Zukor v. State

488 So. 2d 601, 11 Fla. L. Weekly 1075
CourtDistrict Court of Appeal of Florida
DecidedMay 6, 1986
Docket83-2469
StatusPublished
Cited by8 cases

This text of 488 So. 2d 601 (Zukor 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
Zukor v. State, 488 So. 2d 601, 11 Fla. L. Weekly 1075 (Fla. Ct. App. 1986).

Opinion

488 So.2d 601 (1986)

Alan ZUKOR, Appellant,
v.
The STATE of Florida, Appellee.

No. 83-2469.

District Court of Appeal of Florida, Third District.

May 6, 1986.

Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellee.

Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

The defendant, Alan Zukor, was convicted of offenses involving cannabis and cocaine upon a plea of nolo contendere expressly reserving his right to appeal the trial court's dispositive denial of his motion to suppress the seized contraband. He contends here, as he did below, that the search of his carry-on suitcase which resulted in the discovery and seizure of the contraband was unlawful as being incident to an unlawful arrest or detention.

The events leading to the seizure of the contraband from the defendant's suitcase *602 are substantially undisputed. Two plainclothes narcotics detectives saw the defendant arrive in a taxicab at the Amtrak train station in Miami. Zukor, carrying a small suitcase, entered the station waiting room and, although his train was not scheduled to depart until forty to fifty minutes later, went directly to the boarding gate. Unable to board, he returned to the station and took a seat.

The detectives, observing that the defendant appeared very anxious, questioned Zukor's cab driver, who said that he had picked up the defendant at the Quality Inn on LeJeune Road. The detectives then approached the defendant, engaged him in conversation, and asked him for identification and his train ticket. The defendant had no identification but produced a train ticket issued to one David Leech. When asked how he spelled his last name, the defendant replied, "L-e-a-c-h." He further informed the detectives that he was a salesman from Boston and that he had stayed the past week at the Quality Inn near the airport.

At this point the detectives identified themselves as narcotics officers and, as is their usual procedure, expressed their concern about the problem of narcotics moving through the train station. At the mention of narcotics, the defendant began to perspire despite the fact that the waiting room was air conditioned. After a brief discussion concerning whether the defendant would consent to having a trained dog sniff his suitcase,[1] the detectives advised the defendant that they were going to have a dog sniff the suitcase, and the dog, Ringo, apparently near at hand, was brought forward to the suitcase at the defendant's seat. Although Ringo did not alert on the suitcase, it is undisputed that the detectives believed that the dog was simply not in the mood to work at that time and that his failure to alert did not dissipate their suspicions. The detectives, however, discontinued all contact with the defendant and left him alone sitting in the station while they continued their investigation.

Immediately thereafter, the detectives contacted the State Attorney's office for advice as to the propriety of proceeding. Being told that they should further investigate, they then called the Quality Inn (where the defendant had purportedly stayed the preceding week and from which he was picked up by the taxicab) and learned that the motel's records showed that no one by the name of David Leach (phonetic) had been registered there during the time in question. Armed with this new information, the detectives decided to seek out the defendant and his bag for a second dog sniff.

By this time, the defendant, having heard the boarding announcement for his train, was standing in the boarding line. The detectives removed him from the line and placed him in the train master's room some thirty to forty feet away. The defendant's bag was removed from him, taken to the baggage room, and placed in a lineup of ten bags for Ringo to re-sniff. Ringo alerted on the defendant's bag, the defendant was arrested, and a search of the bag pursuant to a warrant then obtained revealed the contraband. The arrest of the defendant was completed before the scheduled departure of the train; the defendant and his luggage were separated for about five minutes; the total elapsed time from the first encounter between the detectives and the defendant until the defendant's arrest was less than thirty minutes; and the total time of actual contact between the detectives and the defendant was no more than ten minutes.

Clearly, the facts of this case do not support a finding that Zukor was stopped within the meaning of the Fourth Amendment during the first encounter between Zukor and the officers. The contact took *603 place in a public area; the officers wore no uniforms and displayed no weapons; they approached Zukor rather than summoned him. They requested rather than demanded his identification and ticket, promptly returned his ticket, asked a few questions, and quickly carried out a usually effective and non-intrusive, but in this case abortive, investigatory technique. There is no clear indication that a reasonable person under these circumstances would have reason to believe that he was not free to end the conversation. See United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 508-09 (1980).

The defendant further admits in his brief, because "the first dog-sniff procedure yielded nothing in the way of fruits or additional articulable facts supporting a founded suspicion, the case turns on the justifiability of the officers' [later] ... conduct in removing the defendant from the boarding line shortly before the train departure, placing him in a train master's room thirty to forty feet away and detaining him therein, while the suitcase thereby removed from him was subjected to a second dog-sniff in a separate location, the baggage room."

The State concedes that there was no probable cause to arrest the defendant when he was removed from the boarding line and his suitcase taken to the baggage area. It argues, however, that the removal of the defendant from the line to the train master's room for the several minutes needed for the second dog sniff of the bag was a Terry- type detention,[2] that is, one which, because limited, may be based on less than probable cause, that is, on reasonable suspicion of criminal activities supported by articulable facts. The State further argues, and we agree, that an articulable reasonable suspicion was shown.

The record shows that the detention of Zukor and his bag, see United States v. Place, 462 U.S. 696, 708-09, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110, 122 (1983) ("when the police seize luggage from the suspect's custody, we think the limitations applicable to investigative detention of the person should define the permissible scope of an investigative detention of the person's luggage on less than probable cause"), was limited as Terry requires. While the Supreme Court of the United States has declined on more than one occasion to place a brightline time limit on investigative detentions of persons or luggage,[3]United States v. Sharpe, 470 U.S. ___, ___, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605, 615 (1985), it is clear that the detention should "last no longer than is necessary to effectuate the purpose of the stop." Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct.

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Bluebook (online)
488 So. 2d 601, 11 Fla. L. Weekly 1075, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zukor-v-state-fladistctapp-1986.