Petition for Writ of Certiorari — Florida v. Nease

CASE NO. Li NOV 6 196g

IN THE eee SPANIOL, JR,

ew

OCTOBER TERM, 1986

STATE OF FLORIDA

Petitioner,

vs.

JEFFREY NEASE a/k/a MICHAEL COLWELL

a/k/a LOUIS POYNTER,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

DISTRICT COURT OF APPEAL OF THE STATE OF

FLORIDA, FOURTH DISTRICT.

JIM SMITH

Attorney General

Tallahassee, Florida

JOY B. SHEARER

Assistant Attorney General

Counsel of Record

GEORGINA JIMENEZ-OROSA

Assistant Attorney General

lll Georgia Avenue, Suite 204

West Palm Beach, Florida 33401

(305) 837-5062 -

Counsel For Petitioner

eee ee vn ae

a ae ee ee ed

ee ee.

i

QUESTIONS PRESENTED

I

WHETHER THE FOURTH DISTRICT

COURT OF APPEAL INCORRECTLY

HELD THAT DEFENDANT'S RUNNING

AWAY WHEN THE SEARCH OF HIS

LUGGAGE WAS ABOUT TO BEGIN

WAS A WITHDRAWAL OF THE CON-

SENT TO SEARCH AS OPPOSED TO

AN ABANDONMENT OF HIS LUGGAGE?

II

WHETHER WHEN A TRAVELER IS

SUBJECTED TO A LAWFUL CUSTO-

DIAL ARREST AT A CONGESTED

AIRPORT TERMINAL CONCOURSE,

DOES THE CONSTITUTIONALLY

PERMISSIBLE SCOPE OF A SEARCH

INCIDENT TO HIS LAWFUL ARREST

INCLUDE THE LUGGAGE WHICH HAS

BEEN CONTEMPORANEOUSLY SECURED

BY THE OFFICERS?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

FEDERAL CONSTITUTIONAL

PROVISION INVOKED

STATEMENT OF THE CASE

REASONS FOR GRANTING

THE WRIT

CONCLUSION

PAGE

4) lanes & a6 26 MO

iii

—

TABLE OF AUTHORITIES

Abel v. United States,

326 U.S. 217, 241(1960)

Chimel v. California, 395 U.S.

752(1969)

Florida v. Nease, ins... ae

S.Ct. 1835, 85 L.Ed.2d 136(1985)

Florida v. Rodriquez, 469 U.S.

» 105 S.Ct. 308, 83 L.Ed.2d

(1984)

Florida v. Royer, akc eee

S.C... 73 0.86.28 229,259

(1983)

Jacobson v. State, 476 So.2d

1282(Fla. 1985)

Maxwell v. State, 443 So.2d 967

(Fla. 1983)

Nease v. State, 442 So.2d 325

(Fla. 4th DCA 1983), pet. for

review denied, 453 So.2d 45

(Fla. 1984)

Nease v. State, 484 So.2d 67

(Fla. 4th DCA 1986)

New York v. Belton, 453 U.S.

454 (1981)

PAGE

12

10,16,22

22

15

14

1,4

40,43,17

23,24

iv

TABLE OF AUTHORITIES (Cont. )

PAGE

Sharpe v. State, 370 So.2d 42

(Fla. lst DCA 1979), cert.

denied, 381 So.2d 769(Fla.),

cert. denied, 449 U.S. 821

(1980) 14,15

State v. Brown, 412 So.2d 24,

(Fla. 4th DCA), Pet. for rev.

denied, 419 SO.2d 1195(Fla.

1982) 14

State v. Davis, 415 So.2d 82

(Fla. 4th DCA 1982) 14

State v. Dunlap, 392 So.2d 1366

(Fla. 3d DCA 1981) 14

State v. Lawson, 394 So.2d 1139

(Fla. 4th DCA 1981) 14

State v. Milligan, 411 So.3d 946

(Fla. 4th DCA i984) 14

State v. Nittolo, 317 So.2d 748

(Fla. 1975) 14

Terry v.. Ohio, 392 U.S. 1

(1968) 7

United States v. Berd, 634 F.2d

979, 987 (5th Cir.1981) iz, 33

United States v. Canady, 615

F.2d 694(5th Cir.), cert. denied,

449 U.S. 862 (1980) 12

Vv

TABLE OF AUTHORITIES (Cont. ),

PAGE

United States v. Chadwick,

433 928... 4,: 37 B68. 2476,

53 L.Ed.2d 538(1977) B, 20, isk.

20,21

United States v. Colbert, 474

F.26 174, 176 (5th Cir.i973) 12

United States v. Collis, 766

F.2d 219 (6th Cir.), cert.denied

U.S. , pee 6.Ce. 15¢, 86 L.Ed.

