Royer v. State, No. 78-1050

CourtFlorida District Court of Appeals
Writing for the CourtBefore SCHWARTZ; CHARLES CARROLL; SCHWARTZ; SCHWARTZ; HUBBART; BARKDULL
Citation389 So.2d 1007
Decision Date28 December 1979
Docket NumberNo. 78-1050
PartiesMark ROYER, Appellant, v. The STATE of Florida, Appellee.

Page 1007

389 So.2d 1007
Mark ROYER, Appellant,
v.
The STATE of Florida, Appellee.
No. 78-1050.
District Court of Appeal of Florida, Third District.
Dec. 28, 1979.
On Rehearing Sept. 9, 1980.
Rehearing Denied Oct. 21, 1980.

Fine, Jacobson, Block, Goldberg & Semet and Theodore Klein, Miami, for appellant.

Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, J., and CHARLES CARROLL, (Ret.), and EZELL, BOYCE F., Jr., (Ret.), Associate Judges.

CHARLES CARROLL, Associate Judge.

The appellant, Mark Royer, was charged by information with unlawful possession of a controlled substance, cannabis, in an amount greater than five grams, and of the crime of unlawful possession thereof with intent to sell or deliver the substance.

The defendant moved to suppress evidence consisting of 65 lbs. of marijuana found in his possession, on the ground that the search and seizure thereof without a

Page 1008

warrant was unlawful. The court denied the motion on the ground that the defendant freely and voluntarily consented to the search, and on the ground that with the defendant fitting the profile of a drug courier and officers had probable cause to believe his luggage contained contraband, justifying a search. 1

After denial of his motion to suppress, the defendant withdrew his plea of not guilty and pled nolo contendere, with reservation of right to appeal the order. Adjudication was withheld, and no sentence was imposed. The defendant was placed on probation for two years, with one of the conditions of probation being a requirement that he spend 30 days in jail. 2 The defendant appealed, contending the denial of his motion to suppress was error. We hold no reversible error has been shown, and affirm the judgment.

The facts leading up to the search and seizure of the marijuana were the following. Officers Johnson and Magdalena, of the Dade County Public Safety Department, were plainclothes detectives assigned to the County's Crime Bureau, Narcotics Investigation Section, performing duty at Miami International Airport as members of what was known as the Smuggling Detail, consisting of a sergeant and eight officers, who worked in pairs, on shifts. Said officers had acquired knowledge of a "profile" by which it was possible with a substantial measure of certainty to recognize couriers or carriers of drugs in air travel. Such profile had been arrived at by experiences of narcotics officers with a great number of such persons in main drug distribution centers and the target city destination places.

Miami was a known point from which imported drugs, including marijuana, were transported to other target destination cities, one of which was New York City. It was known that commercial airlines were used for such transport of drugs by such couriers and others. On a certain day, at the Miami International Airport, the above-named officers observed the defendant as he was about to purchase a ticket on an airline. The defendant's appearance and mannerisms, his luggage and the way he dealt with it, and his means of obtaining his ticket, etc., as observed by the officers were such as to fit the profile, the details and nature of which we purposely do not here state. As disclosed through the testimony of Officer Johnson, the defendant was observed to fit the profile of a drug courier.

The defendant checked his two suitcases, placing identification labels thereon bearing the name "Holt", but without stating his address or telephone number in the spaces provided therefor on the labels. The officers noted the name which the defendant placed on the suitcases.

As the defendant was proceeding to enter the concourse leading to the boarding area, after having obtained his ticket and checked his suitcases, the officers approached him, identified themselves as police officers, and asked him if he had time to talk with them, which he said he did. There followed a series of requests by the

Page 1009

officers, to none of which the defendant objected, and to each of which the defendant assented. Those consisted of his initial consent to talk to the officers, his production upon request of his ticket (which was to New York City), and his driver's license for identification (which showed his name to be Mark Royer, not Holt which was the name on the ticket); his consent to move with them out of the main room into a vacant side room for further conversation; his consent to the officer's request that the suitcases be opened (after Johnson had retrieved the suitcases). When the officers requested his consent to the opening of the suitcases, the defendant produced a key from his pocket and unlocked one of the cases. He explained that he did not know the combination of the combination lock on the other suitcase, and upon request gave his consent to the opening of the other case by the officers, which they did with the aid of a screwdriver. The search revealed the suitcases contained 65 pounds of marijuana. The testimony given by Officer Johnson, which the court chose to believe, was sufficient to establish, as fact, the consent of the defendant to the several requests of the officers. In his testimony the defendant did not state that he had objected to, or that he had not consented to any of such requests of the officers. 3

The defendant testified that during the time he was in the presence of the officers he was not told that he was free to leave; and as to each of the steps or requests to which the defendant consented, he testified (1) he was not told that he did not have to consent, and (2) as to each of such consents, when asked by his lawyer why he consented, he gave the same answer, viz., "They were police officers and I thought I had to."

On appeal the defendant does not argue that the court committed error by finding, on the totality of the evidence, that he did so consent, but contends the court's finding of consent was error because he was not told he could refuse consent, and that because such consents were given to police officers as a matter of law it could not be held that his consents were free and voluntary. We reject those contentions as being without merit in this case.

