Jurisdictional Statement — Florida v. Zafra

- Supreme Court, U.S.

FILED

DEC 17 1964

$4:953/

NO

ASEXANDER L. STEVAS.

CUmK

IN THE

Supreme Court of the United States

October Term, 1984

THE STATE OF FLORIDA

Petitioner,

vs.

SILVIO P. ZAFRA,

Respondent.

On Petition for a Writ of Certiorari to

the Florida Third District Court of Appeal

BRIEF OF PETITIONER ON JURISDICTION

JIM SMITH

Attorney General

CALVIN L. FOX

Assistant Attorney General

401 N.W. 2nd Avenue

Suite 820

Miami, Florida 33128

(305) 377-5441

i

QUESTION PRESENTED

FIRST ISSUE

WHETHER THE DECISION OF THE FLORIDA

COURT, LIMITING THE AUTHORITY OF

THE UNITED STATES CONGRESS, CON-

STRUING THE UNITED STATES CONSTITU-

TION AND HOLDING THAT UNDER 19

U.S.C. §1581(a) UNITED STATES

CUSTOMS OFFICERS MAY NOT BOARD A

VESSEL IN CUSTOMS WATERS FOR A

ROUTINE DOCUMENT EXAMINATION WITH-

OUT REASONABLE SUSPICION IF THE

CUSTOMS OFFICERS ARE ALSO LOOKING

FOR DRUGS, IS IN DIRECT CONFLICT

WITH AND IS A PLAINLY ERRONEOUS

CONSTRUCTION OF UNITED STATES V.

VILLAMONTE-MARQUEZ, _U.S. _, 103

S.Ct. 2573 (1983)?

~ SECOND ISSUE

WHEN CUSTOMS OFFICERS APPROACH TO

INSPECT A VESSEL AND ITS CONTENTS

UNDER UNITED STATES V. VILLAMONTE-

MARQUEZ, AND 19 U.S.C. 1581(a) AND

21 U.S.C. §955 MAY THE DEFENDANT

DEFEAT THE CUSTOMS OFFICER'S LAW-

FUL AUTHORITY BY QUICKLY REMOVING

HIS BOAT FROM CUSTOMS WATERS AND

PUTTING IT ON A LAND BASED

TRAILER?

ia

QUESTIONS PRESENTED

(continued)

THIRD ISSUE

WHETHER THE STATE COURT'S REJECTION

OF THE CUSTOMS DRUG SMUGGLER

PROFILE PRESENTATION AND REASONABLE

SUSPICION ANALYSIS UNDER THE UNITED

STATES CONSTITUTION IS IN DIRECT

CONFLICT WITH FLORIDA V. ROYER,

G.es. . $0) Gabe. BEEP CAFOs);

UNITED STATES V. MENDENHALL, 446

U.S. 544 (1980) AND UNITED STATES

V. CORTEZ, 449 U.S. 411 (1981)?

FOURTH ISSUE

WHETHER THE EXCLUSIONARY RULE

SHOULD BE APPLIED TO NON-EGREGIOUS

POLICE CONDUCT?

TABLE OF CONTENTS

QUESTIONS PRESENTED. ....cccccccsecs

TABLE OF CITATIONS ......cccccccees

OPINIONS BELOW... ccc ccc cccccccccce

JURISDICTION... cccccccccccccccces

CONSTITUTIONAL AND

STATUTORY PROVISIONS..........0000-.

STATEMENT OF THE CASE.......-2-cee0-

REASONS FOR GRANTING

THE PETITION... csscccccccccccccscecs

CONCLUSION . ccc cccccccccccccccccces

ii

TABLE OF CITATIONS

CASE PAGE

Brewer v. Williams,

5 eae. tos reer 28

Brown v. Illinois,

B22 U.S. SIO. cece ec cneccnces 29

California v. Mingares,

Ree. Vola PER CEPA PD ccc vcccaas 28

Carroll v. United States,

ee ee kt 26

Chambers v. Maroney.

ge Oe re 26

Florida v. Rodriguez,

Ub. , 105 $.Ct. 308

ee eek ks bon we oo ke, oe

Florida v. Royer,

460 U.S. 4 > Bee 27

Florida v. Royer,

U.S. , 0s &.Ce. i319

SRS 69.6 00 bE vee ee hn sane ia, 24

Hanson v. State,

445 So.2d 378 (Fla. 3d

Ee SE 6 Va Wa hte 00.0 od 458 19

Lii

TABLE OF CITATIONS

CASE PAGE

Hetland v. State,

366 So.2d 831 (Fla. 2d DCA

1979), approved and adopted,

Hetland v. State, 387 So.2d

a eg Oe ee eee 2

Illinois v. Andreas,

U.S. , aes 8.Ce. 3339

Illinois v. Lafayette,

U.S. , 103 $.Ct. 2605

SNe 54k ARDS a 2 Oo oe 0 ck os ae, a

Jenkins v. State,

385 So.2d 1356 (Fla. 1980)... 13

Michigan v. DeFillippo,

ee Wetec Se RASPES ess witvsces 27, 28

Morales v. State,

407 So.2d 321 (Fla. 3d

ek rarer ers cere 19

State v. Doyle,

409 So.2d 1168 (Fla. 3d

8 ee ee 19

State v. Hayes,

333 So.2d 51 (Fla. 4th DCA

0) ) ne 30

State v. Zafra,

408 So.2d 745 (Fla. 3d DCA

PDC Ga Cus bees seus nekeans S$, -32

iv

TABLE OF CITATIONS

CASE PAGE

State v. Zafra,

408 So.2d 745 (Fla. 3d DCA

1982), rev. den., 418 So.2d

Ee ge... ar 10, 19

State v. Zafra,

444 So.2d 1064 (Fla. 3d DCA

| LOPES ery ee re eee eee ee

Stone v. Powell,

S26 U.S. 465 (1976) .cccccccee 28

United States v. Albino,

722 F.2d 690 (11th Cir.

"| BRS Pk 2 rae 18, 20

United States v. Cortez

Fk ee ee ia, 24

25. 27

United States v. Forbicetta,

484 F.2d 645 (Sth Cir. 1973). 25

United States v. Herrera,

711 F.2d 1546 (llth Cir.

Se 06e6ebwr weeny 4st at eeees 21

United States v. Mendenhall,

eS ee ee, ia, 24

26

United States v. Ross,

U.S. ‘

eo. wee ae) eee 23, 24

Vv

TABLE OF CITATIONS

CASE PAGE

United States v. Santana,

ee 22

United States v. Villamonte-

Marquez,

U.S ,» aes 8.Ce. 2573

TTC CECE Waiscsccc cece TE te

12, 14

15, 18

30

United States v. Williams,

622 F.2d 830 (5th Cir.

1980), cert. den., 449

EE 29

Warden v. Haden,

ee ee ee CRUDE Deciccccces 22

vi

OTHER AUTHORITIES

PAGE

Fourth Amendment, United

States Constitution...........6.. oe

Fourteenth Amendment, United

States Constitution............. ein

BO ie. Se hikw cc tvcdcicic a os

4, 14

18, 19

28

ees a oko 0's 44d o nee eee ee F

18, 19

y 31

ge a St) 2

Ve ae ee ee rerre + 4,

2

"Select Committee on Narcotics

Abuse and Control, 95th Cong.

2d Sess., Report on Problems of

Law Enforcement and Its Effort

to Reduce the Level of Drug

Trafficking in South Florida"

oe De 2 ) re 20

vii

PRE FACE

The Petitioner, THE STATE OF FLORIDA,

was the Petitioner in the Supreme Court of

Florida; the Appellant in the District

Court of Appeal of Florida, Third District

and the prosecution in the Florida trial

court. The Respondent, SILVIO P. ZAFRA,

was the Respondent in the Supreme Court of

Florida; the Appellee in the District

Court and the Defendant in the trial

court. In this brief, the parties will be

referred to as they appeared in the

Florida trial court below.

The following reference is made in

this brief:

(A) For the portions of the record

below sufficient to show jurisdiction in

this court, which are contained in the

Petitioner's Appendix attached hereto and

consist of pages Al-A74.

itt

1

I.

OPINIONS BELOW

The opinion of the District Court of

Florida, Third District upon remand from

this Court is reported at State v. Zafra,

444 So.2d 1064 (Fla. 3d DCA 1984).

(A59-A63). The original opinion of the

Florida District Court affirming the

granting of the Defendant's Motion to

Suppress is reported at State v. Zafra,

408 So.2d 745 (Fla. 3d DCA 1982). The

opinion of the Florida Supreme Court

denying the State's Application for

review, is contained in the Petitioner's

Appendix at "'A73'' and will be reported by

the West Publishing Company. The West

Publishing Company citation is the

official reporter for citation to these

opinions.

ee

2

Il.

JURISDICTION

On October 18, 1984, the Supreme

Court of Florida denied the State's

timely application for review. A73. The

jurisdiction of this Court is invoked

under the provisions of Title 28, United

States Code, §1257(3); Title 19, United

States Code §1581(a); and Amedments IV

and XIV of the United States

Constitution.

The interpretation of the Florida

Constitution and the United States

Constitution are identical for purposes

of the application of the criminal law

and search and seizure issues. See, Art.

I, §12 Fla. Const.; see, also, Hetland v.

State, 366 So.2d 831 (FLa. 2d DCA 1979)

approved and adopted, Hetland v. State,

387 So.2d 963 (Fla. 1980).

3

III.

CONSTITUTION AND STATUTORY PROVISIONS

Amendment IV of the Constitution of the

United States provides that:

"The right of the people to be

secure in their persons, houses,

papers, and effects, against

unreasonable searches and seizures,

shall not be violated, and no war-

rants shall issue, but upon

probable cause, supported by Oath

| or affirmation, and particularly

| describing the place to be

searched, and the persons or things

to be seized."

Amendment XIV of the Constitution of the

United States provided that:

"All persons born naturalized in

the United States, and subject to

the jurisdiction thereof, are

citizens of the United States and

of the State wherein they reside.

No State shail make or enforce any

law which shall abridge the

privileges or immunities of the

citizens of the United States; nor

shall any State deprive any person

of life, liberty, or property,

without due process of law; nor

deny to any person within its

jurisdiction the equal protection

of the law."

