine cannot be utilized to negate

ABISLAIMAN's legitimate expectation of

privacy in the area searched. The use

of the sophisticated high power camera

intruded to an area in which ABISLAIMAN

had a legitimate expectation of

privacy. If this type of police conduct

is not restricted, where will it stop?

This Court must affirmatively act to

stop this type of police conduct.

-35-

Itt

A DEFENDANT HAS STANDING TO

CHALLENGE THE LEGALITY OF HIS ARREST

AND EVIDENCE SEIZED AS A RESULT OF

THE ILLEGAL ARREST MUST BE

SUPPRESSED AS THE FRUIT OF THE

POISONOUS TREE.

In order to effect an arrest,

which is a type of seizure of the

person, law enforcement officers must

possess probable cause. Otherwise, the

arrest or seizure offends the Fourth

Amendment. Dunaway v. New York, 442

U.S. 200, 207, 99 S.Ct. 2248, 2254

(1979): Brinegar v. United States, 338

U.S. 160, 176, 69 S.Ct. 1302, 1311

(1949). If defendant's arrest is not

based on probable cause, then evidence

derivatively obtained from that arrest

is inadmissible as the fruit of the

original constitutional violation. See

United States v. Crews, 445 U.S. 463,

471, 100 S.Ct. 1244, 1249 (1980); Wong

Sun v. United States, 371 U.S. 471, 83

=-36—

S.Ct. 407 (1963).

In this case, ABISLAIMAN had a

reasonable expectation of privacy in and

about his person. “The Fourth Amendment

applies to all seizures of the person

including seizures that involve only a

brief detention short of arrest." Rakas

v. Illinois, supra at 162 n.5, 99 S.Ct.

at 439 n.5, citing Terry v. Ohio, 392

u.S. 1, 88 S.Ct. 1868 (1968). See

Colorado v. Bannister, 449 U.S. 1, 101

S.Ct. 42 (1980) (there can be no question

that the stopping of a vehicle and

detention of its occupants constitutes a

‘seizure’ within the meaning of the

Fourth Amendment).

The record is clear that when

ABISLAIMAN was forced out of his car by

the police in the parking lot of the

hospital he was under arrest. (T. 12-

13; R. 14-16). The only probable cause

for ABISLAIMAN's arrest was obtained

=37-

through the unlawful search of his

vehicle with the high powered telescopic

camera. Therefore, ABISLAIMAN's arrest

was unlawful and all evidence seized as

the result of that arrest must be

suppressed as the fruit of the poisonous

tree.

ABISLAIMAN was illegally

seized when asked to step out of his

car. The seizure was illeagal bece"se

there was no probable cause. Probable

cause did not exist because all the

facts within the officers' knowledge

which would cause them to reasonably

believe an offense had been committed,

Brinegar v. United States, supra at 175-

176, 69 S.Ct. at 1310-11; Carroll v.

United States, supra at 162, 45 S.Ct. at

288, were obtained in violation of

ABISLAIMAN's constitutional right to be

free from unreasonable searches and

seizures.

=$8-

CONCLUSION

The issues involved in this

petition go to the heart of our free

society. This Court needs to address

the serious Fourth Amendment policy

questions involved in this case.

[A]s technological capability of law

enforcement agencies increases, the

Fourth Amendment must grow in

response. To permit governmental

intrusions of the sort at issue in

this case to remain uncontrolled

would violate the basic foundations

of privacy, security and decency

which distinguish free societies

from controlled societies.

United States v. Kim, supra at 1257.

See Orwell, 1984 (1949).

Without clear guidelines from this Court

as to the permissible use of

technologically advanced law enforcement

equipment, both the public and the

criminal justice system suffers.

Certiorari review is the only

appropriate way to bring some clarity to

this very troubled area.

=39-

For these reasons a writ of

certiorari should issue to review the

judgment and opinion of the Florida

Third District Court of Appeal from

which discretionary review by the

Florida Supreme Court was denied.

Respectfully submitted,

BIERMAN, SONNETT, SHOHAT

& SALE P.A.

Attorneys for Petitioner

200 S.E. First Street #500

Miami, Florida 33131

(305) 358-7477

EDWARD R. SHOHAT

BENEDICT P. KUEHNE

JOHN M. KIERNAN

-40-

APPENDIX

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT IN

AND FOR DADE COUNTY, FLORIDA

CRIMINAL DIVISION

CASE NO.: 82-1895 (Kogan)

THE STATE OF FLORIDA,

Plaintiff,

vs.

