May 2000
UNITED STATES SUPREME COURT Search and seizure - squeezing soft luggage
A law enforcement officer's physical manipulation of a bus passenger's carry-on bag violated the Fourth Amendment's proscription against unreasonable searches, the U.S. Supreme Court ruled. The justices ruled 7-2 in favor of a man convicted on drug charges after a "brick" of methamphetamine was found in his canvas bag during an immigration status check on a bus in Texas. A Border Patrol agent checked the immigration status and then felt the overhead carry-on luggage. The agent felt the methamphetamine brick in Steven Dewayne Bond's canvas bag, and Bond was arrested. Bond contended that the agent's actions in squeezing his canvas bag constituted an illegal search, and the Supreme Court agreed. "Physically invasive inspection is simply more intrusive than purely visual inspection," Chief Justice Rehnquist wrote for the court. "(Bond) sought to preserve privacy by using an opaque bag and placing that bag directly above his seat. When a bus passenger places a bag in an overhead bin, he expects that other passengers or bus employees may move it for one reason or another. Thus, a bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner. But this is exactly what the agent did here."
[Bond vs. United States, 4/17/00]
11TH CIRCUIT COURT OF APPEALS
Qualified immunity - force used during arrestA "minimal amount" of force used by a law enforcement officer to make an arrest will not defeat the officer's qualified immunity in a case where excessive force is alleged, the 11th U.S. Circuit Court of Appeals said. Reaffirming a position it has taken in the past, the court said a trial judge incorrectly denied an Alabama officer's qualified immunity defense when he was sued for excessive force in making an arrest. The plaintiff maintained that he suffered bruising during the arrest, but admitted the bruises disappeared quickly and he did not seek medical treatment. "(T)his Circuit has established the principle that the application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment. The district court disagreed, determining it should ignore the binding authority of three separate opinions of this Court based on its view that those opinions failed to follow an earlier, controlling case. In doing so, the district court erred," the 11th Circuit said.
[Nolin vs. Isbell, 3/28/00] 1ST DISTRICT COURT OF APPEAL Fleeing and eluding law enforcement officer
In order to convict a defendant of the felony charge of fleeing and eluding a law enforcement officer, the state must establish that the defendant caused the pursuing officer to engage in a "high-speed vehicle pursuit," the 1st DCA said. Jonathan Beree appealed his felony conviction and the DCA reversed, remanding for the trial court to enter a conviction on a misdemeanor fleeing and eluding charge. Trial evidence was insufficient to establish that Beree caused the pursuing officer to engage in a "high-speed vehicle pursuit" and so the felony charge could not be supported, the DCA concluded. Assistant Attorney General Daniel A. David represented the state on appeal.
[Beree vs. State, 4/12/00] Resisting arrest without violence
A defendant's double jeopardy rights are violated when he is convicted of two counts of resisting arrest without violence where the convictions arose from a single episode, the 1st DCA said. Frank Fogle appealed his conviction and sentence for, among other things, resisting arrest without violence. After Fogle was informed that he was under arrest, he hit a police officer and ran away but fell; when four officers caught him, he continued to resist. The DCA reversed one of the resisting convictions, explaining, "Although a defendant may commit more than one offense in an altercation with police officers, he can be convicted of only one count of resisting arrest where his altercation with a number of officers was in the course of his continuous resistance to an ongoing attempt to effect his arrest. Multiple convictions on multiple counts of resisting arrest without violence arising out of a single episode, even if more than one officer is involved, constitute a double-jeopardy violation." Assistant Attorney General Trisha E. Meggs represented the state on appeal.
