Opposition Brief — Vaughan v. Florida Department of Agriculture and Consumer Services (No. 06-963)

No. 06-963

IN THI

Supreme Court of the United States

CHRISTOPHER D. VAUGHAN,

Petitioner,

v.

FLORIDA DEPARTMENT OF AGRICULTURE

AND CONSUMER SERVICES, er al.

Respondents.

Ow Priirion FOR A Writ oF CERTIORARI TO THE

Disrrict Courr or Appr at OF FLoRipA, Fourtu District

BRIEF IN OPPOSITION FOR RESPONDENTS

DEBORAH CONNER, ANTONIO ELZO, AND

FLORIDA DEPARTMENT OF AGRICULTURE

AND CONSUMER SERVICES

Wes ey R. Parsons

Counsel of Record

Jack R. Reiter

Aporno & Yoss LLP

2525 Ponce de Leon Boulevard

Surte 400

Miami. Florida 33134

(305) 460-] 000

Attorneys for Respondents

Deborah Conner, Antonio Elzo, and

Florida Department of Agriculture

and Consumer Services

the

fries g

;

’ +

i

TABLE OF CONTENTS

Page

TABLE OF CITED AUTHORITIES ............ iil

tpg 9 58 og 9 oS nnennene ParaPeMirar rH be < l

REASONS FOR DENYING THE PETITION ..... 2

STATEMENT OF THE CASE .....cccccccssess 2

ARAFIMEITE 600 000000000se0nens eee 6

I THE FOURTH DISTRICT COURT OF

APPEAL CORRECTLY AFFIRMED

DISMISSAL OF VAUGHAN’S COMPLAINT

BECAUSE THE LAW REQUIRING THE

DEPARTMENT TO OBTAIN WARRANTS

TO INSPECT DOORYARD CITRUS TREES

WAS NOT ESTABLISHED AT THE TIME OF

THE ALLEGED FOURTH AMENDMENT

Vien ete 64 ¢ 602 auneeteeane ee 6

A. Respondents could reasonably believe

that they were authorized to conduct a

warrantless search because the

Legislature, the Commissioner of

Agriculture, and Florida courts had

declared citrus canker to be a statewide

er nn: 8

il

Contents

Page

B. The Department employees’ conduct

was objectively reasonable in light

exception to the warrant requirement for

traditionally regulated sectors of the

i Secleeaae eee ete renee ee en 13

Il. THIS COURT REJECTED CERTIORARI

JURISDICTION OVER A CASE ARISING

OUT OF SIMILAR CIRCUMSTANCES

AND UPON WHICH THE FOURTH

DISTRICT BASEDITS DECISION. ...... 15

chess es ov deeers seen evneee ees 16

iti

TABLE OF CITED AUTHORITIES

Page

Cases .

