11th U. S. Circuit of Appeals

Search and seizure - scope of consent
A police officer searching a minivan for drugs after a traffic stop acted within his authority when he popped two plastic snaps in order to pry open an area behind a door panel, the 11th U.S. Circuit Court of Appeals held. The court said the Georgia officer's search did not exceed the scope of consent given by the van's driver and passenger, and said the minimal effect on the vehicle was insufficient to render the search outside the scope of consent. After completing a routine traffic stop, Deputy Tony Phillips asked for and obtained permission to search the van after telling the men that authorities had significant problems with drugs and stolen property along that stretch of Interstate 95. During the search the officer noticed that the interior door panel did not fit properly on the sheet metal, and when he pried back the panel he discovered packages of cocaine. "While we have held that a search exceeds the scope of consent when an officer destroys a vehicle, its parts, or its contents, a search does not exceed the scope of consent merely because an officer forces open a secured compartment that reasonably may contain the objects of the search," the court said. "Because Phillips could reasonably have found at least some of the objects of the search behind the minivan's interior door panels, he did not exceed the scope of (the passenger's) consent when he searched these areas."
[United States vs. Zapata and Lorenzo, 7/13/99]

Florida Supreme Court

Officer's duty to answer question about rights
Police officers questioning a suspect must respond to a clear question regarding the suspect's rights with a good-faith attempt to provide accurate information before they may continue the interrogation, the Florida Supreme Court held. The court, in a 4-3 decision, reversed the murder conviction and vacated the death sentence Osvaldo Almeida received for the 1993 murder of Chiquita Counts in Fort Lauderdale. After Almeida confessed in preliminary questioning to the Counts murder and two others, officers began a recorded interview by asking Almeida - who had previously waived his Miranda rights - if he was willing to talk without a lawyer present. Almeida responded, "Well, what good is an attorney going to do?" The officers ignored the question and went on with the interrogation. The justices said Almeida's question was not rhetorical and required a good-faith response, and because it was not answered Almeida's confession should not have been admitted. "(W)e hold that if, at any point during custodial interrogation, a suspect asks a clear question concerning his or her rights, the officer must stop the interview and make a good-faith effort to give a simple and straightforward answer. To do otherwise - i.e., to give an evasive answer, or to skip over the question, or to override or "steamroll" the suspect - is to actively promote the very coercion that (case law) was intended to dispel. A suspect who has been ignored or overridden concerning a right will be reluctant to exercise that right freely. Once the officer properly answers the question, the officer may then resume the interview (provided of course that the defendant in the meantime has not invoked his or her rights). Any statement obtained in violation of this proscription violates the Florida Constitution and cannot be used by the State," the court said. However, the court in a separate opinion affirmed Almeida's conviction for the 1993 murder of Sunrise restaurant manager Frank Ingangiola. The court reversed Almeida's death sentence and ordered a life sentence without parole for at least 25 years, citing extensive evidence of Almeida's brutal childhood and mental health problems and calling the case "one of the most mitigated murders the Court has reviewed."
Assistant Attorney General Sara D. Baggett represented the state on appeal in the case involving the Counts murder and Assistant Attorney General David M. Schultz represented the state on appeal in the case involving the Ingangiola murder.
[Almeida vs. State (Counts murder), 7/8/99]
[Almeida vs. State (Ingangiola murder), 7/8/99]

1st District Court of Appeal

Forfeiture - fee required to record lien
A sheriff's office is entitled to keep a vehicle it seized because the credit union that issued the loan on the vehicle never completed the paperwork requirements to record notice of its lien on the vehicle, the 1st DCA said. The court rejected the credit union's argument that it put the state on constructive notice of its lien when it submitted documents to the Department of Highway Safety and Motor Vehicles shortly after it made a car loan. The department returned the documents because they were not accompanied by the required filing fees; those fees were not submitted until after the Bay County Sheriff's Office seized the vehicle because it had been used in the commission of a felony. The trial court found that the sheriff's ownership interest in the vehicle was subject to the credit union's security interest, but the DCA reversed. "If the mere tender of a lien notice to DMV without the required fees is sufficient to obtain constructive notice, there would be no incentive for any party to pay the required fees, because the desired result would be the same with or without payment of the fees," the DCA observed.
[Bay County Sheriff's Office vs. Tyndall Federal Credit Union, et al., 7/27/99]

