Petition for Writ of Certiorari — Florida v. Nease

- Office-Supreme Court, U.S.

84-944 ~ FILED

AUE 13 1964

CASE NO.

ALEXANDER L. STEVAS,

CLERK

IN THE ——,

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

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

MARLYN J. ALTMAN

Assistant Attorney General

111 Georgia Avenue-Suite 204

West Palm Beach, Florida 33401

(305) 837-5062

Counsel For Petitioner

i

QUESTION PRESENTED

WHETHER THE FOURTH DISTRICT

COURT OF APPEAL OF THE STATE

OF FLORIDA INCORRECTLY CON-

STRUED THE FOURTH AMENDMENT

TO THE UNITED STATES CON-

STITUTION, AND FLORIDA V.

ROYER, U.S. , :

ct. , 75 L.Ed. 2d 229

(1983) BY HOLDING THAT THE

CIRCUMSTANCES IN THIS CASE

WERE NOT SUFFICIENT TO

JUSTIFY THE INITIAL STOP?

S.

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 INVOKED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE

WRIT

CONCLUSION

PAGE

pe hf

iii

TABLE OF AUTHORITIES

PAGE

Florida v. Royer, U.S.

» 20s Bs Gx Aaaws Fa

L.Ed. 2d 229 (1983) , ts Os

9, 10

Nease v. State, 442 So. 2d

325 (Fla. 4th DCA 1983) 1

Sibron v. New York, 392

U.S. 40, 20 L.Ed. 2d 917,

88 S. Ct. 1889 (1968) 14

United States v. Harley,

682 F. 2d 396 (ond Cir.

1982) 14

Williams v. Florida, 399

U.S. 78, 80 n.5 (1970) 2

STATUTES :

28 U.S.C. §1257(3) 2

1

OPINIONS BELOW

The opinion of the District Court

of Appeal of the State of Florida,

Fourth District, was filed on December

7, 1983; that court denied rehearing on

January 8, 1984. Nease v. State, 442

So. 2d 325 (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 December

7, 1983, reversing Respondent's con-

viction and remanding the case with

directions to discharge the defendant

(A. 1). That court denied a timely

motion for rehearing on January 18,

1984 (A. 2). In an unreported order,

the Supreme Court of Florida denied the

State's petition for discretionary re-

2

view on June 29, 1984 (A. 3). 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). [a motion tolling and

extending the state speedy trial period

pending the disposition of the instant

petition is pending before the trial

court].

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,

3

papers, and effects, against

unreasonable searches and

seizures, shall not be vio-

lated, and no warrants shall

issue, but upon probable

cause, supported by oath and

affirmation, and particularly

describing the place to be

searched, and the persons or

things to be seized.

STATEMENT OF THE CASE

Defendant2/ was charged with

trafficking in cocaine ir an amount in

excess 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 opinion reversing the judgment

1/ Throughout this petition, Petitioner

will be called "the state," and

Respondent will be called "defendant."

eee nee ee we

4

and sentence of the trial court (A. 1).

Motion for Rehearing was denied on

Senne: Bh: 1984 (A. 2). It is the

decision of the District Court which

Petitioner seeks to have reviewed by

this Honorable Court.

The facts pertinent to this

appeal as set forth in the opinion of

the Fourth District Court of Appeal

are as follows:

Agents observed Defendant at the

Delta Airlines ticket counter at the

Fort Lauderdale Airport. He was carry-

ing with him a garment bag and a small

shoulder bag. He paid cash for a one-

way ticket from Fort Lauderdale to

Cincinati. He appeared nervous and

moved from foot to foot while he was

in the ticket line. Agents approach-

5

ed Defendant and after identifying

themselves as police officers, they

received permission to look at his

ticket and driver's license. Noting

different names on the ticket and

license, the agents again identified

themselves, this time as narcotics

agents, and asked permission to hand

search Defendant's luggage. Initial-

ly he consented and accompanied the

agents to a small storage area. As

they neared the area, Defendant re-

fused to enter. He then turned and

ran but was tackled and arrested by

two of the agents. While the agents

were chasing Defendant, another agent

went through Defendant's bags and

found cocaine. After he was arrested

a search of his person revealed six

6

methaqualone tablets.