Barts v. Joyner,

865 F.2d 1187 (11th Cir. 1989) .............. 6

Blue v. Koren,

Fe toes FETs GE Gas SEED cencecnaeveawckaes 14

Camara v. Municipal Court of the City

and County of San Francisco,

DOT Ss SAP EAMTD bei ceeseneceesenecees 8,9, 10

Courson v. Mc Millian,

939 F.2d 1479 (11th Cir. 1999) .............. 6

Denny v. Conner,

462 So. 2d 534 (Fla. Ist DCA 1985) .......... 11

Dep t of Agriculture v. Haire,

836 So. 2d 1040 (Fla. 4" DCA 2003) ........ 5, 8, 11

Dep t of Agriculiure v. Miami-Dade County,

790 So. 24 555 (Fla. 3d DCA 2001)........... 8,9

Dep t of Agriculture v. Polk,

SOP OO. BE Se Es COD cc ec ccdnccveusctees 14

Dep t of Agriculture v. Pompano Beach,

792 So. 2d 539 (Fla. 4th DCA 2001) .......... 2,11

iv

Cited Authorities

Dep t of Agriculture v. Sun Gardens, LLP,

780 So. 2d 922 (Fla. 2d DCA 2001) .......

Grimm vy. Spell,

Case No. 2:00-CV-506-FTM-29DNF

Oe is hein vn dy

Haire v. Dep t of Agriculture,

870 So. 2d 774 (Fla. 2004) ..............

Hope v. Pelzer,

eo Ae rr

Hutton v. Strickland,

919 F.2d 1531 (11th Cir. 1990) ..........

Jacobson v. Commonwealth of Mass.,

Pee GE PRONE b.c0 ons as neta snneeas

Kroplin v. Truax,

ek me Fk 8.) eer

LeRoy v. Illinois Racing Bd.,

Cope wie ey, Fe A)

Malley v. Briggs,

BES Wie DIO EATEE 5c sees veneecndedse-s

Marshall v. Barlow's, Inc.,

GP Se PEE GRSIS) ca cvevertecsneeesws

Page

11

15

7,8

10

10

15

Cited Authorities

Page

Moore v. State,

GAS SO. BE 209 (FM. CPCS) sink i rec sanvaswess 15

New York v. Burger,

SES Se. GP8 COST) occ incceeexeaeweekunes 15

Nordmann v. Florida Dept of Agriculture,

473 So. 2d 278 (Fla. Sth DCA 1985) .......... 1]

North Am. Cold Storage Co. v. City of Chicago,

RAE SUREPOS becccciuvaseeeyeeeeuers 10

Richardson v. Baldwin,

124 Fin. 233 So. 255 (Fin. 1936)... cc ccccsess 14

Sapp Farms, Inc. v. Dept of Agriculture,

761 So. 2d 347 (Fla. 3d DCA 2000) ........... 1]

Schwartz v. Pridy,

94. F.56 433 (00 Cwr. F996) 6 ois viweeveewas 15

Showers v. Spangler,

182 F.3d 165 (3d Cir. £999) cc cece keee veces 15

Tillman v. Coley,

oe Siveig: Pe a, errr rarer 6

United States v. Argent Chem. Lab, Inc.,

93 F.3d 572 (9th Cir. 1996) ..............-5. 14

vi

Cited Authorities

Page

United States v. Branson,

oh Fe CLS CGO. TIPS) .g ccccccccccccvee 15

United States v. Cobb,

975 F.2d 152 (Sth Cir. 1992) ................ 15

United States v. Lanier,

a RR re ree 7

Winters v. Board of County Comm'rs,

4 F.3d 848 (10th Cir. 1993) ................. 15

Zeigler v. Jackson,

7hO F.26 G67 CLiGs Cir. 19GS) . nc ccc cccccess 6

United States Constitution

Fourth Amendment ..................----. 2,5, 8,9

I cc ct to cack es teehee suri 8

Statutes

Chapter 00-308, Laws of Florida ............... 12

Chapters 570-604, Florida Statutes (2000) ....... 14

Section 581.111, Florida Statutes (2000) ......... 10

Section 581.031(7), Florida Statutes (2000) ...... 14

vii

Cited Authorities

Page

Section 581.011(23), Florida Statutes (2000) ..... 7

Section 581.031(15), Florida Statutes (2000) ..... 14

Section 581.031(15)(a), Florida Statutes (2000) ... 7

Section 581.031(17), Florida Statutes (2000) ..... 14

Other Authorities

Chapters 5A-5L, Florida Administrative Code ee

Fia. Const. of 1885, art. 1V,§ 20 ............... 14

l

INTRODUCTION

Petitioner, Christopher D. Vaughan (“Vaughan”), has not

demonstrated a sufficient basis for invoking this Court’s very

narrow certiorari jurisdiction. This Court has already

examined and crafted the law regarding the primary issue

presented in his Petition—the parameters of qualified

immunity afforded a government official--and Vaughan does

not demonstrate that Florida’s Fourth District Court of Appeal

or the Florida Supreme Court has failed to apply federal or

constitutional law correctly.

