Morejon v. State

431 So. 2d 315
CourtDistrict Court of Appeal of Florida
DecidedMay 17, 1983
Docket82-159
StatusPublished

This text of 431 So. 2d 315 (Morejon v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morejon v. State, 431 So. 2d 315 (Fla. Ct. App. 1983).

Opinion

431 So.2d 315 (1983)

Aracelio MOREJON and Ramon Casal, Appellants,
v.
The STATE of Florida, Appellee.

No. 82-159.

District Court of Appeal of Florida, Third District.

May 17, 1983.

George L. Cardet, Miami, Henry B. Rothblatt, Fort Lauderdale, for appellants.

Jim Smith, Atty. Gen., and William P. Thomas, Asst. Atty. Gen., for appellee.

Before HENDRY, HUBBART and JORGENSON, JJ.

*316 JORGENSON, Judge.

Morejon and Casal entered pleas of nolo contendere specifically reserving their right to appeal the denial of their motion to suppress. Thereafter the trial court adjudicated both appellants guilty of trafficking in cannabis in violation of section 893.135, Florida Statutes (1981), and entered a three-year minimum mandatory sentence with respect to each defendant. For the reasons which follow we reverse.

Acting on information from a United States Customs aircraft relayed to them through their dispatcher, deputies of the Monroe County Sheriff's Office went to a certain location in the Key Largo area. The officers were advised that a motorboat was docked behind a specific house and that the Customs aircraft would be circling overhead. On arrival the officers were advised again through their dispatcher that they were at the proper location. The property was located on a small peninsula with ingress and egress controlled by a single road. Access to the rear of the house, the backyard and the dock was protected by a chain link fence. Thereafter one of the deputies made his way down the chain link fence surrounding the property and crossed over onto the dock of the defendant. Upon approaching the boat, Deputy Leiter testified that he smelled a strong odor of marijuana emanating from the vessel. A closer inspection revealed a bale of material wrapped in burlap which the officer believed from his experience to be marijuana.

Deputy Leiter then observed a man on the second floor terrace of the home. That individual asked Deputy Leiter what Leiter was doing on the property. Deputy Leiter responded that he wanted to see the owner of the boat. Deputy Leiter then heard excited voices and the sound of running from within the house. He and another deputy ordered the occupants outside. Three men came out of the house. Deputy Cockrell then went inside the house and discovered another occupant asleep in the back room. He also observed additional bales of marijuana inside the house. A subsequent search of the boat revealed the presence of additional bales of marijuana.

It is undisputed that no one was aboard the boat at the time Deputy Leiter intruded upon the property in order to make his observations. The trial court based its denial of the motion to suppress on a theory of hot pursuit coupled with exigent circumstances.

Appellants argue (a) that the probable cause requirement of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), is not satisfied and, in the alternative, (b) that the circumstances in this case are not sufficiently exigent so as to permit a search without first obtaining a warrant, see Hornblower v. State, 351 So.2d 716 (Fla. 1977). Since we agree with the appellants that the requisite probable cause to support a search is not present on this record, we do not address the exigent circumstances issue.

The state argues that the Monroe County deputies were entitled to rely upon the communications received from the United States Customs officers as a basis for their action. See Whiteley v. Warden of Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). We would agree with that contention were there a sufficient record to support it. This record is devoid, however, of any evidence which would furnish a basis for the Customs officers' conclusion that either the vessel or the house contained contraband. No representative of United States Customs testified at the motion to suppress, nor did the Monroe County deputies indicate how the Customs officers gained their information.

Notwithstanding the reliability of the Customs officers, the "basis of knowledge" prong of Aguilar is not satisfied. See Terrell v. State, 429 So.2d 778 (Fla. 3d DCA 1983), and the cases cited therein.

Reversed.

HENDRY, Judge, dissenting.

Most respectfully, I must disagree with the majority. I would affirm the denial of *317 appellants' motions to suppress all evidence so obtained.

The evidence adduced at the suppression hearing indicates that appellants were arrested at their residence in Key Largo as a result of a search and seizure of a large quantity of marijuana without a warrant authorizing the search and seizure.

At approximately midday on Sunday, November 9, 1980, Monroe County Deputy Sheriff Leiter received a communication from his radio dispatcher that a United States Customs aircraft had a boat carrying marijuana and five persons under surveillance. Deputy Leiter was directed to proceed to a certain location where he would see the Customs plane which would guide him to the boat which had docked at a house on South Drive in Key Largo.

To insure positive identification of the vessel, the Customs plane remained in the area directly above the house until Deputy Leiter arrived at the scene. The deputy worked his way down a chain link fence on the adjacent property and onto the premises of appellants. As he approached the dock and the boat, he detected the strong odor of marijuana. When he got closer to the boat, he saw what he believed, based on previous experience, to be a bale of marijuana wrapped in burlap.

A man then appeared on the second floor terrace of the home and asked Leiter what he was doing. Leiter responded that he wanted to see the owner of the boat, and the man then turned and spoke to someone inside the house. When Leiter heard excited voices and running inside the house, he and another officer, Deputy Cockrell, who had arrived at the scene, ordered the occupants outside.

When only three men came out, Cockrell went inside and discovered another man asleep in a back room. He also observed two bales of marijuana in the house. Immediately thereafter the officers searched the boat and seized numerous bales of marijuana, the bulk of the amount seized.

Appellants' motions to suppress were denied by the trial court on the bases that Customs' hot pursuit of the vessel and its occupants, resulting from first-hand observation of the contraband, was transferred to the Monroe County Sheriff's Department and continued into the house, and that probable cause existed for the search coupled with exigent circumstances dispensing with the necessity for a search warrant. The order also noted the fact that the incident took place on a Sunday and that the nearest judge in the Keys was at least fifty miles away, and if he was unavailable all other judges were over 100 miles away. I agree with the trial court's conclusions and would affirm.

Warrantless searches and seizures are 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 limited number of well-defined exceptions. Katz v. United States, 389 U.S. 347

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431 So. 2d 315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morejon-v-state-fladistctapp-1983.