Morales v. State, Nos. 80-248

CourtFlorida District Court of Appeals
Writing for the CourtBefore HUBBART; HUBBART
Citation407 So.2d 321
PartiesZeinida MORALES, Oscar Blanco, Livio Blanco and Humberto Martinez, Appellants, v. The STATE of Florida, Appellee.
Decision Date15 December 1981
Docket Number80-249,Nos. 80-248

Page 321

407 So.2d 321
Zeinida MORALES, Oscar Blanco, Livio Blanco and Humberto Martinez, Appellants,
v.
The STATE of Florida, Appellee.
Nos. 80-248, 80-249.
District Court of Appeal of Florida, Third District.
Dec. 15, 1981.

Page 323

Greene & Cooper and Sharon L. Wolfe, Carol King Guralnick, Miami, for appellants.

Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.

Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.

HUBBART, Chief Judge.

The central question presented for review is whether a warrantless search of the hold of a person's sea-going vessel and the subsequent seizure of marijuana contained therein conducted by U.S. Customs officials in the territorial waters of the United States (i.e., within the seas extending three nautical miles from the U.S. coastline), after the said vessel has recently entered such waters from the high seas (i.e., the seas outside the three mile limit from the U.S. coastline), constitutes an unreasonable search and seizure of the vessel in violation of the said person's rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12 of the Florida Constitution. We hold that such a warrantless search does not violate said person's rights guaranteed by the above constitutional provisions as the subject search and seizure constitutes a reasonable border search; this result is not changed by the fact that U.S. Customs officials have: (a) no articulable suspicion that the occupants of the said vessel have been involved in criminal activity; and (b) no probable cause to believe that the said vessel contains contraband or other evidence of crime. We, accordingly, affirm the judgments and convictions under review by this appeal.

I

The facts pertinent to the above issue are as follows. On June 8, 1979, U.S. Customs officials received information from an unknown source that a vessel located in Bahamian waters along with two smaller vessels were about to bring a shipment of marijuana into the United States. A U.S. Customs air patrol plane was immediately dispatched

Page 324

to go to Orange Cay, south of Bimini, to look for the subject vessels. Upon the pilot's arrival, three vessels were observed leaving the area, although the vessels did not match the descriptions previously given. The Customs pilot nonetheless followed these vessels by air from that point until the vessels reached a lighthouse point off Key Biscayne, Florida, well within three nautical miles of the Florida coastline.

Meanwhile, U.S. Customs officials located in nearby vessels off the Florida coast, were notified by the air patrol of the exact location of two of the surveyed vessels as they entered U.S. territorial waters. Both of these vessels were subsequently stopped, boarded and searched by U.S. Customs officials, together with Dade County Public Safety Department officers, in U.S. territorial waters near Miami, Florida. The first vessel was stopped and searched in Biscayne Bay, near the Rickenbacker Causeway by the Seaquarium. The second vessel was stopped and searched 1/4 mile off Virginia Key, near Bear Cut. In each instance, U.S. Customs officials boarded the vessels, lifted up the hatch on the vessel and seized a large quantity of marijuana in the hold. The defendants Zeinida Morales and Oscar Blanco were on the first vessel, and the defendants Livio Blanco and Humberto Martinez were on the second vessel. They were all placed under arrest after the discovery of the subject marijuana.

The defendants were subsequently charged in a two-count information with: (1) possession of marijuana with intent to sell (§ 893.13(1)(a), Fla.Stat. (1979)); and (2) trafficking in marijuana (§ 893.135, Fla.Stat. (1979)) in the Circuit Court for the Eleventh Judicial Circuit of Florida. The trial court dismissed the second count of the information and the state has taken no appeal therefrom. The defendants filed timely pre-trial motions to suppress the above marijuana on unreasonable search and seizure grounds. No contention was made below by the state that the defendants lacked standing to bring these motions. The trial court heard and denied the motions after reviewing by stipulation the pre-discovery depositions taken in this case in which the above facts were revealed.

The defendants subsequently entered nolo contendere pleas to the crime of possession of marijuana with intent to sell, specifically reserving for review the denial of the motions to suppress. The defendants appeal; we have jurisdiction to entertain the appeal, and the authority to reach the issue preserved for review as the issue preserved is clearly dispositive of the case. Brown v. State, 376 So.2d 382 (Fla.1979).

