Gluesenkamp v. State
| Decision Date | 16 October 1980 |
| Docket Number | Nos. 57124,56928 and 57131,s. 57124 |
| Citation | 391 So.2d 192 |
| Parties | Daniel W. GLUESENKAMP, Appellant, v. STATE of Florida, Appellee. Hubert Dwight MASSENGALE et al., Appellants, v. STATE of Florida, Appellee. Joseph Francis MOUW et al., Appellants, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
William R. Slaughter, II of Slaughter & Slaughter, Live Oak, and James K. Jenkins, Atlanta, for Gluesenkamp, appellant.
Jim Smith, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee in No. 57124.
Larry G. Turner of Turner & Morris, Gainesville, for Massengale and Kring, appellants.
Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee in Nos. 56928 and 57131.
David Roth of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, for Mouw and Hartwig, appellants.
These consolidated cases are before the Court on appeal from judgments rendered by the Circuit Court of the Third Judicial Circuit, in and for Hamilton County. In rendering the judgments the circuit court passed upon the constitutionality of section 570.15, Florida Statutes (1977) and (Supp.1978). Therefore, we have jurisdiction of the appeals. Art. V, § 3(b)(1), Fla.Const.
In case no. 57,124, Dan W. Gluesenkamp was charged in a two-count information with possession of cannabis in excess of one hundred pounds with intent to sell and possession of cannabis in excess of five grams, both being offenses prohibited by section 893.13, Florida Statutes (1977). After pleading not guilty, the appellant moved to dismiss the information and to suppress evidence. Thereby he challenged both the constitutionality of section 570.15, Florida Statutes (1977), and the legality of the search performed after a highway stop executed pursuant to that statute. After the court denied his motions to dismiss and to suppress evidence, the appellant changed his plea to nolo contendere, specifically reserving the right to appeal these two rulings. The court then adjudicated him guilty and imposed sentence.
In case no. 56,928, Hubert Dwight Massengale and Mason Gregory Kring were jointly charged in a two-count information with possession of cannabis in excess of one hundred pounds with intent to sell and possession of cannabis in excess of five grams. After pleading not guilty, the appellants moved to suppress evidence. In their motion they challenged the constitutionality of section 570.15, Florida Statutes (Supp.1978) and questioned the legality of a search performed after they were stopped on the highway pursuant to that section. The court denied the motion and the appellants entered a plea of nolo contendere, specifically reserving the right to appeal the court's ruling on the motion. The court adjudicated the appellants guilty on both counts and sentenced them.
In case no. 57,131, Joseph Francis Mouw and Paul Marion Hartwig were jointly charged in a two-count information with possession of cannabis in excess of one hundred pounds with intent to sell and possession of cannabis in excess of five grams. After pleading not guilty, the appellants moved to suppress evidence. The motion challenged the constitutionality of section 570.15, Florida Statutes (Supp.1978) and questioned the legality of a search performed after they were stopped on the highway pursuant to that section. The court denied the motion and the appellants entered a plea of nolo contendere, specifically reserving the right to appeal the court's ruling on the motion. The court then adjudicated the appellants guilty on both counts and sentenced them.
In case no. 57,124, appellant Gluesenkamp and Debra Cain were traveling in the appellant's van on January 15, 1978. With Ms. Cain at the wheel, they passed an agricultural inspection station without stopping. A Department of Agriculture inspection officer gave chase and pulled the van over. Cain got out of the vehicle to talk to the officer while the appellant drew together the curtain that separated the front seat from the cargo area of the van. Cain told the inspector they were hauling plants. The inspector asked to see the documents pertaining to the cargo of plants. Cain then went to the van, talked to the appellant, and returned to say that they were hauling potting soil. The inspection officer asked to look in the van and the appellant refused. The inspector then required Gluesenkamp and Cain to return in the van to the inspection station.