The Fourth District Court of Appeal

held that the facts as outlined above

were simply not sufficient to justify

the initial stop. However, the court

did hold that the initial contact with

the Defendant could be characterized as

citizen encounter. In the view of the

Fourth District Court of Appeal, De-

fendant's flight in conjunction with the

aforementioned factors (drug courier pro-

file) were not sufficient to create pro-

bable cause to justify Defendant's

arrest. Additionally, the court spe-

cifically found that the Defendant's

leaving the scene in the manner described

above, did not constitute an abandonment

of his luggage.

The State seeks to invoke the dis-

-

cretionary jurisdiction of this Court

to review the decision of the State

court erroneously interpreting the

strictures of the Fourth Amendment as

interpreted by this Court in Florida v.

Royer, supra. The decision in contro-

versy concerns an eminently important

and unsettled area of law.

REASONS FOR GRANTING THE WRIT

The Fourth District Court of

Appeal concluded that under Florida v.

Royer, U.S. ame @. Ct. 1319,

75 L.Ed. 2d 229 (1983), the Defendant's

drug courier profile characteristics

were an insufficient basis to warrant

Defendant's initial stop. The State

submits that the lower court has mis-

read Florida v. Royer, supra, and

that this misinterpretation improperly

curtails police investigations and

8

and controvenes the public interest in-

volved in the suppression of iliegal

transactions in drugs or of any other

serious crime.

True under Florida v. Royer,

supra, drug courier profile by itself

does not confer probable cause for

search and seizure, but it can under

some circumstances create a reasonable,

articulable suspicion to justify tempo-

rary detention.

We agree with the State that

when the officers discovered

that Royer was traveling under

an assumed name, this fact,

and the facts already known

to the officers--paying cash

for a one-way ticket, the

mode of checking the two

bags, and Royer's appearance

and conduct in general--were

adequate grounds for suspect-

ing Royer of carrying drugs

and for temporarily detain-

ing him and his luggage while

they attempted to verify or

dispell their suspicions

9

in a manner that did not excede

the limits of an investigative

detention.

Florida v. Royer, supra at 75 L.Ed.

2d at 239.

The lower court sub judice was

correct in finding that the initial

contact between Defendant and the

police could be characterized as a

voluntary citizen/police encounter.

However, the court was mistaken in its

assessment that the behavior which the

police observed did not create the

founded suspicion for a limited in-

vestigative detention. The Florida

v. Royer decision as cited above makes

clear that in certain instances ex-

hibition of drug courier profile

characteristics does provide adequate

grounds for suspecting an individual

10

of carrying drugs and for temporarily

detaining such person and his luggage

while attempting to verify or dispel

their suspicions in the least non-

intrusive manner.

Since this Court found that the

display of drug courier profile

characteristics were sufficient in

Royer to justify his temporary de-

tention, the same finding should apply

to the circumstances of this case.

The initial question before this

Court is whether the facts as es-.

stablished in the lower court opinion

warrant the conclusion that the initial

stop was unjustified. The State sub-

mits that the answer to the question

is that the facts do not warrant the

conclusion that the stop was improper.

ieee en MEGS -

11

The State will now proceed to

the second level of this argument, and

show that the events which occurred

subsequent to the initial stop support

the contention that the actions of the

police did comport with the ultimate

test of reasonableness under the Fourth

Amendment and that the police did in

fact acquire probable cause for the

ensuing search and seizure.

The police identified themselves

as narcotics agents working at the air-

port and asked for Defendant's co-

operation in a hand search of his

luggage. Defendant agreed. They pro-

ceeded to a small storage room but

immediately prior to entry the De-

fendant took flight leaving his baggage

behind. The State maintains that the

12

flight in conjuction with the afore-

mentioned factors of being informed

that the police were narcotics agents,

the purchase of a one-way ticket paid

for in cash, Defendant's extreme

nervousness, and the discrepancy be-

tween the name on his airline ticket

and his personal identification were

sufficient to create a probable cause

for trained narcotics officers to be-

lieve that the Defendant was engaging

in criminal conduct.

