Sheff v. State

• Citation: 301 So.2d 13
• Decision Date: 12 September 1974
• Docket Number: No. T--241,T--241
• Parties: Thomas Albert SHEFF, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 13

301 So.2d 13

Thomas Albert SHEFF, Appellant, v. STATE of Florida, Appellee.

No. T--241.

District Court of Appeal of Florida, First District.

Sept. 12, 1974.

Rehearing Denied Oct. 22, 1974.

Frank A. Graham, Jr., of Graham, Buford, Vossler & Schoditsch, Tallahassee, for appellant.

Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appellee.

BOYER, Judge.

We have for review a case involving a search and seizure, or a series of searches and seizures, which resulted in the obtaining of evidence leading to conviction of appellant following the trial court's refusal to suppress the fruits of the search. Neither the facts nor the applicable law are simple.

The parties disagree to some extent as to the appropriate facts to be gleened from the evidence. We therefore feel it desirable to recite at the very commencement that on a motion to suppress evidence the trial judge is trier of both law and fact. His conclusions come to us clothed with a presumption of correctness, and in testing the accuracy of his conclusions on questions of fact we must interpret the evidence and all reasonable inferences and deductions capable of being drawn therefrom in the light most favorable to the conclusions reached by him. (Cameron v. State Fla.App. (1st) 1959, 112 So.2d 864; Shaver v. State, Fla.App. (1st) 1972, 262 So.2d 30)

While appellant was staying at a motel in the City of Tallahassee, but while he was temporarily absent therefrom, a maid admitted herself for the purpose of cleaning the room in accordance with normal motel operating practices. While cleaning the room the maid discovered what she thought to be marijuana lying loose in an open suitcase. She reported her discovery of the 'green-like' material to the motel owner, who then went to the room and observed the material in the suitcase. He promptly called a relative, one Captain Revell of the Sheriff's Department. When Captain Revell arrived at the motel he, at the request and invitation of the motel owner, entered appellant's room and observed the material in the open suitcase. Captain Revell decided that the material was 'probably' marijuana. They thereupon left the room, locking the door behind them, and Captain Revell called one Detective O'Brien, relating the circumstances and his observations. O'Brien thereupon went to the motel and while he was further acquainting himself with the situation the appellant drove into the motel parking area. Appellant was identified to Detective O'Brien by the owner of the motel as being the occupant of the room. Apparently noticing the police cars, the appellant immediately drove off whereupon he was followed by Detective O'Brien who stopped him a short distance away. O'Brien obtained appellant's driver's license and directed him to return to the motel. While following the appellant back to the motel, Detective O'Brien noticed him 'fiddling around on the floor of the car.' Upon O'Brien stopping his car behind appellant's car in the motel parking lot, one Deputy Gunter (who had arrived on the scene in the meantime) handed O'Brien a small plastic bag which Gunter had observed appellant throw from his car upon entering the motel parking lot. The bag was found to contain marijuana and some green tablets. Detective O'Brien thereupon arrested appellant for possession of marijuana and advised him of his constitutional rights.

Upon looking into appellant's car, Detective O'Brien saw another small plastic bag on the floor of the front seat beneath where the driver's legs would be. O'Brien then opened the door of the car, identified the contents as marijuana, and advised appellant that he was going to conduct a search of the vehicle. The search revealed a vegetable material in a styrofoam beer insulator, a 'roach clip' in the glove compartment and cigarette papers and another bag of marijuana in a briefcase.

Following the search of the vehicle O'Brien asked for permission to search the motel room which permission was refused by appellant. Nevertheless O'Brien seized the open suitcase from the motel room.

Appellant was then lodged in jail and a search warrant was obtained for his motel room. Upon searching the room with the warrant in hand Detective O'Brien seized another suitcase containing twenty-one bags of marijuana and a shaving kit containing amphetamines.

Appellant was charged in a four count information with possession of marijuana (Count I), possession of amphetamines (Count II), possession of phencyclidine (Count III) all in violation of Florida Statute 404.02, and possession of paraphernalia (Count IV) in violation of Florida Statute 404.041.

