Pomerantz v. State
| Decision Date | 15 May 1979 |
| Docket Number | No. 78-840,78-840 |
| Citation | 372 So.2d 104 |
| Parties | Anthony Raymond POMERANTZ, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Alan M. Medof, Miami, for appellant.
Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., and Sharon Langer, Legal Intern, for appellee.
Before HENDRY and HUBBART, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
This is a criminal prosecution for possession of marijuana with intent to distribute in which the defendant was convicted as charged and placed on probation in the Circuit Court for the Eleventh Judicial Circuit of Florida. The defendant appeals.
We are concerned upon review of this case with whether the evidence upon which the conviction herein rests was the product of an unreasonable search and seizure and thus subject to being suppressed upon the defendant's timely motion in the trial court. Based on the authorities and reasoning which follow, we conclude that the search herein was conducted by the police rather than a private party, that the search was unreasonable within the meaning of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12, of the Florida Constitution, and that the fruits thereof should have been suppressed by the trial court. Accordingly, we reverse.
The facts pertaining to the search and seizure issues involved in this case are as follows. On November 16, 1977, between 3:30 p. m. 3:45 p. m., the defendant Anthony Pomerantz arrived at the Miami International Airport and checked a three piece matched set of suitcases on a non-stop Continental Airlines flight to Denver, Colorado, on which he held a reserved seat. He received three consecutively numbered baggage claim receipts for his checked luggage and thereafter boarded the plane which was scheduled to leave at 4:25 p. m. that afternoon.
Pursuant to routine procedure, airline employees placed the defendant's three suitcases on a conveyor belt which went to a baggage room for eventual transport to the Continental Airline flight on which the defendant was ticketed. While in transit, one of the three matched suitcases got jammed on the conveyor belt against an adjoining pipe which caused the suitcase to break open. An airline employee in the baggage room discovered the damaged suitcase, took it off the conveyor belt and observed that the suitcase contained two black plastic trashbags which were taped shut. He unsuccessfully attempted to place these bags back and close the suitcase, and, as he did so, some seeds of undisclosed description came off in his hands. 1 He thereafter notified Continental Airlines supervisor Kenneth Schroeder.
Mr. Schroeder immediately came to the baggage area and observed the damaged, open suitcase with the two black plastic trashbags therein. The defendant's two other suitcases had also been taken off the conveyor belt and were standing next to the open suitcase. All three suitcases had airline baggage tags on them, but had no other identification. Mr. Schroeder thereupon notified the police to investigate the matter.
Detectives William Johnson and Miguel Magdalena of the Dade County Public Safety Department, specifically assigned to the airport, responded to the call and came to the baggage area. Mr. Schroeder showed the officers the suitcase that had broken open with the two black plastic trashbags contained therein. The officers thereupon opened these two black plastic bags to ascertain their contents. They determined that the contents were marijuana based on their training and experience.
A discussion then ensued as to whether the other two suitcases should be opened to determine whether marijuana was in these suitcases as well. The officers advised that they could not open these suitcases nor could they influence Mr. Schroeder to do the same as that might nullify the search in any subsequent legal proceedings. They further stated that any decision that Mr. Schroeder made on the matter would have to be entirely his own.
Mr. Schroeder thereupon forced open the other two suitcases in the presence of the two officers. One of the suitcases contained black plastic trashbags which were taped shut. Detective Johnson cut open one of these plastic bags and determined that this too contained marijuana. The third and last suitcase contained clothing and toilet articles. Detective Johnson searched the clothing and tote bag therein finding various items of the defendant's identification including a master charge receipt and receipt from Bentley's luggage store in Miami indicating that the defendant had recently purchased the subject luggage. It was stipulated by both parties in the trial court that the police neither applied for nor obtained a search warrant for the search of the defendant's suitcases.
The Continental Airlines flight to Denver was held up during this brief investigation. Upon learning the defendant's identity, the airline was requested to page the defendant. Meanwhile, Detective Johnson and an airline employee carried the defendant's three suitcases to the jetway connecting the terminal with the airplane. A flight attendant located the defendant in the plane and told him to step outside.
The defendant, shortly thereafter, emerged from the airplane and had a conversation with Detective Johnson. The defendant was informed that his bags had fallen off the conveyor belt. The defendant thanked the officer and picked up the suitcase containing the clothing. Detective Johnson took the defendant's arm and stated that the defendant had forgotten the other two suitcases which were standing there. The defendant denied ownership of these suitcases. Detective Johnson thereupon identified himself, stated that he had reason to believe that the suitcases both belonged to the defendant and contained marijuana, and placed the defendant under arrest.