The Fourth District Court of Appeal’s conclusion, and

the Florida Supreme Court’s denial of discretionary

jurisdiction, is completely correct. Respondents, Deborah

Conner and Antonio Elzo, employees of the Department of

Agriculture and Consumer Services (the “Department”),' had

a reasonable basis to believe they were authorized to enter

Vaughan’s yard to look at leaves on citrus trees pursuant to a

statutory grant of authority and the declared state of

emergency regarding citrus canker in Florida. At the time

the Department employees entered Vaughan’s yard for this

limited purpose, no Florida Court had contravened the

statutory authority to conduct a warrantless search and, in

fact, multiple Florida courts had recognized the exigent

circumstances posed by citrus canker that required immediate

inspection and tree removal. The Court should therefore deny

the Petition.

1. Although named as a defendant below, the Department is

not subject to the issue on review pertaining to the right to sue the

individual employees.

2

REASONS FOR DENYING THE PETITION

The Court should deny the Petition because the law was

not so well settled at the time the Department employees

entered Vaughan’s property that they should be denied

qualified immunity and held individually liable for alleged

Fourth Amendment violations.

When the Department employees entered Vaughan’s

property for the limited purpose of inspecting leaves on citrus

trees, Florida law clearly authorized the limited intrusion due

to exigent circumstances presented by citrus canker’s

onslaught. That a Florida state court years after the

examination decreed that state authorities needed a warrant

to inspect dooryard citrus cannot override qualified immunity.

STATEMENT OF THE CASE

The long battle fought by Florida’s Citrus Canker

Eradication Program (“CCEP”) was reviewed by Florida’s

Supreme Court in Haire v. Dep't of Agriculture, 870

So. 2d 774 (Fla. 2004), citing Dep t of Agriculture v. Pompano

Beach, 792 So. 2d 539, 541-42 (Fla. 4th DCA 2001):

Citrus canker was discovered in Florida in

1914 and eradication programs continued through

the mid 1930s. In the mid 1980s, an Asian strain

of citrus canker, xanthomonas axonopodis pv.

citri., the strain of citrus canker at issue in this

case, was discovered in Manatee County. It was

considered eradicated in 1992 and the eradication

program halted in 1994. However, in 1995 an

outbreak was discovered around the Miami

International Airport.

3

Citrus canker 1s a disease that 1s caused by a

bacterial organism that attacks the fruits, leaves

and stems of a citrus plant. It causes defoliation,

fruit drop and loss of yield. It also causes

blemishes on the fruit and a loss of quality. In

severe cases, it can cause girdling of the stems

and death of the tree.

Stem lesions can survive for many years and

are capable of producing bacterial inoculum eight

to ten years later. Although symptoms of citrus

canker may be seen seven to fourteen days after

infection, the maximum visualization does not

occur until approximately 107 to 108 days after

infection. This makes it difficult to control a

disease which easily spreads through wind-driven

rain or contamination of equipment or plant

material.

xe eK

At the time that citrus canker, Asian strain,

was discovered in Miami, the citrus canker

eradication program in place called for the

destruction of trees that were infected or were

within a 125 foot radius of an infected tree. The

125 foot radius was adopted in the 1980s as a

result of a study conducted in Argentina. However,

that study did not take into account what would

happen in an urban setting.

In Miami-Dade County, the destruction of

citrus trees within a 125 foot radius of an infected

tree was not reducing the occurrences of citrus

4

canker. Therefore, the Department decided to

initiate a study that would measure the distances

that citrus canker, Asian strain, would spread in

South Florida. The study kept track of over 19,000

trees in four sites and determined the distance

between the diseased trees and the newly infected

trees. The study showed that the eradication

program which used the 125 foot radius was

inadequate because it only captured about thirty

to forty-one percent of infection that spread from

a diseased tree.