A motion to suppress all tangible evidence was filed which motion was denied. Thereupon appellant entered a plea of nolo contendere as to Count I only, reserving the right to appeal the denial of his motion to suppress as permitted by State v. Ashby, Sup.Ct.Fla.1971, 245 So.2d 225. He was adjudicated guilty and sentenced, resulting in this appeal.

Appellant has not been tried on Counts II, III and IV of the above mentioned information, by agreement awaiting the outcome of this appeal.

The parties argue several points in their briefs. The first point relates to the validity of Captain Revell's initial visit to appellant's motel room. Appellant states the point as follows: 'Whether a motel proprietor may give his consent to a warrantless search of a tenant's room by police officers.' We answer in the negative.

A hotel room or a motel room is the private dwelling of the occupant so long as he is legally there, paying the requisite rent or charge, or has made appropriate arrangements with the management for such payment, and has not been requested by the management to leave for any valid or legal reason. The rights and privileges guaranteed by the Constitution must be accorded with equal vigor to transient hotel guests as to occupants of private permanent dwellings. (Shuler v. Wain-wright, 341 F.Supp. 1061 (USDC M.Dist.Fla. 1972); Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); Eng Fung Jem v. United States, 281 F.2d 803 (9th Cir. 1960)).

A search of a guest's room may not validly rest upon consent, or even invitation of the proprietor or manager. (See Stoner v. California, supra; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949)).

Although a person renting a motel or hotel room gives implied permission for cleaning personnel to enter the room, and perhaps maintenance personnel, such entries are restricted to instances which are reasonably required in the performance of their duties. (United States v. Jeffers,supra) A tenant's constitutional protections would disappear and be for naught were the protection against unreasonable searches and seizures left to depend upon the unfettered discretion of an employee of a hotel or motel. (Stoner v. California, supra)

Assuming, without deciding, that the owner of the motel had the right to enter appellant's room upon being advised by the maid of the presence of the suspicious appearing material, he had no legal right to extend an invitation of entry to the police.

We do not here have a situation factually similar to Griffin v. State, Fla.App. (2d) 1973, 276 So.2d 80, where the occupant of the room responded to a knock with an invitation to enter and thereupon gave consent to the search leading to the discovery of the evidence. Nor may this case be likened to Paty v. State, Fla.App. (4th) 1973, 276 So.2d 195, wherein, upon petition for rehearing, the court made it abundantly clear that its decision and opinion was intended only to be applicable to the doctrine of 'abandonment of premises' as a justification for search and seizure. We have no such question here.

Neither are we here concerned with a factual situation wherein the police gained their information as a result of an unauthorized search by a private citizen as was the case in Bateh v. State, Fla.App. (1st) 1968, 208 So.2d 846 and in Barnes v. United States, 5th Cir. 1967, 373 F.2d 517.

The facts of this case do not even compare with Gandy v. Watkins, M.D.Ala.1964, 237 F.Supp. 266, cert. den. 1965, 380 U.S. 946, 85 S.Ct. 1032, 13 L.Ed.2d 965, wherein the evidence appears to have been taken into dustody from a motel room by an officer without a warrant But at the specific request of the owner and manager of the hotel.

The State endeavors to defend Captain Revell's initial entry into appellant's room by the 'plain view doctrine'. However, there is no showing that the evidence seized from the room was in plain view of anyone other than to persons in the room. This is not a situation wherein a police officer observed the contraband without entry onto the premises. (State v. Ashby, supra; State v. Parnell, Sup.Ct.Fla.1969, 221 So.2d 129) It is apparent that Captain Revell saw nothing in plain view Until he entered the room.

The State attempts to rely upon State v. Parnell, supra, and State v. Ashby, supra. However in each of those cases the writer of the opinion made it abundantly clear that in applying the 'open view' or 'plain view' doctrine the seizing officer was 'where he has a legal right to be.' In State v. Ashby ...