[Fogle vs. State, 4/12/00] DUI with serious bodily injury
When the state files charges against a minor in adult court rather than juvenile court, the adult speedy trial rule applies, the Florida Supreme Court said. Jorge Olivo appealed his conviction for driving under the influence with serious bodily injury in violation of section 316.193(3)(c)(2), F.S. (1995). Samples taken the day after the accident indicated a blood alcohol level of .16% and yielded positive results for cocaine and other drugs. At the time of his arrest, Olivo was either 16 or 17 years old, so the case was initially assigned to the juvenile division. The state subsequently filed an information charging Olivo as an adult, and later filed an "Announcement of Direct File." About one month later, Olivo filed a motion to dismiss contending that independent of the juvenile speedy trial requirements, the state failed to comply with rule 3.191, the adult speedy trial rule. He also asserted that the State's decision to file an information for a felony charge effectively nol prossed the juvenile charge. "Certainly, it would be anomalous for the Legislature to identify exigent circumstances warranting the imposition of adult penalties, yet concomitantly allow juvenile defendants to maintain special privileges. In enacting the foregoing statutes, the Legislature not only granted state attorneys broad discretion in exercising their executive functions, but it also endeavored to prevent the juvenile system from impeding the exercise of this discretion. In short, applying the juvenile speedy trial rule to cases directly filed in the adult division would frustrate both the letter and spirit of the statutes and procedural rules," the justices said. Assistant Attorney General Sylvie Perez-Posner represented the state on appeal.
[State vs. Olivo, 4/6/00] 2ND DISTRICT COURT OF APPEAL Civil rights lawsuit over arrest
A plaintiff cannot successfully allege that his civil rights were violated by the inadequate training of public employees - in this case, sheriff's deputies - when other legal proceedings show the employees acted properly, the 2nd DCA said. Teddy Ryan Jr. was arrested and charged with kidnapping, aggravated assault and armed robbery after five victims picked him out of a photo lineup. Ryan was subsequently acquitted in a jury trial and sued the Charlotte County Sheriff's Office claiming his civil rights were violated. Ryan alleged that the sheriff fostered a custom or policy of underpaying, undertraining and undersupervising deputies, resulting in Ryan being arrested without probable cause. The DCA rejected the arguments, noting that Ryan's complaint itself points out that the arrest followed the photo identification by five victims and the issuance of an arrest warrant by a county judge. "Where the complaint itself reveals probable cause to arrest, there can be no cause of action for failure to train. This is because probable cause to arrest destroys any possible link between any alleged failure of appellee to properly train and supervise his deputies and any resulting harm to appellant for his arrest based on probable cause," the DCA said.
[Ryan vs. Worch, 4/26/00] Elusive behavior justifying stop
A defendant's elusive behavior gives officers both a founded suspicion of criminal activity to justify a stop and a reasonable suspicion that he is armed to justify a pat-down, the 2nd DCA said. Kenya Copeland appealed his conviction for possession of cocaine after the trial court denied his dispositive motions to suppress evidence. While patrolling a high-crime area, three drug task force officers observed a small group clustered around the driver's door of a vehicle. When the officers approached, several of the people fled. Copeland did not run but backed away from the officers. According to the officers, Copeland looked nervous, stood behind a woman, and concealed his hands behind his back. The DCA concluded that the circumstances surrounding the stop and subsequent pat-down search of Copeland were almost identical to those in the U.S. Supreme Court's January decision in Illinois vs. Wardlow. The DCA concluded that Copeland's conduct was not flight, but it was equally unusual, suspicious behavior sufficient to justify the officers' actions. Assistant Attorney General Susan D. Dunlevy represented the state on appeal.
[Copeland v. State, 5/5/00] Possession of marijuana
The state is obligated to prove that a defendant constructively possessed marijuana if it cannot establish actual possession, the 2nd DCA said. A juvenile identified as C.M. appealed his conviction for marijuana possession. C.M. was adjudicated delinquent for marijuana possession after his mother gave police a plastic baggie of marijuana, which was found under a bed in the bedroom C.M. and his brother were to occupy in a new home they were moving into. Reversing the decision of the trial court, the DCA concluded that the evidence was legally insufficient to prove C.M.'s guilt. According to the DCA, the state failed to prove that C.M. "had dominion and control over the marijuana, was aware of its presence, and knew if its illicit nature." Assistant Attorney General Jenny S. Sieg represented the state on appeal.