Resisting officer - performance of lawful duty
A deputy who improperly entered a man's home while responding to a noise complaint was not engaged in a lawful duty, and therefore a conviction stemming from a subsequent altercation must be reversed, the 1st DCA said. While criticizing the defendant's actions in scuffling with the deputy, the DCA said the actions did not support convictions for battery on a law enforcement officer and resisting an officer with violence. The altercation began after the deputy, responding to a noise complaint, went into the defendant's home and asked him to come outside so they could discuss the complaint. The defendant refused the request and began scuffling with the deputy. The DCA said it was not appropriate for the defendant to shove the deputy, but concluded that the state failed to demonstrate that the deputy was engaged in the performance of a legal duty inside the defendant's home. "He was acting within the scope of his duty by investigating the noise complaint, but that fact alone would not give him the right to enter the defendant's home. (The deputy) did not have permission to enter the defendant's home and he did not have probable cause to arrest the defendant for any offense before he entered the home. Moreover, there was no exigent circumstance that would justify a warrantless entry into the residence, even if probable cause had existed for an arrest," the DCA said.
Assistant Attorney General Trisha E. Meggs represented the state on appeal.
[Taylor vs. State, 7/19/99]

Search and seizure - lack of pat-down
Even though he had valid concerns about a possible weapon, a deputy performed an illegal search when instead of conducting a pat-down he reached into a man's pocket and removed a bag of marijuana, the 1st DCA said. During a police-citizen encounter, Deputy Michael Simmons noticed that Randy Hines persistently tried to put his hand in the pocket, even after the deputy repeatedly asked him to keep his hands where they could be seen. Had the deputy conducted a regular pat-down and determined that the pocket might contain contraband, the search might have been within constitutional bounds, the DCA said. However, the deputy's decision to reach directly into Hines' pocket was not appropriate, the court said. "(A)ssuming that Deputy Simmons reasonably believed that Hines was armed and dangerous, we conclude that the deputy overstepped lawful bounds by not performing a Terry-style protective frisk, i.e., a limited exterior pat-down of Hines' clothing solely to search for weapons, before determining that more intrusive action was necessary," the DCA said. "Instead, Simmons skipped the pat-down and reached directly into Hines' pocket as Hines faced the other way with his arms outstretched upon the car. This search was unreasonable and illegal."
Assistant Attorney General J. Ray Poole represented the state on appeal.
[Hines vs. State, 7/15/99]

2nd District Court of Appeal

Admissibility in administrative proceeding
A state agency seeking to administratively suspend a driver's license is not required to meet the stringent admissibility standards necessary in a civil or criminal trial, the 2nd DCA said. The DCA rejected a lower court's determination that a hearing officer improperly considered an unsworn report of the driver's blood-alcohol test. While sworn affidavits may be necessary for the test results to be admissible at a civil or criminal trial stemming from the alleged drunk driving, no such requirement is necessary for an administrative proceeding, the DCA said. "The circuit court misconstrued (applicable statutes and rules) when it required the Department to comply with the more stringent admissibility requirements for blood-alcohol results in a civil or criminal trial, rather than the more relaxed requirements for administrative review of license suspensions," the DCA said.
Assistant General Counsel Kathy Jimenez represented the Agency.
[Department of Highway Safety and Motor Vehicles vs. Anthol, 8/11/99]

Search and seizure - probable cause
The weapons conviction of a migrant worker must be reversed because a sheriff's deputy had no probable cause to search him following a small-town bank robbery, the 2nd DCA said. A Hendry County sheriff's deputy investigating a bank robbery relied on bank employees' descriptions and went to a shopping area where migrant and field labor workers often congregated. The deputy searched Adalberto Vargas because his clothing was similar to the bank employees' description, although Vargas was wearing a cowboy hat and the description mentioned a baseball cap. The deputy found a pistol on Vargas, but bank employees said he was not the robber. Vargas pled guilty to carrying a concealed weapon, but reserved his right to challenge the search. The DCA held that the deputy lacked probable cause to search Vargas. "There were no specific and articulable facts which justified the officer's stop because the description given by the bank employees could have fit many men. Vargas' clothing was hardly unusual or distinctive in light of the manner in which other field labor workers/bystanders were dressed. In fact, Vargas did not meet the description of the robber because he was wearing a cowboy hat rather than a baseball cap," the DCA said.
Assistant Attorney General Helene S. Parnes represented the state on appeal.
[Vargas vs. State, 7/23/99]

