Taylor v. State, 76-1611

• Court: Court of Appeal of Florida (US)
• Writing for the Court: HUBBART; PEARSON
• Citation: 355 So.2d 180
• Parties: Herbert TAYLOR, Appellant, v. The STATE of Florida, Appellee.
• Docket Number: No. 76-1611,76-1611
• Decision Date: 14 February 1978

Page 180

355 So.2d 180 Herbert TAYLOR, Appellant,
v.
The STATE of Florida, Appellee. No. 76-1611. District Court of Appeal of Florida, Third District. Feb. 14, 1978.
Rehearing Denied March 10, 1978.

Page 181

Arthur F. McCormick, South Miami, for appellant.

Robert L. Shevin, Atty. Gen., and Ira Loewy, Asst. Atty. Gen., for appellee.

Before PEARSON, NATHAN and HUBBART, JJ.

HUBBART, Judge.

This is a criminal prosecution for illegal importation of marijuana before the Dade County Circuit Court. The defendant was convicted as charged upon his nolo contendere plea which was entered with the specific reservation that he could appeal to this court the trial court's denial of his pre-trial motion to suppress certain evidence. We have jurisdiction to entertain the defendant's subsequently filed appeal solely as to that issue because it was properly preserved in the trial court and a resolution thereof is dispositive of the case. State v. Ashby, 245 So.2d 225, 228 (Fla.1971); Tiller v. State, 330 So.2d 792, 793 (Fla.1st DCA 1976); Jackson v. State, 294 So.2d 114 (Fla.4th DCA 1974).

The central question presented for review is whether a free and voluntary consent to conduct a warrantless search of a boat may be obtained by a law enforcement officer from the boat's owner after

Page 182

such officer has begun an admittedly unlawful search of the boat. We hold that, absent a clear and convincing showing of an unequivocal disavowal or break from the prior illegal search sufficient to dissipate the taint of the prior illegality, no such free and voluntary consent can be given as it is tainted by the prior illegal search. As such, any search conducted pursuant to such coerced consent is unreasonable within the meaning of the Fourth and Fourteenth Amendments to the United States Constitution ¹ and Article I, Section 12, of the Florida Constitution, ² and the fruits of such a search are inadmissible in evidence. I

The controlling facts of this case are substantially undisputed. On February 11, 1976, at approximately 10:30 a. m., Officer Mike Tucker of the Florida Marine Patrol was on duty alone in his patrol boat in the waters off Government Cut in Dade County, Florida. He saw a boat known as "The Old Breed" coming into Government Cut headed west. The defendant Herbert Taylor was standing toward the stern of the boat and it develops he was the owner and captain of the boat. There was at least one other person aboard.

Officer Tucker checked with his superiors by radio and learned that "The Old Breed" was not wanted for any violations of the law. In past years, however, he knew that this boat had been suspected of bringing in undersized lobsters from outside the territorial waters of the United States. He was unaware of the source of this information and the state makes no claim either in the court below or before this court that this gave the officer probable cause to search the boat. He did notice that there was a visible expired commercial registration certificate on the boat and decided to stop the boat for further investigation.

Officer Tucker pulled alongside the defendant's boat but was unable to converse with the defendant due to the noise of the idling boat engines. The officer thereupon boarded the defendant's boat and began asking the defendant if there were any fish aboard and where the defendant had been with his boat. The defendant by this time had been joined by a companion aboard the boat and was apparently quite friendly with the officer. He answered all of the officer's questions while also inquiring himself in a friendly way as to certain other Marine Patrol officers whom he apparently knew.

Officer Tucker's purpose in boarding the boat and questioning the defendant was, as he testified, to determine if the defendant had any undersized lobsters on the boat. He made no inquiry concerning the expired boat registration. The officer asked what the defendant had in an icebox cooler on deck after the defendant denied having any fish on board. As the officer asked, he opened and looked into the cooler. Nothing incriminating was discovered. The officer then pointed and asked if a certain part of the boat was the fish hold. The defendant replied that it was and the officer then asked: "Can I look inside, I would just like to look inside." The defendant made no response, but pulled the tarpaulin cover aside and lifted up the hatch because, as he testified, he thought the officer had a right to look therein. The officer at no time

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advised the defendant that he had a right to refuse the police request to look in the hold or search the boat. The officer looked inside the hold for short lobsters and discovered a large quantity of marijuana which was eventually seized. Weapons were also discovered aboard the boat thereafter. No search warrant was ever obtained in this case.

The defendant was subsequently charged by information with illegal importation and possession of marijuana before the Circuit Court for the Eleventh Judicial Circuit of Florida. Sections 893.13(1)(d), (e), Florida Statutes (1975). The defendant filed a pre-trial motion to suppress the marijuana seized from his boat on the ground that it was unlawfully seized without a warrant. The trial court heard testimony which revealed the above facts and denied the motion. The trial court concluded that the defendant had voluntarily consented to the search. Thereupon, the defendant entered his nolo contendere plea as above stated to the charge of illegal importation of marijuana, and the state dismissed the possession of marijuana charge. This appeal follows.

II

The law is well-settled that a search of private property conducted by state or federal agents without a duly issued search warrant is per se "unreasonable" under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 12, of the Florida Constitution subject only to a few specifically established and well-delineated exceptions justified by absolute necessity. These exceptions have been jealously and carefully drawn, and the burden is upon the state to demonstrate their application in a given case which implicit therein requires a showing that the procurement of a search warrant was not feasible because the exigencies of the situation made that course imperative. United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Hornblower v. State, 351 So.2d 716 (Fla.1977); Haile v. Gardner, 82 Fla. 355, 91 So. 376, 378 (1921); Britton v. State, 336 So.2d 663 (Fla.1st DCA 1976); Shepard v. State, 319 So.2d 127 (Fla.1st DCA 1975); Hannigan v. State, 307 So.2d 850 (Fla.1st DCA 1975).

"( O)ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). "When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968). In particular, the state in Florida must show by "clear and convincing" evidence that the defendant freely and voluntarily consented to the search. Sagonias v. State, 89 So.2d 252, 254 (Fla.1956).

A distinction is recognized in the law between submission to the apparent authority of a law enforcement officer and unqualified consent. Mere acquiescence in a search is not necessarily a waiver of a valid search warrant. Rather for a person to waive his search and seizure rights, it must clearly appear that he voluntarily permitted or expressly invited and agreed to the search. Bailey v. State, 319 So.2d 22, 27 (Fla.1975); Talavera v. State, 186 So.2d 811 (Fla.2d DCA 1966).

In each consent search case, it must be determined from a "totality of the circumstances" as to whether the consent was in fact voluntarily given by the defendant or was the product of duress or coercion, express or implied. Schneckloth v. Bustamonte, 412 U.S. 218, 227-229, 93 S.Ct. 2041, 2047-49, 36 L.Ed.2d 854 (1973); State v. Othen, 300 So.2d 732, 733 (Fla.2d DCA 1974). In this connection, the cases yield no talismanic definition of "voluntariness" mechanistically

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