2d 124 (1985) i3

United States v. D'Avanzo, 443

F.2d 1224(2d Cir.) cert. denied

404 U.S. 850(1971) i ae

United States v. Jones, 707 F.2d

1169 (10th Cir.), cert. deneid

464 U.S. 859(1983) = i ee

United Staets v. Robinson, 414

U.8.—218(1973) 16

Weeks v. United States, 232 U.S.

383 (1914) 16

Wiliams v. Florida, 399 U.S.

78, 80 n.5 (1970) 2

STATUTES :

28 U.S.C. 3257(3)

843.02 Florida Statutes (1985)

1

OPINIONS BELOW

The opinion of the District Court

of Appeal of the State of Florida,

\

Fourth District, was filed on March 5,

1986; that court denied rehearing on

April 9, 1986. Nease v. State, 484 So.

2d 67 (Fla. 4th DCA 1986).

GROUND UPON WHICH JURISDICTION

IS INVOKED

The opinion of the District Court

of Appeal of the State of Florida,

Fourth District was filed on March 5,

1986, affirming the conviction for pos-

session of methaqualone, but reversing

the order denying the motion to suppress

and reversing the judgment of conviction

for trafficking in cocaine (A. 1-l).

That court denied a timely moticn for

rehearing on April 9, 1986 (A112). In

an unreported order, the Supreme Court

of Florida denied the State's petition

for discretionary review on September 10,

2

1986 (A. 13). Thus, the opinion of the

Fourth District Court of Appeal is the

decision of the highest court in which

the decision could be had in this case.

See Williams v. Florida, 399 U.S. 78, 80 |

n.5 (1970).

This petition is timely filed with-

in 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). [By order of Septem-

ber 26, 1986, the Florida Supreme Court

has stayed proceedings in the State

Courts pending review by this Honorable

Court (A15).]

FEDERAL CONSTITUTIONAL

PROVISION INVOKED

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, against un-

reasonable searches and seizures,

shall not be violated, and no

3

warrants shall issue, but upon

probable cause, supported by

oath and affirmation, and par-

ticularly describing the place

to be searched, and the persons

or things to be seized.

STATEMENT OF THE CASE

Defendant-/

was charged with traf-

ficking in cocaine in an amount in ex-

cess of four hundred (400) grams and

possession of methaqualone. On appeal

to the Fourth District Court of Appeal,

defendant assigned as error the denial

of his Motion to Suppress the cocaine

and methaqualone. On December 7, 1983,

the Fourth District Court of Appeal is-

sued its first opinion reversing the

‘judgment and sentence of the trial court.

Nease v. State, 442 So.2d 325 (Fla. 4th

DCA 1983), pet.for review denied, 453

So.2d 45 (Fla. 1984). Petitioner sought

review by this Honorable Court; and on

1/ Throughout this petition; Petitioner

will be called “the state," and Respon--

dent will be called "defendant."

es

4

March 25, 1985, this Court granted the

State's petition for certiorari, vacated

the judgment, and remanded the case to the

District Court of Appeal of Florida,

Fourth District, for further consideration

in light of Florida v. Rodriguez, 469 U.S.

__, 105 S.Ct. 308, 83 L.Ed.2d 165(1984).

Florida v. Nease, U.S. » £03: 5.08;

1835, 85 L.Ed.2d 136 (1985).

On remand, the Fourth District Court

of Appeal of Florida withdrew its earlier

opinion, affirmed the defendant's con-

viction for possession of tmethaqualone,

and reversed the order denying the sup-

pression of the cocaine. Nease v. State,

484 So.2d 67 (Fla. 4th DCA 1986). Motion

for Rehearing was denied April 9, 1986.

It is this second decision of the Florida

District Court of Appeal which Petitioner

seeks to have reviewed by this Honorable

Court.

5

The facts pertinent to this appeal

as set forth in the opinion of the Fourth

District Court of Appeal are as follows:

Nease aroused the suspicion of two

narcotics agents at Fort Lauderdale Air-

port because his appearance and behavior

were consistent with a drug courier's

profile. The agents had observed Nease

at the Delta Airlines ticket counter pur-

chasing a one way ticket to Cincinnati

with cash. He appeared nervous, shifting

his weight from foot to foot and constant-

ly looking around. They approached him,

identified themselves as officers, and

asked to see his tickets and identifica-

tion. Nease complied. This revealed that

the names on the ticket and the license

did not match. Noting this discrepancy,

the officers identified themselves once

more, this -time as narcotics agents, and

asked if they could search his bags.

