Adoue v. State

• Decision Date: 03 December 1981
• Docket Number: Nos. 56279,56222,s. 56279
• Parties: Victor ADOUE, Appellant, v. STATE of Florida, Appellee. Jerome WEXLER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 567

408 So.2d 567

Victor ADOUE, Appellant, v. STATE of Florida, Appellee.

Jerome WEXLER, Appellant, v. STATE of Florida, Appellee.

Nos. 56279, 56222.

Supreme Court of Florida.

Dec. 3, 1981.

Rehearing Denied Feb. 8, 1982.

Larry G. Turner of Turner & Morris, Gainesville, for Adoue.

Selig I. Goldin of Goldin & Cates, Gainesville, for Wexler.

Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.

ALDERMAN, Justice.

Appellants, Victor Adoue and Jerome Wexler, having entered pleas of nolo contendere and reserved their rights of appeal, were each sentenced in accordance with their negotiated plea agreements for the offense of bringing cannabis into the State of Florida. We have jurisdiction of these consolidated appeals because the trial court upheld the constitutionality of section 893.13(1)(d), Florida Statutes (1977), a provision of Florida's Comprehensive Drug Abuse Prevention and Control Act. Art. V, § 3(b)(1), Fla.Const. (1972).

Appellants argue that section 893.13(1)(d) constitutes an unconstitutional attempt to delegate legislative authority to the federal government in violation of article II, section 3, and article III, section 1 of the Florida Constitution, that the trial court erred in denying their motion to dismiss the charges against them, and that the warrantless search of their airplane and the seizure of marijuana was unreasonable. We find no merit to any of these arguments, and we affirm the judgment of the trial court.

Factually, it appears that one drizzly evening a twin-engine Beechcraft airplane landed at the Gainesville Municipal Airport without first obtaining clearance from the air traffic controller as required by federal regulation under the existing visibility conditions. The air controller saw the plane taxi to the north ramp and park in the vicinity of the Sopwith Camel, Inc., a private field-based operation. The air controller called the pilot by radio to determine whether there was an emergency or radio failure. Receiving no response from the pilot, the air controller called the Sopwith Camel and requested them to have the pilot call the air control tower when he came into the hangar office. When the pilot did not appear, two employees from the Sopwith Camel went to the parking area immediately to the east of the hangar to see if they could locate the pilot. The employees did not find the pilot at the plane but in investigating his whereabouts detected what they believed was the odor of marijuana emanating from inside the aircraft. They notified the air controller who in turn notified the police.

Police officers arrived a short time later and were escorted to the plane by Sopwith Camel employees. With the aid of a flashlight, the officers examined the plane and through its window observed a number of white plastic garbage bags inside the plane. The officers testified that they saw a tear in one of the bags located near the window which revealed a green, leafy substance they believed, based on their law enforcement training and experience, to be marijuana. After seeing the rip in the bag through the window, one of the officers opened the door to the plane, but he did not enter the plane at that time. The officers then secured the airplane and awaited the arrival of the narcotics unit. Then, when the additional officers arrived, they entered the airplane and seized a large cargo of marijuana.

Initially, appellants argue that section 893.13(1)(d) is unconstitutional because it constitutes an unlawful attempt to delegate legislative authority to the federal government in violation of article II, section 3, and article III, section 1 of the Florida Constitution. ¹ Section 893.13(1)(d) provides in pertinent part:

(d) It is unlawful for any person to bring into this state any controlled substance unless the possession of such controlled substance is authorized by this chapter or unless said person is licensed to do so by the appropriate federal agency. (Emphasis added).

Appellants maintain that this emphasized portion purports to authorize the federal government to define criminal acts in Florida in contravention of the long-standing principle that the legislature may adopt existing but not future legislation or administrative rules of jurisdictions outside of Florida. Freimuth v. State, 272 So.2d 473 (Fla.1972).

