Petition — Florida v. Meyers

83-1279 = [Ser ors

JAN

zm

ALEXAN

CASE NO. pte.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

STATE OF FLORIDA,

Petitioner,

vs.

JOHN SCOTT MEYERS a/k/a

JOHN SCOTT WEYERS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

DISTRICT COURT OF APPEAL OF THE STATE

OF FLORIDA, FOURTH DISTRICT.

JIM SMITH

Attorney General

RUSSELL S. BOHN

Assistant Attorney General

111 Georgia Avenue - Suite 204

West Palm Beach, Florida 33401

Telephone (305) 837-5062

Counsel of Record for Petitioner

ae

>, Ree

QUESTION PRESENTED

WHETHER THE FOURTH DISTRICT COURT

OF APPEAL OF THE STATE OF FLORIDA

Y CONSTRUED THE FOURTH

TO THE UNITED STATES

CONSTITUTION BY HOLDING THAT AFTER .

POLICE OFFICERS HAVE VALIDLY SEARCHED F

AND IMPOUNDED AN AUTOMOBILE, A SECOND yey

SEARCH OF THAT SAME AUTOMOBILE, BASED

ON PROBABLE CAUSE, EIGHT HOURS LATER a

WHILE THE AUTOMOBILE IS STILL IMPOUND- "

ED REQUIRES A WARRANT? ee

:

3

ii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

GROUND UPON WHICH JURISDICTION

IS INVOKED .

FEDERAL CONSTITUTIONAL

PROVISION INVOLVED

REASONS FOR GRANTING THE WRIT

CONCLUSION

iii

TABLE OF AUTHORITIES

PAGE

Chambers v. eareves

399 U.S. 42 (1970) 10

Coolidge v. New shire,

403 U.S. 443 (1971) 6,10,11

Dillon v. Cha .

404 So.2d 354 (Fla. 5th

DCA 1981) 12

Illinois v. Andreas,

U.S. » 77 L.Ed.2d

T003 (1983) 8,9,12

ers v. State,

432 So.2d 97 (Fla. 4th

DCA 1983) 1

Michigan v. Thomas

4 ‘s U.S. 73 L.Ed.2d

750 (1982) 9

E: State v. Haye

i e333 So.24 Si (Fla. 4th DCA 1979) 12

2 United States v.

433 U.S. 1, 11-13 31979)" 7

| Per States v. Ross be

b Pa U.S. 798 (1982) 6 ’

"williams v.

<<

look

. Florida > : ae "

+ 399 U8. 78; n.5'(1970) 2° aa

n wan 2" See oie Fu de a ne = _* “ed

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TS. ele 7 a

28 U.S.C. § 1257(3)

aT a

1

OPINION BELOW

The opinion of the District Court of

Appeal of the State of Florida, Fourth

District, was filed on April 20, 1983;

that court denied rehearing on June 15,

1983. Meyers v. State, 432 So.2d 97

(Fla. 4th DCA 1983).

GROUND UPON WHICH JURISDICTION IS

INVOKED

The opinion of the District Court of

Appeal of the State of Florida, Fourth

District, was filed on April 20, 1983,

reversing respondent's conviction and

sentence (dated April 22, 1982 and June

3, 1982, respectively), and remanded the *

case for a new trial (A 1-7). That

court denfed a timely motion for rehear-

ing on June 15, 1983 (A-8). In an un- ;

reported order, the Supreme Court of :

Florida denied the state's petition for

discretionary review on November 29, e

1983 (A 9-10). Thus, the opinion of the se

Fourth District Court of Appeal is the | .

decision of the highest court in which =|

decision could be had in this.case. See =

Williams v. Florida, 399 bei 7, 80 n te oe is

(1970).

This petition is timely filed within

60 days of the denial of review by the

Florida Supreme Court, and this Court's

jurisdiction is invoked under 28 U.S.C.

§ 1257(3). [An order tolling and ex-

tending the state speedy trial period

pending the disposition of the instant

petition has been entered by the trial

court. ]

FEDERAL CONSTITUTIONAL

PROVISION INVOLVED

The Fourth Amendment to the United

States Constitution provides as follows:

The right of the people to be

secure in their persons, houses,

papers, and effects, un- |

reasonabie searches seizures,

shall not be violated, and no

warrants shall issue, but upon

probable cause, supported by pone

and affirmation, and particular fo be egarch

Sd cai the’ oa place to be —_

ed, and ate cage or things to

be seized.

STATEMENT OF THE CASE

As the opinion of the Fourth District

ee recites, de-

3

fendant+/was charged with sexual battery

of a woman in the woman's bathroom of a

motel at around 4:30 a.m.. Defendant

and the victim were the only persons

present, and their stories conflicted.

The victim testified that defendant had

forcibly tied her to a sink with a cord

or piece of cloth before sexually batter-

ing her. Defendant testified that he did

not tie the victim, but that he had en-

gaged in consensual sex with her and that

she objected only when he attempted a

different method of sexual intercourse.

Defendant was arrested an hour or so

later, and incident to his arrest the

police searched his automobile and

seized items of evidence related to the

sexual battery. The vehicle was then

towed to Sunny's Wrecker impoundment

where it was locked in a secure area.

Neither the first search nor the in-

poundment were challenged on appeal.

Eight hours after defendant's arrest;

another officer returned to the car to

4

search for the cloth strip with which

the victim said she had been tied. No

warrant was obtained, and the cloth

strip was seized and used as evidence at

trial.