6

Nease initially consented. The agents

also returned the ticket and identifica-

tion to Nease.

A third agent removed Nease's lug-

gage from the airline conveyor belt, and

the agents and Nease walked toward the

room where the search was to take place.

When they reached the door, however,

Nease did not enter. Instead, he turned

around and ran toward his departure gate.

Two agents chased and tackled Nease while

the third agent remained behind and

searched the contents of his suitcase.

This search revealed cocaine. A search

of his person after his arrest revealed

a small quantity of methaqualone.

The Florida Fourth District Court

of Appeal found the initial encounter

between Defendant and the agents to be a

consentual encounter which Defendant was

free to ignore, and not of the sort that

7

triggers Fourth Amendment protections,

citing Terry v. Ohio, 392 U.S. 1 (1968).

The Fourth Distirct further found that

Defendant agreed to the search of his

luggage, but that before this could be

accomplished Defendant ran away, leaving

his luggage behind.

The Fourth District then held that

Defendant's running constituted a non-

verbal withdrawal of consent to search

his luggage. However, because a founded

suspicion had developed at that point,

the agents no longer needed to rely on

Nease's consent to detain him under a

Terry stop. Consequently, the agents

were justified in pursuing Nease for

further questioning. The struggle that

followed when they caught him was suf-

ficient to justify his arrest for inter-

fering with an officer in the per-

formance of his legal duty, pursuant

Eee

8

§843.02, Florida Statutes (1985). The

Fourth District then concluded that since

Defendant was under arrest at this time,

the methaqualone found in his possession

was admissible because it was obtained in

a search pursuant to a lawful arrest.

The Fourth District, however, held

the search of the luggage was an improper

warrantless search which led to evidence

obtained in violation of his Fourth

Amendment rights stating:

"Because we conclude that by running

Nease effectively withdrew his consent

to a search of his luggage, a warrantless

search of those bags was improper. The

Fourth Amendment protects an owner's

expectation of privacy in the contents

of a closed container. United States v.

Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53

L.Ed.2d 538 (1977). In Chadwick, the

court concluded that a warrant was nec-

9

essary to search a locked footlocker

seized contemporaneously with the defen-

dant's arrest, despite the fact that the

police had probable cause to believe it

contained marijuana. The court stated:

Once law enforcement officers

have reduced luggage or other

personal property not immedi-

ately associated with the per-

son of the arrestee to their

exclusive control, and there

is no longer any danger that

the arrestee might gain access

to the property to seize a

weapon or destroy evidence,

a search of that property is

no longer incident of the ar-

rest.

“33 9.8. @¢ £5, 9? St. ot 2463, $3 UL.

L.Ed.2@ at $1.“

(A 9-10).

The State seeks to invoke the dis-

cretionary jurisdiction of this Court to

review the decision of the State court

which totally ignores the search in-

cident to lawful arrest exception to the

warrant requirement as interpreted by

10

this Court in Chimel v. California, 395

U.S. 752 (1969), and New York v. Belton,

453 U.S. 454 (1981) and erroneously in-

terpreting the structures of the Fourth

Amendment as interpreted by this Court

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

1 (1977). The decision in controversy

concerns an eminently important and un-

settled area of law.

REASONS FOR GRANTING THE WRIT

The Florida Fourth District Court

of Appeal concluded that under United

States v. Chadwick, 433 U.S. 1 (1977),

the agents needed a warrant to search

Defendant's luggage notwithstanding the

fact that the luggage was searched at

the airport contemporaneously with the

agents' pursuit and arrest of Defendant.

The State submits that the lower court

has misread United States v. Chadwick,

supra, and that this misinterpertation

\

ll

improperly curtails police investigations

and contravenes the public interest in-

volved in the suppression of illegal

transactions in drugs or of any other

serious crime.

It is true that this Court in United

States v. Chadwick, 433 U.S. at 15, held

that a warrant was necessary to search

a locked footlocker once the footlocker

has been reduced to the exclusive con-

trol of the police. However, Chadwick

did not involve a search incident to the

arrest. This Court in Chadwick also

pointed out:

Here the search was con-

ducted more than an hour after

federal agents had gained ex-

clusive control of the foot-

locker and long after respon-

dents were securely in custody;

the search therefore cannot be

viewed as incidental to the

arrest or as justified by any

other exigency.