The delegation doctrine is grounded on the constitutional maxim that the legislature has the sole authority and responsibility to make the laws. State v. Atlantic Coast Line Railway Co., 56 Fla. 617, 47 So. 969 (1908). Unless the constitution otherwise authorizes, the legislature cannot delegate this responsibility to any other person or body. State v. Welch, 279 So.2d 11 (Fla.1973). The legislature may, as it has in the past, adopt the regulatory and statutory standards of the federal government, but these standards must be in existence at the time of the adoption. Any attempt to incorporate a law as part of this state's body of laws prior to its creation by the appropriate federal authority is an unconstitutional delegation of the legislative power. Florida Industrial Commission v. State, 155 Fla. 772, 21 So.2d 599 (1945).

We hold that the challenged statutory provision does not constitute an unlawful delegation of legislative authority. Florida's comprehensive drug abuse act enumerates at length the substances which are controlled and describes in detail the criminal offenses relating to these substances. The act also delineates those persons who are excluded from criminal liability. In various sections of the act, practitioners, pharmacists, hospitals and others have been excluded from liability. Section 893.13(1)(d) excludes those persons holding controlled substances pursuant to a federal license. ² The legislature, by allowing this exclusion, does not delegate substantive lawmaking ability to the federal government any more than it delegates that ability to a medical practitioner under section 893.13(1)(e). The conduct proscribed by the statute involved here has been completely defined by the Florida legislature; the range of criminality does not change in the future with shifting federal standards.

Appellants next contend that the charges against them should have been dismissed because the definitional section of chapter 893 proscribes only the species of cannabis sativa, L., and the state is unable to prove that the cannabis seized in this case is this species and not one of several separate species of cannabis. We have previously rejected this argument in our recent decision of Hamilton v. State, 366 So.2d 8 (Fla.1978). We hold that section 893.02(2), Florida Statutes (1977), defining "cannabis" as the species cannabis sativa, L., and "all varieties thereof" includes all species of the cannabis plant.

Finally, appellants contend that the marijuana was illegally seized because it was not seized pursuant to a search warrant and that no exigent circumstances justified the warrantless search. The trial court denied the motion to suppress the marijuana seized from the airplane on the basis of the "plain view" exception to the warrant requirement. It concluded that the officers saw what they thought or believed to be, in their training and experience, marijuana. The "plain view" exception, however, does not apply to the factual situation before us. Here we have what would be considered a pre-intrusive situation under our recent analysis in Ensor v. State, 403 So.2d 349 (Fla.1981), where the officers observed contraband in "open view."

In Ensor, we explained the confusion engendered by the courts in their varying usages of the concept of plain view. Plain view, we said, is often confused with the concept of open view. The plain view doctrine as an exception to the warrant requirement as described in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), provides the reasonableness for a search and seizure and applies where an officer observing contraband is legally inside, by warrant or warrant exception, a constitutionally protected area when he inadvertently observes contraband within the protected area. It is in this situation that an officer may constitutionally seize contraband in "plain view" from the constitutionally protected area. The pre-intrusive situation exists where an officer is located outside a constitutionally protected area and is looking inside that area. In Ensor, we determined that if an officer observes contraband in this situation in "open view," this only furnishes him probable cause to seize the contraband. Either he must obtain a warrant or an exception to the warrant requirement must exist to justify his entry into the protected area and his seizure. The police officers in Ensor saw a firearm in "open view" through an open car door. This viewing, we said, gave them probable cause to believe that a felony was being committed. Since the officers had no warrant, the question, therefore, remained as to whether some exception to the warrant requirement justified the search and seizure. We held that under the Carroll exception for movable vehicles, the officer was legally justified in seizing the firearm from the automobile.

In the present case, when the officers looked through the window of the airplane and saw the marijuana, they stood in a nonconstitutionally protected area where they had a lawful right to be. In fact, they were where they had a duty to be since it was their responsibility to investigate the surreptitious landing of the plane and the apparent disappearance of the pilot. The airplane had landed without communicating with the tower in violation of federal air regulations. The air controller, unsuccessful in making contact with the pilot of the plane after it had landed, properly called the local police. During the resulting investigation, the officers saw the marijuana in "open view." See Ensor v. State. At this point, the officers had probable...