Sands v. State, 79-2189

CourtCourt of Appeal of Florida (US)
Citation414 So.2d 611
Docket NumberNo. 79-2189,79-2189
PartiesBarry SANDS, Appellant, v. The STATE of Florida, Appellee.
Decision Date01 June 1982

Mark Perlman, Fort Lauderdale, for appellant.

Jim Smith, Atty. Gen. and Theda James, Asst. Atty. Gen., for appellee.

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

HUBBART, Chief Judge.

The central question presented by this appeal is whether the warrantless search of the defendant's person by the police in this case constituted an unreasonable search and seizure in violation of the defendant's rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12 of the Florida Constitution. For the reasons which follow, we conclude that the subject search and seizure was conducted incident to a valid arrest of the defendant and, therefore, did not constitute a violation of the defendant's search and seizure rights guaranteed by the above constitutional provisions. We, accordingly, affirm the judgment of conviction and sentence appealed from, as the trial court was eminently correct in denying the defendant's motion to suppress the fruits of the subject search and seizure.

I

The facts relevant to the above search and seizure issue are based entirely on the testimony of Officer William Johnson--the only witness who testified below at the hearing on the defendant's motion to suppress. These facts are as follows.

On September 19, 1979, Officer Johnson was working at the Miami International Airport as part of the airport narcotics unit with his partner Officer Pearson. Officer Johnson had worked in this unit for a period of two years and received extensive training and experience with reference to the arrest of drug suspects; in particular, Officer Johnson was familiar and had worked extensively with the so-called "drug courier profile" with reference to the spotting and arresting of narcotic drug suspects.

On the above-stated date at approximately 4:40 p. m., Officer Johnson observed the defendant Barry Sands exiting a taxicab in front of the airport with one Gerald Russell. The defendant Sands was carrying a brown leather suit bag and a brown purse; his companion Russell carried a brown leather totebag. The two men entered the terminal near Concourse G and walked to the Continental Airlines ticket counter. On their way, both men appeared to the officer to be peering anxiously at all the persons around them.

Russell approached the Continental Airlines counter first, took out a large amount of cash from his pants pocket and requested tickets to Houston, Texas. In the midst of the transaction, Russell left the counter hurriedly and ran up the length of Concourse G to a men's room, leaving the defendant Sands to complete the purchase. Just as Sands was concluding the transaction for both of them, Russell returned to the ticket counter and received both tickets. No bags were checked.

Both men then proceeded toward Concourse G with Officers Johnson and Pearson following. At the juncture of Concourse G where it meets the main terminal, Officer Pearson approached Russell. Officer Pearson displayed his badge and identified himself as a police officer. At that point the defendant Sands, who was a foot ahead of Russell, turned in the direction of the two and walked rapidly away. Officer Johnson continued to observe as the defendant walked toward the Concourse G entrance, periodically looking back behind him at Russell and Officer Pearson. Suddenly, the defendant veered to his right and began walking away from the concourse, still looking back at Officer Pearson and Russell.

At that point, Officer Johnson approached the defendant, identified himself as a police officer and "asked him if he had a minute to talk." The defendant Sands at first did not appear to hear him--he was still preoccupied with Officer Pearson and Russell--and the officer repeated himself. The defendant Sands then replied, "yes, of course." Officer Johnson asked the defendant Sands for identification and the defendant produced a Houston driver's license in the name of "Barry Sands." This license remained in Officer Johnson's possession during the following questioning.

Officer Johnson asked the defendant if he was flying that day; the defendant said, "no." Officer Johnson then pointed out Russell to the defendant and asked the defendant if he knew him; the defendant again said, "no." Officer Johnson then indicated that he had seen the two exit the same taxicab and make a ticket purchase together. The defendant Sands immediately changed his story and began to tremble visibly and to sweat. Officer Johnson advised that he was concerned with narcotics passing through the airport, requested permission to search the defendant's suit bag, and advised that the defendant had a right to refuse the search; the defendant agreed to the search. Officer Johnson also asked for and received permission to search the defendant's purse. Prior to conducting any of these searches, however, Officer Johnson suggested that the two walk over some ten yards to where Officer Pearson and Mr. Russell were standing to see if Russell had the defendant Sands' airplane ticket. They thereupon walked over to this location where Officer Johnson found the defendant Sands' ticket under Mr. Russell's bag which was lying on a counter. Officer Johnson looked at it and thereafter handed both the ticket and the license back to the defendant Sands.

