# Petition for Writ of Certiorari — Florida v. Nease > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0063%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 470 U.S. 1080 ## Text - 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0063%3A1. Public record. Not legal advice.