Opposition Brief — Lopez v. Florida

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No. 87-1852

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

JOSE A. LOPEZ, JR.

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE

FIRST DISTRICT COURT OF APPEAL

FOR THE STATE OF FLORIDA

ROYALL P. TERRY, JR.

ASSISTANT ATTORNEY GENERAL

DEPARTMENT OF LEGAL AFFAIRS

THE CAPITOL

TALLAHASSEE, FL 32399-1050

(904) 488-0600

COUNSEL FOR RESPONDENT

QUESTION PRESENTED FOR REVIEW

DO WARRANTLESS CANINE SNIFFS

OCCASIONED BY OFFICERS LAWFULLY

INSIDE PREMISES VIOLATE THE

FOURTH AND FOURTEENTH AMEND-

MENTS? (Restated)

TABLE OF AUTHORITIES

CASES PAGES

Arango v. State,

411 So.2d 172 (Fla. 1982),

cert. denied, 457 U.S.

1140, 73 L.Ed.2d 1360 (1982) 12

Arizona v. Hicks,

480 U.S. ’

94 L.Ed.2d 347 (1987) 19

Benefield v. State,

160 So.2d 706, (Fla. 1964) 12

Carlton v. State,

449 So.2d 250 (Fla. 1984) 23

Jones v. State,

447 So.2d 570 (Fla. 1983) 12

Mata v. State,

380 So.2d 1157

(Fla. 3rd DCA 1980) 19

North v. State,

32 So.2d 915 (Fla. 1947) 23

Schrager v. State,

472 So.2d 896

(Fla. 4th DCA 1985) 24

~ 7a =

TABLE OF AUTHORITIES(Cont. )

Segura, et al., v United States,

468 U.S. 796, 82 L.Ed.2d

599 (1984)

State v. Bernie,

472 So.2d 1243

(Fla. 2d DCA 1985)

State v. Goodley,

381 So.2d 1180

(Fla. 3rd DCA 1980)

State v. Mosier,

392 So.2d 602

(Fla. 3rd DCA 1981)

State v. Riley,

462 So.2d 800 (Fla.

United States v. Bronstein,

521 F.2d 459

(2d Cir. 1979)

United States v. Burgos,

720 F.2d 1520

(llth Cir. 1983)

United States v. Caraza,

et al.,

2 F.L.W.Fd. C466 (llth Cir.

Case No. 86-5548, April 25,

1988)

United States v. Chadwick,

433 1, 14, 97 S.Ct. 2476,

53 L.Ed.2d 538 (1977)

United States v. DiCesare,

765 F.2a 890 (9th Cir. 1985)

« to =

TABLE OF AUTHORITIES(Cont. )

United States v. Fulero,

162 U.S.App.D.C. 206,

498 F.2d 748 (D.C. Cir.

1974) 19

United States v. Goldstein,

(Sth Cir. 1981) 18

United States v. Leon,

468 U.S. 897, 82 L.Ed.2d

677 (1984) 22

United States v. Satterfield,

743 F.2d 827, (llth Cir.

1984), cert. denied,

471 U.S. 1117, 86 L.Ed.2d

262 (1985) 20

United States v. Solis,

536 F.2d 880 (9th Cir. 1976)14,15

United States v. Standridge,

810 F.2d 1034 (llth Cir.

1987), cert. denied,

U.S. , 95 L.Ed.2d

877 (1987) 21

Vale v. Louisiana,

399 U.S. 30,26 L.Ed.2d

409 (1970) 13

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

JOSE A. LOPEZ, JR.

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE

FIRST DISTRICT COURT OF APPEAL

FOR THE STATE OF FLORIDA

The respondent, the State of

Florida, opposes issuance of a writ of

certiorari to review the opinion of the

First District Court of Appeal for the

State of Florida entered in this action

on February 19, 1988, rehearing denied

March 28, 1988.

JURISDICTION

Petitioner incorrectly invokes the

jurisdiction of this court, citing 28

U.S.C. §1254(1). This citation is inap-

posite and irrelevant but respondent

concedes that this court could grant

certiorari pursuant to the provisions of

28 U.S.C. §1257(3).

STATEMENT OF THE FACTS

On Monday, February 9, 1987 in

Jacksonville, Florida, deputy sheriffs

were involved in an undercover drug

buying operation. They were ensconced

in a Ramada Inn motel in Jacksonville.

Arrangements had been made to purchase

cocaine from one Miguel Munoz, a kilo or

two at a time, in quick ‘succession

contingent upon payment for each

delivery at the officers' motel room

until eight kilos had changed hands.

