402 So.2d 402 (Fla. 1981), 57058, Wells v. State

Docket Nº:57058.
Citation:402 So.2d 402
Party Name:Sheila Mathews WELLS, Appellant, v. STATE of Florida, Appellee.
Case Date:July 30, 1981
Court:Supreme Court of Florida
 
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Page 402

402 So.2d 402 (Fla. 1981)

Sheila Mathews WELLS, Appellant,

v.

STATE of Florida, Appellee.

No. 57058.

Supreme Court of Florida.

July 30, 1981

Page 403

Gary R. Dunham, Asst. Public Defender, Starke, for appellant.

Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.

ALDERMAN, Justice.

Sheila Wells challenges her convictions for unlawful possession of a controlled substance, possession of narcotics paraphernalia, and introducing contraband into a state prison, on the basis that the trial court erred in denying her motion to suppress contraband seized from her while a visitor at the state prison Lake Butler Reception and Medical Center and on the basis that the trial court erred in denying her motion to dismiss the charge that she violated section 944.47, Florida Statutes (Supp.1978), by introducing contraband into a state prison. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution (1972), because the trial court upheld the constitutional validity of section 944.47. 1 We hold that the trial court correctly denied the motion to suppress since the search and seizure was not illegal, and we hold that

Page 404

section 944.47 is not unconstitutionally vague as applied to Wells and is not an unlawful delegation of legislative powers and that she has no standing to challenge this statute as overbroad.

Several days prior to Sheila Wells' arrest, a correctional officer and investigator, Sergeant Deckle, employed at the state prison Lake Butler Reception and Medical Center, received confidential information from a reliable source that on October 1, 1978, Wells would bring marijuana into the facility hidden inside her vagina. Sergeant Deckle planned with a female correctional officer, Virginia Forsythe, to allow Wells to enter the prison and only stop her after she exited from the visitor's restroom where, they anticipated, she would remove the contraband to facilitate passage to an inmate.

Wells entered the state prison on October 1, 1978, and after about one hour in the visitor's area, she entered the visitor's restroom. When she emerged, Officer Forsythe asked Wells to accompany her to an office. Forsythe instructed Wells to remove her clothing, and she complied. A pat-down search of her upper torso revealed vegetable matter appearing to be marijuana enclosed in a plastic baggie inside a prophylactic. After she dressed, she was arrested by a deputy sheriff. Her purse was searched, and hemostats and "roach clips" were found. With Wells' consent, her car was also searched, and two more "roach clips" were found.

Although conceding that the prison authorities had probable cause to believe that she would attempt to smuggle contraband into the prison facilities, Wells argues that this warrantless search violated her constitutional right to be free from unreasonable searches and seizures under the fourth amendment to the constitution of the United States and article I, section 12 of the Florida Constitution, since no exigent circumstances were present.

As a predicate to her claim that her fourth amendment rights were violated, Wells must first establish that she had a reasonable expectation of privacy to be free from the particular intrusion involved here. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d at 220 (1979); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Shapiro v. State, 390 So.2d 344 (Fla.), cert. denied, --- U.S. ----, 101 S.Ct. 1519, 67 L.Ed.2d 818 (1980). In determining whether she demonstrated a reasonable expectation of privacy, we are concerned not merely with what her own personal expectation of privacy was, but, more importantly, we are concerned with what expectations are constitutionally justifiable so as to implicate the fourth amendment. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). To make this determination, we must decide whether her individual subjective expectation is one that society is prepared to recognize as reasonable under the circumstances. Smith v. Maryland; Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Shapiro v. State. Although the fourth amendment protects people and not places, reference to the place where the right is being asserted is essential to the application of the objective standard for determining reasonableness of the expectation of privacy. Katz v. United States, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring).

It is doubtful that most visitors to a prison have any subjective expectation that they will not be searched for weapons or other contraband. It should be obvious to any reasonable person that for the protection of both the guards and the inmates, as well as any visitors, that prison personnel must do whatever is necessary to prevent the introduction of contraband into the prison. As acknowledged by the Supreme Court of the United States in Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979), "A detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence."

Even if Wells did have a subjective expectation of privacy, her expectation, to be free from the particular search involved here, is not one that society is prepared to

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recognize as reasonable. Discussing privacy expectations in a prison environment, the Supreme Court of the United States, in Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962), said:

(T)o say that a public jail is the equivalent of a man's "house" or that it is a place where he can claim constitutional immunity from search or seizure of his person, his papers, or his effects, is at best a novel argument. To be sure, the Court has been far from niggardly in construing the physical scope of Fourth Amendment protection. A business office is a protected area, and so may be a store. A hotel room, in the eyes of the Fourth Amendment, may become a person's "house," and so, of course, may an apartment. An automobile may not be unreasonably searched. Neither may an occupied taxicab. Yet, without attempting either to define or to predict the ultimate scope of Fourth Amendment protection, it is obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. In prison, official surveillance has traditionally been the order of the day.

370 U.S. at 143, 82 S.Ct. at 1220-1221 (footnotes omitted). See United States v. Kelley, 393 F.Supp. 755 (W.D.Okl.1975).

Wells established no reasonable expectation of privacy from the particular search of her person which was conducted, in this case, for the limited purpose of discovering whether she was carrying contraband into the prison. Therefore, the fourth amendment was not implicated, and neither probable cause nor a warrant was required as a prerequisite to the search. See Shapiro v. State. Furthermore, we find that the manner of conducting the search was not patently offensive to human dignity so as to shock the conscience or offend even hardened sensibilities and thus partook of none of the abusive characteristics held to violate the due process clause. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Schmerber v. California, 384 U.S. 757, 85 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1951). Therefore, we hold that the trial court's denial of her motion to suppress was proper.

We next proceed to Wells' challenges to the constitutionality of section 944.47 on the grounds that it is vague, overbroad, and an unlawful delegation of legislative authority. This statute provides in pertinent part:

Introduction or removal of certain articles unlawful; penalty.

(1)(a) It is unlawful to introduce into or upon the grounds of any correctional or penal institution under the supervision or control of the Department of Offender Rehabilitation, or to take or attempt to take or send therefrom, any of the following articles which are hereby declared to be contraband for the purposes of this section, to wit:

....

4. Any narcotic or hypnotic or excitative drug or any drug of whatever kind or nature including, but not limited to, nasal inhalators of any variety, sleeping pills, barbiturates of any variety, and any controlled substance as defined in s. 893.02(3);

....

except through regular channels as authorized by the officer in charge of each correctional or penal institution.

....

(2) Whoever violates any provision of this section shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Wells does not have standing to challenge as vague subsections of section 944.47 under which she was not charged since she is unaffected by these subsections. State v. Champe, 373 So.2d 874 (Fla.1978). Furthermore, she has no standing to challenge section 944.47 as overbroad. Clark v. State, 395 So.2d 525 (Fla.1981). Her conduct was clearly illegal and proscribed by section 944.47 in understandable terms, and she has made no assertion that the statute inhibits activities protected by the first amendment.

We have previously held that section 944.47 is not an unlawful delegation of legislative powers. In Clark v. State, we said:

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The "reasonableness" of delegation must be determined within the practical context of the problem. State v. Griffin, 239 So.2d 577 (Fla.1970). In Griffin this Court recognized that where direct legislative supervision is impractical, detailed legislation may also be impractical. A prison, unlike most regulated agencies and departments, cannot be run by procedures carefully detailed by "outsiders."

The realities of running a penal institution are complex and difficult, so wide-ranging deference is to be accorded the decisions of...

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