II

The Fourth Amendment to the United States Constitution, as made enforceable against the states through the due process clause of the Fourteenth Amendment, 1 provides that: "(t)he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." Article I, Section 12 of the Florida Constitution contains a virtually identical provision. 2

Two requirements must necessarily be met before any person may successfully claim that his rights guaranteed by the above constitutional provisions have been violated. First, there must be a "search( ) and seizure( )" of that individual's "person( ), house( ), papers" or "effects" conducted by an agent of the government; stated differently, there must be an official invasion of that individual's reasonable expectation of privacy. Katz v. United

Page 325

States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Norman v. State, 379 So.2d 643 (Fla.1980); Elson v. State, 337 So.2d 959, 963 (Fla.1976); State v. Oliver, 368 So.2d 1331, 1335 (Fla. 3d DCA 1979), cert. dismissed, 383 So.2d 1200 (Fla.1980). Second, the search and seizure in question, must be "unreasonable," as not all searches and seizures are proscribed by the above constitutional provisions, but only those which are "unreasonable," Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); Chacon v. State, 102 So.2d 578, 588 (Fla.1958); Brown v. State, 46 So.2d 479 (Fla.1950); stated differently, the official invasion of one's reasonable expectation of privacy must be an "unreasonable" invasion.

Both the foregoing requirements are separate and distinct and both must be met before there can be any violation of an individual's rights guaranteed by the above constitutional provisions. Rawlings v. Kentucky, 448 U.S. 98, 112, 100 S.Ct. 2556, 2565, 65 L.Ed.2d 633 (1980) (Blackmun, J., concurring). Moreover, any evidence secured in violation of either of the above constitutional provisions is inadmissible in evidence in a Florida court against the person whose search and seizure rights were violated. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Gildrie v. State, 94 Fla. 134, 113 So. 704 (1927); Fla.Const. art. I, § 12.

Finally, it should be noted that the person who asserts his rights were violated under the above constitutional provisions-the defendant in a criminal case-has the burden of alleging and, if challenged, of establishing that the first Fourth Amendment requirement has been met, to wit: that there has been a governmental search and seizure of that individual's person, house, papers or effects, or stated differently, that there has been an official invasion of that individual's reasonable expectation of privacy. 3 The same individual-the defendant-also has the burden of establishing the second Fourth Amendment requirement, to wit: that the search and seizure in question was unreasonable. Rakas v. Illinois, supra. The latter burden, however is satisfied upon proof, as here, that the search and seizure in question took place without a search warrant; the burden of proof thereafter shifts to the state to establish that an exception to the search warrant requirement was applicable in the subject case and that the search and seizure was, in fact, a reasonable one. Raffield v. State, 351 So.2d 945, 947 (Fla.1977); Andress v. State, 351 So.2d 350 (Fla. 4th DCA 1977); State v. Hinton, 305 So.2d 804 (Fla. 4th DCA 1975); Bicking v. State, 293 So.2d 385 (Fla. 1st DCA 1974); State v. Lyons, 293 So.2d 391, 393 (Fla. 2d DCA 1974); Mann v. State, 292 So.2d 432 (Fla. 2d DCA 1974).

A

Ordinarily, we would have no problem in concluding on this record that the defendants failed to establish the first Fourth Amendment requirement in this case. Although clearly a governmental search and seizure took place in this case, there is no showing that the search and seizure in question was directed against the defendants' "person( ), house( ), papers" or "effects" as required by the Fourth Amendment and Article I, Section 12 of the Florida Constitution; stated differently, there is no showing that the defendants' reasonable expectation of privacy was invaded by the governmental search and seizure in this case.

Page 326

The sole showing of standing on this record is the defendants' presence on the subject vessels wherein the search occurred and the subject marijuana was seized by U.S. Customs. No evidence was adduced that the defendants had a reasonable expectation of privacy in the vessel premises searched, particularly the hold, as for example, that they owned or leased the subject vessels or otherwise had an unrestricted right of occupancy or custody or control of said vessels; 4 nor was any evidence adduced that the defendants had a reasonable expectation of privacy in the marijuana seized, as for example, that they actually or constructively possessed the subject marijuana, whether lawfully or unlawfully. Rakas v. Illinois, supra; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Annot.,...