On ‘appeal by defendant, the fourth

district held that defendant's pretrial

motion to suppress the cloth strip

should have been granted. It rejected

the officer's contention at trial that

his second search of defendant's vehicle

was incident to defendant's arrest. The

court also rejected the state's argument

on appeal (A 11-13) that the second

search constituted no greater intrusion

on defendant's Fourth Amendment rights

than did the first search, and that

although it was warrantless it was none-

theless validly executed based upon

probable cause. The district court re-

viewed the various exceptions to the

warrant requirement and found none of

them to apply. It held that the case

must be reversed and remanded for a new

trial besed on this holding. At the

conclusion of the opinion, since the

5

case was to be remanded for a new trial

on the basis already discussed, the

court decided to “briefly mention

another appellate point,” observing that

the trial judge had unduly limited de-

fendant's cross examination of the

victim and that he should not be so

limited on retrial.

Thereafter, the state timely filed a

motion for rehearing and/or certification

question (A 14-31), which was denied

(A 8). A timely petition for discretion-

ary review was denied by the Florida

Supreme Court (A 9-10). This proceeding

follows.

REASONS FOR GRANTING THE WRIT

The central issue in this case can be

simply stated: Does a second, warrant-

‘less search of an automobile for evidence

based on probable cause seem unreasonable

where the police just hours before had.

Me

already searched, obtained evidence from.

and impounded the same vehicle? Relying .

entirely upon cases decided by this a 1

Court, the Fourth District Court of mite

Appeal has said yes. The state respect- ‘aa

6

fully maintains that those same cases

indicate that the answer should be no.

To the state's knowledge, this question

has never been specifically passed upon

by this Court, and the state contends

that it is worthy of this Court's review

at this time.

The fourth district held that the

contested search in this case did not

fall within any of the recognized ex-

ceptions to the warrant requirement.

However, it must be remembered that

the Fourth Amendment does

not require that every

search be made pursuant to

a warrant. It prohibits

only "unreasonable searches

and seizures." The relevant

test is not the reasonableness

of the opportunity to procure

a warrant, but the reasonable-

ness of the seizure under all

the circumstances.

Coolidge v. New Hampshire, 403 U.S. 443,

509-510 (1971) (Black, J., concurring and

a dissenting). Furthermore, a well-recog-

f nized exception to the warrant require- ‘

ment applies to searches of vehicles that

a are supported by probable cause. As this : .

~% Court recently stated in United States v. Ag

Mos ; % ee

_ . . ea a.

ie, < F

7

Ross, 456 U.S. 798, 809 (1982), “[iJjn

this class of cases, a search is not un-

reasonable if based on facts that would

justify the issuance of a warrant, even

though a warrant has not actually been

obtained." (Footnote omitted.)

The automobile exception to the

warrant requirement is grounded not only

on the mobile nature of automobiles,

but also on the recognition that a

person's reasonable expectation of

privacy in an automobile is less than

that which pertains to a private dwell-

ing or other building, and therefore is

more open to legitimate governmental

intrusion. See United States v.

Chadwick, 433 U.S. 1, 11-13 (1977).

In the instant case, defendant's arrest *

followed very shortly after the incident e

giving rise to it. His automobile was P

immediately searched, evidence was ob- g

"" tained therefrom, and it was impounded. j

od Especially in view of the lesser ex- e

pectation of privacy which pertains to ~ |

automobiles initially, what further ex- ‘4

pectation of privacy remained to defend- =§

ant after the first search? Since the =

.

-

¥

automobile had been impounded, how could

defendant's expectation of privacy re-

turn after his privacy interests had

already been invaded by a valid in-

trusion, and there had been no inter-

vening possession by defendant befvre

the second search?

This situation differs entirely from

that which obtains in the search of a

home or office, where living and its

attendant privacy expectation goes on

after the police leave. This Court re-

cently met a similar issue in Illinois

v. Andreas, U.S. __, 77 L.Ed.2d

1003 (1983), dealing with a second

search of a closed container. This

Court held that the warrantless re-

opening of a sealed container which had

been discovered in an earlier lawful

border search did net intrude on any

legitimate expectation of privacy. No

protected privacy interests remained in

the container after the government | 4

officers had lawfully opened it, and ou a

the “simple act of resealing the a

container...[did] not operate to revive

9

or restore the lawfully invaded privacy

rights." 77 L.Ed.2d at 1010. Since the

inspection by police did not intrude

upon a legitimate expectation of privacy,

there was no search subject to the

Warrant Clause. Id. The state main-

tains that the same reasoning should

apply here.

Even if an expectation of privacy

survivedthe first search and impoundment,

the state maintains that the automobile

exception to the warrant requirement

applies. The fourth district held that |

it did not, because "in this case the ,

element of mobility was removed because

the appellant's vehicle had been in-

pounded." That holding has been laid to .

rest by this court's decision in

Michigan v. Thomas, U.S. __, 73 .

L.Ed.2d 750, 753 (1982), where this

court stated: |

In Chambers v. Maroney,

399 US 42, 26 L Ed 2d .

419, 90 S Ct 1975 (1970),

we held that when police

officers have probable

10

ee Se

on the road, the officers

may conduct a warrantless

search of the vehicle, even

after it has been impounded

and is in police custody.

