Horvitz v. State, 82-1508

• Decision Date: 11 May 1983
• Docket Number: No. 82-1508,82-1508
• Citation: 433 So.2d 545
• Parties: Gilbert Lee HORVITZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 545

433 So.2d 545

Gilbert Lee HORVITZ, Appellant, v. STATE of Florida, Appellee.

No. 82-1508.

District Court of Appeal of Florida Fourth District.

May 11, 1983.

Rehearing Denied July 20, 1983.

H. Dohn Williams, Jr., Hollywood, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.

BERANEK, Judge.

The defendant appeals his conviction and sentence for trafficking in cocaine under Section 893.135, Florida Statutes (1981). This is an airport drug courier profile seizure. Appellant raises numerous points and we reverse.

The appellant, Gilbert Lee Horvitz, entered the Delta Airlines Terminal at the Fort Lauderdale/Hollywood Airport on January 12, 1981, carrying a purse-size shoulder bag. Agent Carl, of the Pompano Beach Police Department, observed appellant enter the building. Apparently, for unexplained reasons, he was immediately under suspicion. The agent positioned himself behind appellant in line. Horvitz purchased a one-way ticket to Philadelphia with cash and left the terminal to get his briefcase from his car. He re-entered the airport accompanied by his wife and they both sat down in an area near the metal detection device.

Agent Carl had alerted two other agents, Capone and DeFuria, who positioned themselves around the appellant and his wife. All of the agents were in "plain clothes"; the males wore beards and jeans. Eye contact was made between the agents and Horvitz. As the agents stared at him, he "looked" nervous. Appellant then proceeded down the escalator in a direction away from the departure gates. The three agents observed Horvitz leave the terminal building before his scheduled flight departure and they made contact with him before he reached the parking lot. The agents identified themselves as police officers and indicated they wanted to speak with Horvitz about narcotics. The appellant indicated that he wanted to leave. The agents stated that they were looking for narcotics and wanted to look inside Horvitz' briefcase and shoulder bag. They requested appellant's ticket and identification, which he gave them. The names on both matched. The officers returned the appellant's identification but kept his airline ticket.

The agents then stated that if they could look inside appellant's bag, he could leave. At some point before Horvitz actually opened his bag, he requested permission to call an attorney. The agents responded that it was not part of their procedure at that time to obtain an attorney for him and pressed him to open the briefcase.

Horvitz proceeded to open his briefcase and several packages wrapped in Christmas paper were observed. Horvitz told the agents not to touch the packages but an agent picked one up and smelled it. He testified that it smelled like cocaine and that appellant was then asked to accompany the agents to the narcotics division security office inside the airport. After a two-hour wait, the customs narcotics search dog arrived and picked out appellant's attache case from a lineup of three or four attache cases. A search warrant was obtained, the cocaine was confiscated, and Horvitz was arrested.

It was the appellant's contention throughout all the proceedings that he was transporting the drugs to his brother, an Assistant United States Attorney in Philadelphia, for an analysis. He had found the drugs hidden in his home. Some time earlier he had permitted another individual, who was later convicted of murder, to "house sit" while Horvitz was out of town. During Horvitz' absence, numerous drug transactions allegedly occurred at his home, and the drugs Horvitz found were believed to be left over from that time. Horvitz basically asserted he was in innocent possession of the drugs and had not turned them over to local police due to conflicts over the recent occurrences at his house.

Appellant initially contends the trial court erred in denying his motion to suppress. He argues that his initial stop and detention were unlawful. To establish that the stop of appellant was lawful, it must be shown that the stop was based on a founded suspicion that Horvitz was engaged in criminal activity. As described in State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978), a founded suspicion is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer's knowledge. Coleman v. State, 333 So.2d 503 (Fla. 4th DCA 1976). The facts relied upon by the police officers as established at the motion to suppress were:

1) the appellant appeared nervous;

2) he purchased a one-way ticket to Philadelphia for cash;

3) his luggage consisted of only a purse-sized shoulder bag and an attache case;

4) he appeared to notice the police officers; and

5) he left the terminal building and apparently abandoned his plans to depart.

Airport drug courier profile seizures have been the subject of extensive judicial consideration in this state and by the United States Supreme Court. See Carpenter v. State, 403 So.2d 1047 (Fla. 4th DCA 1981); Martinez v. State, 414 So.2d 301 (Fla. 4th DCA 1982); State v. Grant, 392 So.2d 1362 (Fla. 4th DCA 1981); State v. Frost, 374 So.2d 593 (Fla. 3d DCA 1979); United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); and Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), affirming Royer v. State, 389 So.2d 1007 (Fla. 3d DCA 1980).

In the most recent Royer opinion from the United States Supreme Court, it was at least made clear that the drug courier profile does not constitute probable cause and that during any investigative detention based on less than probable cause, the police must employ the least intrusive means available to dispel any suspicion they have that the individual is engaged in criminal activity.

In view of the cited authorities, the facts as outlined above are not sufficient to justify the initial stop; therefore, the action of the police officers constituted an illegal seizure. It is impossible to maintain that in view of all the circumstances surrounding the incident, Horvitz would have believed he was free to leave. He was surrounded by three police officers for questioning concerning illegal drugs. The agents had retained possession of his airline ticket and stated he could leave only if he would let them look inside his case. In response to a direct request the agents denied him the right to call an attorney. Even if it were established that the officers had a founded suspicion to stop the appellant, at the moment he mentioned that he wanted to talk to an attorney, the officers should have stopped all questioning and certainly should not have thereafter extracted an alleged consent to open the briefcase.

The appellant further maintains that his consent to search his baggage was not voluntary. Consent has been held to be involuntary where a defendant's ticket and identification were retained by the...