Search and seizure - privacy in back yard
A drug conviction based on marijuana plants found in the defendant's back yard must be reversed because the woman had a reasonable expectation of privacy in her back yard and officers had no valid reason to be there, the 2nd DCA said. Officers went to the defendant's home to investigate an anonymous tip of a marijuana plant growing in the back yard. When the officers saw three people in the back yard and went there to make contact, one of the people acknowledged that the officers were there for the plants and pointed to them. The three began arguing about whose plants they were, and the defendant blurted out, "I planted those pot plants." The officers arrested her. The DCA concluded that the plants should have been suppressed because the officers had no right to enter the woman's back yard uninvited for the purposes of investigating an anonymous tip of a crime. "While a resident does not have a reasonable expectation of privacy in the front door or front porch area of his or her residence because salesmen or visitors frequently appear there, a resident does have a reasonable expectation of privacy in his or her back yard because it is more private, and passers-by generally cannot see into the back yard. In this case, the officers stated that they could not see the pot plants from the street. They did not see the plants until they were in the back yard and Godfried pointed them out," the DCA said. "Since the back yard of a residence has been determined to be within that zone of privacy as to which a citizen may reasonably expect privacy, just as with a residence, officers may not enter without a warrant or a reason that the warrant requirement does not apply."
Assistant Attorney General Jenny S. Sieg represented the state on appeal.
[Glass vs. State, 7/9/99]

Search and seizure - freedom to leave
Charges against a drug defendant must be dismissed because officers instructed her not to leave an area, effectively turning a proper citizen-police encounter into a seizure, the 2nd DCA held. Six officers and a police dog approached the defendant as she and a man sat on the steps of her mobile home waiting for a ride to work. The officers said they were checking out a complaint of child neglect and possible drug activity. The defendant gave her name and stated that she did not have any children. She then started to walk away, but one of the officers told her to come back and wait until they made contact with the people inside the mobile home. After the woman sat down, an officer asked for identification, and when she opened her purse the officer saw a crack cocaine pipe. The woman was arrested and later pled no contest to charges of possessing cocaine and drug paraphernalia, preserving her right to appeal the denial of her motion to suppress. The DCA agreed that the search was improper. "In order to determine whether a particular encounter constitutes a seizure, a court must consider the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a 'reasonable person' that the person was not free to decline the officer's request or otherwise terminate the encounter. Under these circumstances, it cannot be said that a reasonable person, facing six police officers and a police dog, would believe that she was free to leave," the DCA said.
Assistant Attorney General Deborah F. Hogge represented the state on appeal.
[Langley vs. State, 7/9/99]

3rd District Court of Appeal

Perjury during agency investigation
A police department internal affairs investigation qualifies as an "official proceeding" from which perjury charges can be brought, the 3rd DCA said. The court affirmed a Miami-Dade police officer's conviction for perjury committed during official proceedings, based on false statements he made during an internal affairs probe of allegations that he improperly altered a time sheet. The DCA rejected the officer's contention that his sworn statement was not given during an official proceeding. "Certainly, the procedures set in place for police internal affairs investigations, and the protections afforded therein to the officer under investigation, are adequate to be considered as 'official proceedings' under the perjury statute," the DCA said.
[Melendres vs. State, 8/11/99]

State worker accused of defrauding agency
A state employee who had a coworker fill in for him while he tended to a family emergency should not have been fired for submitting a falsified time sheet, the 3rd DCA said. Melvin Johnson, a security specialist with the Department of Children and Families, arranged for a fellow guard to cover the last two hours of his shift at South Florida State Hospital and privately agreed to pay the coworker for his time. Johnson informed his supervisor about the arrangement shortly after it happened and before he turned in his time sheet, leading a hearing officer to conclude that Johnson was not attempting to deceive the department when he submitted his time sheet. Nonetheless, the hearing officer found that Johnson's actions were an "attempt to defraud" the agency, a finding that provided the basis for the department's decision to dismiss Johnson. The DCA said it could find no distinction between an attempt to deceive and an attempt to defraud, and said the inconsistency called for reversal of the order firing Johnson. The court ordered Johnson reinstated to his job at the South Florida State Hospital with back pay and attorney's fees.
[Johnson vs. Department of Children and Families, 8/11/99]