4

Title 19 United States Code §1581(a)

provides specifically that:

"Any officer of the customs may at

any time go on board of any vessel

or vehicle at any place in the

United States or within the custom

waters or, as he may be authorized,

within a customs enforcement area

established under the Anti-

Smuggling Act, or at any other

authorized place, without as well

as within its district, and examine

the manifest and other documents

and papers and examine, any person,

trunk, package, or cargo on board,

and to this end may hail and stop

such vessel or vehicle, and use all

necessary force to compel

compliance.

Title 21 United States Code §955 Provides

inter alia, that it is:

"unlawful for any person to bring

or possess on board any vessel.

arriving in or departing from the

United States or the customs

terri-tory of the United States, a

controlled substance. “hp

Article I Section 12 of the Florida

Constitution provides that:

"Searches and seizures.--The right

of the people to be secure in their

persons, houses papers, and effects

Oe

5

against unreasonable searches and

seizures, and against the unrea-

sonable interception of private

communications by any means, shall

not be violated. No warrant shall

be issued except upon probable

cause, supported by affidavit,

particularly describing the place

or places to be searched, the

person or persons, thing or things

to be seized, the communication to

be intercepted, and the nature of

evidence to be obtained. This

right shall be construed in

conformity with the 4th Amendment

to the United States Constitution,

as interpreted by the United States

Supreme Court. Articles or infor-

mation obtained in violation of

this right shall not be admissible

in evidence if such articles or

information would be inadmissible

under decisions of the United

States Supreme Court construing the

4th Amendment to the United States

Constitution."

6

IV.

STATEMENT OF THE CASE

The Defendant, Silvio P. Zafra, was

charged by information with three counts

consisting of one count of possession; one

count of importation and one count of

trafficking in marijuana, arising out of

his attempt on October 10, 1980 to bring

ashore one thousand (1000) pounds of

marijuana in a twenty-five (25) foot

speedboat at Crandon Park, Key Biscayne,

Miami, Florida. The Defendant filed a

motion to suppress, which the Florida

trial court granted after a hearing.

At the hearing below the State pro-

duced three witnesses, United States

Customs Officers Ogden, Carlin and

Nasossis. The Defendant did not testify

and produced no witnesses or evidence.

United States Customs Officer Richard

Ogden said that he had been trained by the

Customs Service to intercept

7

contraband coming into the United States

by plane and boat. A5. On October 10,

1980 he went on duty at six p.m. and

began a routine survey of boats in the

Crandon boat ramp area. A6-Al10.

The customs officers at 3:00 a.m.

encountered the Defendant's boat in cus-

toms waters. All. It was undisputed

below that the customs officer thereupon

decided to conduct a routine customs

boarding. Al6 . Officer Nassosis

checked the boat's papers. A44. Officer

Ogden stepped on the trailer fender and

looked into the boat. Al6. The deck was

much higher than the manufacturer had put

ir. Al6. Ogden said that this was a

characteristic profile of smugglers.

Al6. The trend among smugglers had

evolved from throwing contraband into

cabins, to stowing contraband into

cabins, to stowing contraband in hidden

compartments. Al7. Ogden testified that

. —_~™ ~

8

he observed marijuana residue on the boat

carpet. Al8. There was also a rise in

the carpet evidently covering a hatch

area. Al8. Ogden testified that he

considered this suspicious--the way the

vessel was constructed there should not

have been a hatch of that nature under

the carpet tacked to the deck. Al19. The

boat had no fishing gear and had only

tools and mechanics tools on the deck.

A20. Ogden said he pulled the carpet

back and an odor of marijuana was coming

out. A22. The hatch was secured by

screws. A22. In the hatch were twelve

(12) bales of marijuana weighing one

thousand pounds. A24.

Relative to the present petition, as

noted above, the State's evidence was

undisputed. In particular, United States

Customs Officer, James A. Carlin

9

explained the presence of the United

States Customs Officers at the Crandon

Park boat ramps thus:

"[By the prosecutor]:

Q Turning your attention to

October 10, 1980, had you started

work that day or before?

A We started on the 9th at 6:00

p.m.

Q When you say, "we" co whom are

referring?

A Myself, Officer Nasossis and

Officer Ogden.

QO What was your duty for that

period which you were working?

A We're assigned to the marine

section on the night shift. So,

basically we check boat ramps for

any incoming vessels--the various

boat ramps into the Miami area.

A What is the purpose of

checking the boat ramps for the

waterways? What is the relation-

ship to Customs?

A Well, we check basically for

boats coming from foreign

countries.

10

Boats coming into those ramps

do have access to Custom waters.

So, we check for documents and any

undeclared items they might have.”

A38-A39.

Based upon the foregoing and reject-

ing the State's argument based upon other

factors that there was articulable sus-

picion, the trial court granted the

Defendant's Motion to Suppress. See,

State v. Zafra, 408 So.2d 745 (Fla. 3d

DCA 1982), rev. den., 418 So.2d 1281

(Fla. 1982): On appeal to the Florida

District Court of Appeal, the District

Court affirmed the trial court holding

that there was no articulable suspicion

herein and that United States Custom

Officers could not board any vessel to

check papers unless they could show a

"border crossing" or unreasonable sus-

picion. Id.

The undersigned filed his petition

11

for certiorari from said decision contem-

poraneously with the Government's peti-

tion in United States v. Villamonte-

Marquez, v8. , 403 8.Ce. 2573

(1983). In Villamonte-Marquez, this

Court subsequently held that Customs

Officers may lawfully board any vessel in

customs waters to examine documents under

19 U.S.C. §1581(a) without articulable or

reasonable suspicion. Id. On June 27,

1983, this Court therefore granted

Certiorari, vacated the foregoing deci-

sion of the Florida District Court and

remanded for further proceedings

consistent with United States v.

Villamonte-Marquez. Florida v. Zafra,

__U.S.__ 103 $.Ct. 3259 (1983).

On remand, the Florida Third

District Court of Appeal permitted sup-

plemental briefs on the effects of

Villamonte-Marquez and permitted further

12

oral argument. See, A58. On January 24,

1984, the Third District Court again

affirmed the suppression and dismissal by

the trial court. State v. Zafra, 444

So.2d at 1064-1065; see, A59-A63. The

Disrict Court reasoned that United States

v. Villamonte-Marquez was inapplicable

because the Defendants had quickly taken

their boat out to the water and (and it

was no longer a boat?!?) and the Customs

Officers were more interested in looking

for narcotics than solely checking docu-

ments. Id. The Court also stated that

the State had "conceded" that there was

no articulable suspicion in the present

cause! :

1 .The Court's analysis that the State

"conceded that there is no articulable

suspicion herein is based solely upon the

wording of the Court's original opinion

in State v. Zafra, 408 So.2d 746.

However, as reflected in the excerpt to

the State's original brief on appeal, it

states:

a

13

On February 8, 1984, the under-

signed filed a vigorous Motion for

Rehearing which was denied on February 29,

1984. See, A64-A70. On October 18, 1984,

the Supreme Court of Florida denied

review, with the Chief Justice Boyd and

Justice Ehrlich dissenting 2- See, A73.

The Florida District Court however stayed

its mandate pending review in this Court.

See, A74; see, also, A71-A?72.

(Footnote I continued)

"Furthermore, the State would

note that the officers did indeed

have reasonable suspicion, based

upon their observations, to board

the vessel."

Brief of State, at p.14.

(see A54)

2-The fact that the Supreme Court of

Florida may have severely limited juris-

diction to review this matter under

Florida's recent constitutional amend-

ment, see, Jenkins v. State, 385 So.2d

1356 (Fla. 1980), should not affect the

proper exercise of this Court's jurisdic-

tion. But see, Florida v. Rodriguez,

U.S. . 195 §.ct. 308 (1984) (dissenting

opinion).

a

14

V.

REASONS FOR GRANTING THE PETITION

A. Direct Conflict With United

States v. Villamonte-Marquez.

3 Without conceding for a moment that

it was in error in its original opinion,

the Florida District Court again affirmed

the judgment of the trial court below

dismissing the present criminal charges

upon the Defendant's Motion €d Suppress.

Rejecting United States v. Villamonte-

Marquez, 462 U.S. __, 103 S.Ct. 2573, 77

L.Ed.2d 22 (1983), permitting customs

officers to board any vessel under

Section 19 U.S.C. §1581i(a), the Court

reasoned that the evidence herein should

be suppressed because the officers

intended to look for illicit narcotics

rather than solely engaging in a routine

customs inspection. 444 So.2d at

1064-1065. (A59-A63).°

ee ~

15

The District Court's analysis that

the customs officers in the case at bar

had no authority to conduct the present

search because the officers were also

looking for narcotics, is in square con-

flict with the plain rejection of that

theory in United States v.

Villamonte-Marquez, 103 S.Ct. at 2577,

note 3 wherein this Court clearly

explains, thus:

"There is no issue in this case

concerning the activities of the

officers once they boarded the

Henry Morgan II. The only question

presented to this Court concerns

the validity of the suspicionless

boarding of the vessel for a docu-

ment inspection.

Respondents, however, contend in

the alternative that because the

customs officers were accompanyed

by Louisiana State Policemen, and

were following an informant's tip

that a vessel in the ship channel

was thought to be carrying mari-

juana, they may not rely on the

statute authorizing boarding for

inspection of the vessel's docu-

mentation. This line of reasoning

was rejected in a similar situation

in Scott v. United States, 436 U.S.

16

128, 135-139, 98 S.Ct. 1717,

1722-1724, 56 L.Ed.2d 168 (1978),

and we again reject it. Acceptance

of respondent's argument would lead

to the incongruous result criti-

cized by Judge Campbell in his

opinion in United States v. Arra,

630 F.2d 836, 846 (C Al 1980): ‘We

would see little logic in sanc-

tioning such examinations of ordi-

nary, unsuspect vessels but forbid-

ding them in the case of suspected

smugglers.'"

The undersigned brought the foregoing

footnote 3 to the attention of the

District Court to no avail. See, A68.

