State v. Johnson

516 So. 2d 1015, 1987 WL 2020
District Court of Appeal of Florida·Decided December 3, 1987·No. 86-1537·Published·Cited by 9 cases

Opinion

516 So.2d 1015 (1987)

STATE of Florida, Appellant,
v.
Paul Clive JOHNSON, Appellee.

No. 86-1537.

District Court of Appeal of Florida, Fifth District.

December 3, 1987.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Ellen D. Phillips, Asst. Atty. Gen., Daytona Beach, for appellant.

Lane S. Abraham, of Carl H. Lida, P.A., Miami, for appellee.

*1016 PER CURIAM.

Three hundred twenty-six pounds of cannabis were seized following a stop of defendant as he was driving north on Interstate 95 in Volusia County. The trooper stopped defendant solely because defendant fit the drug courier profile developed by the Florida Highway Patrol and the trooper's own profile. After the stop, the trooper observed facts giving rise to a reasonable suspicion that the defendant was a drug courier. The trial court granted defendant's motion to suppress the evidence seized after the stop on the sole ground that the initial stop was illegal. The State appeals. Because we are bound by the prior decision of this court where the drug courier profile developed by the same trooper was involved, in In re: Forfeiture of $6,003.00, 505 So.2d 668 (Fla. 5th DCA 1987), we must affirm. However, there are persuasive arguments in support of the validity of drug courier profiles as a basis for an investigatory traffic stop, which we believe warrant further discussion and review by the Supreme Court of Florida.

Drug trafficking has reached epidemic proportions in Florida.[1] The State submitted evidence showing that literally tons of narcotics pass through the State of Florida each and every day. Interstate 95 is a major pipeline of narcotics through the State. Recognizing the seriousness of the problem of drug trafficking, the United States Supreme Court has approved the use of profile characteristics in identifying drug couriers at airports. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983).[2]But see Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980); United States v. Smith, 799 F.2d 704 (11th Cir.1986). We also note that other Florida district courts have been confronted by this question and have reached varying conclusions on the matter. Many of the cases discussing the drug courier profile have involved airport stops. Under these circumstances, the courts have often found that the initial contact between the law enforcement officer and suspected drug courier was only a mere encounter, and not a seizure or even a Terry (v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)) type stop. Thus, the question of whether the profile is sufficiently reliable to justify a Terry type stop has not been reached in these cases. See State v. Grant, 392 So.2d 1362 (Fla. 4th DCA 1981) (pre-Royer); Nease v. State, 442 So.2d 325 (Fla. 4th DCA 1983) (post-Royer). See also State v. Bankston, 435 So.2d 269 (Fla. 3d DCA 1983) (court declined to reexamine its dictum in its Royer decision that a "conformance, without more [e.o.] to one or more elements of the profile does not amount to articulable suspicion"). In those airport stop cases that have reached the issue, some courts have concluded that the profile characteristics do not establish reasonable suspicion, Martinez v. State, 414 So.2d 301 (Fla. 4th DCA 1982) (pre-Royer); Horvitz v. State, 433 So.2d 545 (Fla. 4th DCA 1983) (post-Royer). Others have given weight to the drug courier profile as a basis for investigatory stops. See Sands v. State, 414 So.2d 611, 616 (Fla. 3d DCA 1982) (drug courier profile was "suspicious behavior which warranted further scrutiny"); Carpenter v. State, 403 So.2d 1047 (Fla. 4th DCA 1981) (drug courier profile characteristics "could constitute the sort of founded suspicions necessary to justify the temporary detention of an airport passenger is some instances"); *1017 State v. Mitchell, 377 So.2d 1006 (Fla. 3d DCA 1979) (drug courier profile and other facts known by officer justified investigatory stop). We also note that in two cases decided by Florida District Courts of Appeal involving traffic stops, the drug courier profile has been found insufficient to provide reasonable suspicion. See State v. Anderson, 479 So.2d 816 (Fla. 4th DCA 1985) (drug courier profile characteristics insufficient to provide founded suspicion to justify investigatory detention of suspected drug courier); Kayes v. State, 409 So.2d 1075 (Fla. 2d DCA 1981) (drug courier profile does not in and of itself create a well founded suspicion of criminal activity). However, these cases were both decided pre-Royer. At least one state Supreme court has upheld the detention of a motorist suspected of drug activity based on profile factors.[3] As of yet, the Florida supreme court has not directly addressed this issue.[4]

On June 4, 1985, Trooper Vogel of the Florida Highway Patrol was assigned to a special detail working with the Federal Drug Enforcement Administration. At approximately 4:15 A.M., the trooper observed a large luxury car traveling northbound on Interstate 95. The vehicle displayed Maryland license tags. The trooper commenced following the vehicle and clocked it at a speed of exactly 55 MPH, which was the speed limit in this area of the interstate. The trooper observed the driver glancing continuously into his rearview mirror. The trooper then signaled his lights and effectuated an "investigatory stop" of the vehicle. The trooper testified that the driver of the vehicle had not committed a traffic violation, but that he made the stop because he was suspicious of the driver's involvement in drug trafficking.

After stopping the driver, the trooper solicited from the defendant a New Jersey driver's license and a rental agreement for the vehicle. The trooper observed that the driver was wearing casual clothes. At this point, the trooper requested the defendant to exit the vehicle and a closer examination of the rental agreement indicated that it was issued to someone other than the defendant. The defendant at this time appeared to the trooper to be extremely nervous. The trooper noticed that the trunk lid of the vehicle appeared to be bulging upwards. The trooper was able to smell a strong odor of fabric softener emanating from the trunk. The trooper explained that fabric softener was often used to conceal the odor of marijuana. The trooper peered into the interior of the automobile and observed a spare tire and jack located on the rear floor of the car. At this point, the trooper asked the defendant if he could search the vehicle. The defendant refused. The trooper then summoned a narcotics dog. Fifteen to thirty minutes later, the dog arrived at the scene and alerted to the trunk area. The trunk was then opened and four large bales of marijuana weighing over 300 pounds were discovered within.

Trooper Vogel testified that as a 13 1/2 year veteran of the Florida Highway Patrol, he had gained extensive experience in identifying and arresting persons involved in transporting illegal drugs. Between March 5, 1984 and April 18, 1985, Vogel made arrests on 30 cases involving drug couriers. These were cases in which the vehicles were validly stopped for reasons

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