When Munoz delivered the first kilo of

cocaine he was arrested and scribblings

on a piece of paper taken from his

trousers incidental to the arrest

a cereeeeee rite

revealed the phone number of the

Scottish Inn motel in Orange Park, 17

miles away, in a neighboring county and

a three-digit number which the officers

correctly reasoned was a room number.

Munoz had been tailed by Deputy Porter

from the vicinity of the Scottish Inn in

Orange Park to a point where he was seen

entering the Ramada Inn where’ the

undercover officers were waiting. After

Munoz was arrested there with a kilo of

cocaine in his jacket, Porter was

advised concerning the newly discovered

information, relative to the Scottish

Inn in Orange Park.

Had Munoz not been arrested, the

arrangement was for him to proceed back

to his stash and obtain the next

increment of cocaine, deliver it and

collect the money from the buyers as he

would have done respecting the first

increment. Because Munoz was now out of

circulation the police became concerned

that whomever was guarding the stash of

cocaine in Orange Park would grow uneasy

and probably flee after disposing of the

remaining seven kilos by flushing them

down the toilet in the motel room.

Consequently, Porter was directed to

proceed to the Scottish Inn in Orange

Park and secure the premises before any

of this could happen. He obtained the

assistance of uniformed officers from

the City of Orange Park and proceeded to

the motel. Room 154, the room number

written on the piece of paper found in

the possession of Munoz, was found to

have been rented to one Omar Simon.

Porter and the uniformed officers

knocked on the door of room 154 and Jose

Lopez, alias Omar Simon, alias Victor

Tittle, answered the door. The

uniformed officers immediately patted

Lopez down for their own protection and

to determine if he was armed.

Petitioner was wearing a .38 caliber

pistol in a holster which was strapped

to his ankle. Lopez was arrested and

Mirandized immediately, but all of that

is irrelevant to the petition as there

were no testimonial fruits of conse-

quence. Petitioner possessed identifi-

cation credentials and a badge indi-

cating that he was a member of the City

of Miami Police Department. Lopez said

that his name was Victor Tittle and that

he was a native of New York. His Miami

police identification indicated that his

name was Jose Lopez, Jr. and that he had

emigrated to the United States from Cuba

in 1980. Lopez denied any knowledge

concerning the suitcase in the bath-

tub. There was no search of the

premises at this time, but the officers

discovered the suitcase during a pro-

tective sweep of the motel room to

determine if there were any other

persons inside, armed or otherwise.

After the premises were secured,

enter Luke, the sniffer dog and his

handler. The suitcase was moved from

the bathtub to the bedroom in order to

facilitate the sniff. Officer Bobby

Deel, Luke's human partner, placed the

suspect's suitcase in a line with

several empty suitcases that Luke had

never worked with and Luke alerted on

petitioner's suitcase. As might be

expected, petitioner had already denied

any knowledge as to the contents of the

suitcase. Detective Porter left and

returned a couple of hours later with a

search warrant. At that time the

Suitcase was opened and the expected

seven remaining kilos of cocaine were

found inside. Although the application

for the search warrant included

references to Luke's olfactory expertise

the trial court found that this was

Surplusage and that there had actually

been no need to bring Luke into the

operation. In other words, the trial

court found that first, the Orange Park

officers acted correctly in securing the

premises after they determined that the

room was occupied and second, based upon

what they had learned thus far

concerning the entire operation

involving Munoz and now Lopez, there was

probable cause that room 154 of the

Scottish Inn in Orange Park, Florida was

the “stash pad” for the remaining seven

kilos of cocaine. Put still another

way, the officers could have obtained a

Search warrant for room 154 for cocaine,

without Luke's participation.

SUMMARY OF ARGUMENT

Initial entry into the motel room by

uniformed officers was a result of peti-

tioner's answering the _ door. The

premises were lawfully secured based

upon exigent circumstances in order to

prevent destruction of evidence and/or

escape of law-breakers. If the police

officers had a right to be on the

premises then they had a right to have

with them their sniffer dog and other

police equipment and aids.

Luke, the sniffer dog, smelled the

air molecules around a locked suitcase

in petitioner's custody but no search

was made until after the arrival of the

search warrant. There was probable

cause to obtain a search warrant with or

without Luke's participation. The trial

court acted correctly in refusing to

grant petitioner's motion to suppress

the cocaine that was seized incidental

to execution of the search warrant.