Furthermore, the District Court's

central position that the Customs

Officers intended to board the boat

because they suspected that it was

carrying narcotics rather than boarding

the boat to check "custom papers" is

wholly contradicted by the record. The

undisputed evidence from the only wit-

nesses presented established that Officer

Nasossis checked the boats papers, A44,

17

and that the officers boarded the boat

because they decided to conduct a routine

customs boarding. Al6. As Customs

Officer Carlin testified:

"We informed the--well, I had what

we call a Customs Raid jacket.

It's a nylon windbreaker with the

Customs badge, you know, embossed o

it, and on the back it says, ‘U.S.

Customs' I think in two inch let-

tering. It has a Customs patch on

each sleeve.

So, they more or less knew who we

were, but we identified ourselves

with our badge holder in the case

and told them we were from U.S.

Customs and that we would like to

inspect their vessel and check

their documents on the vessel.

Q What happened next?

A I believe Mr. Zafra identified

himself as the master of the vessel

and he was asked for documents, I

think, by--I believe Officer

Nasossis who asked him for his

documents in English, and I think I

also asked him in Spanish, you

know, to further clarify what we

wanted."

A43-A44.

The present District Court opinion is

18

therefore a plain miscontruction of

Villamonte and the express authority of

19 U.S.C. 1581(a) and 21 U.S.C. §955,

which provides that it is:

"unlawful for any person to bring

or possess on board any vessel. .

arriving in or departing from the

United States or the customs

territory of the United States, a

controlled substance.

[Emphasis added].

The present decision emasculates 19

U.S.C. 1581(a) and 21 U.S.C. §955 and

makes a mockery of this Court's express

consideration of the present issue and

rejection of the District Court's

analysis. The decision is also in direct

conflict with the Eleventh Circuit Court

of Appeals on the same issue. See,

United States v. Albano, 722 F.2d 690, at

695 (llth Cir. 1984)("Customs officers

may rely on section 1581(a) even though

they may suspect the vessel of smuggling

contraband"). In sum, the Florida Third

eee m ga Le eerie ernment

19

District Court of Appeal has told the

United States Congress that it cannot do

in Florida that which the face of 19

U.S.C. §1581(a) clearly states Congress

intended to do: to give customs officers

authority in "customs waters" to board

vessels for document and customs

examination, irrespective of whether they

are also looking for contraband, which is

expressly authorized under the companion

section, 21 U.S.C. §955 in any event.

This decision comes from the most active

Court in Florida in search and seizure

and boat cases because of its very

proximity to the major sources of illicit

marijuana and cocaine. See, e.g., Hanson

v. State, 445 So.2d 378 (Fla. 3d DCA

1984) (citing State v. Zafra); State v.

Doyle, 409 So.2d 1168 (Fla. 3d DCA 1982);

Morales v. State, 407 So.2d 321 (Fla. 3d

DCA 1981). At the same time, the present

decision comes at a time when a major

20

federal and state strike force is

operating in Florida to combat the grave

problem of the narcotics traffick cor-

ridor through Florida, the State with the

nation's largest coastline. See, "Select

Committee on Narcotics Abuse and Control,

95th Cong. 2d Sess., Report on Problems of

Law Enforcement and Its Effort to Reduce

the Level of Drug Trafficking in South

Florida" (Comm. Print 1978). The plainly

erroneous decision of the District Court

is therefore not only important to

Florida, but is also of immediate,

critical importance to federal law

enforcement authority and to the security

and safety of all citizens in virtually

all states in this nation where drug

trafficking is a problem. Additionally,

the bizarre conflict which now exists

between the highest federal court, see,

e.g., United States v.

Albano, supra, and the controlling state

21

court in the same jurisdiction can only

be resolved by this Court. Indeed, the

State submits that the present District

Court has been difficult in its views

on search and seizure3- See, Florida Vv.

Rodriguez, U.S. __, 105 S.Ct. 308

(1984) (reversing the same Florida Third

District Court of Appeals for the second

time in the same case in as many years).

The State has therefore no recourse but

to respectfully request this Court's

patient consideration again.

B. Conflict with Other Decisions

of the United States Supreme

Court.

Similarly, the District's Court's

reasoning that it makes a constitutional

3-It is for this reason that the sua

sponte modification of the Eleventh |

Circuit's opinion in United States v.

Herrera, 711 F.2d 1546 (11th Cir. 1984),

See, 727 F.2d 1016 llth Cir. 1984), has

had and will have no effect whatsoever

upon the present opinion.

difference that the present vessel was

quickly removed from the water, is abso-

lutely contrary to the constitutional

analysis in this Court's "fresh pursuit"

and "authority to search" cases. See,

e.g., United States v. Santana, 427 U.S.

38 (1975) (Defendant's flight into her home

does not vitiate law enforcement officers

authority to detain her acquired prior to

her flight); Warden v. Haden, 387 U.S. 294

(1967) (same); Illinois v. Andreas, U.S.

___, 103 §.Ct. 3319 (1983) (Authority to

search container acquired at an earlier

point in time carried through and attach

to the time the container was again subse-

quently opened); Illinois v. Lafayette,

__U.S.__, 103 §.Ct. 2605 (1983) (search

pursuant to lawful arrest attaches at the

time of arrest and is still valid even

though conducted later at station); United

23

States v. Ross, U.S. » 102 $.Ct. 2157

(1982) (Authority to search container

acquired at an earlier point in time

carried through and attaches to the time

the container was again subsequently

opened); Illinois v. Lafayatte, ¥.8.

___, 103 S.Ct. 2605 (1983) (search pur-

suant to lawful arrest attaches at the

time of arrest and is still valid even

thought conducted later at station house).

The singular rule of the foregoing

decisions is that a change in position by

the defendant or the thing to be searched

from the position in which the officer

acquired the authority to lawfully search,

is not constitutionally significant. A

fortiori, the fact that a defendant or

24

defendants may be very clever and quick

about removing their boat from the water

does not defeat the right of customs

officers to demand papers and search for

narcotics. See, United States v. Ross;

Illinois v. Lafayette; Illinois v.

Andreas, supra. The opinion of the

District Court is in direct conflict with

these decisions and the Court has there-

fore completely misapplied and miscon-

trued the federal constitution: See,

Art. I, §12 Fla. Const.

Furthermore, the State would assert

that the federal officers did indeed have

reasonable suspicion, based upon both

their experience with smugglers and their

observations, to board the vessel. See,

Florida v. Royer, U.S. , 403: 8.Ct.

1319 (1983); United States v. Cortez, 449

U.S. 411 (1981); see, also, United States

25

v. Mendenhall, 446 1.S. 544, (1980)

(approving use of profile characterics) ;

United States v. Forbicetta, 484 F.2d

645, 646 (5th Cir. 1973) (approving use of

"profile" characteristics at border

search). In Cortez, the Court repeated

its approval of an officer's use of his

experience for probable cause and arti-

culable suspicion thus:

"The idea that an assessment of the

whole picture must yield a parti-

cularized suspicion contains two

elements, each of which must be

present before a stop is permis-

sible. First, the assessment must

be based upon all the circun-

stances. The analysis proceeds

with various objective observa-

tions, information form police

reports, if such are aailable, and

consideration of the modes or pat-

terns of operation of certain kinds

of lawbreakers. From these date, a

trained officer draws inferences

and makes deductions--inferences

and deductions that might well

elude an untrained perrson."

[Emphasis added].

449 U.S. at 418.

26

Additionally, after the officers were on

the vessel, they certainly acquired

probable cause to search the hold from

the presence and smell of marijuana on

the deck. When the officers so clearly

had probable cause to search the hold,

the warrantless search was obviously

justified by the exigency exception for

vehicles and boats. See, United States

v. Ross, U.S. _, 102 S.Ct. 2157

(1982); Carroll v. United States, 267

U.S. 132 (1925); See also, Chambers v.

Maroney, 399 U.S. 42 (1970).

The Florida District Court's flat

rejection of the State's argument upon

articulable suspicion which was based

upon the customs "profile" and the obser-

vations, training and experience of the

officers, is patently erroneous in the

face of the correct constitutional

analysis in Royer, Mendenhall, and

sg hi lia ai tala ae

27

Cortez. The fact that the events tran-

spired in the proximity of a border is

also a fact, which the Florida courts

erroneously absolutely refused to credit.

See, Cortez. The Florida District

Court's erroneous analysis of "profiles"

reasonable suspicion and "boat'' law is an

extension of the same erroneous analysis

in Florida v. Rodriguez. See, also,

Florida v. Royer, 460 U.S. (1983).

\

Finally, the State submits that the

cause herein is in direct contravention

to the good faith analysis of this Court

in Michigan v. DeFillippo, 443 U.S. 31

(1979) where despite the unconstitutional

nature of the statute this Court never-

theless sustained the seizure where the

officers were relying in good faith upon

the statute and its validity. The

federal officers herein were relying upon

28

19 U.S.C. §1581(a) and that, which the

statute plainly says the officers can do:

board any vessels in customs waters for

document and customs inspection. For

Florida and all federal customs officers

in state court, the present ruling

squarely conflicts with Michigan v.

DeFillippo. Moreover, the officers' good

faith reliance upon their observations,

training and experience to conclude that

a detention was necessary, presents a

circumstance herein of plainly non-

egregious police conduct, to which the

harsh penalty of the exclusionary rule

should find no application. See,

California v. Mingares, 443 U.S. 916

(1981) (Rehnquist, J. and Burger, J.,

dissenting); Stone v. Powell, 428 U.S.

465, at 496-502 (1976) (Burger, J., con-

curring); Id, at 537-542 (White, J., dis-

senting); Brewer v. Williams, 430 U.S.

29

419, at 420-429 (1977) (Burger, J. dis-

senting); Brown v. Illinois, 422 U.S.

590, at 610-612 (Powell, J. concurring) ;

United States v. Williams, 622 F.2d 830

(5th Cir. 1980)(en banc), cert. den., 449

U.S. 1127 (1981).

30

VII

CONCLUS ION

The present opinion is in direct

conflict with United States v.