The results of the study were presented at a

meeting in Orlando attended by approximately

twenty individuals and scientists. Those at the

meeting examined the findings. After considering

a range of distances between diseased trees and

newly infected trees at the various sites, those

present determined that in order to destroy ninety-

five percent of newly infected trees, it was

necessary to destroy trees within a 1900 foot

radius of a diseased tree, thereby creating a buffer

zone which would prevent citrus canker from

spreading any further.

In March 1999, the Citrus Canker Technical

Advisory Task Force, a body of regulatory

individuals, scientists and citrus industry

representatives who deal with the issue of citrus

canker, unanimously recommended that the

Department adopt a policy to destroy trees within

a 1900 foot radius of a diseased tree in order to

eradicate citrus canker.

5

Florida courts have wrestled with striking the right

balance between fighting a virulent pathogen that threatens

the State’s citrus industry and affording citizens the highest

possible measure of due process and access to judicial review.

The case at hand stems from Vaughan’s assertion that

the Department employees had no right to enter his yard and

inspect his citrus trees without a search warrant. Whether

the entry and tree inspection was constitutional is not at issue.

The sole issue is whether the Department employees are

shielded from individual liability by qualified immunity.

At the time of the inspection, no Florida court had required

a warrant for such inspections or declared such inspections

unconstitutional. In 2003, however, years after the inspection

at issue in this case, Florida’s Fourth District Court of Appeal

analyzed the warrant requirement and concluded that certain

parts of a yard may be deemed curtilage and that the

Department must procure a warrant to inspect trees for citrus

canker. Dep t of Agriculture v. Haire, 836 So. 2d 1040, 1054-

5 (Fla. 4° DCA 2003). Notably, the same Florida district court

which ultimately held that Department employees were

required to obtain a warrant in order to inspect dooryard citrus

trees also affirmed dismissal of Vaughan’s claim against the

Department employees for violating his Fourth Amendment

right to be free from unreasonable searches and seizures.

6

ARGUMENT

I. THE FOURTH DISTRICT COURT OF APPEAL

CORRECTLY AFFIRMED DISMISSAL OF

VAUGHAN’S COMPLAINT BECAUSE THE LAW

REQUIRING THE DEPARTMENT TO OBTAIN

WARRANTS TO INSPECT DOORYARD CITRUS

TREES WAS NOT ESTABLISHED AT THE TIME

OF THE ALLEGED FOURTH AMENDMENT

VIOLATION. .

Qualified immunity affords broad protection to “all but

the plainly incompetent or those who knowingly violate the

law.” See Malley v. Briggs, 475 U.S. 335, 341 (1986); Hutton

v. Strickland, 919 F.2d 1531, 1537 (11th Cir. 1990); Tillman

v. Coley, 886 F.2d 317 (11th Cir. 1989). Qualified immunity

is evaluated by an objective standard. Courson v. McMillian,

939 F.2d 1479, 1487 (11th Cir. 1999). A government official

proves that he acted within discretionary authority by

showing objective circumstances which would compel the

conclusion that the actions were undertaken pursuant to

performance of duties and within the scope of his authority.

Id. (citing Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir.

1983)).

To defeat qualified immunity, Vaughan had to “prove

the existence of a clear, factually defined, well recognized

right of which a reasonable [government official] should have

knowledge” and that a reasonable official would have

understood that his actions would have violated that right.

See Barts v. Joyner, 865 F.2d 1187 (1!th Cir. 1989).

When the Department employees entered Vaughan’s yard

for the limited purpose of inspecting leaves on citrus trees,

they were entitled to rely on the statute authorizing such

7

inspections and the exigent circumstances surrounding the

citrus canker emergency in Florida.

The Department employees had statutory authority to inspect

Vaughan’s property for citrus canker. Section 581.031(15)(a),

Florida Statutes (2000), provided:

The department has the following duties and

powers: ... to inspect plants, plant products, or

other things or substances that may be capable of

disseminating or carrying plant pests, noxious

weeds. or arthropods, and for this purpose shall

have power to enter into or upon any place... .