The State contends that the

Fourth District Court of Appeal in the

instant case did not give sufficient

consideration to the element of flight

in conjunction with all of the afore-

mentioned factors which cast suspicion

on the Defendant. The court found:

13

Realistically, we all know

that running from the police

indicates guilt or fear

warranting further investi-

gation. However, the con-

stitutional requirement of

probable cause cannot be

satisfied by the bootstrapping

effect of tackling the ap-

parent innocent person who

chooses to sprint instead of

politely declining to be

searched.

The appellate court's initial er-

roneous conclusion has a snowballing

effect in this case. Had the court

realized that while the drug courier

characteristics did not confer probable

cause, they did at least provide a basis

for a limited investigatory stop, in all

likelihood the court would have drawn

the corollary that the added factor of

flight under the circumstances did pro-

vide probable cause for the search and

seizure. It is because the court labor-

14

ed under the misapprehension that the

Nefendant's conduct did not create a

reasonable articulable suspicion in the

minds of trained narcotics enforcement

officers to believe the Defendant was

engaged as a drug courier that the

court could not appreciate the signifi-

cance of the Defendant's flight.

The Court overlooked the fact that

just as a jury may infer consciousness

of guilt from evidence of flight, so

may a police officer infer conscious-

ness of guilt when a suspect takes

flight. As this Court recognized in

Sibron v. New York, 392 U.S. 40, 20

2

L.Ed. 24 917, 88 S. Ct. 1889 (1968) :2/

2/ See also United States v. Harley,

682 F. 2d 398 (2nd Cir. 1982) for a

good discussion of the significance of

flight in a case where there is a pre-

existing suspicion.

late ti elena os

Fike Del ese MS he At oe

ee

&S

[F]light is a ‘strong indicia

of mens rea.' Thus, if there

already exists a significant

degree of suspicion concern-

ing a particular person, the

flight of that individual

upon the approach of the police

may be taken into account and

may well elevate the pre-

existing suspicion up to the

requisite Fourth Amendment

level of probable cause.

CONCLUSION

It must be remembered that the

Fourth Amendment is meant to protect

against unreasonable search and seizure.

The State has maintained all along that

the actions of the police did comport

with the ultimate test of reasonable-

ness 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 respectfully submits that this

16

case involves a substantial federal

question which should be resolved by

this Court, and respectfully requests

that this Court grant its petition for

writ of certiorari to the District

Court of Appeal of the State of

Florida, Fourth District.

Respectfully submitted,

JIM SMITH

Attorney General

Tallahassee, Florida

JOY B. SHEARER

Assistant Attorney General

111 Georgia Avenue-Rm. 204

West Palm Beach, FL 33401

(305) 837-5062

Counsel of Record

MARLYN J. ALTMAN

Assistant Attorney General :

Attorneys For Respondent

APPENDI X

A-i

INDEX TO APPENDIX

Opinion of the District Court

of Appeal of the State of

Florida, Fourth District,

under review herein, filed

December 7, 1983

Order of the Fourth District

Court of Appeal, entered on

January 18, 1984, denying

Petitioner's motion for re-

hearing.

Order of the Supreme Court of

Florida, entered on November

29, 1983, denying Petitioner's

petition for review

PAGE

A-1

A-1

IN THE DISTRICT COURT OF APPEAL OF THE

STATE OF FLORIDA

FOURTH DISTRICT JULY TERM 1983

JEFFREY NEASE a/k/a

MICHAEL COLWELL a/k/a

LOUIS POYNTER,

Appellant

Vv. CASE NO. 82-2164

STATE OF FLORIDA,

Appellee.

/

Opinion filed December 7, 1983

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.

BERANEK, J.

Appellant was charged with and

found guilty of trafficking in cocaine

A-2

and possession of methaqualone. He

raises four points on appeal, one of

which is dispositive. We hold that

the trial court erred in denying

appellant's motion to suppress the

drugs.