JORGE ABISLAIMAN,

Defendant.

ORDER GRANTING MOTION TO

SUPPRESS ILLEGALLY SEIZED

EVIDENCE AND ORAL STATEMENTS

THIS CAUSE came on to be heard upon

the Motion(s) of the Defendant, JORGE

ABISLAIMAN, to suppress illegally

obtained evidence and oral statements,

pursuant to Rule 3.190 (h) (i), Florida

Rules of Criminal Procedure, and this

Court, after taking witness' testimony,

and considering the arguments and

memoranda submitted by counsel, makes

the following findings of fact and

conclusions of law, and hereby enters

its order that the Motion(s) to Suppress

be Granted:

FINDINGS OF FACT

1. The Defendant was arrested on

January 21, 1982, and charged with

possession of a concealed firearm,

Florida Statutes, Section 790.01,

possession of five (5) Quaaludes and

possession of 3.3 grams of marijuana,

Florida Statutes, Section 893.13. The

arrest was made by City of Miami police

officers, Carlos Nieto and Raymond

Castillo, on the grounds of Mercy

Hospital, within the jurisdiction of the

City of Miami Police.

2. At the time of the arrest,

Officer Nieto was working in an off-duty

capacity for Mercy Hospital, but in full

uniform. Although Officer Nieto was

assisting the Mercy Hospital Security

Officers, he at all times held himself

out to be an officer for the City of

Miami. Officer Nieto's function was to

assist the hospital security personnel

and to independently investigate

violations of the laws of the State of

Florida.

3. At approximately 2:30 A.M., on

the date of the arrest, Officer Nieto

was inside the Mercy Hospital security

camera monitor room. Mercy Hospital has

numerous security cameras located both

inside the hospital and on the grounds

outside. The Central Security Room

contains television monitors and remote

control equipment to operate the

security cameras. The security camera

involved in this case is located on a

tower in the parking lot, near the

emergency room entrance, approximately

75 to 100 yards from the Monitor Room.

4. By viewing the television

monitors, Officer Nieto observed the

Defendant's vehicle as it pulled into a

legal parking space, near the emergency

room entrance. The Defendant was with a

female companion. After observing the

occupants in the vehicle for several

minutes, Nieto's attention became

focused upon the Defendant. However,

Nieto initially saw no illegal activity

in or about the vehicle.

5. Officer Nieto, using the remote

control equipment in the monitor room,

repositioned the tower camera and

activated the zoom lens to look into the

Defendant's automobiie to see what the

Defendant was doing. Nieto testified

that this camera is powerful enough to

allow him to look into the vehicle and

readily observe all movement therein

without leaving the hospital security

office. Thus, Officer Nieto's

employment of the zoom lens camera

allowed him to observe objects and

movements that he could not otherwise

observe with the naked eye.

6. With the camera system, Nieto

observed the Defendant, “rolling” what

appeared to be a cigarette. Nieto could

not tell whether this cigarette

contained ordinary tabacco or

cannibis. Nieto continued his

electroric surveillance of the Defendant

and saw what appeared to be a revolver

in the Defendant's waistband when he

lifted his shirt. According to Nieto,

the Defendant removed the revolver from

his waistband and placed it on the floor

of the car in front of the driver's

seat.

7. As a result of these

observations, involving a potential

violation of the Florida Statutes

regarding the possession of concealed

firearms and narcotics, Nieto radioed to

his dispatcher for a marked unit to

assist him in a possible arrest.

Officer Raymond Castillo was dispatched

to assist Nieto's investigation.

Officer Nieto, then accompanied by

Officer Castillo, proceeded out to the

Defendant's vehicle in the parking lot

and asked both occupants to exit the

vehicle. After the Defendant got out

and was frisked for weapons, Nieto

reached into the vehicle to search for

the revolver. The weapon was located on

the floor of the vehicle, in front of

the driver's seat. When Wieto asked the

Defendant about the gun, he allegedly

responded that the gun was there because

of Miami's high crime rate.