“Places” were defined to include “vessels, railroad cars,

automobiles, aircraft, and other vehicles; buildings; docks;

nurseries; orchards; and other premises where plants or plant

products are grown, kept, or handled.” Section 581.011(23),

Florida Statutes (2000).

Qualified immunity operates to “ensure that before they

are subject to suit, officers are on notice their conduct is

unlawful.” Hope v. Pelzer, 536 U.S. 730, 739 (2002).

Following Hope, this Court narrowed qualified immunity to

some degree, but did not undermine the protection from suit

the doctrine provides. Under Hope, evaluating qualified

immunity requires a Court to first determine whether a

constitutional violation exists. If so, then the Court considers

whether the contours of that right are “sufficiently clear that

a reasonable official would understand that what he is doing

violates that right.” Jd. at 739. Under this analysis, an official

must have “fair warning” that his or her conduct deprived

the victim of a constitutional right. /d. at 739 (citing United

States v. Lanier, 520 U.S. 259 (1997)). Hope narrowed the

8

scope of qualified immunity slightly by holding that prior

case authority need not be materially similar in order to serve

as fair warning that certain conduct violates a person’s

constitutional rights. Hope, 536 U.S. at 739. Critically, in

Hope, the conduct involved basic human rights and dignity

when prison guards tortured an inmate.’

But in the case at hand, unlike the conduct in Hope, the

inspection of citrus trees in someone’s yard constituted at

worst a minimal intrusion that, to the Department employees,

could not be perceived as a Fourth Amendment violation.

A. Respondents could reasonably believe that they

were authorized to conduct a warrantless search

because the Legislature, the Commissioner of

Agriculture, and Florida courts had declared

citrus canker to be a statewide emergency.

Vaughan relies primarily on Camara v. Municipal Court

of the City and County of San Francisco, 387 U.S. 523

(1967), along with Fourth District Judge Gary Farmer’s

dissent, asserting that Camara put the Department employees

on fair notice that their actions were unlawful. But Camara

2. In Hope, prison guards chained a prisoner to a hitching post

for seven hours, depriving him of water and food and taunting him

as he suffered. The Court concluded that such treatment, which

transpired after alleged misconduct by the inmate, served no true

penal purpose and violated the prisoner’s Eighth Amendment right

to be free from cruel and unusual punishment. /d. at 738. Reversing

the Eleventh Circuit’s analysis and holding as too rigid, this Court

determincd that basic principles of fundamental human dignity need

not be articulated by prior judicial authorities to provide fair warning

to law enforcement officials that the subject conduct violated the

Eighth Amendment. /d. at 738.

9

does not support a holding that the law was clearly established

that warrantless searches under the CCEP were unconstitutional

at the time of the inspection.

When the Department employees entered Vaughan’s

property, no Florida court had declared the applicable statutes

or rules unconstitutional on Fourth Amendment grounds. Two

circuit court judges did subsequently rule that warrantless

searches were unconstitutional. One decision was vacated on

appeal, and the other withstood scrutiny. See Dep t of Agriculture

v. Miami-Dade County, 790 So. 2d 555 (Fla. 3d DCA 2001)

(vacating trial court decision); Dept of Agriculture v. Haire,

- 836 So. 2d 1040 (4th DCA 2003), aff'd, 870 So. 2d 774 (Fla.

2004). In Miami-Dade County, Judge Gerald Cope, concurning,

opined that the Third District should address the warrant issue

and intimated that a warrant is not required under the

circumstances presented. As he wrote, “The County and the

City appear to take the position that the entirety of a

homeowner’s yard qualifies as cartilage and that the Department

cannot enter into any part of the yard without a search warrant.