This is an airport drug courier

profile seizure. Agents observed

appellant at the Delta Airlines ticket

counter at Fort Lauderdale airport. He

was carrying with him a garment bag and

a small shoulder bag. Appellant paid

cash for a one-way ticket from Fort

Lauderdale to Cincinnati. Agents

testified that he appeared nervous and

moved from foot to foot while he was in

the ticket line. They approached

appellant and after identifying them-

selves as police officers, they re-

A-3

ceived permission to look at his ticket

and his driver's license. Noting

different names on the ticket and

license, the agents again identified

themselves, this time as narcotics

agents, and asked permission to hand

search appellant's luggage. Appellant

initially consented and accompanied the

agents to a small storage area. As they

neared the area, appellant refused to

enter. He then turned and ran but was

tackled and arrested by two of the

agents. While the agents were chasing

appellant, another agent went through

appellant's bags and found cocaine.

After appellant was arrested, a search of

his person revealed six methaqualone

. tablets.

The facts as outlined above were

A-4

simply not sufficient to justify the

initial stop. See Florida v. Royer,

U.S. ’ S. Ct. » 75 L.Ed.

2d 229 (1983), and Horvitz v. State,

433 So. 2d 545 (Fla. 4th DCA 1983). It

should be noted that the state in its

brief characterizes the initial contact

between appellant and the police as a

voluntary citizen/police encounter. We

agree with this characterization. Being

a voluntary encounter, appellant had

the right to withdraw any consent which

he might have given previously. Lack-

ing probable cause and appellant's con-

sent, the agents illegally searched the

bags. Furthermore, the mere withdrawal

of consent did not give the agents pro-

bable cause to arrest appellant after

tackling him. We do not view

A-5

appellant's leaving the scene as an

abandonment of his luggage. Obviously,

a voluntary citizen/police encounter

without probable cause can not be used

as a test to see if the supposedly in-

nocent citizen incriminates himself by

running away. Realistically, we all

know that running from the police in-

dicates guilt or fear warranting

further investigation. However, the

constitutional requirement of pro-

able cause can not be satisfied by the

bootstrapping effect of tackling the

apparently innocent person who chooses

to sprint instead of politely declin-

ing to be searched.

The case is remanded with direct-

ions to discharge appellant.

REVERSED AND REMANDED.

A~6

DOWNEY and WALDEN, JJ., concur.

A-7

IN THE DISTRICT COURT OF APPEAL OF THE

STATE OF FLORIDA

FOURTH DISTRICT

JEFFREY NEASE a/k/a

MICHAEL COLWELL a/k/a

LOUIS POYNTER,

Appellant, CASE NO. 82-2164

¥.

STATE OF FLORIDA,

Appellee.

January 18, 1984

BY ORDER OF THE COURT:

ORDERED that Appellee's December

22, 1983 Motion for Rehearing is denied.

I hereby certify the foregoing is a true

copy of the original court order.

CLYDE L. HEATH,

CLERK.

cc: Marlyn J. Altman, Assistant

Attorney General

A-8

Stephen J. Finta, Attorney

cms

A-9

SUPREME COURT OF FLORIDA

FRIDAY, JUNE 29, 1984

STATE OF FLORIDA,

Petitioner, CASE NO. 64,795

¥.

JEFFREY NEASE, etc. District Court of

Appeal, 4th

District - No.

82-2164

)

)

)

)

)

)

1)

)

Respondent. )

)

)

This cause having heretofore been

submitted to the Court on jurisdiction-

al briefs and portions of chin record

deemed necessary to reflect juris-

diction 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.

A-10

No motion for rehearing will be

entertained by the Court. See Fla. R.

App. P. 9.330(d).

ALDERMAN, C.J., OVERTON, McDONALD and |

SHAW, JJ., concur

ADKINS, BOYD and EHRLICH, JJ., dissent

A True Copy ps

TEST: cc: Hon. Clyde L.

Heath, Clerk

Hon. Patricia

Cocalis, Judge

Hon. Robert E.

Lockwood, Clerk

Sid J. White Marlyn J.

Clerk Supreme Altman, Esquire

Court

Steven J.

Finta, Esquire

by:

Deputy Clerk