[C.M., vs. State, 3/29/00] 3RD DISTRICT COURT OF APPEAL Twin convictions for possession of marijuana
A defendant who is found during a traffic stop to have packets of marijuana in his car and a small amount in his wallet cannot be sentenced to two separate counts of unlawful possession of cannabis, the 3rd DCA said. Byron Trice appealed his conviction for trafficking in cocaine and possession of marijuana. Trice was pulled over for a minor traffic violation, and after he got out of his car an officer observed a plastic baggie protruding from Trice's pants. The baggie was later found to contain cocaine, and a search of his car turned up packets of marijuana. A pat-down of Trice uncovered a small amount of marijuana in his wallet. Trice was convicted on several charges, and his appeal included a challenge to his conviction on two counts of marijuana possession. The DCA reversed Trice's conviction, saying a motion to suppress should have been granted on collateral estoppel grounds, and clarified the impact of the separate quantities of marijuana. "(B)ecause we are remanding for a new trial we observe that it was error for the court to sentence Trice for two identical counts of unlawful possession of cannabis. The evidence established that the defendant was in possession of each package of cannabis (one package in his wallet, the other in his car), at a single factual event (the traffic stop), not separated by time or place," the DCA said. Assistant Attorney General Regine Monestime represented the state on appeal.
[Trice vs. State, 4/19/00] Voluntariness of confession
A defendant who agreed to be interviewed, appeared alert and coherent throughout the three-hour interview and never requested that the interview cease was not coerced into a confession, the 3rd DCA said. Jabbar Woods appealed his conviction for first-degree murder, burglary and theft, arguing that the trial court should have suppressed his confession as being involuntary. Woods contended that he was deprived of sleep for an extended period, and that his confession should be viewed as having been coerced. The DCA disagreed. "(T)he trial court made an explicit finding that the law enforcement officers were credible, and the defendant not credible, in their testimony," the DCA said. "On this evidence, and given the trial court's credibility determination, we see no basis on which to overturn the trial court's determination of voluntariness." Assistant Attorney General Lara J. Edelstein represented the state on appeal.
[Woods vs. State, 4/19/00] 4TH DISTRICT COURT OF APPEAL Observations of off-duty officer
An officer only needs a "founded suspicion" of criminal activity in order to effect a valid stop for DUI, and this can be based in part on the observations of an off-duty officer, the 4th DCA said. Mark Ellis pled nolo contendere to felony DUI. On appeal, Ellis contended that the stop of his vehicle was not justified. John Apell, an off-duty officer, saw Ellis drive at an excessive rate of speed, stop at a traffic light and jump out of his car and wave his arms in a rage. Apell also observed Ellis weaving and driving into the median. Officer Reisner testified that he also observed Ellis driving erratically at a high rate of speed, and testified that he saw Ellis almost hit the median and then swerve sharply, leaving his lane of traffic. Ellis argued that in assessing whether the circumstances gave rise to a "founded suspicion," only those observations personally made by Officer Reisner could be considered because the "fellow officer" rule would not apply to Apell because he was an off-duty officer outside his jurisdiction and not in hot pursuit. The DCA disagreed. "Apell need not have been a 'fellow officer,' however, for the observations that he relayed to 911 to be considered. Under the circumstances, we find that Apell was a citizen-informant; the information he gave to 911 was, therefore, properly taken into consideration by Officer Reisner in making his 'reasonable suspicion' determination. The sum of the facts relayed by Apell to 911 and Reisner's own observations clearly exceed what was necessary to give rise to a 'founded suspicion,'" the DCA said. Assistant Attorney General Georgina Jimenez-Orosa represented the state on appeal.