That position is incorrect.” /d. at 559 (emphasis added). If an

appellate judge on Florida’s Third District Court of Appeal, in

hindsight and with considerable deliberation, believed that a

warrant was not required in every case when the Department

inspected citrus trees on a person’s yard, then it was reasonable

for the Department employees in the field to believe that they

were not violating Vaughan’s Fourth Amendment rights when

they conducted their inspection the prior year.

Furthermore, Vaughan’s reliance upon Camara is misplaced

because that jlandmark decision is factually distinct and

contained exceptions to the warrant requirement, such that

Respondents had good cause to believe that the Fourth

Amendment did not prohibit their conduct.

10

Camara did not involve an emergency situation as is

always present with a rapidly-spreading virulent disease. In

Camara, an ordinance permitted city officials to enter “any

building, structure, or premises” to “perform any duty

imposed on them.” 387 U.S. at 526. The intrusion in Camara

was far more invasive because the statute allowed the

entrance into a dwelling without any probable cause for

inspection. /d. Here, the Department employees, in the midst

of a plant disease emergency that provided probable cause,

inspected only dooryard citrus, without entering any dwelling

place.

Moreover, there are two exceptions to Camara where

courts have dispensed with warrants for some searches. First,

Camara recognized that exigent circumstances would obviate

the need for a warrant: “Since our holding emphasizes the

controlling standard of reasonableness, nothing we say today 1s

intended to foreclose prompt inspections, even without a

warrant, that the law was traditionally upheld in emergency

situations.” The seizure of unwholesome food products or to

prevent the spread of disease constitutes an exigent circumstance

for which a warrantless search or seizure 1s appropriate. 387

U.S. at 539. This Court cited cases where the emergency

involved unwholesome food and human disease. See North Am.

Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908)

(seizure of unwholesome food); Jacobson v. Commonwealth of

Mass., 197 U.S. 11 (1905) (compulsory smallpox vaccination).

Even more compelling, this Court cited to a case involving a

contagious animal disease: in Kroplin v. Truax, 165 N.E. 498

(Ohio 1929), the Court recognized the need for immediate

destruction of tubercular cattle. So, too, Florida law required

the immediate destruction of a contagious plant pest that. See §

581.111, Fla. Stat. (2000) (defining “emergency” as “any

situation in which the department has declared a plant pest or

1!

noxious weed to be a public nuisance or when in the opinion of

the department a plant pest or noxious weed endangers or

threatens the horticultural and agricultural interest of the state’’).

The Florida Legislature, the Commissioner of

Agriculture, and Florida courts characterized citrus canker

as an emergency that required immediate action. In Denny v.

Conner, 462 So. 2d 534, 536-37 (Fla. lst DCA 1985), the

First District Court of Appeal recognized that “the threat to

the public interest in the citrus industry represented by citrus

canker is of sufficient gravity and urgency that the effect

of the immediate final order of the department should not be

further stayed by this court” (emphasis added). See Nordmann

v. Florida Dept of Agriculture, 473 So. 2d 278, 279 (Fla.

5th DCA 1985) (approving the Department’s emergency

measures, and rejecting the owner’s contention that the

Department has “failed to show imminent danger justifying

use of the state police power to destroy the trees”); Sapp

Farms, Inc. v. Dep't of Agriculture, 761 So. 2d 347, 348-49

(Fla. 3d DCA 2000) (relying on Denny and upholding the

Department’s ability to remove trees exposed to citrus

canker); Dep t of Agriculture v. Sun Gardens, LLP, 780 So.

2d 922, 924 (Fla. 2d DCA 2001) (recognizing the

Department’s finding of “possibly devastating effect of citrus

canker on the citrus industry”); Dep't of Agriculture v.

Pompano Beach, 792 So, 2d 539, 542 (Fla. 4" DCA 2001);

Haire, 836 So. 2d 1047-50 (recognizing Legislature’s ability

to protect citrus industry in agricultural emergency).