At about the same time the formal arrest was effected, Detective Johnson asked the defendant for permission to search the defendant's carry-on briefcase and the defendant's person. The defendant said that the officer could do so. Detective Johnson searched the defendant's person, seized three baggage claim receipts which numerically matched the checks on the three pieces of luggage herein. The search of the briefcase yielded no incriminating evidence. At a later time while under arrest, the defendant signed a written consent to search after being told by the police that Detective Johnson would testify in court that the defendant had orally given his consent to search his person and briefcase.
The defendant was subsequently charged by information with possession of marijuana with intent to distribute (§ 893.13(1)(a), Fla.Stat. (1977)) in the Dade County Circuit Court. The defendant entered a plea of not guilty and filed a pre-trial motion to suppress the evidence seized from his three suitcases and his person. Fla.R.Crim.P. 3.190(h). The trial court took extensive testimony on the motion which established the above facts. At the conclusion thereof, the trial court ruled that the search of the three suitcases was a purely private search and not a police search, that the defendant was lawfully arrested based on the fruits of the private search, and that the search of the defendant's person was incident to that lawful arrest. Accordingly, the motion to suppress was denied.
The parties thereafter stipulated that the testimony on the motion to suppress, except as to the defendant's testimony, would be the testimony at trial. The trial court found the defendant guilty as charged based on this stipulated testimony and placed the defendant on three years probation with a special condition that the defendant serve thirty days in the county jail. The defendant appeals urging as the sole ground for reversal the denial of the motion to suppress. 2
We are first confronted with the threshold question of whether the marijuana and identification papers seized from the defendant's suitcases was the fruit of a search and seizure conducted by the police or conducted by a private party. This issue was the central issue litigated in the trial court and subsequently briefed by the parties on this appeal. If it was a private search, as the trial court below concluded, our inquiry is at an end as such a search, regardless of its unreasonableness, is beyond the scope of constitutional protection. If it was a police search, as urged by the defendant, we must then inquire as to whether such a search was unreasonable.
The Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution guarantees to the people the right to be free from "unreasonable searches and seizures. . . .". Implicit in such constitutional guarantees is the requirement that such searches and seizures must be conducted by an agent of the government. Neither constitutional provision affords any protection against purely private searches and seizures no matter how unreasonable. Indeed, such provisions were designed to protect the individual against certain abuses of governmental power and were never intended as a limitation on private action. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); Hornblower v. State, 351 So.2d 716 (Fla.1977); Bernovich v. State, 272 So.2d 505 (Fla.1973); Church v. State, 151 Fla. 24, 9 So.2d 164 (1942).
The law is, therefore, clear that "the Fourth Amendment's protection applies in cases involving governmental action only, not against searches and seizures by a private individual." Bernovich v. State, 272 So.2d 505, 507 (Fla.1973). "It has been consistently held that the Fourth Amendment protection against unreasonable searches and seizures apply only in cases involving governmental action, and does not afford protection against searches and seizures by a private individual." State v. Bookout, 281 So.2d 215, 216 (Fla. 4th DCA 1973). "(...
To continue reading
Request your trial
-
Royer v. State
...913, 916 (5th Cir. 1978), all of which seem to me to be almost precisely on point and to compel reversal. See also Pomerantz v. State, 372 So.2d 104, 111 (Fla. 3d DCA 1979). The same absence of probable cause which rendered Royer's arrest unlawful also precludes acceptance of the alternativ......
-
Morales v. State, s. 80-248
...v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Norman v. State, 379 So.2d 643 (Fla.1980); Pomerantz v. State, 372 So.2d 104, 108 (Fla. 3d DCA 1979). The state has the burden of proving that such an exception applies in a given case. Norman v. State, supra; Taylor v. St......
-
Sands v. State
...L.Ed.2d 576 (1967); Norman v. State, 379 So.2d 643 (Fla.1980); Morales v. State, 407 So.2d 321 (Fla. 3d DCA 1981); Pomerantz v. State, 372 So.2d 104, 107 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980). The state has the burden of proving that such an exception applies in a given......
-
Williams v. State
...716 (Fla.1977). A showing of exigent circumstances is implicitly required before such an exception will be applied. Pomerantz v. State, 372 So.2d 104 (Fla.3d DCA 1979). arrived at the scene approximately ten minutes after the shooting. The officers were told by bystanders that Williams had ......