We firmly reiterated this

holding in Texas v. White,

423 US 67, 46 L Ed 2d 209,

96 S Ct 304 (1975). See

also United States v. Ross,

US ‘ . oo o wee

L Ed 2d 572 (1982). It is

thus clear that the justi-

fication to conduct such a

warrantless search does not

vanish once the car has been

immobilized; nor does it de-

pend upon a reviewing court's

assessment of the likelihood

in each particular case that

the car would have been

driven away or that its con-

tents would have been m

tampered with, during the adi

period required for the rs

police to obtain a warrant. 4

(Emphasis supplied) (footnote omitted). |

The fourth district misconstrued this i

Court's decisions by failing to focus on ‘a

the validity of the initial intrusion. ¥

. In Coolidge v. New Hampshire, supra,

Justice Stewart harmonized the result in

kg that case with the case of Chambers v.

Maroney, 399 U.S. 42 (1970). As he ex-

plained, “{tjhe rationale of Chambers is

1l

that given a justified initial in-

trusion, there is little difference

between a search on the open highway

and a later search at the station. Here,

we deal with the prior question of

whether the initial intrusion is justi-

fied." 403 U.S. at 463 n.20 (emphasis

in original).

Clearly then, in cases such as this

the analysis must focus on the initial

intrusion, and if the initial intrusion

is justified, a second, warrantless in-

trusion based on probable cause is justi-

fied as well. In Coolidge the initial :

intrusion was not justified; in the in-

stant case its validity was not even

contested in the state appellate court.

Again, the same rationale would not apply

to a house because of the greater ort

vacy interests at stake.

The state seeks this Court's review. 7h

in this case not simply because it be- —

lieves that the fourth district's opinion

was wrong. Rather, the state believes

that the issue presented here is an im-

/portant one, and at least as worthy of

Pie 2

— 7

c

12

‘this Court's review as was the second

search issue in Illinois v. Andreas,

supra. Surely vehicle impoundments occur

with at least the same, if not more,

frequency as do the type of “controlled

deliveries" which framed the issue in

Andreas. As it presently stands, the

fourth district's opinion in this case

is binding on all trial courts in Florida

until such time as they are told other-

wise by their own district courts of . ‘

appeal or by the Florida Supreme Court.

See Dillon v. Chapman, 404 So.2d 354,

359 (Fla. 5th DCA 1981); State v. Hayes,

333 So.2d 51 (Fla. 4th DCA 1979). The

continued application of the rule es-

tablished in this case by Florida courts

and others will result in the suppression *

of evidence in situations where no ;

reasonable. expectation of privacy exists, FY

or if it does exist, where a well-es- {y

tablished exception to the warrant re-

quirement applies. |

Finally, the state aut ioteates the

argument that the final paragraph of the

fourth district's opinion provides an

13

independent and adequate state ground

for the decision, thereby precluding

review by this Court. However, while

the cross examination issue addressed in

that last paragraph is certainly inde-

pendent of the Fourth Amendment issue,

the fourth district did not say that it

would have reversed the case on that

point alone. Rather, the court chose to

“briefly mention” that point only because

"the case must be remanded for a new

trial" due to the reversal on the sup-

pression issue. The state submits that

the last paragraph was obviously meant

to guide court and counsel on retrial,

but was not the basis for the retrial,

so that it is not an adequate state

ground precluding review here. ‘

Moreover, the basis for the inde- i

pendent and adequate state ground prin-

ciple is that this Court is not per-

mitted to render advisory opinions, and

if the same judgment would be rendered

by the state court after this Court

corrected its disposition of a federal

issue, this Court's review wouldamount to ‘

A

r

’ §

7

i ? i. Se

ye

= Le ee ee

14

nothing more than an advisory opinion.

See Zacchini v. Scripps-Howard Broad-

casting Co., 433 U.S. 562, 566 (1977).

Even assuming, arguendo, that the fourth

district would reverse this case based on

the cross-examination issue alone, a

determination of the Fourth Amendment

issue by this Court contrary to that of

the fourth district would not be an

advisory opinion. Since it must be re-

tried, this case is not over. If the

fourth district is wrong on the Fourth

Amendment issue, and this Court does not

correct it, then the state will be forced

to go to trial on a charge involving a

violent felony to the person erroneously

denied of an important piece of evidence.

Thus, if this Court is otherwise disposed

to hear this case, it should not decline

review based on an argument that there is

an independent and adequate state ground

for the decision.

CONCLUSION he

It must be remembered that the Fourth

Amendment is intended to protect rights —

of privacy. Tre state has maintained all

15

along that whatever privacy rights de-

fendant had in his automobile were al-

ready validly invaded during the first

search, and that the second search was

no greater intr sion, especially since

the car had been impounded. The Fourth

Amendment analysis in this case should

have focused on the first, not the -

second, search. The state respectfully

submits that this case involves a sub-

stantial federal question which should be

resolved by this Court, and respectfully

requests that this Court grant its pe-

tition for writ of certiorari to the

District Court of Appeal of the State of

Florida, Fourth District.