On June 15, 2000, in adopting amendments to the plant

disease laws of Florida, the Florida legislature recognized

the increasingly-acute nature of this emergency. The

legislature made several findings:

12

* an emergency exists in the South Florida area

regarding the spread of citrus canker, a bacterial

disease that damages fruit, weakens and eventually

kills trees, is highly contagious, and the presence of

which causes quarantines to be imposed on the

shipment of fresh fruit;

* joint state and federal attempts to eradicate citrus

canker have so far been unsuccessful;

¢ despite destruction of citrus trees infected with citrus

canker and of citrus trees within 125 feet of canker-

infected trees, citrus canker has spread at an alarming

rate and is now present throughout Miami-Dade

County and Broward County;

* if not eradicated quickly, citrus canker will spread to

other parts of the state and may destroy the citrus

industry and dooryard citrus throughout Florida;

* recent scientific studies have shown that citrus trees

as far as 1,900 feet from infected citrus trees will

develop the disease from wind-blown rain or by other

means.

See Ch. 00-308, Laws of Fla. (emphasis added). No court

had challenged the Legislature’s findings at the time the

Department employees inspected Vaughan’s trees.

Accordingly, when the Department employees entered

Vaughan’s yard for the limited purpose of inspecting the trees

at issue, they had a reasonable basis to believe that citrus

canker posed an exigent circumstance that obviated the need

for a warrant even if one was otherwise required.

13

Vaughan, relying upon Judge Farmer’s dissent, suggests

that no emergency existed because the situation “lacked any

compulsion of fresh pursuit, loss of criminal evidence caused

by delay, or any other recognized urgent circumstance. Unless

citrus canker disappears in the time it takes to obtain a

warrant, there is no conceivable reason not to require one.”

(Petition at 16). This argument 1s wrong because it assumes

exigent circumstances capture only potion searches for

evidence of a crime.

Citrus canker was an emergency because it 1s a virulent

plant disease that could spread any time rain fell and the

wind blew, which is frequently in South Florida. The concern

is therefore not whether citrus canker will “disappear” during

the time it takes to procure a warrant, but whether the disease

will spread and infect more citrus. To conclude that the

Department employees should have treated the citrus canker

situation as anything other than a serious emergency would

have required them to disregard the Florida Legislature, the

Commissioner of Agriculture, and multiple Florida courts

which specifically categorized citrus canker as an emergency

requiring immediate action.

B. The Department employees’ conduct was

objectively reasonable in light exception to the

warrant requirement for traditionally regulated

sectors of the economy.

Second, the status of citrus as a traditionally regulated

sector in the economy of Florida made warrantless searches

seemingly plausible. This Court had recognized that a search

warrant is not generally required in state sectors that have

been pervasively regulated and subject to close supervision

and inspection. See Marshall v. Barlow's, Inc., 436 U.S. 307

14

(1978); Blue v. Koren, 72 F.3d 1075, 1080 (2d Cir. 1995)

(extensive warrantless surveys and inspections valid

regardless of motive because of strong governmental interest

and pervasively regulated nursing industry); United States v.

Argent Chem. Lab, Inc., 93 F.3d 572, 574 (9th Cir. 1996)

(warrantless search and seizure of veterinary drugs valid

because of strong state interest in controlling misuse).

Agriculture, plant pests, and citrus have been pervasively

regulated in Florida. See generally Chs. 570-604, Fla. Stat.

(2000), Chs. 570 and 581; Chs. 5A-5L, Fla. Admin. Code,

and especially Ch. SB. The Florida legislature had authorized

the Department to control and eradicate plant diseases. See

§ 581.031(7), (15), (17), Fla. Stat. (2000). Indeed, Florida

had fought against citrus canker and other agricultural pests

for many years, and agriculture, particularly disease-

susceptible plants, have been regulated in Florida for over

100 years. See Fla. Const. of 1885, art. IV, § 20 (creating

post of Commissioner of Agriculture); Ch. 581, Fla. Stat.

