State v. Howard

411 So. 2d 372
CourtDistrict Court of Appeal of Florida
DecidedMarch 31, 1982
Docket81-255
StatusPublished
Cited by4 cases

This text of 411 So. 2d 372 (State v. Howard) 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. Howard, 411 So. 2d 372 (Fla. Ct. App. 1982).

Opinion

411 So.2d 372 (1982)

STATE of Florida, Appellant,
v.
Maurice L. HOWARD, Allen Ponder and John W. French, Appellees.

No. 81-255.

District Court of Appeal of Florida, Fourth District.

March 31, 1982.
Rehearing Denied June 1, 1982.

*373 Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.

Harvey Watnick and Richard Hersch, Coconut Grove, for appellee-Howard.

Philip G. Butler, Jr., West Palm Beach, for appellee-Ponder.

David Roth, West Palm Beach, for appellee-French.

ON PETITION FOR REHEARING

LETTS, Chief Judge.

The petition for rehearing is granted and our prior opinion issued on February 10, 1982, is hereby withdrawn. It has been correctly pointed out to us that our previous decision dealt only with the arrest powers of wildlife officers and failed to address the search and seizure authority of those same officers. Because of this omission, the court finds it necessary to reconsider its earlier opinion.

The State is appealing the grant of a motion to suppress because the stop, arrest and search, which turned up in excess of one hundred pounds of cannabis, was carried out by wildlife officers. We reverse.

The facts are that a wildlife officer on duty at 9:30 p.m. observed two trucks behaving suspiciously and believing some game violation was involved he questioned the occupants as to what they were about. He received at least one answer which he knew from his own observation to be untrue, nonetheless he pretended to leave the area and secreted himself nearby to await developments. Thereupon the two trucks took up station facing each other on the roadway about a mile apart with their headlights on. Shortly thereafter, a low flying plane with no lights appeared and landed on the road between them. The officer could not see the activities at ground level but heard a great many noises suggesting loading and unloading by several participants. At this point the officer, believing a major drug deal was in progress, called for back up units and the trucks, as they were leaving, were stopped, the occupants arrested and the vehicles searched.

There is more than one defendant involved and their respective counsel make different points on appeal. The defendant Howard argues that wildlife officers are not constitutionally empowered to make any arrests for the violation of any of the laws of the state other than those relating to game, fish and wildlife. The defendants Ponder and French argue that the question presented is not so much whether wildlife officers can effect an arrest, but whether they are duly authorized to conduct a search of a vehicle, looking for anything other than fish, game and wildlife violations. We will treat these two issues in order.

Commencing with the power to arrest, we refer first to Section 372.07(1), Florida Statutes (1979) which in part provides:

372.07 Police powers of commission and its agents. —
(1) The Game and Fresh Water Fish Commission, the director and his assistants designated by him, and each wildlife officer are constituted peace officers with the power to make arrests for violations of the laws of this state when committed in the presence of the officer or when committed on lands under the supervision and management of the commission.

*374 To us this quoted subsection is perfectly clear and means exactly what it says, i.e. each wildlife officer has the power to make arrests for violations of the laws of this State when committed in his presence or when committed on lands under his supervision.

The defense argues that to take the above quoted subsection (1) by itself distorts the true picture and that said subsection must be considered in pari materia with the ensuing subsection (2)[1] which grants wildlife officers the power to enforce "all laws relating to game, nongame birds, fresh water fish etc. etc... .," and therefore restricts them to wildlife jurisdiction. However, that argument completely ignores the history of the present statute. The former statute similarly entitled, "Police Powers of Commission and its Agents" did in fact limit the power and authority of wildlife officers to the enforcement of wildlife laws. See Section 372.07, Florida Statutes (1969).[2] However, the current version has added subsection (1) and we are convinced the purpose of that addition was to *375 expand the power and authority of wildlife officers to encompass all violations of the law committed in their presence or on lands under their supervision.

The defense also argues that even if the statute has in fact expanded the authority of wildlife officers, it is in violation of Article 4, Section 9 of the Florida Constitution[3] which created the Game and Fresh Water Commission and limited its regulatory and executive powers to wildlife and aquatic life. There is merit to this argument, but we note that the constitutional provision also permits the legislature to enact laws in aid of the Commission and not inconsistent with its powers.

We see no "inconsistency" in the expansion, for certainly it is not in derogation of the Commission's normal function. Whether the expansion is "in aid" of the Commission is a more difficult question. However, we answer it in the affirmative. The preservation of wild and fish life depends upon the maintenance of the sylvan habitat, peace and solitude necessary to support the ecology of the lands under the Commission's supervision. There can be no doubt that the preservation of Florida's most precious Everglades, and its animal, aquatic and plant life, is not assisted by the presence of an ever increasing swarm of criminals, in airplanes, motor vehicles and boats going about their dirty business and disturbing, for profit, the very peace and solitude which the Commission seeks to uphold.

Turning now to the question of the search, we begin by commenting that, based on the facts, we have no difficulty in deciding that the officer had probable cause to believe that a drug deal was taking place and that exigent circumstances existed for a warrantless search. The trial judge was of the same opinion. The difficulty here is whether wildlife officers are duly authorized to undertake a warrantless search under the dictates of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) as codified in Section 933.19(1), Florida Statutes (1981). The defendants argue that the officers are specifically not authorized to search for drugs by reason of Section 372.76, Florida Statutes (1981) which provides as follows:

372.76 Search and seizure authorized and limited. — The Game and Fresh Water Fish Commission and its conservation officers shall have authority when they have reasonable and probable cause to believe that the provisions of this chapter have been violated, to board any vessel, boat or vehicle or to enter any fishhouse or warehouse or other building, exclusive of residence, in which game, hides, fur-bearing animals, fish or fish nets are kept and to search for and seize any such game, hides, fur-bearing animals, fish or fish nets had or held therein in violation of law.

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Bluebook (online)
411 So. 2d 372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-howard-fladistctapp-1982.