Villamonte-Marquez and another decision

in the same jurisdiction of the Eleventh

Circuit Court of Appeals upon an impor-

tant issue of federal law regarding the

authority of federal officers. The

District Court has refused to follow

federal law and the paramount federal

interest in maintaining the integrity of

the borders and "customs waters" of the

United States. At the same time, this

present decision of the Florida Third

District Court is binding on all Florida

trial courts see, State v. Hayes, 333

So.2d 51 (Fla. 4th DCA 1976), and

emanates from the leading Florida state

court in the construction and analysis of

"boat" law and drug courier case law.

31

Florida has the greatest coastline of any

state and a grave interest in the consis-

tent interpretation of "boat law."' The

present decision's direct adverse effect

upon a national federal and state effort

in Florida to stem the tide of drug

traffic in Florida cannot be gainsaid. The

inconsistent and erroneous analysis of the

Florida District Court presents a conflict

on a matter of substantial public and

national importance. The present cause

presents a most cogent and timely case on

the question of federal officer's

authority under 21 U.S.C. §955 requiring

customs officers to seize contraband,

consistent with their primary statutory

authority.

This Court therefore plainly has

jurisdiction herein and should exercise

KF

exercise its jurisdiction for these,

‘special and important reasons." See,

Sup. Ct. R.1l7.

RESPECTFULLY SUBMITTED on this

day of December, 1984, at Tallahassee,

Leon County, Florida.

JIM SMITH

Attorney General

CALVIN L. FOX, Esquire

Assistant Attorney General

A INC he alla Klin Rta tit a

APPENDIX

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CONTENTS

ITEM PAGE

EXCERPT: Hearing on

Motion to SUPPTFEBBS.ccccccccscccces A2-A53

EXCERPT: State's Initial

Brief on AppeAleccccccccccccccces A54-57

Preliminary Order of

Florida 3d District

Court of Appeal on Remand........ A58&

Opinion of Florida 3d

District Court of Appeal

on EPP rerrerirerrrerrerre A59-A63

Florida's Motion for

Rehearing in 3d District

Court of Appeal....ceeeeseeseeees A64-A69

Order of Florida 3d

District Court of Appeal

denying rehearing......2eeeeeee++ AIO

Order of Florida 3d District

Court of Appeal staying mandate

pending review in Florida

Supreme Court..ccccccccccccccvsece AJVI-AT2

Opinion of Florida Supreme

Court denying review......eee++++ A73

Order of Florida 3d

District Court of Appeal

staying mandate pending

review in U.S. Supreme Court..... A74

A2

IN THE CIRCUIT COURT

OF THE ELEVENTH

JUDICIAL CIRCUIT IN

AND FOR DADE COUNTY,

FLORIDA

CRIMINAL DIVISION

THE STATE OF FLORIDA )

Plaintiff, )

vs. ) No. 80-19386

SILVIO ZAFRA, )

Defendant, )

Metropolitan Justice

Building,

Miami, Florida

Friday, 9:00 a.m.,

February 20, 1981.

The above-entitled case came on for

motions before The Honorable James R.

Jorgenson, Circuit Judge, pursuant to

Notice.

A3

APPEARANCES:

JANET RENO, State Attorney, by

ELYSE TARG, Assistant State

Attorney.

Attorney for Plaintiff.

ROSEN, PORTELA, BRONIS, ANGUEIRA,

& CLAY, by WILLIAM A. CLAY, Esq.

of counsel.

Attorneys for Defendant.

AY

[ PREHEARING DISCUSSION OF

ATTORNEYS OMITTED]

RICHARD D. OGDEN was called as a

witness and, having been previously sworn,

was examined and testified as follows:

DIRECT EXAMINATION

BY MS. TARG:

Q Would you please state your

name and official capacity for the

record.

A Richard D. Ogden. I ama

patrol officer for the United States

Customs Service.

Q How long have you been so

employed as a Customs Patrol Officer?

A For approximately eighteen months,

Q Pursuant to that job, did you

have any training?

A Yes, ma'am, I did.

Q What training was that?

A5

A I attended a seven-week integrated

law enforcement course of the Federal

Enforcement Center in Glencoe, Georgia.

In addition, I attended a four and a

half week course at the same location,

which dealt with specific duties

assigned to Customs Patrol Officers.

Q Officer, what are the duties of a

Customs Patrol Officer--and, for the

record, I will use a CPO.

What are the duties of a CPO?

A To intercept the flow of contraband

coming into the United States, primarily

narcotics, and to enforce other customs

and related laws.

Q Are your powers basically dealing

with boats, airplanes or what?

A Yes, ma'am.

A high percentage of our work deals

with boats and aircraft coming into

the country.

I i

A6é

Q Were you employed on August 10,

1980?

A Yes, ma'am.

Q Were you employed as a CPO then?

A Yes, ma‘am.

Q Did you come on to duty that day?

A I came--reported for duty at

6:00 p.m. on October 9.

Q What were you going to do that

night?

A Generally that night we conducted

a routine survey--myself and my partners

--of the public boat ramps situated in

the local Miami area going from Key

Biscayne up to Bakers Haulover and

making an analysis on the different

types of trucks and boat trailers

parked at these locations.

Q How many boat ramps did you investi-

gate that night, approximately?

A Approximately eight.

A7

Q At any of these ramps did you

notice anything unusual or was anything

brought to your attention?

= Yes, ma‘an.

Q What was that?

A At Crandon Boat Ramp, I would

estimate at approximately eight to

nine p.m. that evening, we observed

two pick-up trucks with trailers at-

tached which attracted our attention.

Q Why did they attract your at-

tention?

A Based on my prior experience as

well as the documented experience of

all the other officers in our office,

this particular trailer, which was a

three axle float on, fit somewhat of a

profile commonly used in smuggling

activities.

Q Why did this seem suspicious?

What was it about this type of trailer

A&

which seemed suspicious?

A That this particular type of

trailer has the capability of carrying

a very large vessel as opposed to what

would be used just for fishing around

the bay.

The vessel generally carried on

this type of trailer hi« long range

capabilities and they are generally

very wide vessels.

Q Have you ever made any seizures

involving these typical-type trailers?

A Yes, ma'am.

Q Approximately how many?

A I would estimate approximately

twelve to fifteen.

Q When you have made these types of

seizures, have you found contraband,

drugs and the like?

A Yes, ma'am.

Q Do you know of any other seizures

A9

made of these types of trailers in-

volving contraband?

A Yes, ma‘am.

Q How many, approximately?

A Throughout our office I would say

there has been several dozen made, or

more, in the eighteen months I have

been employed there.

Q Officer, you stated that you saw

that first at eight o'clock.

What did you do after you noticed it?

A We first observed it at approxi-

mately eight o'clock that evening. It

was the only truck and trailer at the

local ramps which had any potential as

far as we were concerned.

We established a surveillance on

the truck and trailer at the Crandon

boat ramp.

Q Did you sit on it? Did you watch

it all night or did you do anything during

that time?

————_ lS

Al10

A To the best of my recollection, we

did not sit on the truck and trailer

immediately after we spotted it.

We more or less made a note on it,

checked the other ramps and then came

back.

Q When was the next time you saw this

particular trailer?

A I would imagine about an hour and

a half, maybe two hours after we first

observed it, we came back to it.

That's just a rough estimate.

Q Did you see anything at that time?

A No, ma‘am.

It was in the exact position and

place as we had left it. |

Q What did you do then?

A At that time we established a sur-

veillance on the truck and trailer,

parked our vehicle somewhat in a

darkened area of the parking lot and

just sat and waited. bi sini

a a

All

Q Did you see anyone approach that

trailer later on, either that night or

the next morning?

A ¥es, ma’am.

Q Approximately when was the next

time you saw somebody approach that

trailer?

A The first and only time we saw some-

One approach that trailer was when one

of two persons boarded the 25 foot

Bertram, which arrived at Crandon Marina.

Q What time was that, approximately?

A I believe that was a little after

three o'clock in the morning.

Q Was that on October 10?

A Yes, ma‘an.

Q Was the length of time between which

you had first seen it and the fact that

it was three o'clock--did that affect you

in any way?

[OBJECTION OVERRULED].

eC ##swésedeseeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

Al12

A Yes, ma‘an. bs

Q How so?

A From the time we first spotted the

truck and trailer until the time someone

approached it, it was nearly seven hours.

That, to me, aroused my suspicions

in that it would have been an unusualiy

long fishing trip, in my opinion.

Q Would it have any other influence

on you, as to the length of time?

A Yes, ma‘an.

We have made notes in our office

and calculated on several occasions

that it generally takes vessels approxi-

mately four and a half to five hours to

go from here to any of the islands in

the Bimini area and to return. This

affected my thinking in that they had

more than sufficient time to go to any

of the islands, which could be used as

a stash site--and there are intelligence

Al3

bulletins that we have which indicate

that that is a common method--store the

marijuana on a vessel and return.

Q Did you have occasion to see anybody

on the boat?

A Yes, ma'am.

Q Who was that?

A The defendant, Mr. Siovio Zafra, and

one other individual.

Q Did anything about those two sini

arouse your suspicions?

A When we first initially spotted

the vessel arriving at the dock, I really

could not see them all that well. We

did notice that there were two persons,

: as they brought the boat out of the water

: and, as we approached, there were several

things which caught my attention.

Q what was that?

A First of ali, it was quite evident

right off, once I got close enough, that

Al4

both of the individuals were Latin.

Q Was there anything suspicious

about that?

A Not suspicious. Only in that we do

make a lot of arrests and seizures with

boats loaded with marijuana which are

manned by two or usually two or three

Latin males.

Very rarely, in fact never, have I

participated in one that I recall with a

woman on board or children or where both

individuals were Americans.

Q What about blacks--have you ever made

a seizure where there are blacks?

A I believe perhaps on one occasion.

Q In terms of the experience of Customs

Officers with which you are familiar, do

you know what percentage of their seizures

are made in cases where there are Latin

males?

{OBJECTION SUSTAINED]

[DISCUSSION OMITTED].

A detente

A15

Q Officer Ogden, was there anything

else about the appearance of these two

Latin males which you found to be suspi-

cious?

A Yes, ma'am.

Q What was that?

A On the initial glance at the two

individuals they appeared to be somewhat--

excuse the term-~-weatherbeaten. They

looked like they had been out for some

time engaging in perhaps heavy work or

something. |

Their clothes were somewhat dirty.

They just looked like they had really

been worked over.