Officer Johnson thereupon proceeded to search the defendant Sands' suit bag and purse, but found nothing incriminating. Officer Johnson then, testified as follows concerning what transpired thereafter:

"Q. What occurred then?

A. I asked Mr. Sands for permission to check his ankles.

Q. Why was that?

A. Because, based on my experience at the airport, it is a very popular place to carry reasonably large quantities of contraband.

Q. Had Mr. Sands' physical condition changed at all?

A. No, he was highly active, pacing back and forth and he continued to tremble. He appeared to be extremely nervous.

Q. How did you request permission to check Mr. Sands' ankles?

A. While I was kneeling down, when I finished looking through the bag, I said, 'Can I look at your ankles?'

Q. Did Mr. Sands reply?

A. Yes. He said, 'Really?'

I said 'Really. A lot of people carry contraband on their ankles.'

Q. What did Mr. Sands say?

A. He said, 'Well, let's go somewhere where it's more private.'

Q. Did he give you a reason why he wanted to go to somewhere where it was more private?

A. No.

Q. What occurred at the point where Mr. Sands suggested the move?

A. I suggested that we go in the men's room that was a few feet away from us.

Q. What occurred?

A. I stood up. I believe we folded his suit bag back up and he took a step towards the men's room and he stopped and turned around and looked at me and said, 'Well, you might as well take me downtown and file your complaint.'

Q. What did you understand that to mean?

A. I took it to be an admission that he did, in fact, have contraband on his ankle.

Q. What did you do at that point?

A. I advised Sergeant Pearson that the subject had contraband on his ankles." [R. 58-60]

Officer Johnson immediately thereafter directed the defendant to go into the men's room where Officer Johnson frisked the defendant and discovered a quantity of cocaine being carried in a malleable lump on each one of the defendant Sands' ankles.

The defendant was subsequently charged by information with: (1) trafficking in a controlled substance [893.135, Fla.Stat. (1977) ], and (2) possession of a controlled substance with intent to sell [§ 893.13, Fla.Stat. (1977) ], in the Circuit Court for the Eleventh Judicial Circuit of Florida based on the above seizure of cocaine. The defendant moved pretrial to suppress the fruits of the subject search on the ground that said search was conducted in violation of the defendant's search and seizure rights guaranteed by the state and federal constitutions. The trial court heard and denied the motion to suppress. Thereafter the defendant entered a plea of nolo contendere to both charges, specifically reserving for appeal the denial of his motion to suppress. 1 The defendant was thereupon adjudged guilty as charged and was sentenced to two five-year concurrent sentences in the state penitentiary. The defendant appeals this judgment of conviction and sentence; we have jurisdiction to entertain this appeal. Art. V, § 4(b)(1), Fla.Const.; Brown v. State, 376 So.2d 382 (Fla.1979); State v. Ashby, 245 So.2d 225 (Fla.1971).

II

The law is well-settled that a search and seizure conducted by state officials is presumptively unreasonable under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12 of the Florida Constitution when conducted without a search warrant, subject only to certain specifically established and well-delineated exceptions justified by absolute necessity. Katz 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); 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 case. Norman v. State, supra; Hornblower v. State, 351 So.2d 716 (Fla.1977); Morales v. State, supra, at 327; Taylor v. State, 355 So.2d 180, 183 (Fla. 3d DCA), cert. denied, 361 So.2d 835 (Fla.1978). One of the well-recognized exceptions to the search warrant requirement rule is that the police may conduct a warrantless search incident to effecting a lawful arrest of a person. Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), affirming, State v. Gustafson, 258 So.2d 1 (Fla.1972); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973); Dixon v. State, 343 So.2d 1345, 1347 (Fla. 2d...

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