Clark v. State

• Decision Date: 05 March 1981
• Docket Number: No. 57125,57125
• Citation: 395 So.2d 525
• Parties: Henry Lee CLARK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 525

395 So.2d 525

Henry Lee CLARK, Appellant, v. STATE of Florida, Appellee.

No. 57125.

Supreme Court of Florida.

March 5, 1981.

Jack O. Johnson, Public Defender, and Thomas J. Sherwood, Asst. Public Defender, Bartow, for appellant.

Jim Smith, Atty. Gen., and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.

ADKINS, Justice.

On February 20, 1979, appellant entered a plea of nolo contendere to charges of introducing contraband into a correctional or penal institution in violation of section 944.47, Florida Statutes (Supp.1978), and possession of marijuana in violation of section 893.13(1)(e), Florida Statutes (1977). On April 19, 1979, appellant was sentenced to six months in the county jail for introducing contraband into a prison, but the trial court considered the act as a single transaction so did not impose a sentence on the possession charge. Appellant reserved the right to appeal denial of the motion to dismiss, attacking the constitutionality of section 944.47, and the motion to suppress evidence of illegally-seized contraband.

Appellant was a correctional officer at Polk Correctional Institution for approximately six months. On the morning of November 6, 1979, the chief security officer, Major Dobson, authorized a "shakedown" search of all employees coming on duty for the second shift. The Department of Corrections Administrative Rules and Regulations, chapter 33-4.02(8), warns that a prison employee shall not refuse to submit to a search which may be conducted when he is entering, departing, or otherwise upon the premises of the institution. Major Dobson testified that the shakedown searches are ordered at random intervals to keep employees from bringing contraband into the facility. The search consists of a pat-down of the outer body after employees remove shoes and jackets.

As the correctional officers came on duty, they were searched in a private office, where they then searched other arriving employees. Sergeant Crews searched the appellant and discovered two marijuana cigarettes rolled up in one sock. Appellant said they were for his own use, removed the sock, and handed the sock and cigarettes to Sergeant Crews. Major Dobson was notified, and he fired the appellant. Two days later the appellant was arrested.

Appellant argues that the trial court should have dismissed this case because section 944.47 is unconstitutionally vague and overbroad, and that it unlawfully delegates authority to the prison administration. Appellant also maintains that it was error to deny the motion to suppress when appellee had not presented testimony to establish the reasonableness of the warrantless search.

Section 944.47, Florida Statutes, is not overbroad as applied to appellant, so he cannot challenge it on those grounds. Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881 (Fla.1972); Sandstrom v. Leader, 370 So.2d 3 (Fla.1979). Appellant's conduct was not wholly innocent so he could only assert that overbreadth had a chilling effect on his First Amendment freedoms; however, he does not make that assertion. Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975). When appellant brought marijuana into the prison, his conduct was clearly illegal and proscribed in understandable terms. Therefore, he cannot challenge the statute as overbroad because it criminalizes legal as well as illegal activity. State v. Ashcraft, 378 So.2d 284 (Fla.1979). Appellant has not presented an example of selective enforcement which he claims results from overbreadth. He does not show that he alone was arrested while other people who brought marijuana into the prison were not arrested. For these reasons, appellant does not have standing to challenge section 944.47 as overbroad.

Section 944.47 is not an unreasonable or unlawful delegation of legislative power to the executive branch. 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 prison administrators. Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977). Prison officials in Jones considered the concept of a prisoners' labor union fraught with potential dangers, and refused to allow recruitment within the North Carolina prison. The United States Supreme Court found that the administrators could lawfully prohibit labor union solicitation because the restriction was consistent with the legitimate operational considerations of the prison, and did not violate the prisoners' First or Fourteenth Amendment rights.

Of course, the legislature must establish guidelines to prevent abuse of administrative power. State v. Cumming, 365 So.2d 153 (Fla.1978); Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla.1965); State ex rel. Davis v. Fowler, 94 Fla. 752, 114 So. 435 (1927). The legislature mandated that the "officer in charge of such institution" is the person qualified to designate the "regular channels" of entry to the prison. The prison administrator can allow many things to pass in through those channels. However, items of contraband were outlined by the legislature. The prison administrator must keep out items within that outline which, based on his experience in the prison system, are potentially harmful. The prison administration acted clearly within the legislative guidelines when it kept marijuana from being introduced freely into the prison.

Appellant asserts that the trial court erred in denying its motion to suppress without hearing testimony from the state. The marijuana was discovered in a warrantless search, and since the state did not proffer any exception to the warrant requirement, the search allegedly violated appellant's Fourth Amendment rights. The trial court said that appellant's "special classification" as a prison guard made the search reasonable, and he heard no testimony from the state before denying appellant's motion to suppress evidence.

A prison entrance is the functional equivalent of a border because it is an official boundary where traffic may conveniently be stopped and inspected. An inspection may reveal contraband, enabling officials to stop contraband at the border instead of having to detect illegal goods once dispersed inside the border. The inspection, however, must be reasonable and must not violate Fourth Amendment rights of the individual who crosses the boundary.

A balancing test is used to determine reasonableness of border searches. In United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the degree of intrusion into individual freedom was weighed against the public interest protected by the search. A border search of an automobile in that case involved only minimal intrusion: a stop, brief visual inspection, and a few questions. The reasonableness of a border search in United States v. Himmelwright, 551 F.2d 991 (5th Cir. 1977), cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977), depended upon the balance struck between the level of official intrusion and the public interest to be served by such an...