Luxenburg v. State, LL-371
| Decision Date | 13 June 1980 |
| Docket Number | No. LL-371,LL-371 |
| Parties | Jeffrey LUXENBURG, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Charles G. Brackins and Jeffrey L. Meldon of Meldon & Brackins, Gainesville, for appellant.
Jim Smith, Atty. Gen., and Doris E. Jenkins, Asst. Atty. Gen., for appellee.
Appellant pleaded nolo contendere, reserving his right to appeal, to a charge of possessing more than 100 pounds of cannabis with the intent to sell. Only one of his points merits discussion, and on that point we reverse.
In April 1978 appellant passed a Hamilton County agricultural inspection station. Inspector R. M. Shope pursued and stopped him for failure to have his vehicle inspected. Shope asked appellant to open the rear of the truck and to open one of a number of boxes in the back. Appellant voluntarily did so, and Shope saw a black plastic bag in one of the boxes.
On Shope's instructions, appellant returned to the inspection station. While paperwork related to appellant's failure to stop for inspection was being filled out, Shope once again asked appellant to open the truck and the same box. Shope testified at the suppression hearing that appellant said something to the effect that the boxes contained electronic equipment; after opening the box, appellant "shuffled the paper (inside the box) around . . . ." At that point, Shope said "let's quit dilly-dallying around," reached in and grabbed the bag, slit it open with a knife, and found marijuana inside the bag. The inspector never indicated at the hearing that he smelled marijuana or otherwise had probable cause to believe the bag contained contraband. Appellant testified he opened the truck and box because he thought he was being required to by "an officer of the law."
Appellant contends the search of the bag was illegal because he did not consent to it, and we agree. Appellant's consent was limited each time to opening the truck and the box; his actions in no way authorized Shope to grab the bag and tear it open. Gonterman v. State, 358 So.2d 595 (Fla.1st DCA 1978). Shope did not smell marijuana; see Flynn v. State, 374 So.2d 1041 (Fla.1st DCA 1979). The inspector did not ask for permission to take the bag out of the box or to examine it. In Rose v. State, 369 So.2d 447 (Fla.1st DCA 1979), the defendant refused a request to inspect boxes contained in his truck, but a supervisor, without further request, reached inside one of the boxes, discovering marijuana. As we said in Rose, at 448, "(w)hile it is true that app...
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...facts. Compare Carney; Major v. State, 389 So.2d 1203 (Fla. 3d DCA 1980), review denied, 408 So.2d 1095 (Fla.1981); Luxenburg v. State, 384 So.2d 742 (Fla. 1st DCA 1980); Raleigh v. State, 365 So.2d 1048 (Fla. 4th DCA 1978) (finding no consent) with Martin; Bannister v. State, 434 So.2d 6 (......
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...reached in and grabbed a nasal inhaler containing contraband), review denied, 408 So.2d 1095 (Fla.1981); Luxenburg v. State, 384 So.2d 742 (Fla. 1st DCA 1980) (opening vehicle to agricultural inspector did not authorize him to slit open bag with knife); Moorehead v. State, 378 So.2d 123 (Fl......
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State v. Cross, 86-2589
...activity which involves the destruction of property...." W. LaFave, Search and Seizure § 8.1(c) (1987). See also Luxenburg v. State, 384 So.2d 742 (Fla.1st DCA 1980) (consent to search box was not permission for state agent to take a knife and slit open black plastic bag located inside Whil......
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Major v. State, 79-20
...that the defendant permitted, invited or agreed to the police search. As in the remarkably similar cases of Luxenburg v. State, 384 So.2d 742 (Fla. 1st DCA 1980) and Raffield v. State, 362 So.2d 138, 140 (Fla. 1st DCA 1978), see also, Ingram v. State, 364 So.2d 821 (Fla. 4th DCA 1978), we t......