ARGUMENT

DO WARRANTLESS CANINE SNIFFS

OCCASIONED BY OFFICERS LAWFULLY

INSIDE PREMISES VIOLATE THE

FOURTH AND FOURTEENTH AMEND-

MENTS? (Restated)

Respondent submits petitioner is

wasting this court's time by creating what

is really a bogus issue, a strawman, as it

were, and then proceeding to argue the

issue on its merits as if it had already

been established that the issue was

genuine. Respondent reiterates that Luke's

role in this case is totally irrelevant in

that there existed independent probable

cause to support the issuance of a search

Warrant based upon what the officers knew

even before they knocked on the door of

room 154. The purpose of knocking on the

door was to secure the premises and not to

make a search. The officers might have put

the search warrant proceedings in motion at

any time but they were preoccupied with

securing the premises. Once this was

accomplished they elected to have Luke do

his thing before proceeding’ further.

Perhaps this contributed slightly to the

delay in obtaining the search warrant but

because Luke's sniffing was not an

essential component of the probable cause

equation, no wrong of constitutional

dimension occurred. However, respondent

welcomes this opportunity to urge upon this

court the proposition that whenever police

officers are lawfully inside the premises,

even private premises, they have the right

to have with them shake equipment whether

it be in the form of flashlights, drug

field testing units, sniffer devices, or

sniffer dogs.

Respondent will concede at the outset

that if the police officers unlawfully

entered petitioner's motel room then the

evidence seized was the product of an un-

lawful entry and suppressible under the

law. On the other hand, if the police

- 10 -

acted lawfully in securing the premises

until a search warrant could be obtained

then the fruits of the search, pursuant to

the search warrant were properly held to be

admissible. It is respondent's position

that not only did the concerned officers

act properly in entering and securing the

premises but if they did so lawfully then

the presence of the sniffer dog, Luke, was

also lawful. If the police officers had a

legal right to be where they were at the

critical point in time then Luke's smelling

air around the suitcases was lawful because

sniffing of the air by the dog is not a

search. Further to this, the search

warrant that was issued was also sustain-

able even if there had been no mention of

Luke and his educated nose in the affidavit

that supports the search warrant. There

was adequate basis for the issuance of the

search warrant based upon what the police

officers already knew, without Luke's help.

- ll -

The law of Florida permits even an un-

announced intrusion into any building,

including a private home, where those with-

in are already aware of the presence of

someone outside and are then engaged in

activities which justify the officers in

the belief that an escape or destruction of

evidence is likely to be attempted.

Benefield v. State, 160 So.2d 706, 710

(Fla. 1964). Such was the case here.

Warrantless entries into private homes are

permissible under extigent circumstances.

Jones _v. State, 447 So.2d 570 (Fla.

1983). See also Arango v. State, 411 So.2d

172 (Fla. 1982), cert. denied, 457 U.S.

1140, 73 L.Ed.2d 1360 (1982).

Once the officers had disarmed peti-

tioner and ascertained that there were no

Other persons in the motel room they were

at an important juncture. If they had then

proceeded to search the premises, any

fruits of the search would have been

- 12 -

unlawfully obtained and inadmissible into

evidence. Vale v. Louisiana, 399 U.S. 30,

26 L.Ed.2d 409 (1970). But this they did

not do and the dicta in Vale supports the

proposition that under extigent circum-

stances premises may be secured by the

concerned officers until a search warrant

can be obtained. In Vale, the search was

ruled unlawful because the court held that

after the officers entered the house and

had satisfied themselves that there was no

one in the house they should not have

proceeded to search the premises without a

warrant. Again, that is not what happened

here. The officers did not proceed to

search but froze the premises, as it were,

and sent one of their number out to procure

a search warrant based upon what the

officers knew at that particular point in

time. It is uncontraverted that Detective

C. L. Porter, who had done the original

mobile surveillance of Munoz, was by this

- 13-

time, cognizant as to all of the details of

this matter as learned from Detective Boney

relative to the aborted cocaine sale and

the arrest of Munoz and his companions.

Respondent will show that if the police

officers had a legal right to be in room

154, under the circumstances, the air

around petitioner's suitcase was not a pro-

tected area. It is in the contents of the

Suitcase that there is a reasonable expec-

tation of privacy, not in the air surround-

ing it.

In United States v. Solis, 536 F.2d 880

(9th Cir. 1976), the court noted that there

is a split in authority as to whether

sniffing, per se, constitutes a search at

all. Put even if it is a search it may be

one that is reasonable under the circum-

stances. In Solis, the dog's handler had a

legal right to be where he was at the time

the dog alerted to the presence of cocaine

and that the sniffing, if it was a search,

- 14 -

was not a prohibited search. The court

further noted that dogs, because of their

keen olfactory senses, have long been used

to assist police in search and rescue

missions, as well as in guard duty.