Respectfully submitted,

JIM SMITH

Attorney General

RUSSELL S. BOHN

Assistant Attorney General

111 Georgia Avenue - Suite 204

West Palm Beach, Florida 33401

(305) 837-5062

Counsel of Record for Petitioner

a.”

a

ito

3

A-i

INDEX TO APPENDIX

wv

Opinion of the District Court

of Appeal of the State of

Florida, Fourth District,

under review herein, filed

on April 20, 1983

Order of the Fourth District

Court of 1583, 3 entered on

June 15, 1983, denying

petitioner: s motion for re-

earing and/or certification

of question

Order of the Supreme Court of

Florida pe oe November

29, 1983, den es petitioner’

rrr! for

Excerpt f petitioner's brief

as appellee in the direct

appeal before the Fourth

District Court of Appeal ,

Motion for Rehe and/or

Certification of Question .

filed by petitioner as

appellee the Fourth

strict Court of Appeal on

May 5, 1983

PAGE

1-7

9-10

11-13

14-31

. = s

*

A-1

IN THE DISTRICT COURT OF APPEAL

OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOHN SCOTT MEYERS a/k/a )NOT FINAL UNTIL

JOHN SCOTT WEYERS, TDS EXPIRES TO

REHEAR IN

orem, )PETITION AND,

_ )IF FILED,

STATE OF FLORIDA, lich sas OF.

Appellee. )CASE NO.

)82-1277.

Opinion filed April 20, 1983

Appeal from the Circuit Court

for Broward County: Arthur J.

Franza, Judge.

Richard L. srenm Public ;

Defender, gxaig # . Barnard, y

| Assistant Public Defender, +.

7 and Thomas F. Ball, III, ‘ fi

. (Member of the South Carolina

4 Bar), West Palm Beach, for

a appellant. he

. Jim Smith, Atto General A

; Tallahassee, Russell S$; Bohn a

= Assistant Atto General F

ue West Palm Beach, for appellee. 4

. WALDEN, J. | Or

f Meyers was convicted of. sexual

ie battery. He appeals. We reverse and

remand for a new trial. |

The reversal hinges primarily

A-2

upon ‘an illegal search of Meyers' vehi-

cle and seizure therefrom of a strip of

cloth six feet in length and two and one

half inches wide, which strip was re-

ceived in evidence over Meyers" ob-

, jection and despite his motion to sup-

press. This strip corroborated the

victim's version of events.

The critical happenings occurred

somewhere around 4:30 a.m. in a motel

bathroom with only Meyers and the victim

present. Their accounts were at complete

variance. The victim testified that,

against her will, Meyers forcibly tied

; her hands behind her back and then tied

a ill

‘ her to a sink with a cord or piece of

cloth whereupon he sexually battered her. ee

‘ Meyers testified that he did not tie the 4

- victim. He said that they had consen- "ee

sual sex and that the victim only ob- :

K,

. jected when a different method was

attempted whereupon he departed.

Meyers was arrested and his vehi-

cle was searched by Officer Latonia as

+4 an incident thereto and for inventory =~

oe purposes, and items were seized. There j os,

ete:

“we

“Ss

A-3

is no suggestion of a problem with this

procedure. Thereafter the vehicle was

towed to Sunny's Wrecker impoundment and

there stored. It was locked in a secure

area.

Approximately eight hours after

Meyers’ arrest, without any exigent cir-

cumstances, Chief Fitzgerald went to the

compound and searched Meyers’ vehicle

without a warrant, this being the second

search. He then seized the cloth strip

in question. This was solely justified

by the officer as being incidental to

Meyers’ arrest, a position with which we

disagree.

The State contends that the

second search of the appellant's vehicle

presented no greater intrusion on the

appellant's Fourth Amendment rights than

did the search incident to the ap-

pellant'’s arrest.

The State's argument ignores the

fact that the second search some eight

hours after the initial search does not

fall into one of the exceptions to the —

warrant requirement. First, contrary to

the State's assertion, this case does

A-4

not fall into the moving vehicle ex-

ception to the warrant requirement found

in Carroll v. United States, 267 U.S.

132, 45 S.Ct. 280, 69 L.Ed. 453 (1925)

and Chambers v. Maroney, 399 U.S. 42, 90

S.Ct. 1975, 26 L.Ed.2d 387 (1970). In

Chambers the Supreme Court was careful

to note that the search of an automobile

without securing a warrant was not

proper in every circumstance. Rather,

the court acknowledged that the ex-

ception was based on the fact that "the

opportunity to search is fleeting since

a car is readily movable.” (Id. at 51)

However, in this case the element of mo-

bility was removed because the ap-

pellant's vehicle had been impounded.

Secondly, at the time of the

second search the appellant had long

been within police custody. Therefore,

the search did not fall within the hold-

ing in New York v. Belton, 453 U.S. 454,

101 S.Ct. 2860, 59 L.Ed.2d 768 (1981)

regarding searches incident to a lawful

arrest. This search was not made “con-

temporaneously” with the appellant's

arrest. See State v. Licourt, 417. $0.24

“——

ET

‘ A-5

1051 (Fla. 4th DCA 1982); Preston v.

United States, 376 U.S. 364, 84 S.Ct.

881, 11 L.Ed.2d 777 (1964).

Finally, the subsequent search

cannot be justified on the grounds of

an inventory search. The vehicle had

previously been searched and Chief

Fitzgerald did not make any pretext of

an inventory search. South Dakota v.

Opperman, 428 U.S. 364 at 369, 96 S.Ct.

3092 at 3097, 49 L.Ed.2d 1000 (1976) and

Miller v. State, 403 So,2d 1307 (Fla.

1981).