8. The Defendant was placed under

arrest for the offense of carrying a

concealed firearm, and was told that his

vehicle was being impounded. A decision

to impound the vehicle had been made

despite the fact that it was lawfully

parked and posed no threat to traffic

safety in the area. Officer Nieto, the

only witness to testify for the State at

the suppression hearing, admits that he

never advised the Defendant of

alternatives to impoundment, i.e.: that

he could leave the vehicle in the

parking lot, or have a friend or

relative come to pick it up. Officer

Nieto does not know whether such

alternatives were given to the Defendant

by the other arresting officer, Raymond

Castillo.

9. Before the Defendant was

transported from the scene, the vehicie

was thoroughly searched by the officers,

pursuant to a pre-impoundment

inventory. The five (5) Quaaludes were

discovered on the floor of the vehicle,

wrapped in a napkin, and the 3.3 grams

of marijuana was discovered on or near

the passengers seat.1/

10. The Defendant moved to suppress

the seized firearm and controled

substances as the product of an illegal

search and seizure. The Defendant also

moved to suppress the alleged statements

as the product of an illegal arrest.

CONCLUSIONS OF LAW

The Fourth Amendment to the United

States Constitution and Article I,

Section 12, of the Florida Constitution

guarantee to all people the right “to be

secure in their persons, houses, papers,

and effects against unreasonable

searches and seizures". Warrantless

searches and seizures are per se

unreasonable as a matter of law, unless

i/ According to Officer Castillo's

deposition testimony, the Defendant

claimed that everything in the vehicle

was his, and that he had a prescription

for the Quaaludes. Later, while in

Officer Castillo's police vehicle, he

admitted that he had no prescription for

the Quaaludes.

the prosecuting agency can show that the

seizure and search fall within one of

the few exeptions to the warrant

requirement. Coolidge v. New Hampshire,

403 U.S. 443, (1971); Stover v.

California, 376 U.S. 483 (1964).

In Norman v. State, 379 So.2d 643

(Fla. 1980), our Supreme Court

recognized that one who owns or lawfully

possesses or controls property does in

all likelihood have a “legitimate

expectation of privacy by virtue of his

right to exclude". See also, Rakas v.

Illinois; 439 U.S. 128, 99 S.Ct. 2556

(1980). The interior of one's

automobile, like any other area which

the Defendant chooses not to expose to

public or governmental scrutiny, is an

area in which the Defendant has a

legitimate expectation of privacy

protected by the Fourth Amendment. Rakas

v. Illinois, supra.; State v. Adamosky,

407 So.2d 983 (Fla. 4th DCA 1981). In

the present case, it was clearly

established that the subject motor

vehicle was the property of and/or in

the exclusive control of the Defendant,

ABISLAIMAN, and his expectation of

privacy therein was thus legitimate.

The pivotal issue in this case is

whether the warrantless search and the

subsequent seizure in this cause can be

sustained as a lawful “open view"

observation by Officer Nieto. It is the

conclusion of this Court that Officer

Nieto's use of the high powered

telescopic camera constituted an

unlawful search of the interior of the

Defendant's vehicle. Thus, the

subsequently seized firearm and

controlled substances must be

suppressed. |

In Ensor v. State, 403 So.2d 349

(Fla. 1981), the Defendant's vehicle had

Al0

been lawfully stopped for a traffic

violation. While two officers

questioned the Defendant about his

erratic driving behavior, two other

officers looked into the vehicle and

observed a firearm on the floor of the

passenger side. The officer's visual

observation of the weapon was upheld by

the Supreme Court as the product of a

lawful “open view" observation. The

Court then upheld the subsequent seizure

of the weapon on the basis that the

visual observation provided probable

cause, and the movable character of the

vehicle created sufficient exigent

circumstances to excuse the necessity

for a warrant. See,e.g. Albo v. State,

379 So.2d 648 (Fla. 1980); Carroll v.

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

the reasons stated below, the initial

observation by Officer Nieto was not a

lawful “open view" observation as that

All

term is defined in Ensor v. State,

supra., and was thus illegal.

In Pomerantz v. State, 372 So.2d

104 (Fla. 3rd DCA 1979),.the Court

identified the applicable criteria for a

lawful plain sight discovery of evidence

as follows, to wit:

1. The police must observe the

evidence in plain sight without

the benefit of a search,

2. The police must have a legal

right to be where they are to

make the plain sight

observation, and

3. The police must have

probable cause to believe the

evidence seen constitutes

contraband...Id. 110.