Detection of contraband is a similar and

related task. As in Solis, the method used

in the instant case was inoffensive. There

was no embarrassment to, or search of the

person. Id. at 882-883.

Petitioner quotes from Judge

Reinhardt's emotional condemnation of the

use of “large police dogs to come into our

homes and do whatever large police dogs do”

as expressed in his concurring opinion in

United States v. DiCesare, 765 F.2d 890

(9th Cir. 1985). Although the record is

silent as to Luke's pedigree he might well

have been an amiable little beagle of the

type used at many airports, especially in

Europe, because of their small size and

ability to enter narrow spaces. Even the

- 15 -

tracker dogs used in the antebellum south

to ferret out runaway slaves were probably

bloodhounds, known more for their mournful

baying on a fresh trail than for their

ferocity. Be that as it may, in the case

sub judice, armed, uniformed police

officers had already entered petitioner's

motel room. Petitioner himself, it

appears, was, at that time, an officer of

the Miami Police Department, armed with an

ankle holster and no doubt already familiar

with the role of Alsatian shepherd dogs

used for crowd control by his own

department. By the time Luke arrived the

premises had been secured and it is highly

unlikely that Luke, the trained drug

detection dog, inspired much terror in the

heart of Jose Lopez, trained police officer

and cocaine trafficker. Respondent submits

that petitioner's quote from Judge

Reinhardt's concurring opinion is, for our

- 16 -

acai gic ee ee

purposes here, rhetoric, pointless = and

inane.

The Second Circuit held in United

States v. Bronstein, 521 F.2d 459 (2nd Cir.

1979) that canine surveillance conducted in

a public airline terminal is not a “search"

within the protection of the Fourth Amend-

ment. Certainly, in that case, the dog's

handler had a legal right to be where he

was at the time he commanded the dog to

sniff the defendant's luggage. Likewise,

in the case sub judice the dog's handler

and his fellow officers had a legal right

to be where they were for the purpose of

securing the premises pending the issuance

of a search warrant. In the instant case

there was no additional intrusion by the

dog and the contents were not exposed prior

to the arrival of the search warrant. The

Bronstein court noted:

What a person knowingly exposes

to the public, even in his own

home or office, is not a sub-

- 17 -

ject of Fourth Amendment pro-

tection. Katz v. United

States, 389 U.S. 347, 351, 88

S.Ct. 507, 511, 19 L.Ed.2d 576

(1967); and, see, United States

v. Johnston, supra, 497 F.2d at

398. (emphasis added)

In footnote 3 at page 462, the

Bronstein court further noted that the use

of certain “sense enhancing” instruments to

aid in the detection of contraband does not

constitute an impermissible Fourth

Amendment search. The court cited a number

of cases that involved the use of a boat

searchlight, and binoculars. But see

United States v. Goldstein, 635 F.2d 356

(Sth Cir. 1981) holding that a dog sniff is

not a search.

The movement of petitioner's suitcase

from the bathroom to the living room where

it was mixed with several other (empty)

Suitcases brought in by Officer Deel, in

order to facilitate the sniffing, does not

amount to a Fourth Amendment seizure and

the action of Luke's nose was not a search

- 18 -

protected by the Fourth Amendment. "One's

legitimate privacy interest in his personal

luggage concerns its contents, not its

exterior." State v. Goodley, 381 So.2d

1180, 1182 (Fla. 3rd DCA 1980), citing

United States v. Chadwick, 433 1, 14, 97

S.Ct. 2476, 2485, 53 L.Ed.2d 538, 550, n.8

(1977). Movement of a suitcase from a

baggage cart to the floor, to facilitate

the sniff, is a de minimis intrusion

certainly not amounting to ae seizure.

State v. Mosier, 392 So.2d 602 (Fla. 3rd

DCA 1981). See also Mata v. State, 380

So.2d 1157 (Fla. 3rd -DCA 1980); United

States v. Fulero, 162 U.S.App.D.C. 206, 498

F.2d 748 (D.C. Cir. 1974).

Respondent is aware of this court's

holdings in Arizona v. Hicks, 480 U.S.

, 94 L.Ed.2d 347 (1987) but Hicks is

easily distinguishable. ~ In that case the

police officer's movement of stereo equip-

ment in order to obtain the serial numbers

- 19 -

during an unrelated warrantless search of

an apartment was not accompanied by

probable cause to believe the equipment was

stolen. Therefore, respondent submits that

the movement of the suitcase from the bath-

tub to the living room to facilitate Luke's

inspection of same in a row with several

empty suitcases is of no consequence here.