The ruling of the trial court denying the motion to suppress comes here with the support of a presumption of its correctness; and in testing it, on review of the order on appeal, the evidence and the inferences and intendments reasonably deducible therefrom are to be viewed in the light most favorable to sustain the ruling. Rodriquez v. State, 189 So.2d 656, 610 (Fla. 3d DCA 1966). In this case there is little need to summon to our aid that presumption and that rule. Presented with the totality of the circumstances, the trial court found the consent to the search was made freely and voluntarily. That finding of consent by the court is supported by clear and convincing evidence, and defendant does not contend the evidence, as such, showed otherwise. If we were so inclined, which we are not, to substitute our judgment for that of the trial court on its finding of free and voluntary consent, by re-evaluation of the testimony and evidence from the record before us, it would not be proper to do so. Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Westerman v. Shell's City, Inc., 265 So.2d 43 (Fla.1972). A warrantless search which is made pursuant to consent does not offend the Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

We hold to be unsound the contention of the defendant that the consents he gave in this instance should be disregarded because

Page 1010

prior thereto he was not told he could refuse to consent. The failure of the officers to have advised the defendant that he did not have to consent to any request by them, including request to search the suitcases, did not operate to render involuntary the consents given by the defendant, although that circumstance, as shown in the evidence, was a factor to be considered by the trial court in assessing the totality of the circumstances on the question of voluntariness, in ruling on the motion to suppress. Schneckloth v. Bustamonte, supra; State v. Spanierman, 267 So.2d 102 (Fla. 2d DCA 1972); State v. Custer, 251 So.2d 287 (Fla. 2d DCA 1971); Taylor v. State, 355 So.2d 180, 185 (Fla. 3d DCA 1978). The absence of such advance advice to the defendant was emphasized in the testimony of the defendant, thereby acquainting the court with that circumstance. In holding that the defendant's consent, otherwise free and voluntary, was not thereby rendered involuntary, the trial court was not in error. Taylor v. State, supra (350 So.2d at 185).

When the defendant was talking to the officers voluntarily, he had not been arrested. The fact that at their request he voluntarily went with the officers into a side room where they continued to talk with him and where he remained while his suitcases were retrieved and opened with his permission, did not amount to being in custody so as to have required the giving of Miranda warnings at that time. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); Barfield v. Alabama, 552 F.2d 1114 (5th Cir. 1977). The case of United States v. McCain, 556 F.2d 253 (5th Cir. 1977), is distinguishable on the facts. Consent can validate a warrantless search despite lack of warning. 4

On the question of whether the defendant's consent to the search, found by the trial court to have been freely and voluntarily made, should be held on appeal to be involuntary because it was made to and in the presence of the police officers, we hold that it should not. 5 A consent to a search, which is given to police officers can be voluntary where not the product of duress or coercion by the officers, although a consent to a search which is found to be the product of duress or coercion, express or implied, of the officers, is not a voluntary consent. Therefore, the question of whether a consent to a search was...

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36 practice notes
  • US v. Wright, Cr. No. 4-87-195-E.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • February 10, 1989
    ...in this case the impending departure of the person with his suitcases constituted an exigency creating need for immediate search. 389 So.2d 1007 (1979). The panel decision was vacated and rehearing en banc granted. Id. at 1015 (1980). The en banc Court reversed Royer's conviction, finding t......
  • State v. Schmidt
    • United States
    • United States State Supreme Court (New Jersey)
    • May 16, 1988
    ...individuals to whom the constructive possession theory clearly applies are: the owner of luggage checked with an airline, Royer v. State, 389 So.2d 1007 (Fla.Dist.Ct.App.1979), aff'd, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (per curiam ); the owner of a footlocker checked on a t......
  • State v. Lombardo, No. 130A81
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 5, 1982
    ...been granted because the defendant's consent to search his luggage had been tainted by a previous improper confinement. Royer v. Florida, 389 So.2d 1007 (Fla.Dist.Ct.App.1980) (rehearing en banc), pet. for review denied, 397 So.2d 779 (Fla.1981), cert. granted, 454 U.S. 1079, 102 S.Ct. 631,......
  • Florida v. Royer, No. 80-2146
    • United States
    • United States Supreme Court
    • March 23, 1983
    ...20 L.Ed.2d 889, and that such consent was therefore invalid because tainted by the unlawful confinement. Held: The judgment is affirmed. 389 So.2d 1007, affirmed. Page 492 Calvin L. Fox, Tallahassee, Fla., for petitioner. Andrew L. Frey, Washington, D.C., for the U.S. as amicus curiae. Theo......
  • Request a trial to view additional results
36 cases
  • US v. Wright, Cr. No. 4-87-195-E.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • February 10, 1989
    ...in this case the impending departure of the person with his suitcases constituted an exigency creating need for immediate search. 389 So.2d 1007 (1979). The panel decision was vacated and rehearing en banc granted. Id. at 1015 (1980). The en banc Court reversed Royer's conviction, finding t......
  • State v. Schmidt
    • United States
    • United States State Supreme Court (New Jersey)
    • May 16, 1988
    ...individuals to whom the constructive possession theory clearly applies are: the owner of luggage checked with an airline, Royer v. State, 389 So.2d 1007 (Fla.Dist.Ct.App.1979), aff'd, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (per curiam ); the owner of a footlocker checked on a t......
  • State v. Lombardo, No. 130A81
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 5, 1982
    ...been granted because the defendant's consent to search his luggage had been tainted by a previous improper confinement. Royer v. Florida, 389 So.2d 1007 (Fla.Dist.Ct.App.1980) (rehearing en banc), pet. for review denied, 397 So.2d 779 (Fla.1981), cert. granted, 454 U.S. 1079, 102 S.Ct. 631,......
  • Florida v. Royer, No. 80-2146
    • United States
    • United States Supreme Court
    • March 23, 1983
    ...20 L.Ed.2d 889, and that such consent was therefore invalid because tainted by the unlawful confinement. Held: The judgment is affirmed. 389 So.2d 1007, affirmed. Page 492 Calvin L. Fox, Tallahassee, Fla., for petitioner. Andrew L. Frey, Washington, D.C., for the U.S. as amicus curiae. Theo......
  • Request a trial to view additional results

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