Q Did there come a time when you

stopped the two individuals?

A Yes, ma'am.

Q When was that?

A A few minutes after we first stopped

the boat coming up to the dock.

Al16

Q What was the purpose of the stop?

A The purpose of the stop was to con-

duct a routine Customs boarding.

Q Pursuant to that, what did you do?

A My two partners went up to talk to

the individuals and to obtain the neces-

sary registration forms. I went to the

vessel, which was already aboard the

three axle float-on trailer and had

aiready been pulled out of the water.

I stepped on the fender above the wheels

of the trailer and looked over the gun-

wale of the vessel into the boat.

Q At that time did you notice anything

unusual about that boat?

A Yes, ma‘an.

Q What was that?

A I noticed that the main deck of the

vessel was considerably higher than what

I would believe the manufacturer would

have put it. This is also a profile

Al17

which has become quite common among

smugglers.

The trends have changed over the

years. They have gone from just throw-

ing it into the cabin and loading it in

remote spots along the coast to using

secret compartments and bringing it on

to the public boat ramps.

Q Have you ever encountered boats

like this in your experience?

A Yes.

Q Have you encountered contraband

in these boats?

A Yes, ma‘am.

Q How many seizures have you made in

boats of this type?

A I would say approximately maybe

fifteen.

Q What did you do next?

A I climbed aboard the vessel, took

a quick glance into the cabin area to

Al18

assure myself that there was no other

persons on board the cabin, and it was

more or less a visual~-just a quick visual

check.

I looked down at the deck and got

down on my hands and knees where I could

get a closer look at it.

I had one flashlight and I did ob-

serve marijuana residue embedded in

the carpet.

You could not see it until you got

down on your hands and knees and looked

really close and spread the pieces of

carpet, you know, apart.

Q Did you find anything else?

A Yes, ma‘am.

Prior to finding the residue, I did

run my hand over the carpet itself in an

effort to determine if I could feel any-

thing underneath and I did feel what ap-

peared to be a small rise underneath

the carpet.

ee

Al9

Due to its shape and size it led me

to believe that there was a hatch under-

neath the carpet.

Q This was covered by the carpet

though?

A That is correct.

Q In your experience, was that

suspicious?

A Yes, ma'am, it was.

Q Why?

A Because, the way the vessel was con-

structed, there shouldn't have been a

hatch of that nature under carpet tacked

down to the deck.

Q Was there anything else about what

you saw on the deck of that boat which »

made you suspicious? |

A Yes, ma‘'am. There were several

tovls and a lot of odds and ends on the

deck that really had nothing to do with

any fishing expedition, as far as I could

| ) —

A20

tell--the tool boxes, odds and ends,

mechanics’ tools and things that I, ordi-

narily, would not expect to see on a boat,

especially for a fishing expedition.

To the best of my recollection,

there was no fishing gear on board the

boat. I believe there might have been

an ice chest, but I didn't see any fish

nor did I see any bait.

Certainly anyone engaging in a

fishing trip for six or seven hours would,

in my opinion, at least come back with

something.

Q What led you to believe that these

people might have been on a fishing trip?

You said that any~ne on a fishing

trip would have had something there.

What led you to believe that they

might have been on a fishing trip?

A Generally--it was just an assump-

tion on my part at that point that

they were.

ee ————————————————

A21

Generally, when we stop boats and

ask the routine questions, they generally

are fishing or they're taking the boat

out for a test run to test it out.

Q In your experience, when you find

this residue on the ground what do you

usually find?

A Usually when we find residue, in my

experience, we'll either find a stash of

marijuana on the vessel or we'll find

a secret peupartecnt which has other

residue in it which is an indication

that perhaps at one time or another it

did carry marijuana.

Q What did you do after you have

gotten down on your hands and knees?

A After I had gotten on my hands and

knees and picked up a little residue and

saw the incongruency in the deck below

the carpet, I asked my partner, Richard

Nasossis, to come aboard the vessel and

i give me a hand.

———————————— OO

A22

Q Did he?

A Yes, ma'am, he did.

Q What happened then"

A I told him what I had found and he

agreed that there was definitely some-

thing amiss.

We pilled back the carpet off the

deck, wnich was--it was just lightly

tacked down with a little adhesive, and

he put his nose---

We did find a hatch. It was basi-

cally rectangular in shape and secured

by probably a dozen or more screws.

He got down on his hands and knees

and put his nose to one of the seams

in the hatch and took a whiff and came

up and said yeah--he could smell what he

thought was marijuana.

Q What did you do then?

A We proceeded to remove the screws

from the hatch and lifted the hatch and

A23

the marijuana was visible--immediately

visible--below the deck.

Q Have you seen marijuana before?

A Yes, ma‘am.

Q To your trained eyes, this was

marijuana?

A Yes, ma‘am.

Q Did you run any test on it?

A Yes, ma'am, we did run a field

test.

Q What did you do?

A We have a small test tube filled

with a chemical agent which, when

exposed to THC, which is in marijuana

and hashish, will turn bright red.

We removed a few leaves. I tore

open one of the bales and removed a few

leaves and a couple of seeds, put then

in the tube, mixed it with the chemical,

shook it up, and it tested positive and

turned bright red.

I acces il eteaieeeieeniasaeuallll

A24

Q How much marijuana was there?

A We found twelve bales and we esti-

mated the weight to be approximately

1000 pounds.

These were somewhat large bales.

Q Did all of this take place in

Dade County, Florida?

A Yes, ma'am.

MS. TARG: The State has no further

questions of this witness.

THE COURT: You may inquire.

CROSS EXAMINATION

BY MR. CLAY:

Q Officer Ogden, is it not true that

you and the other two Customs Patrol

Officers with you on the day and night

and morning in question were together

throughout all of your law enforcement

activities?

A That's correct.

Q Is it not also true that enforcement

LL —s

A25

of the laws of the State of Florida is

not within the scope of your authority?

[OBJECTION OVERRULED].

A If we come across violations of

Florida law in our efforts, then we do

make detentions as necessary and turn

them over to the local authorities.

Q That would be incidental to your

investigating a federal customs

violation?

A That's correct.

Q But you would not be conducting a

search for violations of Florida law,

would you?

A No, sir, we wouldn't.

Q Is it not true that you and the

other two Customs Patrol Officers,

while you were still in the surveillance

van, made the decision that you were

going to board this particular boat?

eaibbacmod nase intl hot i

A That's correct.

—s pases ae : ,

A26

A That's correct.

Q Is it not true that the van in which

you were located and from which you were

making some observations was approxi-

mately 100 yards from the boat, the

trailer and the truck, which you have

been describing?

A Approximately, give or take a few

yards.

Q After making the decision in the

van to approach these men and board the

boat, I assume all three of you officers

got out of the van and commenced to do

what you had planned to do?

A That's correct.

Q Your primary role was to climb up

on the trailer and climb up on the boat

and get inside the cockpit of the boat,

was it not?

A I wanted to take a look in the cabin

area to assure myself there were no other

qa ; “ —

; A27

persons there.

Q But you went directly to the

| trailer and to the boat?

A Went directly to the trailer and

stood up and looked in the boat.

Q While you were doing that, the

other two Customs Patrol Officers were

involved in some other activity?

A That's correct.

Q Is it not true that Customs Patrol

Officer Carlin was suffering from a back

injury, specifically a slipped disc,

and he lagged a little bit behind?

A That's correct.

Q You have been testifying regarding

three axle trailers and some type of a

profile associated with it.

Is it not true that three axle

trailers or four axle trailers are just

as consistent with being used by inno-

cent boat owners who happen to have

emacs

A28

large boats that necessitate that type

of trailer equipment? Is that not true?

A Yes, sir.

Q There is nothing uniquely specific

about three wheel or three axle or four

axle trailers which inevitably point to

involvement in drug smuggling, is there?

A They dictate a strong possibility

in our opinions, but it's possible that

they're--I'm sure that they're used by

innocent persons.

Q Would you not agree that probably

there are more three and four axle boat

trailers used innocently--than pursuant

to a criminal venture?

[OBJECTION OVERRULED].

A I would say that a large percentage

of them are probably innocent.

That's hard to say.

Q Sir, are you saying that you and

the other Customs Patrol Officers first

A29

observed the truck and trailer in

question in this case at 8:00 p.m. on

the night in question?

A Or thereabouts--eight or nine

o'clock.

Q That would essentially be the first

involvement of you and the other offi-

cers in this case, would it not?

A That would be the first time we

sighted it--right--and made a note of it.

Q Did I understand you to say that it

is your experience that the typical or

customary time it takes a vessel to

travel from, let us say, Crandon Marina

to the Bimini area and return in four to

five hours?

A Approximately four and a half to

five hours.

Q When you made your observations of

this vessel, you had absolutely no idea

what kind of engine it had in it, did you?

A30

A No, sir, I didn't.

Q You did not know whether it would be

a diesel engine that might be capable of

producing approximately a forward speed

of eight to ten knots, or some type of

high speed engine. Correct?

A That's correct.

Q Obviously the time it would take to

go from Miami to Bimini and return would

be completely dependent upon the kind of

engine a particular boat has. Correct?

A The kind and the fuel capacity,

right.

Q You had no knowledge of any of those

factors?

A No, sir, I didn't.

Q Did I understand you to say that you

and the other officers were traveling

around Dade County and checking out

various boat ramps and marinas?

A We checked a total of about eight

—————— LT Umm

A31

ramps ranging from the Crandon boat

ramp, Key Biscayne, to the public boat

ramp at Bakers Haulover.

Q You have testified regarding the

appearance of Mr. Zafra and the other

individual as weatherbeaten and having

dirty clothes.

A That's correct.

Q Do you recall testifying in a depo-

sition on January 30, 1981, in this case?

A Right.

Q You were under oath, of course?

A Right.

Q Is it not true that you made abso-

lutely no mention of the alleged appea-

rance of these men as being weather-

beaten and wearing dirty clothes?

[OBJECTION SUSTAINED].

Q Did you prepare a report in this

particular case?

A I did not. No, sir.

js —rt~—‘“isOSsSsSsSs—sSsSsOCOlUl_"#. lee

A32

8) Do you own a Bertram boat yourself?

A No, sir, I don't.

Q Do you own any boat?

A No, sir, I don't.

Q Have you ever owned a Bertram?

A No, sir.

Q You have you ever been on one?

A Yes, sir.

Q How many times?

A Half a dozen.

We have one at work.

Q This particular Bertram boat in this

case is an older Bertram, is it not?

A Yes, sir, I believe it is.

I think it's a 1975 or something.

Q You know enough about boats that

they were constructed in a heavily built

fashion a few years back than they are

today, do you not?

A Right.

- Q Correct?

A33

A That's correct.

Q The whole structure and thickness

of the fiberglass is a lot thinner today

than it was even two, three, four, five

years ago?

A That's correct.

Q You have never been to the Bertram

factory, have you?

A No, sir.

[OBJECTION OVERRULED].

Q You never studied any Bertram manu-

facturer specifications, did you?

A No, sir, I haven't.

Q In fact you never had any experience

with this type and this year of Bertram

vessel before, did you?

A Not to the best of my recollection.

Q After you went directly to the vessel

and the trailer, climbed up to the fender,

did you then climb into the boat?

A After a few seconds pause looking

,

A34

in the boat--the initial, visual conten-

plation of the deck area.

Q You never asked any questions of

Mr. Zafra or of the other individual,

did you?

A No, sir, I didn't.

Q The other individual was a

Mr. Sanchez?

A That's correct. I believe so.

Q You observed the raised deck after

you climbed to the fender of the trailer?

A That's correct.

Q The fender and the trailer would be

about two and a half to three feet above

the ground?

A I don't believe it would be quite

that high. It would be---

Q Or pretty close to it?

A Maybe eighteen, twenty inches.

Q Prior to climbing aboard the trailer

and viewing the deck of the vessel, you

A35

were unable to see those portions of the

vessel, were you not, from the ground

level?

A That's correct.

Q It was absolutely necessary for you

to climb up in order to get the proper

vantage point to see in?

A That's correct.

Q After climbing up in that fashion

and observing for a few seconds with a

flashlight, you climbed aboard the vessel

and got into the cockpit?

A That's correct.

Q You then flashed your light into the

enclosed or walled off cabin?

A Yes, sir.

Q That is when you then got down on

your hands and knees and commenced a

close examination of the fibers of this

indoor/outdoor carpet?

A That's correct.

A36

Q Before climbing aboard the trailer,

climbing aboard the boat, commencing the

inspection of the carpet in a hand and

knees fashion, pulling up the carpet,

getting tools and unfastening the secret

hatch, did you ever ask Mr. Zafra or

Mr. Sanchez whether they had any articles

aboard the boat which might be subject

to the custom laws in the United States?

A No, sir, I didn't.

MR. CLAY: I have no further

questions.

[REDIRECT AND RECROSS EXAMINATION OMITTED]

[DIRECT EXAMINATION: WITNESS,

JAMES A. CARLIN].

THE COURT: Who is your next

witness?

MS. TARG: Officer Carlir.

Thereupon:

JAMES A. CARLIN

was called as a witness and, having been

ee ee ee

A37

previously sworn, was examined and

testified as follows:

DIRECT EXAMINATION

BY MS. TARG:

Q Officer, would you please state

your name and official capacity for

the record.

A James A. Carlin, Customs Patrol

Officer assigned to the Miami

District.

Q How long have you been so

employed?

A A little over two years.

Q Prior to that time, what was

your employment?

A I was a lieutenant with the Canal

i

;

: Zone Police in the Panama Canal zone.

|

Q For how many years?

: A Thirteen.

; Q Have you had any training in

customs work?

A38

A Well, due to my past experience as

a police officer, I went to the ad-

vanced phase of the Custom School,

which is in Glencoe, Georgia.

Q What kind of courses did you take

there?

A Search and seizure, constitutional

law, Miranda warnings, search of

vessels and those types of customs-

related tasks.

Q Turning your attention to

October 10, 1980, had you started work

that day or before?

A We started on the 9th at 6:00 p.m.

Q When you say, "we" to whom are you

referring?

A Myself, Officer Nasossis and

Officer Ogden.

Q What was your duty for that period

which you were working? -

A We're assigned to the marine section

ee Se eee

A39

on the night shift. So, basically we

check boat ramps for any incoming

vessels--the vartous boat ramps into the

Miami area.

Q What is the purpose of checking the

boat ramps for the waterways? What is

the relationship to Customs?

A Well, we check basically for boats

coming from foreign countries.

Boats coming into those ramps do

have access to Customs waters. So, we

check for documents and any undeclared

items they might have.

SSS

; Q What are Customs waters?

|

A Three miles out.

Q That night, turning your attention

to October 10, did you see anything

unusual?

rare rata cted ine

A We noticed an older model pickup

truck--I believe it was a 19/71l--at the

| Crandon Park boat ramp with a large

Te ee ee

A40

trailer on it.

We call it a Tandrum trailer. We

call it a three axle, but it refers

to three wheels on each side. So, it

would be a six wheel trailer.

Normally these types of trailers

do carry larger boats. So, we were sort

of interested in this trailer.

Q Did you look at the truck which

was there, too?

A Yes, ma'am.

Q Was there anything unusual about

the truck, in your mind?

A Well, it was an older model truck.

In our experience with contraband

or the smuggling of drugs, they go from

one extreme to the other. They either

have a pretty fancy truck, pretty fancy

rig, or it seems they go te the other

extreme and it's an older truck with a

newer model trailer, of course.

ShGas wamin «

A41

Q Is that what you found that night?

A Yes, ma'‘am.

Q Did you ever see anybody approach

that railer and truck?

A Yes, ma'am.

At approximately 3:10 a.m., on the

10th, a vessel came into the deck at

Crandon Park and an individual did walk

to the truck from the vessel.

Q What happened?

A The truck was backed up, the truck

and trailer were backed down to the

vehicle, at which time, give or take a

few minutes, the Dade County Patrol

Officer drove up in his vehicle and he

went over to the vessel at the dock.

They were parked at a distance away,

but apparently he was talking with the

individuals and he started to walk away

from the vessel on the dock there, at

which time we drove up in our truck, got

A4l-a

out of the vehicle and approached the

vessel.

Q Did you notice how much time it took

for the people to tie up the boat to the

trailer and hitch?

A I would say--you mean, to actually

trailer it up and get it out of there?

Q Yes.

A Probably fifteen minutes.

Q Was there anything unusual about

this, in your mind?

A They knew what they were doing.

In my experience of checking these

ramps, it seems that a lot of the people

seem to have a naturally hard time

trailering their boats up. It's hard

for them to line them up and get them on

the trailer straight and everything

else, and these gentlemen seemed to know

what they were doing. They got it on

rather rapidly and---

A42

Q Was that suspicious to you?

A Well, it arose my suspicion because

normally the people that do get involved

in contraband seem to be more proficient

at trailering a boat than the normal,

everyday fisherman does.

Q Was there anything else about the

boat or the people in it that arose

your suspicions?

A There were only two people on board

and---

Q What was suspicious to you about

that?

A Normally a person who would be

involved in with what we are involved

in--contraband--that would involve two

or three people on board.

Very seldom do you see a family or

kids or anything of that nature on a

boat that is involved with this type

of thing. It's rare, anyway.

A43

Q What did you do?

A As we approached in the vehicle,

Officer Butchko, who was the Dade County

man there, was sort of--I think he was

getting ready to leave, and we identi-

fied ourselves as Customs Officers to

him and we approached the vessel.

We informed the--well, I had what

we call a Customs Raid jacket. It's a

nylon windbreaker with the Customs Raid

jacket. It's a nylon windbreaker with

the Customs badge, you know, embossed

on it, and on the back it says, "U.S.

Customs" I think in two inch lettering.

It has a Customs patch on each sleeve.

So, they more or less knew who we

were, but we identified ourselves with

our badge holder in the case and told

them we were from U.S. Customs and that

we would like to inspect their vessel

and check their documents on the vessel.

A44G

Q What happened next?

I believe Mr. Zafra identified

himself as the master of the vessel and

he was asked for documents, I1 think,

by--I believe Officer Nasossis who asked

him for his documents in English, and I

think I also asked him in Spanish, you

know, to further clarify what we wanted.

At that time I returned to our

vehicle to begin filling out a search

and béetedac form, which we routinely

do in most cases involving Customs

seizures.

MS. TARG: I have no further

questions of this witness, Your Honor.

CROSS EXAMINATION

BY MR. CLAY:

Q Officer Carlin, as I understand it,

you had a slipped disc or a back injury

which kind of disabled you a little bit?

A Yes, sir.

A45

Q Climbing in and out of the van was

a little more difficult for you than it

was for the other gentlemen with you?

rN Right.

Q Did you lag behind when the three

of you decided to get out of the

Customs van?

A Right, plus I was driving the van

so, by the time I secured it, put the

brake on aud everything else, they had

already gone out.

I was probably a few steps behind

then.

Q Is it not true that Customs Patrol

Officer Ogden went directly to the

trailer and boat, climbed onto the

trailer and then climbed aboard the

vessel?

A I believe there were a few pre-

liminary questions ferer; but I'm sure

Ogden was the first one on board.

»

A 46

He didnit alii just walk up and

jump on per se, but he did go on shortly

thereafter, after a few preliminary

questions.

"We're from Customs. We want to

check your documents."

Q Officer Ogden was already up on the

trailer at the time you came up to

Mr. Zafra and Officer Nasossis?

A I'm not sure. I don't think he got

on quite that fast.

Q Are you guessing on this or do

you know?

A I would say no.

Q You testified regarding the signi-

ficance of this truck being an older

truck. Correct?

A Yes, sir.

Q Would you not agree that the fact

that this was an older truck is just as

consistent with somebody who is an

A47

unocent owner or user of the truck as

it is with somebody who is a person who

is criminally involved in the smuggling

of contraband?

A Yes, sir.

We see lots of vehicles there that,

just like you're saying, are not in-

volved in this type of activity.

Q You would agree that there are

probably more older trucks used by

people innocently than there are used

by people involved in smuggling, would

you not?

A Sure. I'd have to say that.

