State v. Frost

374 So. 2d 593
CourtDistrict Court of Appeal of Florida
DecidedAugust 14, 1979
Docket78-843
StatusPublished
Cited by31 cases

This text of 374 So. 2d 593 (State v. Frost) 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
State v. Frost, 374 So. 2d 593 (Fla. Ct. App. 1979).

Opinion

374 So.2d 593 (1979)

The STATE of Florida, Appellant,
v.
Christopher R. FROST, Appellee.

No. 78-843.

District Court of Appeal of Florida, Third District.

August 14, 1979.

*595 Janet Reno, State's Atty., and Ira N. Loewy, Asst. State's Atty., for appellant.

Goodman, Dunberg & Hochman and Richard G. Dunberg, Miami, for appellee.

Before HENDRY, KEHOE and SCHWARTZ, JJ.

SCHWARTZ, Judge.

The state appeals from the suppression of the marijuana with the possession of which the defendant was charged. The primary issue is whether the trial court properly held that Frost had been unlawfully "seized" at the Miami International Airport before he purportedly consented to the search which led to the discovery of the contraband, or whether the police officers involved were at the time merely engaged in an approach to, or voluntary encounter with the defendant which did not involve his Fourth Amendment rights. We find that the ruling below was correct and affirm the order under review.

The incident in question occurred on November 28, 1977 while officers Johnson and Magdelena of the Public Safety Department's organized crime narcotics section were on duty at the airport. At about 4:15 P.M., they observed a man, who turned out to be Frost, rush up to the National Airlines ticket counter. Because he appeared to be nervous and in a hurry, and generally exhibited characteristics the officers considered to be indicative of a possible drug courier, they approached Frost as he left the counter. What followed was described by officer Johnson, who was the sole witness at the hearing on the motion to suppress:

A Yes, sir. After he left the ticket counter, my partner and I walked up to him and identified ourselves as narcotics investigators with the Sheriff's Office and asked him if he had time to talk to us, if he had a minute and when his flight was leaving.
And I again noticed that he became extremely jumpy and unusually jumpy and said that he had an hour before his flight yet, and said yes, he did have time to talk to us.
Q And what occurred then after you approached him?
A We asked him if he would show us some identification and if we could look at his airplane ticket. He produced a —
Q Did he comply?
A Yes, sir. He produced a California driver's license and a National — well, it was a Western Airlines ticket that had been changed to National Airlines.
Q Did you notice anything unusual about the names on both those items as presented to you?
A His driver's license was in the name of a Mr. Art Thompson — his airline ticket was in the name of Mr. Art Thompson, and his driver's license was in the name of Christopher Robert Frost.
Another item that strengthened our position is travel under an alias is also consistent with our pattern.
Q What did you do after receiving that information?
A We asked Mr. Frost why he was traveling under an alias and why he had come to Miami and so forth. He said he was visiting friends, that someone had made a reservation for him under *596 another name, and that was why the discrepancy in names.[1]
Q Did he at any time refuse to speak to you?
A No, he didn't.
Q Did he at any time attempt to walk away from you?
A No, sir.
Q Was he under arrest at that particular time?
A No, sir, he wasn't. We were out in the middle of the concourse in front of National Airlines in a public area.
Q What then occurred, if anything?
A We asked Mr. Frost if he would allow us to look in his briefcase, and he voluntarily consented for us to look into his briefcase.
Q What exactly did you ask him, to the best of your recollection?
A Well, I use the same phrase after having talked to a number of legal counsel on the point, because we're concerned. I said, `Mr. Frost, may I have permission to look in your briefcase?'
Q What was his exact response, to the best of your recollection?
A It was in the affirmative, and he himself opened the briefcase.

Inside the briefcase the officers found a small, misdemeanor, amount of marijuana and thereupon placed Frost under arrest for its possession. After that occurred, Frost gave another consent for the search of three bags which he had checked at the National counter. That luggage contained 88 pounds of cannabis which formed the basis of the felony charge below. The trial judge granted the defendant's motion to suppress all the marijuana in question. We affirm that order.

We consider that the crucial, in fact, the only question to be decided in this case is a very narrow one indeed; that is, the propriety of the trial court's implicit conclusion that Frost's liberty was restrained when he consented to the officers' search of his briefcase. Our discussion, then, perhaps best begins with an analysis of the reasons why this is the issue. Before the discovery of the cannabis in the briefcase, it is conceded by the state that the officers had neither probable cause to arrest Frost nor the "founded suspicion"[2] that he was involved in criminal activity which is necessary to make a Terry[3] investigative stop.[4] There was therefore no constitutional basis for any restriction of Frost's liberty as of that time. See Brown v. Texas, ___ U.S. ___, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Dunaway v. New York, ___ U.S. ___, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). It is well settled that a "consent" given after a constitutionally impermissible restraint is presumptively tainted by that restraint and hence invalid; Pomerantz v. State, 372 So.2d 104 (Fla. 3d DCA 1979); Taylor v. State, 355 So.2d 180, 184 (Fla. 3d DCA 1978), cert. denied, 361 So.2d 835 (Fla. 1978); United States v. Ballard, 573 F.2d 913 (5th Cir.1978); and there is admittedly nothing in this record to overcome that presumption. Compare Husted v. State, 370 So.2d 853 (Fla. 3d DCA 1979). The arrest which was based upon the discovery of the marijuana in the briefcase — as well as the subsequent discovery of the larger quantity of cannabis which followed that *597 arrest[5] — may therefore be sustained only if the permission which was the basis for the search of the briefcase was itself valid; that consent may, in turn, be upheld only if Frost were not restrained by the officers when he gave it.

The state vigorously argues that the fact there was no lawful basis for "stopping" Frost is entirely immaterial because his freedom of movement was not, in legal effect, restricted by the officers in any way. It contends that, until he was arrested for the cannabis in the briefcase, Frost was entirely free simply to walk away from the officers and to decline either to speak with them or to accede to their requests. Thus, it is said, Frost's actions were the result only of his own voluntary decisions and did not at all involve the strictures of the Fourth Amendment against unreasonable searches and "seizures" by agents of the government. The legal basis of the state's contentions is found in the line of cases, exemplified by

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Bluebook (online)
374 So. 2d 593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-frost-fladistctapp-1979.