Thus, the second search of the

appellant's vehicle at "Sunny's com-

pound" did not fall into any recognized

exceptions to the warrant requirement

and the cloth strip seized from the ap-

pellant's vehicle was improperly ob-

tained due to the fact that a warrant

was not secured prior to Chief

Fitzgerald's search. od Therefore, unde

the facts and circumstances of this

case the search conducted was unreason-_

able and violative of the eoppetlens s

rights under the Fourth Amendment .

eeljent) 's motion to. een amas have

A-6

been granted.

In its brief seeking to uphold

the validity of the second search the

State cites only two cases, United

States v. Ross, _U.S. _s, S.Ct. 2157,

72 L.Ed.2d 572 (1982) and Chambers v.

Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26

L.Ed.2d 387 (1970). Neither of them,

in our opinion, have any bearing on the

instant issue. . ot

Jnited States v. Ross had to do

with the scope of a search of a vehicle

(closed containers in the trunk) which

had been properly stopped based on pro-

bable cause.

Chambers v. Maroney critically mie

held: :

For constitutional purposes,

we see no difference between

on the one hand seizing and

holding a car before present-

ing the probable cause issue

ty and

stnec Riad coctetes Stet

Id. at 52.

A-7

The Chambers case supports the con-

clusion that we reach and does not sup-

port appellee's position.

Since the case must be remanded

for a new trial we briefly mention

another appellate point. In our opinion

the trial court unduly limited the ap-

pellant's cross examination of the com-

plaining witness to a period of approxi-

mately two hours preceding the alleged

battery. While it is difficult to

measure what constitutes an abuse of

discretion, we feel, under the circun-

stances of this case, that appellant's

counsel should have been permitted to

plumb and explore the victim's activities

for at least six hours prior to the time

of the alleged crime.

We reverse and remand for a new

trial consistent with the views herein ,

expressed. ‘

REVERSED AND REMANDED. is

P HERSEY and HURLEY, JJ., concur. F

“3

: Ks

‘

J {

a Og Oe ~

A-8

‘IN THE DISTRICT COURT OF APPEAL ”

OF THE STATE OF FLORIDA -

FOURTH DISTRICT

JOHN SCOTT MEYERS a/k/a JOHN)

SCOTT WEYERS,

)

Appellant,

v. )CASE NO.

STATE OF FLORIDA, ae

Appellee. :

June 15, 1983

BY ORDER OF THE COURT: :

ORDERED that Appellee's May 5,

1983 Motion for Rehearing and/or Certi-

fication of Question is denied.

ORDERED that Appellee's May 5,

1983 Request for Oral Argument on the

above motion is denied. .

I hereby certify the foregoing is a 4

true copy of the original court order. y

CLYDE L. HEATH, CLERK

cc: Russell S. Bohn, Assistant

Attorney General

ce ee Ve ee. Le

Defender oo)

Craig S. Barnard, Chief Assistant ~

Public

cms

A-9

SUPREME COURT OF FLORIDA

TUESDAY, NOVEMBER 29, 1983

STATE OF FLORIDA, )

Petitioner,

vs. )CASE NO. 63,973

JOHN SCOTT MEYERS, District Court

den of Appeal,

Respondent. ath District -

No. 82-1277

This cause having heretofore been

submitted to the Court on jurisdictional

briefs and portions of the record deenm-

ed necessary to reflect jurisdiction

under Article V, Section 3(b), Florida

Constitution (1980), and the Court

having determined that it should decline

to accept jurisdiction, it is ordered

that the Petition for Review is denied.

No Motion for Rehearing will be

entertained by the Court. See Fla.R.

App. P. 9.330(d).

ADKINS, ACTING C.J., BOYD, OVERTON,

McDONALD and EHRLICH, JJ., Concur

A-10

Cc

A True cc: Hon.Clyde L. Heath, Clerk

Copy Hon.Robert E. Lockwood, Clerk

Hon. Arthur J. Franza, Judge ie

TEST:

Russell S. Bohn, Esquire

Sid J. Craig S. Barnard, Esquire

White

Clerk,

Supreme

Court.

By:

Deputy

Clerk

\

%,

A>.

3

A-11

POINT II

THE TRIAL JUDGE DID NOT

ERR IN DENYING APPELLANT'S

MOTION TO SUPPRESS THE

EVIDENCE OBTAINED DURING

‘THE SECOND SEARCH OF

THE AUTOMOBILE.

Appellant argues that the trial

judge erred in denying the motion to

suppress evidence which was obtained

during a second search of his automobile

conducted several hours after the first

search and after it was impounded.

During the initial part cf his argument

on the motion to suppress in the trial

court, defense counsel argued that the

automobile could not be constitutionally

searched without a warrant eight hours

after it had already been searched and

impounded (R 50). The trial judge some-

what quizzically asked if defense counsel

meant, as an analogous example, that once

the police have searched the scene of a

crime based on probable cause they could

not check it out again after receiving

further information (R 53). Defense

counsel then shifted ground a bit, argu-

ing that in this case the police could

ee i

A-12

not search the entire automobile without

a warrant, although at the time of the

arrest itself the front seat could be

searched without a warrant (R 53).

Appellee maintains that the

motion to suppress was properly denied

upon the basis argued by the assistant

state attorney, that is, it was a search

based on probable cause (R 51-52). It

is clear from the case of United States

v. Ross, U.S. __, 72 L.Ed.2d 572

(1982) that if a search of a properly

stopped vehicle was based upon probable

cause, the permissible scope of the

search is no narrower than that which a

magistrate could legitimately authorize

by warrant and can include every part of

the vehicle and its contents which might

conceal the object of the search.