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32 practice notes
  • State v. Mollica
    • United States
    • United States State Supreme Court (New Jersey)
    • March 16, 1989
    ...obtains even though the conduct of such officers would not satisfy the requirements of the state's constitution. See Morales v. State, 407 So.2d 321 (Fla.App.1981) (evidence seized by Coast Guard in manner inconsistent with state standards is admissible in state criminal trial); State v. Dr......
  • Denson v. U.S., No. 05-15572.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 15, 2009
    ...a United States Customs Officer is lawful; does not depend upon probable cause; and is not governed by state laws."); Morales v. State, 407 So.2d 321, 329 (3d Fla. DCA 1981) (holding that evidence seized by U.S. Customs officers pursuant to reasonable border search is permissible under Flor......
  • State v. Gifford, No. 88-1910
    • United States
    • Court of Appeal of Florida (US)
    • February 28, 1990
    ...an exception to the Fourth Amendment warrant requirement. See Walker v. State, 433 So.2d 644, 645 (Fla. 2d DCA 1983); Morales v. State, 407 So.2d 321, 325 (Fla. 3d DCA 1981); State v. Dodd, 396 So.2d 1205, 1206-08 (Fla. 3d DCA 1981); State v. Hinton, 305 So.2d 804, 807-08 (Fla. 4th DCA 1975......
  • State v. Fernandez, 2D19-1184
    • United States
    • Court of Appeal of Florida (US)
    • March 25, 2022
    ...2021) ; State v. Martin , 287 So. 3d 645 (Fla. 4th DCA 2019) ; State v. Abeles , 483 So. 2d 460 (Fla. 4th DCA 1986) ; Morales v. State , 407 So. 2d 321 (Fla. 3d DCA 1981) ; St. John v. State , 400 So. 2d 779 (Fla. 1st DCA 1981) ; and Coster v. State , 392 So. 2d 16 (Fla. 3d DCA 1981). We le......
  • Request a trial to view additional results
32 cases
  • State v. Mollica
    • United States
    • United States State Supreme Court (New Jersey)
    • March 16, 1989
    ...obtains even though the conduct of such officers would not satisfy the requirements of the state's constitution. See Morales v. State, 407 So.2d 321 (Fla.App.1981) (evidence seized by Coast Guard in manner inconsistent with state standards is admissible in state criminal trial); State v. Dr......
  • Denson v. U.S., No. 05-15572.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 15, 2009
    ...a United States Customs Officer is lawful; does not depend upon probable cause; and is not governed by state laws."); Morales v. State, 407 So.2d 321, 329 (3d Fla. DCA 1981) (holding that evidence seized by U.S. Customs officers pursuant to reasonable border search is permissible under Flor......
  • State v. Gifford, No. 88-1910
    • United States
    • Court of Appeal of Florida (US)
    • February 28, 1990
    ...an exception to the Fourth Amendment warrant requirement. See Walker v. State, 433 So.2d 644, 645 (Fla. 2d DCA 1983); Morales v. State, 407 So.2d 321, 325 (Fla. 3d DCA 1981); State v. Dodd, 396 So.2d 1205, 1206-08 (Fla. 3d DCA 1981); State v. Hinton, 305 So.2d 804, 807-08 (Fla. 4th DCA 1975......
  • State v. Fernandez, 2D19-1184
    • United States
    • Court of Appeal of Florida (US)
    • March 25, 2022
    ...2021) ; State v. Martin , 287 So. 3d 645 (Fla. 4th DCA 2019) ; State v. Abeles , 483 So. 2d 460 (Fla. 4th DCA 1986) ; Morales v. State , 407 So. 2d 321 (Fla. 3d DCA 1981) ; St. John v. State , 400 So. 2d 779 (Fla. 1st DCA 1981) ; and Coster v. State , 392 So. 2d 16 (Fla. 3d DCA 1981). We le......
  • Request a trial to view additional results

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