[Ellis vs. State, 4/5/00] Editor's note: Of additional significance is that the district court noted that when interpreting United States v. Whren, 517 So.2d 806,810 (1996), that the court "did not believe that the United States Supreme Court intended to change the long- standing standard of 'founded' or 'reasonable' suspicion to initiate a Terry stop." The United States Supreme Court in Whren opined that probable cause was required to intimate a traffic stop. This is consistent with the various opinions from around the state which interpret §§901.151, Florida Statutes, as requiring founded suspicion of reasonable suspicion and not probable cause as written. Comment on right to remain silent
A lawyer for a codefendant may not elicit testimony about a defendant's right to remain silent, the 4th DCA said. Elizabeth Coney and codefendant Adrienne McKenzie were charged with grand theft of jewelry. Following their arrests, both defendants were given Miranda warnings; McKenzie made statements to the police, but Coney did not. During trial, Coney testified that she did not realize she was still wearing the jewelry when she walked out of the store after trying it on. The codefendant's lawyer established through the arresting officer that Coney never offered police her explanation of the events leading up to her arrest. Disclosing that Coney, after receiving her Miranda warnings, failed to mention her explanation calls attention to her silence, the DCA concluded. "The constitutional error was not muted because it was not the prosecutor, but McKenzie's lawyer who elicited the testimony about Coney's silence," the DCA said. The court noted that the Florida Supreme Court has held that neither a prosecutor nor the lawyer for a codefendant may cross-examine or otherwise comment on a defendant's right to remain silent. Assistant Attorney General Don M. Rogers represented the state on appeal.
[Coney vs. State, 3/29/00] 5th District Court of Appeal Possession of cocaine
Where evidence appears sufficient for a jury to conclude that a defendant had either constructive or actual possession of drugs, the defendant is not entitled to a judgment of acquittal, the 5th DCA said. Tommy Green appealed his conviction for possession of cocaine, contending that he was entitled to a judgement of acquittal because of a lack of evidence of his constructive possession of the drugs. Green maintained that the case hinged on constructive possession because he was not in exclusive possession of the automobile in which the cocaine was found. The DCA disagreed. "This is not a case, however, in which the evidence shows no more than that Green and others were simultaneously found in proximity to illegal drugs. Nor is this a case in which the only evidence that Green possessed the cocaine is that his fingerprints were found on exterior, non-illicit packaging. Instead, in this case, these factors appeared simultaneously and in conjunction with additional evidence which appears to create a question for the jury as to whether Green had knowledge of the presence of the cocaine and had dominion and control of the cocaine," the DCA said. Assistant Attorney General Rebecca Roark Wall represented the state on appeal.
[Green vs. State, 3/31/00] Suppress motion
When a police officer repeatedly questions a defendant prior to obtaining consent to search, the clear and convincing standard is appropriate to determine whether the defendant's consent was voluntary, the 5th DCA said. Jean E. Dormezil appealed his conviction and sentence for cocaine trafficking. Dormezil contended that the trial court should have suppressed the cocaine because he did not knowingly and voluntarily consent to the search of his rental car. Dormezil also argued that his command of the English language was faulty and that the officer repeatedly asked for his consent which amounted to invalid police conduct. The DCA disagreed in all respects. "During the hearing on the motion to suppress, Dormezil did not require an interpreter, and he testified that he had lived in the United States for six years and had begun learning the English language almost a decade before this police stop occurred. Based on the totality of the circumstances, the trial court did not clearly err in determining that Dormezil voluntarily consented to the search of his rental car, which led to the discovery of the cocaine," the DCA said. Assistant Attorney General Maximillian J. Changus represented the state on appeal.
[Dormezil vs. State, 3/31/00] ATTORNEY GENERAL OPINIONS County's authority re: indemnification agreement
In response to a series of questions from the Palm Beach County Attorney, the Attorney General issued an advisory opinion (2000-22, 4/4/00) stating in sum: "1 & 2) A county may not agree to indemnify another party to a contract or alter the state's waiver of sovereign immunity such that the county's liability may be extended beyond the limits established in section 768.28, Florida Statutes; 3) A county may not agree to purchase insurance to cover claims arising from a contract and name the contracting party as an additional insured or, alternatively, pay additional funds to the contracting party to purchase such insurance. It is recognized, however, that a private vendor or party contracting with a public entity may incorporate the need for additional funds to purchase insurance in its bid, such that the funds paid to the party will be used to purchase insurance to cover claims arising from the contract; 4) A county may not enter into an agreement that attorney's fees and costs will be paid to the prevailing party in a dispute arising from a contract to the extent such an agreement may alter the limits of liability established in section 768.28, Florida Statutes."
Opinion # 2000022 Approved by:
Enoch J. Whitney
General Counsel
Edited by:
Peter N. Stoumbelis
Assistant General Counsel