Furthermore, in Chambers v. Maroney, 399

U.S. 42, 52 (1970), in addressing the

moving vehicle exception to the warrant

requirement, the United States Supreme

Court stated: ;

For constitutional purposes,

we see no difference between

on the one hand seizing and.

holding a car before present-

~

A-13

ing the probable cause

issue to a magistrate and

on the other d pace hap

out an immediate searc

without a warrant. Given

probable cause to search,

either course is reasonable

under the Fourth Amendment.

By similar reasoning, Appellee maintains

that the second search of the automobile

in the instant case constituted no great

intrusion on Appellant's Fourth Amend-

ment rights than did the first search,

which did not intrude on those rights.

Therefore, the suppression motion was

properly denied.

A-14

IN THE DISTRICT COURT OF APPEAL

OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOHN SCOTT MEYERS a/k/a )

JOHN SCOTT WEYERS,

Appellant,

CASE NO.

82-1277

v.

STATE OF FLORIDA,

Appellee.

MOTION FOR REHEARING eon

Appellee, the State of Florida, '

by its undersigned counsel, hereby re-

quests that this court grant a rehear-

ing of its opinion in the above-styled

case and/or certify the question in-

volved here as one of great public in-

portance, on the following grounds:

1. In its opinion filed on April

20, 1983, this court reversed and re-

. manded the case for a new trial based on

. the holding that the search of ap- “

pellant's vehicle after it was impounded

was illegal and that the cloth strip

found during that search should not have |

been admitted in evidence, In so ruling,

ee ee ee ee ee ee ee

A-15

appellee respectfully maintains that

this court has overlooked controlling

principles of law announced in the cases

cited by appellee and in other cases.

2. In its opinion, this court

noted that the brief of appellee cited

only two cases, United States v. Ross,

__ U.S. ___, 72 L.Ed. 2nd 572 (1982)

and Chambers v. Maroney, 399 U.S. 42

(1970), which this court felt had no

bearing on the issue in this case. Re-

garding the Ross case, this court noted

that that case dealt with the scope of

a search of a vehicle, and apparently

overlooked the fact that the scope of

the search was the point which defense

counsel contested in the trial court.

In its argument under Point II of its

answer brief, appellee pointed out that

defense counsel began arguing that his

client's vehicle could not be consti-

tutionally searched without a warrant

eight hours after it had already been

searched and impounded (R 50). When it as

became apparent that the trial judge was a

not’ buying that argument, defense _ i

A-16

counsel then shifted ground, and argued

that whilé the police could search the

area of the front seat where appellant

had been sitting, they could not search

the entire car without a warrant (R 53).

The Ross case established that if the

search was based upon probable cause,

the entire vehicle could be searched on

that basis. Thus, since the contested

search in this case was based upon pro-

bable cause, Ross was properly cited by

appellee to refute the argument raised

by defense counsel at the trial level.

3. Furthermore, this court's

statement that the element of mobility

was removed in the instant case because

the appellant's vehicle had been im-

pounded, and its quotation with emphasis

supplied of the statement in the Chambers

case regarding an “immediate"™ search,

indicates that this court felt that

Chambers had no bearing on the instant

issue because the search in this case was

not immediate and because the car was im- Be

pounded. However, this court could have a

reached those conclusions only by over- . one.

A-17

looking the rest of the Chambers opinion.

The search in Chambers occurred at the

police station after the occupants had

been arrested. 399 U. S. at 44. Ap-

pellee submits that the search in

Chambers was not immediate, nor was the

vehicle in that case any more mobile than

the vehicle in the instant case. In

fact, the Supreme Court, in the paragraph

following the one quoted in this court's

opinion, stated:

On the facts before us,

the blue station wagon could

have been searched on the

spot when it was stopped

since there was probable

cause to search and it was

a fleeting target for a

search. The probable-

cause (sic) factor still

obtained at the station

ouse and so the

mobility of the car, un-

less the Fourth Amend- ¢

ment permits a warrant-

less seizure of the car

and the denial of its use

to anyone until a warrant

is secured. In that event

there is little to choose

in terms of practical conse-

quences between an immediate ‘

search without a mene and Fe

the car's immoblizati

A-18

until a warrant is ob-

tained. The same conse-

quences may not follow

where there is unforsee-

able [sickause to search

a house....but as Carroll

(v United States, 267 U.S.

132 (1925)], held for the

purposes of the Fourth

Amendment there is a con-

stitutional difference be-

tween houses and cars.

Id. at 52 (footnote and citation

omitted). Thus, a complete reading of

the Chambers opinion demonstrates that

the use of the word "immediate" was in-

tended to connote a search done without

the interviening[sic] judgment ofa magis-

trate, and not an “on the spot" search.

This reading of Chambers was confirmed

later by the Supreme Court in Coolidge

v. New Hampshire, 403 U. S. 443 (1971).

In that case, the Court stated that the

Carroll doctrine did not justify the

later warrantless search at the station |

house of the vehicle at issue in

Coolidge, and explained that Chambers

applies only where the initial stop and |

search could be justified under Carroll.

The Court stated that Chambers taught

? A-19

that "where the police may stop and

search an automobile under Carroll, they

may also seize it and search it later at

the police station."" 403 U. S. at 463.