SG... 86.433

12

I

This Court in Abel v. United States,

326 U.S. 217, 241 (1960) declared that

the Government's warrantless seizure of

abandoned property did not violate the

Fourth Amendment. The Federal circuit

courts since Abel have said that the

existence of police pursuit or investi-

gation at the time of abandonment does

not of itself render the abandonment in-

voluntary. United States v. Jones, 70/7

F.2d 1169 (10th Cir.), cert. denied 464

U.S. 859 (1983); United States v. Colbert,

474 F.2d 174, 176(5th Cir. 1973); see

generally, e.g., United States v. Berd,

634 F.2d 979, 987 (5th Cir. 1981);

United States v. Canady, 615 F.2d 694

(5th Cir.), cert. denied, 449 U.S. 862

(1980); United States v. Williams, 569

F.2d 823 (5th Cir.1978); United States

v. D'Avanzo, 443 F.2d 1224 (2d Cir.),

13

cert. denied 404 U.S. 850, (1971).

The facts herein are clear; Defen-

dent consented to the search of his lug-

gage. tHowever, upon realizing apprehen-

sion was imminent as a result of the

search, he ran in an effort to disasso-

ciate himself from the luggage. The

State submits that these facts support

the theory that Defendant abandoned his

luggage when he ran away from the agents,

and, hence, he thereafter had no legiti-

mate subjective expectation of privacy in

the bag and the search thereof was thus

lawful. United States v. Collis, 766

F.2d 219 (6th Cir.), cert. denied U.S.

__,106 S.Ct. 150, 88 L.Ed.2d 124 (1985).

See also, United States v. Jones, supra;

United States v. Berd, supra.

The Florida Courts likewise have

held that when a police officer observes

a person drop an article to avoid any

eS TT

14

connection with the item once he observes

the police coming to question him, and

the police officer stops to pick up the

item, and upon finding contraband there-

in arrests the individual, such arrest

is legal on the rule that the defendant's

initial actions constituted abandonment

of the contraband in a place in which

he clearly had no reasonable expectation

of privacy. See, e.g., Maxwell v. State,

443 So.2d 967 (Fla. 1983); State v.

Nittolo, 317 So.2d 748 (Fla. 1975);

State v. Davis, 415 So.2d 82(Fla. 4th

DCA 1982); State v. Brown, 412 So.2d 24

(Fla. 4th DCA), Pet. for rev. denied,

419 So.2d 1195 (Fla. 1982); State v.

Milligan, 411 So.2d 946 (Fla. 4th DCA

1984); State v. Lawson, 394 So.2d 1139

(Fla. 4th DCA 1981); State v. Dunlap,

392 So.2d 1366 (Fla.3d DCA 1981); Sharpe

v. State, 370 So.2d 42 (Fla. lst DCA

15

1979), cert. denied 381 So.2d 769(Fla.),

cert. denied 449 U.S. 821 (1980). But

see, Jacobson v. State, 476 So.2d 1282

(Fla. 1985). The State thus submits

that the Fourth District misapplied the

law of abandonment to the search under

the particular facts of this case.

Il

The State will now proceéd to its

main argument, i.e., even if this Court

does not address the abandonment issue,

the search of the luggage was a lawful

search incident to the arrest, and the

trial court judgment should have been

affirmed under the authority of New York

v. Belton, supra.

Approval of a warrantless search

incident to a lawful arrest seems first

to have been articulated by this Court

in 1914 in dictim in Weeks v. United

16

States, 232 U.S. 383(1914). However, it

is well-settled now that a warrantless

search conducted incident to a lawful

arrest is a traditional and essential

exception to the warrant requirement of

the Fourth Amendment. United States v.

Robinson, 414 U.S. 218 (1973). The

search incident to arrest exception em-

braces warrantless searches of both the

arrestee's person and the area within

the arrestee's immediate control.

Chimel v. California, 395 U.S. 752(1969).

In articluating the legitimate scope of

such searches, this Court in Chimel

stated at 763:-

"(I]t is entirely reasonable |

for the arresting officer to |

search for and seize any evi-

dence on the arrestee's per-

son in order to prevent its

concealment or destruction.

And the area into which an

arrestee might reach in

order to grab a weapon or

evidentiary items must, of

course, be governed by a

17

like rule. . . . There

is ample justification,

therefore, for a search of

the arrestee's person and

the area ‘within his immedi-

ate control'-construing that

phrase to mean the area from

which he might gain possession

of a weapon or destructible

evidence."

Subsequently in 1981, this Court

set the constitutionally permissible

scope of a search incident to arrest in

New York v. Belton, 453 U.S. 454 (1981),

and held at 460 that:

{[W]hen a policeman has made

a lawful custodial arrest of

the occupant of an automobile,

he may, as a contemporaneous

incident of that arrest,

search the passanger compart-

ment of the automobile.

It follows from this con-

clusion that the police may

also examine the contents of

any containers found within

the passenger compartment,

for if the passenger com-

partment is within reach of

the arrestee, so also will

containers in it be within

18

his reach. ¢ United States

v. Robinson, supra; Draper

v. United States, 358 US 307.

Such a container may, of

course be searched whether it

is open or closed, since the

justification for the search i

is not that the arrestee has

no privacy interest in the

container, but that the law-

ful custodial arrest justi-

fies the infringement of any

privacy interest the arrestee

may have. Thus, while the

court in Chimel held that the

police could not search all

the drawers in an arrestee'’s

house simply because the pol-

ice had arrested him at home,

the Court noted that drawers

within an arrestee's reach

could be searched because of

the danger their contents

might pose tc the police.

395 US, at 763, 23 L-Ed 24d

685, 89 S Ct 2034.

a

4 "Container" here denotes any

object capable of holding another

object. It thus includes closed

or open glove compartments, con-

soles, or other receptacles lo-

cated anywhere within the pass-

anger compartment, as well as

—

luggage, boxes, bags, clothing,

and the like. Our holding en-

compasses only the interior of

the passenger compartment of

an automobile and does not en-

compass the trunk.

19

It is true, of course, that

these containers will sometimes

be such that they could hold

neither a weapon not evidence

of the criminal conduct for

which the suspect was arrested.

However, in United States v.

Robinson, the Court rejected

the argument that such a con-

tainer--there a "crumpled up

cigarette package"--located

during a search of Robinson

incident to his arrest could

not be searched: "The author-

ity to search the person in-

cident to a lawful custodial

arrest, while based upon the

need to disarm and to discover

evidence, does not depend on

what a court may later decide

was the probability in a par-

ticular arrest situation that

weapons or evidence would in

fact be found upon the person

of the suspect. A custodial

arrest of a suspect based on

probable cause is a reasonable

intrusion under the Fourth

Amendment that intrusion being

lawful, a search incident to the

arrest requires no additinal

jurisdiction." 414 US, at 235,

38 L Ed 2d 427, 94 S Ct 467, 66

Ohio Ops 2d 202.

{Emphasis added.](Footnotes 2 and

3 omitted)

Application of the above authorities

to the instant case compels the con-

clusion that the search in question

20

was reasonable under the structures of

the Fourth Amendment, and that the

teachings of Chadwick do not mandate a

different result. Despite a superficial

similarity between the factual settings

(i.e., a search of the contents of lug-

gage), substantial differences become

apparant upon an objective examination

of the facts controlling Chadwick and

those governing the present case. These

differences so distinguish Chadwick as

to render its application inapposite to

the factual circumstances presented here,

and a fortiori dictates that Chadwick's

legal rationale does not control the re-

solution of this case.

In Chadwick, the object seized was

a cumbersome, two hundred pound, double-

locked footlocker, which obviously could

be neither quickly opened nor rapidly

21

removed by the defendants. The foot-

locker was not opened at the train

station, but rather, more than one hour

following the arrest, at the police

station, when the defendant was already

incarcerated.

The factual circumstances governing

the search in this case are in marked

contrast. The luggage in this case

consisted of a portable suitcase which

was quite capable of being snatched by

the Defendant, or a waiting accomplice

of the Defendant, in order ta: -deateos

the evidence, or to gain access to a

weapon. Unlike the search in Chadwick,

the search in this case was undertaken

contemporaneously with the Defendant's

arrest. This immediate search served

two purposes; the traditional one of

protecting the officers and the evidence

22

under Chimel, and secondly that should

the agents have failed to find any in-

criminating evidence, Defendant could

have been immediately released with a

citation for the interference with the

officers in the performance of their

legal duty under §843.02,Fla.Stat.(1985),

while verifying or dispelling their sus-

picions inamanner that didnot exceed the

limits of an investigative detention.

Fiorics v. Bover, U.S. , 103 $.Ce._,

75 L.Ed.2d 229,239 (1983). Certainly,

the fact that the arrest was effected in

public, in the middle of a congested

airport, supports the agents' judgment

to undertake an immediate search of the

luggage. Accordingly, the search which

was neither remote in time or place from

the arrest, since the police had prob-

able cause to effect the arrest, justi-

23

fiable suspicion for the stop, and exi-

gent circumstances were present, the

warrantless search of the contents of

the luggage was justified as a search '

incident to arrest.

As this Court stated in Belton,

n.5, at 461, it seems to have been the

theory of the [Fourth District] that the

search and seizure in the present case

could not have been incident to [Defen-

dant's] arrest, because [the agent] by

the very act of searching [the luggage]

and seizing the contents . ..., had

gained "exclusive control" of them.