(historical note documents creation of State Plant Board in

1927 to control agricultural pests); Richardson v. Baldwin,

124 Fla. 233, 168 So. 255 (Fla. 1936) (reciting duties of State

Plant Board). The destruction of trees infected or exposed to

citrus canker, under the power conferred in the Florida

Statutes, was recognized by the Florida Supreme Court after

the initia: 1985 outbreak of canker in this state. Dept of

~ Agriculture v. Polk, 568 So. 2d 35, 37-40 (Fla. 1990).

In order for warrantless administrative search to be

reasonable, there must be a substantial state interest behind

the regulatory scheme; the search is necessary to further that

scheme; and the authorizing statue is an adequate substitute

for the warrant requirement in giving notice to owners and

limiting discretion of those conducting the search. It was not

15

clearly established that warrantless citrus canker inspections

did not fit within this framework at the time the Department

employees inspected Vaughan’s trees.’

Il. THIS COURT REJECTED CERTIORARI

JURISDICTION OVER A CASE ARISING OUT OF

SIMILAR CIRCUMSTANCES AND UPON WHICH

THE FOURTH DISTRICT BASED ITS DECISION.

In the Fourth District’s Opinion, the majority of the panel

relied upon Grimm v. Spell, Case No. 2:00-CV-506-FTM-

29DNF (M.D. Fla. July 3, 2003) (Petitioner’s A-4). Just as

in this case, the Department employees in Grimm entered

3. See New York v. Burger, 482 U.S. 691, 702-704 (1987)

(warrantless search of automobile junkyard valid because conducted

pursuant to statute, necessary to further state interest in detecting

stolen cars, and discretion of officer conducting the search limited);

Showers v. Spangler, 182 F.3d 165, 172 (3d Cir. 1999) (warrantless

administrative search of taxidermist’s business would be valid if

taxidermy were pervasively regulated business); United States v.

Cobb, 975 F.2d 152, 156 (Sth Cir. 1992) (warrantless administrative

search of trucking company justified because part of company’s

business included pervasively regulated motor vehicle salvage

operation); United States v. Branson, 21 F.3d 113, 116 (6th Cir. 1994)

(warrantless administrative scarch of auto repair shop valid because

of business’ statutory regulation); LeRoy v. Illinois Racing Bd., 39

F.3d 711, 713-14 (7th Cir. 1994) (warrantless administrative search

of racehorse owner's automobile at race track valid because horse

racing pervasively regulated industry); Schwartz v. Pridy, 94 F.3d

453, 457 (8th Cir. 1996) (warrantless administrative search justified

because auto parts industry was pervasively regulated); Winters

v. Board of County Comm'rs, 4 F.3d 848, 853 (10th Cir. 1993)

(warrantless administrative search of pawn shop valid because

pawnshops are pervasively regulated); Moore v. State, 442 So. 2d

215, 216 (Fla. 1983) (warrantless administrative searches of

automotive repair shops constitutional).

16

the plaintiff's yard to inspect citrus trees before any Florida

court imposed a warrant requirement. In Grimm, the federal

district court ruled that qualified immunity shielded

Department employees, who entered a homeowner’s yard to

inspect citrus trees, from personal liability. The Eleventh

Circuit Court of Appeal affirmed the decision, and this Court

denied certiorari jurisdiction. (Grimm v. Spell, Case No. 04-

168, cert. denied, 543 U.S. 999 (2004)). Grimm is

indistinguishable from this case.

CONCLUSION

For the foregoing reasons, the Petition should be denied.

Respectfully submitted,

WESLEY R. Parsons

Counsel of Record

JacK R. REITER

Aporno & Yoss LLP

2525 Ponce de Leon Boulevard

Suite 400 ;

Miami, Florida 33134

(305) 460-1000

Attorneys for Respondents

Deborah Conner, Antonio Elzo, and

Florida Department of Agriculture

and Consumer Services