The Court elaborated on this point in a

footnote as follows:

It is true that the actual

search of the automobile in

Chambers was made at the

police station many hours

after the car had been stop-

ped on the highway, when the

car was no ponger. movable,

any “exigent circumstances"

had passed, and, for all the

record shows, there was a

magistrate easily available.

Nonetheless, the analogy to

this case is misleading.

The rationale of Chambers

is that given a justified

initial intrusion, there is

little difference between a

search on the open highway

and a later search at the

station. Here, we deal with

the prior question of whether

the initial intrusion

justified. |

Id. at n.20 (emphasis in original).

This understanding of Chambers was

similarly confirmed in United States v.

Ross, supra, where, in a footnote, the

Court stated:

ry eee

A-20

The Court also has held

that if an immediate search

on the street is permissible

without a warrant, a search

soon thereafter at the police

station is permissible if the

vehicle is impounded.

Chambers, supra; Texas v.

White, 423 U. S. 67, 46 L.Ed.

2nd 209, 96 S. Ct. 304.

These decisions are based on

the practicalities of the

situations presented and a

realistic appraisal of the

relatively minor protection

that a contrary rule would

provide forprivacy interests.

Given the scope of the initia

intrusion caused by a seizure

of an automobile -- which

often could leave the occu-

pants stranded on the high-

way--the Court rejected an

inflexible rule t would

force police officers in

every case either to post

guard at the vehicle while

the warrant is obtained or

to tow the vehicle itself

to the station. Similarly,

if an immediate search on

scene con-

1

A-21

certain cost[to] the police

72. L.Ed.2nd at 582-583 n.9 (emphasis

supplied). Appellee maintains that

these cases support its contention,

which this court rejected, that the

second search of appellant's vehicle was

no greater intrusion on his Fourth Amend-

ment rights than the first search. A

seizure and a search had already been

effected, and as this court noted, they

are not challenged in this appeal. If

the Fourth Amendment is meant to vindi-

cate the right of privacy, what further

right of privacy remains to appellant

after the first search, unless one ac-

cepts defense counsel’s argument that

the police could only search the area of

the front seat, a contention which Ross

clearly refutes. Appellee submits that

the above-quoted language from Coolidge

teaches that the focus must be on the

initial intrusion, and if the initial

intrusion is justified, a second,

warrantless intrusion based on probable

cause is justified as well. In Coolidge e

the initial intrusion was not justified; _ é

A-22

in the instant case its validity has not

even been questioned. As Chambers

teaches, the same rationale would not

apply to a house because of the greater

privacy interests at stake.

5. Moreover, appellee respect-

fully submits that the central inquiry

in this case must be the following: Does

a second search of a vehicle for evi-

dence based on probable cause seem un-

reasonable where the police just hours

before had already searched, obtained

evidence from, and impounded the same

vehicle? It must be remembered that

the Fourth Amendment does

not require that every

search be made pursuant to

a warrant. It prohibits

only “unrea le searches

and seizures." . The relevant tt

test is not the reasonable- ;

ness of the opportunity to

procure a warrant, but the

reasonableness of the

seizure under all the cir-

cumstances.

;

; #

Coolidge, supra, at 509-510 (Black, J. Zi

concurring and dissenting). In a diffi- e

cult case decided almost three years : 4

ago, this court issued a similar re- a

ay) «bait

pe ea

ei 5

A-23

minder:

The many complex and

technical judicial ap-

plications of the Fourth

Amendment of the United

States Constitution and

Article I Section 12, of

the Constitution of Florida

must not obscure that only

“unreasonable searches and

seizures" are proscribed.

State v. Clark, 384 So.2d 687, 690 (Fla.

4th DCA 1980).

6. Furthermore, this court reach-

ed a conclusion contrary to the one ex-

pressed in the instant opinion in the

case of State v. Sanders, 266 So.2d 79

(Fla. 4th DCA), cert.denied 269 So.2d

370 (Fla. 1972). In Sanders, two women

had been raped on succeeding days, and

gave similar descriptions of the car

driven by their assailant to a deputy

sheriff. The sheriff was later informed

by the Orlando Police that a car fitting

the description was located at 10:15 p.m.

on November 28, 1972, the same day on

which the second victim had been raped.

The deputy contacted her station which |

in turn had a wrecker service tow the

-

A-24

car away and impound it. Later, at

12:03 a.m. on November 29, the deputy and

another officer searched the vehicle for

the weapon which had been described by

both victims. The trial court suppressed -

the evidence, but this court reversed,

relying upon Chambers v. Maroney, supra.

Cf. Adoue v. State, 408 So.2d 567, 571-

572 (Fla. 1981) (search of an airplane

which was parked and had been secured by

the police upheld under Chambers); Dennis

v. State, 373 So.2d 47, 48 (Fla. lst DCA

1979) (no warrant required where the de-

fendant had been arrested for possession

of contraband and transported along with

his truck to the jail and the police

searched the truck at the jail later that

morning). As in the instant case, the

contested search in Sanders was not inci-

dent to arrest and took place at an im-

poundment facility rather than at the

police station or the jail, but the

Chambers case was found to apply. The

only difference between the instant case

and Sanders is that the time span in

Sanders was just under two hours, while

~

+?

A-25

the time period in the instant case was

approximately eight hours. However,

that alone does not change the result as

is indicated by the United States

Supreme Court's decision in Cooper v.

California, 386 U. S. 58 (1967). In

Cooper, the police seized a small piece

of a brown paper sack without a warrant

from the glove compartment of the de-

fendant's car which had been impounded

in a garage one week earlier at the time

of the defendant's arrest. Id. at 58.

The Court stated that it would be un-

reasonable to hold that the police had

no right to search a car which they had

in their custody "for such a length of

time," and rejected the argument that a

warrant was required for the search as

follows:

It is no answer to say that

the police could have ob-

tained a search warrant,

for "(t]he relevant test is

not whether it is reasonable

to procure a search warrant,

but whether ithe search was

reasonable.’

Id. at 62 (citation omitted). In Cooper,

the defendant was arrested for a nar-

"\

ee

—

a

A-26

cotics violation, and California law re-

quired that the vehicle be held as evi-

dence for forfeiture. Of course, that

situation did not obtain in the instant

case. Nevertheless, the impoundments

in both cases were valid, and in both

cases the "

was closely related to the reason [the

defendant] was arrested...." Id. at 61.

7. Finally, regarding the time

element, if the search two hours after

impoundment in Sanders was valid, but

the search eight hours after impoundment

here was not, at what point during the

interviening hours was the constitutional

threshold crossed? Appellee respectfully

submits that there was no such threshold,

especially in a case like this where the

police not only had impounded the car

but had already validly searched it,

thereby intruding on whatever privacy

rights existed. Appellee further re-

spectfully submits that the instant case

will create an impossible quagmire of -

linedrawing which has not heretofore ex-

isted, and which is another reason why

subsequent search of the car...

A-27

this case should be reheard.

8. If, as appellee urges, this

court upon rehearing decides that sup-

pression of the cloth was properly

denied, then appellee maintains that

the cross examination issue addressed at

the conclusion of the opinion is not

alone sufficient to justify a reversal

of the case. Appellee again contends,

as it did in its answer brief, that this

point was not properly preserved for

appeal because no proffer of the ex-

cluded testimony was made. Further, the

defense was attempting to establish that

the victim received her injuries at the

hands of her boyfriend before her en-

counter with appellant, and that her

intercourse with appellant was initially

consentual. For the jury to accept

that, they would have to have believed

that the victim voluntarily met and

engaged in sexual intercourse with de-

fendant in the ladies room (R 84-85) __

despite bruises from a prior beating _

which was so bad that her eyes were

still conple-ely blvodshot two weeks

A-28

after the incident (R 25, 40, 180-181).

If the suppression motion was properly

denied, then appellee contends that it

cannot be credibly asserted that the

outcome of the trial turned on the re-

striction on the cross examination of

the victim.

9. Appellant will no doubt argue,

as appellee always does, that this

motion amounts to nothing more than a

reargument of the merit of-this court's

order. However, appellee respectfully

submits that the authority presented here

establishes (if nothing else) that this

court was incorrect in stating that the

Ross and Chambers cases have no bearing

on the instant issue, and that this

court overlooked or misapprehended their

relevant ramifications, which is the

criterion for rehearing presented in

Fla.R.App.P. 9.330 (a). Appellee has

also saaaene cases here which relied

on Chambers, but were not cited in its

answer brief. It is often contended in

rehearing motions which present cases

not cited in the briefs that those, cases

<2

. y a 4 Z "

Oe Sey ae ie

-

é

~~

oie

A-29

were overlooked by the court. While in

a very technical sense that might be

true, it is not fair to contend that the

court overlooked something which was not

brought to its attention in the first

place. On the other hand, appellate

attorneys sometimes misjudge what issues

the court will find troubling, and due

to time constraints do not devote as

much attention to those issues as it

later turns out the court would have ap-

preciated. Just as this court does not

have time to write an opinion in every

case, so also undersigned counsel un-

fortunately does not have time to launch

a "full court press" (pun intended) on

every issue in every brief--hence, the

length of this motion. Appellee

strongly believes that the present

opinion in this case touches upon a

matter of great public importance

because police authorities commonly en-

counter the situation presented here.

Thus, if this court denies rehearing or,

after reconsideration upon rehearing,

decides that its initial conclusion on

A-30

the suppression was correct, then ap-

pellee would alternatively respectfully

request that this court certify the

following question as one of great

public importance for review by the

Florida Supreme Court:

WHEN POLICE OFFICERS HAVE

VALIDLY SEARCHED AND IM-

POUNDED A VEHICLE, IS A

WARRANT REQUIRED FOR ANY

SUBSEQUENT SEARCH OF THE

SAME VEHICLE BASED ON

PROBABLE CAUSE?

THEREFORE, appellee respectfully

requests that this court grant its

motion for rehearing and/or certifi-

cation of question in this case.

Respectfully submitted,

JIM SMITH ;

Attorney General ‘

Tallahassee, Florida R:

-

7

an

RUSSELL S. BOHN

Assistant Attorney General

111 Georgia Avenue - Suite 204

West Palm Beach, Florida 33401

Counsel for Appellee

A-31 rs

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy

of the foregoing has been furnished this

5th day of May, 1983 by Mail/Courier to

CRAIG S. BARNARD, ESQUIRE, Chief

Assistant Public Defender, Harvey

Building, 13th Floor, 224 Datura Street,

West Palm Beach, Florida 33401. Wd