Respondent concedes that lawful entry

for the purpose of securing the premises

does not give the police license to search

an entire building for evidence. United

States v. Satterfield, 743 F.2d 827, 845

‘(llth Cir. 1984), cert. denied, 471 U.S.

1117, 86 L.Ed.2d 262 (1985).. But the law

is clear, however, that when officers

reasonably believe that delay in checking

the premises would endanger their lives or

the lives of others they may conduct a

security sweep. See e.g., United States v.

Burgos, 720 F.2d 1520, 1526 (llth Cir.

1983). If officers spot evidence in plain

- 20 -

view during such a protective sweep, they

may seize it. United States v. Standridge,

810 F.2d 1034, 1038 (llth Cir. 1987), cert.

denied, U.S. , 95 L.Ed.2d 877

(1987). See also United States v. Caraza,

et al., 2 F.L.W.Fd. C466 (llth Cir. Case

No. 86-5548, April 25, 1988).

Respondent urges that the information

on which the search warrant was secured

came from sources wholly unconnected with

the entry and known to the officers well

before the entry. In a case involving

precisely this circumstance this Court held

that, under such circumstances, the fruits

of the search pursuant to the warrant were

not derivative of illegality and not the

"fruit of the poison tree." Segura, et al.

v. United States, 468 U.S. 796, 82 L.Ed.2d

599 (1984). The Supreme Court of Florida

followed Segura in deciding State v. Riley,

462 So.2d 800 (Fla. 1984) which turned on a

Similar point.

- 21 -

In the case sub judice, there was no

search of anything until after the search

warrant arrived. Petitioner apparently

finds fault with the search warrant because

the application included Luke's hit on the

suitcase. Although respondent contends

that such an objection would be meritless,

even if it had merit, the officers acted in

good faith based upon a facially valid

warrant signed by a neutral and detached

magistrate. This Court has held that when

police officers act in objective good faith

or their transgressions have been minor,

inherently trustworthy tangible evidence

obtained in reliance on such a warrant will

not be suppressed. United States v. Leon,

468 U.S. 897, 82 L.Ed.2d 677 (1984). In

State v. Bernie, 472 So.2d 1243 (Fla. 2d

DCA 1985), a case involving a _ fatally

defective warrant, the court applied the

cost benefit approach of Leon:

- 22 -

Exclusion of the cocaine would

be improper because there is

not police illegality and thus

nothing to deter.

Id. at 1247.

Irrespective of Luke, all the officers

needed was a valid search warrant for room

154. The suitcase need not have been

listed as a place to be searched. The

warrant limited the items to be seized to

cocaine and that reference sufficiently

limits the discretion of the executing

officers. North v. State, 32 So.2d 915

(Fla. 1947); Carlton v. State, 449 So.2d

250 (Fla. 1984). A search warrant need not

specify the precise location of the items

to be seized within the premises. The

designation of room 154 to be searched for

cocaine substantially limits the area which

the officers can search and the items for

which the officers may search. Any suit-

case, box or other container on the

premises that could be used to _ conceal

- 23-

cocaine could be searched pursuant to a

warrant designating room 154 as_~ the

premises to be searched. Schrager v.

State, 472 So.2d 896 (Fla. 4th DCA 1985).

«' 84. =

CONCLUSION

The excellent police work that this

case involved resulted in the seizure and

forfeiture of eight kilograms of cocaine

and the arrest of several cocaine

traffickers from the Miami area. The

evidence, as presented at the hearing,

shows that the concerned officers followed

a logical and lawful progression as to all

the actions they took at any particular

juncture. They took delivery of a kilo of

cocaine from one Munoz, * arrested him,

searched him and recovered from his pocket

the telephone number and the room number of

a motel that was within approximately 15

‘minutes driving distance of the Ramada Inn

in Jacksonville where the transaction took

place. The sellers had advised the under-

cover officers that the next increment of

cocaine could be procured in approximately

30 minutes. The officers made a logical

assumption that room 154 at the Scottish

- 25 -

Inn, Orange Park, Florida was the stash

from which the first kilo of cocaine had

come and that from which subsequent

deliveries would be made. The circum-

stances under which the warrantless entry

was made- justified prompt entry and

securing of the premises in accordance with

Standards already announced in numerous

federal and state decisions dealing with

this issue.

Respectfully submitted,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL