# Petition for Writ of Certiorari — Florida v. Nease

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1987
- **Citation:** 481 U.S. 1041

## Text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2325%3A1. Public record. Not legal advice.