But under this fallacious theory no

search or seizure incident to a lawful

custodial arrest would ever be valid; by

seizing an article even on the arrestee's

person, an officer may be said to have

reduced that article to his "exclusive

24

control."

Under the authority of New York v.

Belton, the State urges this court to

conclude that the search challenged here

was justified as incident to a lawful

arrest, and was therefore, reasonable

within the meaning of the Fourth Amend-

ment.

CONCLUSION

It must be remembered that the

Fourth Amendment is meant to protect a-

gainst unreasonable searches and seizures.

The State has maintained all along that

the actions of the police did comport

with the ultimate test of reasonableness

under the Fourth Amendment and that the

Fourth District analysis of the situation

and finding that the police acted in

contravention of the Fourth Amendment is

in error. The State respectfuly submits

25

that this case involves a substantial

federal question which should be re-

solved by this Court, and respectfully

requests that this Court grant its peti-

tion for writ of certiorari to the Dis-

trict Court of Appeal of the State of

Flroida, Fourth District.

Respectfully submitted,

JIM SMITH

Attorney General

Tallahassee, Florida —

JOY B. SHEARER

Assistant Attorney General

111 Georgia Avenue, Suite 204

West Palm Beach, FL 33401

(305) 837-5062

Counsel of Record

GEORGINA JIMENEZ-OROSA

Assistant Attorney General

Attorneys For Respondent

———

APPENDIX

A-i

INDEX TO APPENDIX

Opinion of the District Court

of Appeal of the State of

Florida, Fourth District,

under review herein, filed

March 5, 1986.

Order of the Fourth District

Court of Appeal, entered on

April 9, 1986, denying

Petitioner's motion for

rehearing.

Order of the Supreme Court of

Florida, entered on September

10, 1986, denying Petitioner's

petition for review.

Order of the Supreme Court of

Florida, entered September 26,

1986, granting stay of pro-

ceedings in state courts.

PAGE

A.1-11

A.-12

A.13-14

A.15-16

A-1

IN THE DISTRICT COURT OF APPEAL OF THE

STATE OF FLORIDA

FOURTH DISTRICT JANUARY TERM 1986

JEFFREY NEASE a/k/a

MICHAEL COLWELL a/k/a

LOUIS POYNTER,

Ne ee ee ee ee eet et et ee”

Appellant,

v. CASE 82-2164

STATE OF FLORIDA,

Appellee.

Opinion filed March 5, 1986

Appeal from the Circuit Court

for Broward County; Patricia

Cocalis, Judge. ,

Steven J. Finta, Fort Lauderdale,

for appellant.

Jim Smith, Attorney General,

Tallahassee, and Marlyn J. Altman,

Assistant Attorney General, West

Palm Beach, for appellee.

ON REMAND

PER CURIAM.

Appellant was tried and convicted in

1982 for trafficking in cocaine and for

possession of methaqualone. We reversed

the conviction holding that the trial

court erred when it denied the motion to

suppress. Nease v. State, 442 So.2d 325

A-2

(Fla. 4th DCA 1983), petition for review

denied, 453 So.2d 45 (Fla. 1984). The

United States Supreme Court subsequently

granted the state's petition for certior-

ari and remanded the cause to this court

for reconsideration in the light of

Florida v. Rodriguez, U.S. Eos 8. Ce.

308, 83 L.Ed.2d 165 (1984). Pursuant to

the Supreme Court's mandate, we withdraw

our earlier opinion and affirm the de-

fendant's conviction for possession, but

reverse the order denying the suppression

of the cocaine.

Nease aroused the suspicion of two

narcotics agents at Fort Lauderdale Air-

port because his appearance and behavior

were consistent with a drug courier's

profile. The agents had observed Nease

at the Delta Airlines ticket counter pur-

chasing a one way ticket to Cincinnati

with case. He appeared nervous, shifting

A-3

his weight from foot to foot and con-

stantly looking around. They approached

him, identified themselves as officers,

and asked to see his tickets and identi-

fication. Nease complied. This revealed

that the names on the ticket and the li-

cense did not match. Noting this dis-

crepancy, the officers identified them-

selves once more, this time as narcotics

agents, and asked if they could search

his bags. Nease initially consented.

The agents also returned the ticket and

identification to Nease.

A third agent removed Nease's lug-

gage from the airline conveyor belt, and

the agents and Nease walked toward the

room where the search was to take place.

When they reached the door, however,

Nease did not enter. Instead, he turned

around and ran toward his departure gate.

