Hunter v. State, 4-86-1312
| Decision Date | 12 November 1987 |
| Docket Number | No. 4-86-1312,4-86-1312 |
| Citation | 12 Fla. L. Weekly 2610,518 So.2d 304 |
| Parties | 12 Fla. L. Weekly 2610, 13 Fla. L. Weekly 233 Sherman HUNTER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Kayo E. Morgan and Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for appellant.
Robert A. Butterworth, Jr., Atty.Gen., Tallahassee, and Deborah Guller, Asst. Atty. Gen., West Palm Beach, for appellee.
This is an appeal challenging the trial court's order denying a motion to suppress evidence seized from the appellant while he was a passenger on an interstate bus temporarily stopped at a bus station in Broward County. We affirm because we find clear and convincing evidence to sustain the trial court's finding that appellant's consent to search was freely and voluntarily given.
This case presents only a slight factual variation of State v. Carroll, 510 So.2d 1133 (Fla. 4th DCA 1987), in which this court approved a trial court's order suppressing the results of an alleged consent search. The trial court there, unlike the court here, found that the alleged consent was not freely and voluntarily given, but rather was the result of the inherently coercive nature of the confrontation of the passenger by the police. Here, the law enforcement officers boarded a bus that was ready to depart, and went through the bus, asking each passenger if he or she would consent to a search of their baggage. A critical distinction in the evidence here was appellant's testimony that he had observed other passengers refuse to consent to a search before he was approached. That evidence supports the trial court's holding.
Factually, there is nothing in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), the sole case upon which the state relies, to support this inquiry of every passenger who has boarded a bus or airplane, train or boat--none of which have actually departed their gate, station or berth. In Mendenhall the events took place on a public concourse. The Supreme Court there took great pains to point out that the respondent could terminate the conversation and go about her business. That, to us, is a far cry from leaving the bus, airplane, train or boat. We find the confrontation of each passenger on a bus in transit more appropriate to totalitarian countries than to our own. See State v. Kerwick, 512 So.2d 347 (Fla. 4th DCA 1987).
Nevertheless, the law is clear that, notwithstanding the above apparently common practice of the law enforcement officers, if there were clear and convincing proof of an unequivocal break in the chain of illegality sufficient to dissipate the taint, consent to the subsequent search of his baggage will be held voluntary and the evidence not to have been illegally seized. See Norman v. State, 379 So.2d 643 (Fla.1980). In conclusion we emphasize the responsibility of the trial court to determine that any alleged consent search was given freely and voluntarily and not just in response to apparent police authority. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Kerwick, supra.
We find no error as to appellant's remaining point, and accordingly affirm.
GLICKSTEIN, J., concurs specially with opinion.
When this case was orally argued, Judge Goldman and I were very much concerned about the conduct of the law enforcement officers in approaching passengers at random on board a bus. Because of my concerns, I was asked by the panel to write an opinion.
On March 27, 1987, I circulated the following opinion which was to be issued on April 22, 1987, and which continues to represent my views:
This is an inevitable factual extension of Snider v. State, 11 F.L.W. 964 (Fla. 4th DCA Apr. 23, 1986), in which this writer dissented. There, as recited in the dissent, an individual passenger on a bus about ready to depart was approached by law enforcement officers with the request that he consent to a search of whatever baggage he may have.
Here, the law enforcement officers boarded a bus that was ready to depart, and went through the bus, asking each passenger if he or she would consent to a search of their baggage.
The last paragraph of the dissent in Snider recites:
Occasionally the price we must pay to make innocent persons secure from unreasonable search and seizure of their persons or property is to let an offender go. Those who suffered harassment from King George III's forces would say that is not a great price to pay. So would residents of the numerous totalitarian and authoritarian states of our day.
What the writer feared could happen has happened in this case. We find this inquiry of each passenger more appropriate to totalitarian countries than to our own. Accordingly, we deplore it.
Factually, there is nothing in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), the sole case upon which the state relies, to support this inquiry of every passenger who has boarded a bus or airplane, train or boat--none of which have actually departed their gate, station or berth. In Mendenhall the events took place on a public concourse. The Supreme Court there took great pains to point out that the respondent could terminate the conversation and go about her business. That, to us, is a far cry from leaving the bus, airplane, train or boat.
Nevertheless, the law is clear that, notwithstanding the above apparently common practice of the law enforcement officers, if there was clear and convincing proof of an unequivocal break in the chain of illegality sufficient to dissipate the taint, consent to the subsequent search of his baggage will be held voluntary and the evidence not to have been illegally seized. See Norman v. State, 379 So.2d 643 (Fla.1980). We remind the reader of the five point test in Schneckloth v. Bustamonte, 412 U.S. 216 , 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973):
1. Was there any coercion, either express or implied?
2. Was the capacity of the consenting individual limited in any way?
3. Was the individual advised of the right to refuse to consent to the search?
4. Did the police threaten to obtain a search warrant?
5. Was the individual's conduct and/or statement consistent with a valid consent to the search?
The trial court believed the testimony of the two law enforcement officers involved here that appellant gave his permission to the search. In Snider, it was one against one.
We find no error as to appellant's remaining point, and affirm.
Questions posed by some of the judges on the court occasioned the opinion's being pulled by Judge Anstead, who then prepared the opinion which reflects his views. I do not share his perception of the "distinction" in the conduct of the officers which he draws from Carroll.
Since March, 1987, other judges in the court have come to express concerns about the conduct of law enforcement officers in these transportation cases involving drugs, which conduct previously met with the approval of the majority in Snider and by the panel in Rodriguez v. State, 494 So.2d 496 (Fla. 4th DCA 1986). Who knows how many PCA's also approved such conduct!
I wish to make several pertinent observations. First, I suggest that justice is often a matter of perception; and appellate law often simply an expression of the value systems of those that pronounce it.
Second, in 1982, by constitutional amendment to article I, section 12, we Floridians unfortunately eliminated our state courts' right to consider search and seizure questions under our state constitution's Declaration of Rights without being bound by federal court decisions on an issue decided under the fourth amendment of the federal constitution.
Third, drug use and sale are creating havoc with our law enforcement and judicial systems. Nevertheless, we Floridians must be self-accountable for our own individual decision making. Judicial decisions which violate individual rights in order to "get tough on drugs" are neither an answer to individual responsibility nor a democratic method of dealing with individual rights. A responsible legislature would fund preventive programs, and a responsible society would do whatever it can and should to educate; but the buck stops with the individual.
We deny appellant's petition for rehearing.
GLICKSTEIN, J., concurs specially with opinion.
While the state has added to our burden by failing to file a response to appellant's petition for rehearing, appellant has cited a case in support of his position which somewhat buttresses rather than weakens our decision. Yet I am not completely comfortable with the affirmance, any more than I was at the time of the original opinion.
In State v. Gribeiro, 513 So.2d 1323, 1324 (Fla.3d DCA 1987), the Third District Court of Appeal reversed an order of suppression and said:
The state appeals from an order suppressing a large quantity of cocaine and an incriminating statement secured after a police stop of the defendant's vehicle which the trial judge held was not founded upon an articulable suspicion of wrongdoing. We need not and do not consider the correctness of this conclusion that the stop was constitutionally invalid, because the lower court also determined, based upon ample record evidence, that
[o]nce the defendant was stopped, there is no question ... that the defendant was seized within the meaning of the Fourth Amendment, that he was advised of his rights pursuant to the "Miranda rule", that he was advised that he need not consent to a search, and, in spite of these events, he voluntarily consented to a search which disclosed the existence of several kilos of cocaine and voluntarily made an...
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