Q Regarding the proficiency of these

two men at trailering a boat, is it not

true that this proficiency and the short

period of time it took them to trailer

the vessel in this case is just as con-

sistent with a couple of men who were

innocent, experienced boaters and

fishermen?

A48

Is that not true?

A Yes, but it's a proficiency seldom

displayed on the ramps in South Florida

by the average, everyday person.

For some reason, they have a hard

time getting their boats on the trailer.

Q Mainly it depends on how many beers

they have while they are out doing some

boating?

A Could be.

es The proficiency is just as con-

sistent with an innocent man as with a

smuggler?

A Yes, sir.

Q In the course of your duties, you

observed many people who were out

boating in the evening and fishing in

the evening, did you not?

A Fase. Gif «

Q Boats coming back to dock in the

middle of the night or the early morning

a cr a

A49

hours is certainly not unusual for

fishermen or boaters, is it?

A One thing that was unusual---

Q But my question is---

[OBJECTION OVERRULED].

Q My question is: Night fishing and

night boating is not something unusual,

is it?

A No, sir.

Q Would you describe your role in the

case as a relativély minor one in light

of the fact that you had a back injury?

A Yes.

Normally we take our turns in

boarding vessels and getting directly

involved but, because of the injury, I

filled out the boarding form and the

paperwork-type angle of it that night.

Q Would you not agree, sir, that

there was nothing unusual about this

particular 25 foot Bertram or the two

ee a

——— eee

A50

men, Zafra and Sanchez, prior to their

being stopped, detained and the boat

being boarded and searched?

A The only thing unusual about it---

it had been out for quite a long time.

We first observed it at about

8:00 p.m. on the 9th, and it came back

at about 3:00 p.m. on the following

morning.

That's quite a time lapse to be

out in the bay itself. Normally you

don't stay out for that many hours.

That's the only factor.

Q So, your answer would be that there

was nothing unusual, other than the

time lapse that the boat was out?

A No, sir. Yes, that would be my

answer.

Q Obviously you have no knowledge

whatsoever of whether the boat broke

down or was out for that long a period

a ak a

A51

’ of time due to an engine breakdown,

do you?

A No, I don't.

Q The fact that the boat was out of

your sight for seven or eight hours is

just as consistent with innocent fishing

or an innocent, down on his luck boat

owner whose boat breaks down out there

on the bay?

A Sob: ahs:

MR. CLAY: Nothing further.

[REDIRECT AND RECROSS EXAMINATION OMITTED].

A52

[ EXCERPT: ARGUMENT OF PROSECUTOR]

{[1. Customs Search]

MS. TARG: I will argue that it was

a Customs search and, in determining

whether the search was good or not good,

you just have to look at the federal law

on searches and the federal law on

boarding on vessels.

Customs authority 19 U.S.C. 1581A

provides that Customs has a right to board

any vessel in Customs water to zesk for

documents or other papers regarding the

boat within twelve miles of the coast of

the United States, and this boat was seen

coming from the waters.

The officers testified that it was

only a few miles outside the Atlantic

Ocean. It was clearly in Customs waters.

* * *

[2. Articulable Suspicion]

The Court cases have held that, in

deciding whether there is reasonable sus-

picion, a Customs Patrol Officer is

re ae

A53

entitled to assess the facts in the

light of their experience, and you must

look at t..e totality of the circun-

stances.

We would, for those reasons, argue

that the test to be given is: Did these

CPO‘'s, in their experience in the Customs

Service, have articulable facts together

with rational inferences from these

facts to engender a reasonable suspicion

that the vessel in this case was being

used for narcotics trafficking and, again,

we rely on those cases and on U.S. versus

Brignoni-Ponce, a Supreme Court case

cites at 95 Supreme Court 2574.

A54

[EXCERPT OF STATE'S INITIAL BRIEF ON APPEAL

TO FLORIDA 3d DCA]

B. Furthermore, the State would note

that the officers did indeed have reason-

able suspicion, based upon both their ex-

perience with smugglers and their observa-

tions, to board the vessel. See, United

States v. Cortez, U.8. > nen BaSt.

690 (1981); see, also, United States v.

Mendenhall, es. ; 866 8.6. 21679,

64 L.Ed.2d 497 (1980) (approving use of

profile characteristics); United States v.

Forbicetta, 484 F.2d 645, 646 (5th Cir.

1973) (approving use of "profile" charact-

eristics at border search). In Cortez

the Court repeated its approval of an of-

ficer's use of his experience for probable

cause and articulable suspicion thus:

"The idea that an assessment of

the whole picture yield a par-

ticularized suspicion contains

two elements, each of which must

be present before a stop is per-

missible. First, the assessment

Additionally, after the officers were on

the vessel,

bable cause to search the hold from the

presence and smell of marijuana on the

deck.

officers so clearly had probable cause to

search the hold,

was obviously justified by the exigency

exception for vehicles and boats.

Carroll v. United States, 267 U.S. 132, 5

A55

must be based upon all the cir-

cumstances. The analysis pro-

ceeds with various objective

observations, information from

police reports, if such are

available, and consideration

of the modes or patterns of

operation of certain kinds of

lawbreakers. From these data,

a trained officer draws in-

ferences and makes deductions

--inferences and deductions that

might well elude an untrained

person.” Emphasis added.

101 8.Ce. at 695.

{Citations Omitted]. When the

S.Ct

statute in Florida Statute 8933.19.

also,

they certainly acquired pro-

the warrantless search

See,

4

280, 69 L.Ed. 543 (1925), adopted by

Texas v. White, S23 UeBe G7 e

See

ini

) A56

96 S.Ct. 304, 46 L.Ed.2d 209 (1975);

Chambers v. Maroney, 399 U.S. 42, 99 S.Ct.

1975, 26 L.Ed. 419 (1970); State v. Lopez,

369 So.2d 623 (Fla. 2d DCA 1979). In

Chambers v. Maroney, the Court explained

the exigency requirement thus:

"Arguably, because of the

preference for a magistrate's

judgment, only the immobili-

zation of the car should be '

permitted until a search war-

rant (sic) is obtained; argua-

bly, only the ‘lesser’ intru-

sion is permissible until the

magistrate authorizes the

‘greater’. But which is the

‘greater’ and which the ‘les-

ser’ intrusion itself a deba-

table question and the answer

may depend on a variety of cir-

cumstances. For constitutional

purposes, we see no difference

between on the one hand seizing

and holding a car before present-

ing the probable cause issue to a

magistrate and on the other hand

carrying out an immediate search

without a warrant. Given probable

cause to search, either course is

reasonable under the Fourth Amend-

ment’. [Emphasis addedj 399 U.S.

at p. 51-52.

Undoubtedly the exigency exception to the

Warrant requirement was manifest in the

A57

case at bar. The trial court's suppres-

sion of the evidence is therefore erro-

neous even under traditional search and

seizure analysis and must be reversed.

A58

IN THE DISTRICT COURT

OF APPEAL OF FLORIDA

THIRD DISTRICT

JULY TERM, A.D. 1983

FRIDAY, OCTOBER 28, 1983

THE STATE OF FLORIDA, **

Appellant, ak

vs. ** CASE NO. 81-474

SILVIO P. ZAFRA, 8%

Appellee. ak

The cause is set for oral argument

upon the mandate of the Supreme Court of

the United States on Monday, December 12,

1983 at 10:30 o'clock A.M. with twenty

(20) minutes being allowed each side to

present oral argument. The parties may

submit supplemental briefs twenty (20)

days from date hereof.

A59

IN THE DISTRICT COURT

OF APPEAL OF FLORIDA

THIRD DISTRICT

JANUARY TERM, A.D. 1984

THE STATE OF FLORIDA, **

Appellant, ak

vs. ** CASE NO. 81-474

SILVIO P. ZAFRA, ek

Appellee. salad

Opinion filed January 24, 1984.

An Appeal from the Circuit Court for

Dade County, James R. Jorgenson, Judge.

Jim Smith, Attorney General, and

Calvin L. Fox, Assistant Attorney General,

for appellant.

Paul Morris; Rosen, Portela, Bronis,

Angueira & Clay and William A. Clay, for

appellee.

Before HUBBART, C.J. and BARKDULL AND

SCHWARTZ, JJ.

A60

On Mandate of Supreme Court of

the United States

PER CURIAM.

This cause is before us pursuant to the

mandate of the Supreme Court of the Uni-

ted States in Florida v. Zafra, 462 U.S.

__» 103 S.Ct. 3529, 77 L.Ed.2d 1382

(1983), which vacated our decision in

State v. Zafra,408 So.2d 745 (Fla. 3d

DCA 1982), rev. denied, 418 So.2d 1281

(Fla. 1982), and remanded the cause "for

further consideration in light of United

States v. Villamonte-Marquez, 462 U.S.

',103 6.Ct.23735 77 Ls86.2¢ 22)

(1983)." In that decision the Supreme

Court held that U.S. Customs officials

may, consistent with the Fourth Amend-

ment, board a vessel located in waters

having ready access to the open sea for

the purpose of examining the manifest

and other vessel documents under 19 U.S.C.

§ 1581(a) (1976),1 without any reasonable

suspicion of prior wrongdoing.

1, Footnote 2 to the opinion specifically

states:

Section 1581(a) provides Customs offi-

cials with authority beyond boarding for

document inspections. In this case, how-

ever, we are concerned only with the more

narrow issue, United States v. Villamonte-

Marquez, 462 U.S.at Bee, 103 Sst.

at-Za7> @s2.

(Footnote 2 on page A61)

<cltliatstitliai inant

A6é1

We conclude that, for two reasons,

Villamonte-Marquez is inapposite to the

present case. First, the vessel involved

was boarded while located on land atop a

boat railer at the Crandon Park Marina in

Miami. It was obviously not therefore in

“waters offering ready access to the open

sea," an essential requirement of the

decision. See 462 U.S. at——, 103 S.Ct.

at 2580, 77 L.Ed.2d at 31.

2. The court at the outset of its opinion

states:

Congress has provided that "[a]ny of-

ficer of the customs may at any time go on

board of any vessel...at any place in the

United States...and examine the manifest

and other documents and papers...and to

this end may hail and stop such vessel...

and use all necessary force to compel con-

pliance."” 19 U.S.C. 8 1581(a) (1976). We

are asked to decide whether the Fourth

Amendment is offended when Customs offi-

cials, acting pursuant to this statute and

without any suspicion of wrongdoing,

board for inspection of documents a vessel

that is located in waters providing ready

access to the open sea. United States v.

