Mata v. State
| Decision Date | 11 March 1980 |
| Docket Number | No. 79-662,79-662 |
| Citation | 380 So.2d 1157 |
| Parties | Daniel Chavarria MATA and Ismael Gonzales Chavarria, Appellants, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Pertnoy & Greenberg, Miami, Sam L. Foster, Monterey, Cal., for appellants.
Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
Before HAVERFIELD, C. J., and HENDRY and HUBBART, JJ.
Defendants, Daniel Mata and Ismael Chavarria, appeal an order denying their motion to suppress eight pounds of pure cocaine which formed the basis of the charges against them, possession with intent to sell a controlled substance. The undisputed facts are as follows:
On the morning of July 28, 1978, Officer Wolfe observed the defendant Ismael Chavarria purchasing for cash two one way tickets to San Francisco at the National Airlines ticket counter. She called Detective D'Azevedo who was on duty at the airport to assist in the observation of Chavarria in that D'Azevedo has extensive training in narcotics investigation and observes passengers at Miami International Airport on a daily basis. D'Azevedo's investigation revealed that the defendants had just arrived in Miami and later by checking with National Airlines learned the two were scheduled to return to San Francisco late that afternoon. After claiming their luggage Mata and Chavarria made a phone call, then took a taxi to a nearby motel and paid cash for the room. Police surveillance continued and Chavarria was observed leaving the room twice to make calls from the lobby pay phone. About 3 p. m. Mata and Chavarria, carrying a brief case and man's purse, emerged from the room and were met by a third man with whom they drove away. The police followed the vehicle but fearing discovery, discontinued the surveillance. Detective D'Azevedo returned to the airport and learned that 1) Chavarria and Mata had rescheduled their departure to 9:00 p. m., 2) the "call-back" telephone number they had given to National Airlines was a nonexistent number, and 3) they had traveled a circuitous route from San Jose to San Francisco to Los Angeles to Houston then to Miami but were returning directly to San Francisco. D'Azevedo decided to call for a narcotics dog from the U. S. Customs Department. At 8 p. m. Mata and Chavarria arrived at the airport and checked their luggage (two suitcases and a tote bag) which was placed on a chute to the baggage area and entered on the baggage carousel (a 200 foot moving circular conveyor belt). Detective Johnson who was down in the baggage area was contacted by D'Azevedo who gave him a description and the claim check numbers of the subject luggage. The narcotics dog, "Dewey", was brought in by his handler. Dewey sniffed the bags on the carousel and alerted on Mata's and Chavarria's bags. Johnson then removed their bags and placed them amongst other luggage positioned about 20 feet away from the carousel. Dewey again went up and down sniffing at all the bags and alerted on those bags belonging to Mata and Chavarria. Detective Johnson immediately called back D'Azevedo and told him that Dewey had positively alerted on the subject bags. Mata and Chavarria were arrested and a warrant was subsequently obtained to search the bags in which were found several glassine bags of cocaine. 1 As a result, Mata and Chavarria were charged with possession of cocaine with intent to sell. They filed a motion to suppress, essentially contending that the use of the narcotics dog, Dewey, to sniff the bags and the touching of these bags by Detective Johnson amounted to an illegal search and seizure. After an evidentiary hearing, the motion to suppress was denied and this appeal ensued. We affirm.
First, there is authority to the effect that the use of a narcotics dog cannot be considered a search. See United States v. Fulero, 162 U.S.App.D.C. 206, 498 F.2d 748 (D.C. Cir. 1974). Where there has been no search, the constitutional guarantee against unlawful searches and seizures is not applicable. Smith v. State, 333 So.2d 91 (Fla. 1st DCA 1976). With regard to the contention of an illegal seizure, the law clearly defines a seizure as the act of taking custody of evidence or contraband. Lightfoot v. State, 356 So.2d 331 (Fla. 4th DCA 1978). Seizure also has been defined as the taking of possession forcibly, to grasp, to snatch or to put into possession. State v. Dees, 280 So.2d 51 (Fla. 1st DCA 1973). There can be no constitutionally recognized "seizure" in the case at bar as Detective Johnson, 2 after the narcotics dog Dewey alerted on the subject luggage, simply removed those pieces from the baggage carousel and then placed them some 20 feet away amongst other...
To continue reading
Request your trial
-
Horton v. Goose Creek Independent School Dist.
...Cal.Rptr. 253 (1975); State v. Mosier, 392 So.2d 602 (Fla.App.1981); State v. Goodley, 381 So.2d 1180 (Fla.App.1980); Mata v. State, 380 So.2d 1157 (Fla.App.) (per curiam), petition for review denied, 389 So.2d 1112 (Fla.1980); People v. Campbell, 67 Ill.2d 308, 10 Ill.Dec. 340, 367 N.E.2d ......
-
Wright v. State, AI-362
...the issue. See, e.g., State v. Tsavaris, 382 So.2d 56, 68 (Fla. 2d DCA 1980), affm'd., 394 So.2d 418 (Fla.1981); Mata v. State, 380 So.2d 1157, 1159 (Fla. 3d DCA 1980), rev. denied, 389 So.2d 1112 (Fla.); Ulesky v. State, 379 So.2d 121, 124, n. 1 (Fla. 5th DCA 1979); State v. Hetland, 366 S......
-
State v. Goodley
...N.E.2d 949 (1977); State v. Wolohan, supra. 3 For these reasons, we hold, as another panel of this court recently did in Mata v. State, 380 So.2d 1157 (Fla. 3d DCA 1980), that the "probable cause" which admittedly 4 underlay the search warrant was properly obtained. The order of suppression......
-
State v. Codner
...example, if the person is about to board or deplane a domestic flight, the border search exception is inapplicable. See Mata v. State, 380 So.2d 1157 (Fla. 3d DCA), petition for review denied, 389 So.2d 1112 (Fla.1980) (although search resulting in seizure of cocaine occurred at Miami Inter......
-
The Fourth Amendment, canine olfaction, and vehicle stops: time is of the es'scents'.
...395 So. 2d 1199 (Fla. 3d D.C.A. 1981) (airport); State v. Goodley, 381 So. 2d 1180 (Fla. 3d D.C.A. 1980) (airport); Mata v. State, 380 So. 2d 1157 (Fla. 3d D.C.A. 1980) (per curiam) (airport); Harpold v. State, 389 So. 2d 279 (Fla. 3d D.C.A. 1980) (airport); Bouler v. State, 389 So. 2d 1197......