A-4

Two agents chased and tackled Nease

while the third agent remained behind

and searched the contents of his suit-

case. This search revealed cocaine. A

search of his person after his arrest

revealed a small quantity of methaqua-

lone.

The initial encounter between Nease

and the agents was not of the sort that

triggers Fourth Amendment protections.

United States v. Mendenhall, 446 U.S.

554, 100 S.Ct. 1870, 64 L.Ed.2d 497

(1980). Rather, it was merely a consen-

sual encounter which Nease was free to

ignore. Florida v. Royer, 460 U.S. 491,

103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).

As noted by Justice White in Terry v.

Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.

2d 889 (1968), "[t]here is nothing in ;

the constitution which prevents a police-

man from addressing questions to anyone

A-5

on the streets." 392 U.S. at 34, 88 S.

~Ct. at 1886, 20 L.Ed.2d at 913. Simi-

larly, a seizure did not occur when the

agents asked Nease if they could inspect

his ticket. It is not until the situ-

ation becomes such that a reasonable

person would conclude that he is no

longer free to leave that a stop has es-

calated into an illegal detention under

Terry. See Mendenhall, 446 U.S. at 554,

100 S.Ct. at 1877, 64 L.Ed.2d at 509.

In order to detain someone even mo-

mentarily, police must have an articul-

able suspicion that he has engaged in,

or is about to engage in criminal con-

duct. Royer, 460 U.S. at 498, 103 S.Ct.

at 1324, 75 L.Ed.2d at 236. In Florida

v. Rodriquez, S.e. ., £05 3.Cc. 306,

83 L.Ed.2d 165 (1984), the court noted

that the defendant's strange behavior

including attempts to get away, and his

A-6

companions’ contradictory statements

about their identity provided the artic-

ulable suspicion necessary to justify a

brief detention and seizure. Id. at __,

105 S.Ct. at 311, 83 L.Ed.2d at 171.

Similarly, in Royer, supra, the court

concluded that the fact the defendant was

traveling under an assumed name, in ad-

dition to his behavior and appearance,

which fit the drug courier's profile,

was sufficient to suspect him of carry-

ing drugs and to detain him for the pur-

pose of investigating that suspicion.

Royer, 460 U.S. at 502, 103 S.Ct. at

1326, 75 L.Ed.2d at 239. The detention

in Royer, however, exceeded the limits

permissible under Terry because the

agents failed to return Royer's airline

ticket and identification. Instead, they

seized his luggage and led him into a

room for questioning, thus making: it

A-7

clear that he was not free to leave.

More recently, the Florida Supreme

Court concluded that narcotics agents

had an articulable suspicion to detain

a suspect for questioning pursuant to

Terry after they had found cocaine on

his companion's person. Jacobson v.

State, 476 So.2d 1282, 1287 (Fla. 1985).

Rodriguez, Royer, and Jacobson, supra,

were all airport stop cases in which

narcotics agents initially approached

the defendants because they fit within

a .drug courier's profile.

In the present case, the agents dis-

covered that Nease was traveling under

an assumed name in the course of a con-

sensual encounter. This, as well as the

surrounding facts including his ner-

vousness and the fact that he fit within

the profile, gave rise to an articulable

A-8

suspicion that he was carrying drugs.

At all times prior to this, Nease had

been free to leave because the agents

had returned his ticket to him. He

agreed, however, to have his luggage

searched. Before any further questioning

could take place, Nease fled from the

agents, leaving his luggage behind.

Nease's running constitutes a non-

verbal withdrawal of consent to search

his luggage. See, e.g., Jacobson, supra.

However, because a founded suspicion had

developed at this point, the agents no

longer needed to rely on Nease's consent

to detain him under a Terry stop. Con-

sequently, the agents were justified in

pursuing Nease for further questioning.

The struggle that followed when they

caught him would have been sufficient to

justify his arrest for interfering with

echt Ba

A-9

with an officer in the performance of

his legal duty. §843.02, Fla.Stat.

(1985). See, e.g., Jacobson, 476 So.2d

ac i207.

We conclude that for all practical

purposes Nease was under arrest at this

time. The methaqualone found in his

possession, therefore, was admissible

because it was obtained in a search pur-

suant to a lawful arrest. We reach a

different conclusion, however, with re-

gard to the cocaine found in Nease's

suitcase.

Because we conclude that by running

Nease effectively withdrew his consent

to a search of his luggage, a warrantless

search of those bags was improper. The

Fourth Amendment protects an owner's ex-

pectation of privacy in the contents or

a closed container. United States v.

Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53

A-10

L.Ed.2d 538 (1977). In Chadwick, the

court concluded that a warrant was nec-

essary to search a locked footlocker

seized contemporaneously with the de-

fendant's arrest, despite the fact that

the police had probable cause to believe

it contained marijuana. The court

stated:

Once law enforcement officers

have reduced luggage or other

personal property not immedi-

ately associated with the per-

son of the arrestee to their

exclusive control, and there

is no longer any danger that

the arrestee might gain access

to the property to seize a

weapon or destroy evidence, a

search of that property is no

longer incident of the arrest.

ess U.3.. 00 15, SP? B.6t.«. ee 24865, 53 1.

Ba.26 at 51. o

In the present case, the agents had

only an articulable suspicion that Nease's

bags might contain drugs. Under the

i la tails

Sie, &

nt NORA: Sa Prt REDD Ach Se

Rimi

A-1l

circumstances, the government's interest

in stemming illicit drug trade justified

only a minimal intrusion into Nease's

personal effects. See United States v.

Place, 462 U.S. at 462 U.S. at 696, 103

S.Ct. 2637, 77 L.Ed.2d 110 (1982);

Terry v. Ohio, supra. This could have

been accomplished by a brief detention

of the luggage in order to subject it

to a canine sniff test. Cf. Place, supra.

The warrantless search of the luggage,

without Nease's consent, led to evidence

obtained in violation of his Fourth

Amendment rights. The trial court erred

in denying Nease's motion to suppress.

Accordingly, we reverse the judgment of

conviction for trafficking in cocaine.

AFFIRMED IN PART AND REVERSED IN

PART.

DOWNEY, WALDEN, JJ., AND HURLEY, DANIEL

T.K., Associate Judge, concur.

A-12

IN THE DISTRICT COURT OF APPEAL OF

THE STATE OF FLORIDA

JEFFREY NEASE a/k/a

MICHAEL COLWELL a/k/a

LOUIS POYNTER

Appellant(s),

v. CASE NO. 82-2164

STATE OF FLORIDA,

Appellee(s).

April 9, 1986

BY ORDER OF THE COURT:

ORDERED that Appellee's March 18,

1986 Motion for Rehearing is denied.

I hereby certify the foregoing is a true

copy of the orginal court order.

/S/ Clyde L. Heath

CLYDE L. HEATH,

CLERK

cc: Georgina Jimenez-Orosa,

Ass't. Attorney General

a ~_

Stephen J. Finta, Attorney |

cms

A-13

SUPREME COURT OF FLORIDA

WEDNESDAY, SEPTEMBER 10, 1986

STATE OF FLORIDA,

Petitioner,

Vv. CASE NO. 68,729

JEFFREY NEASE a/k/a

MICHAEL COLWELL a/k/a District Court of

LOUIS POYNTER, Appeal, Fourth

District No.82-2164

Respondent,

This cause having heretofore been

submitted to the Court on jurisdictional

briefs and portions of the record deemed

necessary to reflect jurisdiction under

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

tution (1980), and the Court having de-

termined that it should decline to ac-

cept jurisdiction, it is ordered that

the Petition for Review is denied.

No Motion for Rehearing will be en-

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

P. 9.330(d).

A-14

ADKINS, Acting C.J., BOYD, OVERTON,

EHRLICK and SHAW, J.J., concur

A True Copy

cc: Hon. Clyde L. Heath,Clerk

TEST: Hon. Robert E. Lockwood,

Clerk

Hon. Patricia Cocalis

Sid J. White :

Clerk Judge

Supreme Georgina Jimenez-Orosa,

Court Esquire

Stephen J. Finta, Esquire

By: /S/ Betsy Hill

Deputy Clerk

A-15

IN THE SUPREME COURT OF FLORIDA

FRIDAY, SEPTEMBER 26, 1986

STATE OF FLORIDA, **

Petitioner, ** CASE NO. 68,729

Va. ** District Court of

Appeal, 4th

JEFFREY NEASE a/k/a** District -

MICHAEL COLWELL No. 82-2164

a/k/a LOUIS. ek

POYNTER,

Respondent. ee

The motin for stay pending review

filed by petitioner is granted and the

proceedings in this Court, the District

Court of Appeal, Fourth District, and the

Circuit Court of the Seventeenth Judicial

Circuit in and for Broward County,

Florida, are hereby stayed pending review

by the Supreme Court of the United States.

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

TEST: Clerk

Hon. Robert E. Lockwood,

Clerk

A-16

Sid J. White Hon. Patricia Cocalis,

Clerk Supreme Judge

Court Georgina Jimenez-Orosa,

Esquire

Stephen T. Finta,

By: /S/ Dulilue fede se Sux

Chief Deputy

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