Villamonte-Marquez, 462 U.S. at ». 403

S.Ct. at 2575 (footnotes omitted). The

Court's decision answers this question in

the negative.

A62

Second, and probably more important,

the boarding and subsequent search of this

land-situated vessel was in no sense under-

taken as a document inspection. As the

eleventh circuit has recently, and we

think correctly, stated in United States

v. Herrera, 711 F.2d 1546 (llth Cir.

1983):

In United States v. Villamonte-

Marquez, US... , 103 S.Ct. 2573,

77 L.Ed.2d 22 (1983), the Supreme

Court held that no suspicion is nece-

Ssary to stop and board a vessel that

is located in waters providing ready

access to the open sea to conduct a

document inspection pursuant to 19

U.S.C. $ 1581(a). The Court also

made clear that Customs officers are

not precluded from using document

check authority simply because they

Suspect drug smuggling or other il-

legality on board, U.S. at __e=s,

n. 3, 103 S.Ct. at 2577 n. 3. How-

ever, nothing in that opinion

Suggests that reasonable suspicion

is not required when the Customs

officers‘ conduct, objectively asses-

sed, indicates they did not stop and

board the vessel to make a document

inspection. [e.s.]

711 F.2d at 1554 n. 13. The emphasized

observation plainly applies here. No one

was even on the vessel at the time of the

boarding; no effort was made by the Cus-

toms officer while aboard to inspect

vessel documents or examine the manifest;

and the entire search was for the admit-

ted purpose of discovering whether mari-

juana was concealed on the vessel.3

(Footnote 3 on page A632)

A63

Neither Villamonte-Marquez nor any

other decision of the United States Su-

preme Court or the courts of Florida has

ever authorized such a search without a

prior showing of founded suspicion, one

which the state concedes was not made in

this case. See State v. Zafra, supra.

Indeed, Villamonte-Marquez was careful

to hold that the suspicionless stop of a

vessel located in waters providing ready

access to the open sea for a vessel docu-

ment check, while constitutionally valid,

did not thereafter authorize a general

search of the vessel--as was conducted

in this case--because the stop

involves only a brief detention where

officials come on board, visit public

areas of the vessel, and inspect docu-

ments. "Neither the [vessel] nor its

occupants are searched, and visual

inspection of the [vessel] is limited

to what can be seen without a search."

(citations omitted)

462 U.S. at » 103 S.Ct. at 2581, 77

L.Ed.2d at 33.

For these reasons, we hold that our

previous dicision is unaffected by Villa-

monte-Marquez. The order below is there-

fore again

Affirmed.

3. See also, United States v. Whitmire,

595 F.2d 1303 (5th Cir.1979), in which

Customs officers boarded a docked vessel

after checking its documents ashore; in

Herrera, the court stated that

{[iln these circumstances, neither bor-

der crossing authority nor section

1581(a) document and safety check au-

thority was available to render the

boarding search reasonable under the

fourth amendment.

711 F.2d at 1553.

A64

IN THE DISTRICT COURT

OF APPEAL OF FLORIDA

THIRD DISTRICT

CASE NO. 81-474

THE STATE OF FLORIDA, **

Appellant, wk

MOTION FOR

vs. ** REHEARING

SILVIO P. ZAFRA, salad

Appellee. xk

COMES NOW, the Appellant, THE STATE

OF FLORIDA, by and through its under-

signed counsel and submits this Motion

for Rehearing, to wit:

1. That on January 44, 1984, this

Honorable Court again affirmed the judg-

ment of the trial court below dismissing

the present criminal charges upon the

Defendant's Motion to Suppress. This

cause had been previously reversed in

Florida v. Zafra, 462 U.S. 5 nee Bets

A65

3529, 77 L.Ed. 2d 1382 (1983). In so

ruling, this Court held that United

States v. Villamonte-Marquez, 462 U.S.

__, 103 8,Ct. 2573, 77 L.Ed. 2d 22

(1983), permitting customs officers to

board any vessel under Section 19 U.S.C.

Section 158l(a) without articulable sus-

picion, was inapplicable to the present

circumstance. Citing this Court's ori-

ginal opinion in State v. Zafra, 408 So.2d

745 (Fla. 3d DCA 1982), this Court stated

that the State had "conceded" that there

was no articulable suspicion in the

present case.

2. This Court's analysis that Th

State "conceded" that there is no arti-

sitesi suspicion herein is based solely

upon the wording of this Court's opinion

in State v. Zafra, 408 0.2d, supra. As

reflected in the excerpt to the State's

original brief on appeal in this matter,

iain

A66

it states:

"Furthermore, the State would

note that the officers did indeed

have reasonable suspicion, based

upon their experience with smugg-

lers and their observations, to

board the vessel."

Brief of State at p. 14.

The undersigned has litigated this matter

throughout on behalf of the State and the

undersigned never conceded anywhere that

there was no articulable suspicion in the

present oie: This is particularly so

since the undersigned was aware that

Florida v. Royer, 460 U.S. | Zee B.Sks

1319, 75 L.Ed. 2d 229 (1983), was pending

at the time this present matter was being

litigated and prepared for presentation

to the United States Supreme Court. This

Court's reference to any “concession" by

the State should thereby be deleted.

3. The State submits that this Court

has totally overlooked the fact that the

A67

officers observed the boat in "customs

waters" and boarded the boat within

seconds after it had been removed from

"customs waters" as it sat on a boat trai-

ler on the boat ramp leading to "customs

waters". Therefore, this Court's analysis

that the boat was not in “customs waters"

at the time it was boarded is not control-

ling nor dispositive of the present issues.

4. This Court's central position that

the customs officers intended to board the

boat because they suspected that it was

carrying narcotics rather than boarding

the boat to check “customs papers" is not

accurate. First of all, the undisputed

evidence below from the testifying officers

established that Officer Nasossis checked

the boat's papers. See T.16; T.41.

Secondly, the officers boarded the boat

because they decided to conduct a routine

aaa

; A68

customs boarding. T1T.16. The evidence

Hanes _

in this regard is undisputed. Further-

more, this Court's foregoing analysis as

ee Fe -

to the intent of the officers is not rele-

vant. See State v. Valdes, 423 So.2d 944

(Fla. 1982). In Valdes, the officer

indicated that he conducted an "inventory

search". The Valdes court rejected the

Statement of the officer's intent as

controlling because the officer had law-

; ful authority to conduct the search on

other grounds. In United States v.

Villamonte-Marquez, supra, 103 S.Ct. at

2577, N.3, the United States Supreme Court

?

specifically rejected this Court's ana-

lysis, holding that the officer's sub-

jective intent to seize narcotics from the

vessel in Villamonte-Marquez, was not rele-

vant inasmuch as the officers had lawtul

authority to board the boat in any event.

ee a

A69

5. Finally, the State submits

that the Customs Officers plainly had

authority to search the vessel for nar-

cotics under the specific terms of 19

U.S.C. 1581(a) and 21 U.S.C. 8 955.

This Court's iimitation of the authority

of Custom's Officers is therefore unlaw-

ful and contrary to Congressional intent.

WHEREFORE, upon the foregoing, the

Appellant, THE STATE OF FLORIDA, prays

that this Honorable Court will vacate its

prior opinion in this matter and grant

rehearing and upon rehearing will reverse

the trial court's judgment granting the

present motion to suppress.

RESPECTFULLY SUBMITTED on ths 8th

day of February 1984, at Miami, Dade

County, Florida.

Respectfully submitted,

JIM SMITH

Attorney General

(signed) Calvin L. Fox

Assistant Attorney General

A70

IN THE DISTRICT COURT

OF APPEAL OF FLORIDA

THIRD DISTRICT

JANUARY TERM,A.D., 1984

WEDNESDAY, FEBRUARY 29, 1984

STATE OF FLORIDA, at

Appellant, kk

vs. kk 6CASE NO. 81-474

SILVIO P. ZAFRA, ak

Appellee. ak

Upon consideration, appellant's

motion for rehearing is hereby denied.

A71

IN THE DISTRICT COURT

OF APPEAL OF FLORIDA

THIRD DISTRICT

JANUARY TERM, A.D., 1984

FRIDAY, MARCH 23, 1984

THE STATE OF FLORIDA **

Appellant, ak

vs. ** CASE NO. 81-474

SILVIO P. ZAFRA, sadhel

Appellee. ae

The motion of appellant to stay the

issuance of our mandate pending review by

the Supreme Court of Florida of the order

of judgment of this court entered herein

on January 24, 1984 is granted pending

entry of an order by the Supreme Court

accepting or rejecting jurisdiction for

review and for fifteen days thereafter;

provided, however that this order so

staying the mandate shall stand vacated

without further order of this court in

A72

the event proceedings to invoke such

jurisdiction of the Supreme Court are

not timely commenced, through failure

of the movant to file notice thereof

in this court as and within the time

required by Fla.R.App.P. 9.120(b).

A73

SUPREME COURT OF FLORIDA

THURSDAY, OCTOBER 18, 1984

STATE OF FLORIDA,

CASE NO. 65,129

Petitioner, : District Court of

Appeal 3d District

vs. : Case No. 81-474

SILVIO P. ZAFRA, :

Respondent. $

This cause having herefore been sub-

mitted 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 accept

jurisdiction, it is ordered that the Pe-

tition for Review is denied.

No Motion for Rehearing will be en-

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

9.330(d).

ADKINS, ALDERMAN, OVERTON, MCDONALD,

and EHRLICH, J.J., Concur.

BOYD, C.J. and SHAW, J., dissent.

A74

IN THE DISTRICT COURT

OF APPEAL OF FLORIDA

THIRD DISTRICT

JULY TERM, A.D., 1984

TUESDAY, NOVEMBER 20, 1984

STATE OF FLORIDA, aa

Appellant, ak

vs. alia CASE NO. 81-474

SILVIO P. ZAFRA, ae

Appellee del

Upon consideration, appellant's

motion to stay the issuance of our mandate

| pending review of the Supreme Court of

the United States is granted.