At the inspection station the appellant again refused to allow the inspector to look inside the van. The inspector arrested Cain for passing the station without first stopping for inspection, a misdemeanor proscribed by section 570.15(2), Florida Statutes (1977). The inspector contacted his supervisor and an hour later a deputy sheriff, an assistant state attorney, and an investigator arrived at the inspection station. They looked through the van's windows and saw some burlap-colored bundles which they believed contained cannabis. The appellant surrendered a key to them after they told him they had probable cause for a search, did not need a warrant, and would break the van open if he refused. They found what they believed to be cannabis and the deputy arrested Gluesenkamp and Cain.
In case no. 56,928, appellants Massengale and Kring were traveling in a van on the night of July 20, 1978, and they proceeded past an agricultural inspection station. An inspection officer went after and stopped them, and asked them to return to the station. The inspector arrested Massengale for failing to stop for inspection in violation of section 570.15(2), Florida Statutes (Supp.1978), and asked if he could look inside. Kring, the owner of the van, opened the door. The inspector saw several large bundles wrapped in burlap and plastic and smelled cannabis. He summoned a deputy sheriff who confirmed that the bundles contained cannabis and arrested the appellants.
In case no. 57,131, appellants Mouw and Hartwig, on June 18, 1978, passed an agricultural inspection station without stopping, were apprehended, and accompanied an inspection officer back to the station. There appellant Mouw opened the van. The inspector observed a large compartment built into the bed of the vehicle. He saw cannabis seeds on the floor and smelled cannabis. He arrested the appellants for violation of section 570.15, Florida Statutes (Supp.1978). Then the vehicle was searched pursuant to warrant and over three hundred pounds of cannabis were found in the compartment.
All of the appellants in these consolidated cases challenge the constitutionality of section 570.15, requiring all trucks to stop at agricultural inspection stations, and question the statute's applicability to them on the ground that their vans are not trucks within the meaning of the statute. Each appellant argues that if the initial apprehensions pursuant to the statute were thus unlawful, the evidence subsequently seized is the fruit of such illegality and the convictions cannot stand.
Section 570.15, Florida Statutes (1977), provides:
570.15. Access to places of business and vehicles.-
(1)(a) The commissioner, assistant commissioner, directors, counsel, experts chemists, agents, inspectors, road-guard inspection special officers, and other employees and officers of the department shall have full access at all reasonable hours to all:
1. Places of business;
2. Factories;
3. Farm buildings;
4. Carriages;
5. Railroad cars;
6. Trucks;
7. Motor vehicles, other than private passenger automobiles with no trailer in tow or any vehicles bearing an RV license tag;
8. Truck and motor vehicle trailers;
9. Vessels; and
10. All records pertaining thereto; used in the production, manufacture, storage, sale, or transportation within the state of any food product; any agricultural, horticultural, or livestock product; or any article or product with respect to which any authority is conferred by law on the department.
(b) If such access be refused by the owner, agent, or manager of such premises or by the driver of such aforesaid vehicle, the inspector or road-guard inspection special officer may apply for a search warrant which shall be obtained as provided by law for the obtaining of search warrants in other cases, or may conduct a search of any of the aforesaid vehicles without a warrant pursuant to s. 933.19.
(c) Such departmental officers, employees, and road-guard inspection special officers may examine and open any package or container of any kind containing or believed to contain any article or product which may be transported, manufactured, sold, or exposed for sale in violation of the provisions of this chapter, the rules of the department, or the laws which the department enforces and may inspect the contents thereof and take therefrom samples for analysis.
(2) It shall be unlawful for any truck or any truck or motor vehicle trailer to pass any official road-guard inspection station without first stopping for inspection. A violation of this subsection shall constitute a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
Subsection (1) of the statute pertains to "access" in the context of the inspection functions of the Department of Agriculture. All of the enumerated places and conveyances to which "access" is provided for by subsection (1) (a), are qualified by the clause, "used in the production, manufacture, storage, sale, or transportation within the state of any food product; any agricultural, horticultural, or livestock product; or any article or product with respect to which any authority is conferred by law on the department." If a vehicle or place does not come within the meaning of this qualifying clause, then the departmental officials have no right of "access."
Subsection (2) of the statute forbids "any truck or any truck or motor vehicle trailer to pass any official road-guard inspection station...
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