Constructive possession of a firearm
The state submitted sufficient evidence to show that a defendant had constructive possession of a firearm that was found in a vehicle he had been driving earlier, the 3rd DCA held. After pursuing a speeding vehicle, officers saw the driver and another man bail out when the vehicle stopped in a residential area. The officers eventually apprehended the driver, and then found a handgun partially hidden under the driver's seat and the defendant's driver's license on the driver's seat. At trial, the owner of the vehicle testified that the firearm did not belong to her. The defendant was convicted of firearm possession and the DCA affirmed, finding that the state presented sufficient evidence of constructive possession.
Assistant Attorney General Roberta G. Mandel represented the state on appeal.
[Jacobs vs. State, 7/28/99]

4th District Court of Appeal

Disclaimers - counterfeit goods
The use of disclaimers cannot be used as a defense in cases involving the sale of goods with counterfeit trademarks, the 4th DCA held. Elizier Stern was tried for violating section 831.05(1)(a), F.S., by selling counterfeit designer sunglasses to the general public. Stern maintained that he had conspicuously displayed large disclaimer signs at his booth stating that his sunglasses were look-a-likes. The trial court declined to give Stern's requested jury instruction that the use of disclaimers could be used as a defense, and Stern was convicted. The DCA affirmed. "Once the counterfeit sunglasses leave the booth, no disclaimer, no matter how prominently displayed at the booth, would give notice to the general public that the sunglasses were not the actual designer glasses," the DCA said. "(T)he instruction requested by Stern could have misled the jury into thinking that the crime did not occur if the jury concluded the direct purchasers of the counterfeit sunglasses sold by Stern knew that Stern's sunglasses were look-a-likes."
Assistant Attorney General Don M. Rogers represented the state on appeal.
[Stern vs. State, 8/4/99]

Search and seizure - informant's actions
A woman who provided police with information about a possible stolen vehicle was not acting as a private citizen but was instead acting as an agent of the government because her goal was to stop an officer from "harassing her," the 4th DCA said. An officer suspected the woman's employer of running a stolen car ring and chop shop, and knew of problems with the woman's driving record. Using that information as leverage, the officer encouraged the woman to write down vehicle identification numbers (VINs) so the police could determine if the vehicles were stolen. The woman instead removed a sticker from the gas tank of a car that proved to be stolen. The defendant argued that a subsequent search warrant should be suppressed because the affidavits supporting it gave an incomplete picture of the arrangement between the woman and officers. The DCA agreed, reversing the conviction and remanding for further proceedings. The woman, the DCA noted, "claimed that the only reason she removed the sticker was because of her arrangement with (an officer), and to get the police to stop bothering her. The fact that (the woman) removed a sticker with a VIN on it, rather than writing the VIN on a piece of paper, does not turn the government search into a private search."
Assistant Attorney General Terri Leon-Benner represented the state on appeal.
[Glasser vs. State, 7/14/99]

Constructive possession - proximity to item
The fact that a suspect was sitting in the back seat of a car and a bag containing an automatic weapon was found there is not enough to show the suspect had constructive possession of the gun, the 4th DCA said. The court threw out the conviction of Kevin Walker, who pled no contest to possession of a firearm by a convicted felon. After his arrest Walker admitted to police officers that he knew the gun was in the bag, but argued on appeal that his statement was the product of an unlawful arrest. The DCA agreed, concluding that officers did not have a sufficient link between Walker and the weapon in the bag to support a reasonable belief that Walker knew of the gun's presence. "(T)he only fact supporting a conclusion that Walker had been in constructive possession of the weapon was his proximity to the bag while a passenger in the car. This is simply not enough," the DCA said.
Assistant Attorney General Elaine L. Thompson represented the state on appeal.
[Walker vs. State, 7/14/99]

Edited by: Peter N. Stoumbelis Assistant General Counsel

Approved by: Enoch J. Whitney General Counsel