Opinion
Nos. AG-141, AG-142.
September 14, 1982.
Appeal from the Circuit Court for Franklin County, Ben C. Willis, J.
Larry Byrd, Sarasota, for appellants.
Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., for appellee.
Appellants were charged by information with possessing and importing methaqualone. They entered pleas of not guilty and subsequently filed motions to suppress the physical evidence taken from the boat they were using. After a hearing, the motion was denied. Appellants then changed their pleas to no contest on the possession charge, and the state nolle prossed the importation charge. Appellants properly preserved their right to appeal the convictions. We affirm.
On April 13, 1980, Marine Patrol Officers Cook and Whalen were in their office when they observed an 18-foot motor boat coming into the Carrabelle River at about four o'clock on a Sunday afternoon. The weather was bad, and the water was rough. Although the officers did not at that time see anything unusual about the boat, they decided to look further. By the time they got to the landing, the boat was on its trailer and had been pulled up away from the boat ramp, although it was still near the ramp. Officer Cook asked appellants if they would like a safety inspection and was told by Michael Sherman that they did not have the boat registration certificate. Cook then said that he could conduct the inspection without a registration and asked Michael if he had any other identification. Michael did not respond, but produced his driver's license. Cook testified that he assumed from Michael's silence that he consented to the inspection. Officer Cook then boarded the vessel to check both for the registration certificate and to determine whether the equipment on board complied with the safety requirements of a boat its size. While doing so, he pulled back a canvas tarp that was covering the stern where he found a man lying on the seat beneath the canvas with a rifle in his hands. Next to the discovered passenger, he also saw some boxes and plastic garbage bags, and inside one of the bags he was able to see some clear, smaller plastic bags containing pills. At this point appellants and the third person were placed under arrest.
In denying the motion to suppress, the court stated:
A full consideration of the totality of the circumstances yields a firm conclusion that effective consent was given to the search of the small boat for the purpose of a safety inspection and that it was pursuant to such search that evidence of unlawful trafficking in controlled substances was revealed.
Although we observe that the evidence before the court was hardly substantial on the question of whether consent was given by Michael Sherman to Officer Cook to board the vessel, cf. Bailey v. State, 319 So.2d 22, 27 (Fla. 1975), requiring that evidence of consent be clear and convincing, this is an issue we need not address because we find the evidence was supportive of the lower court's ultimate determination that the search was legal. The officers unquestionably were authorized by Section 371.58, Florida Statutes (1979), to board the motor boat once they had probable cause to believe that a violation of Chapter 371 had occurred. We consider that the marine patrol officers clearly possessed such belief since neither of the two appellants were able to produce the certificate of registration generally required of all motorboats using the waters of this state, see Sections 371.041 and 371.051(4), Florida Statutes (1979), or give a reason why the boat was exempt from the numbering provisions of Chapter 371. See Section 371.131.
Section 371.58, Florida Statutes (1979) (now Section 327.56, Florida Statutes (1981)), provides:
No officer shall board any vessel to make a safety inspection if the owner or operator is not aboard. When the owner or operator is aboard an officer may board a vessel with consent or when he has probable cause or knowledge to believe that a violation of a provision of this part has occurred or is occurring.
We find nothing in State v. Casal, 410 So.2d 152 (Fla. 1982), contrary to our disposition of this case. Although Casal reversed a search on the ground that it found the officers did not have evidence sufficient to give them probable cause to believe contraband was on board the vessel, the facts in Casal are clearly distinguishable from those here. In Casal, after the officers had lawfully boarded the vessel pursuant to consent from its operator, they conducted a search — not "for the limited purpose of checking fishing permits, registration certificates and safety equipment," Casal, at 155, but expanded the search for the purpose of determining whether the boat carried marijuana, which Casal decided was conducted with neither consent nor probable cause. Although, as stated, the officers in Casal were given consent to board, Casal implicitly recognizes that even in the absence of consent, probable cause to board would exist if the operator was unable to display a certificate of registration: "[T]he state's interest in random stopping and brief detention of motor boats for the limited purpose of checking fishing permits, registration certificates and safety equipment outweighs a person's interest in being completely free from such limited intrusion." 410 So.2d at 155. Casal therefore indicates that an inspection of a boat, limited to the purposes specified in Chapter 371, is not an unreasonable search and, therefore, does not contravene the provisions of the Fourth Amendment.
We consider that Section 371.58, Florida Statutes (1979), is a legislative recognition of a lesser standard of probable cause to search than that required in criminal cases. The United States Supreme Court has long countenanced varied standards of probable cause by weighing the need for the intrusion against the scope and goals of the intrusion. See Camara v. Municipal Court, 387 U.S. 523, 525, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). As noted in Marshall v. Barlow's, Inc., 437 U.S. 307, 308, 320, 98 S.Ct. 1816, 1818, 1824, 56 L.Ed.2d 305 (1978): "Probable cause in the criminal law sense is not required" in instances of an intrusion by a governmental employee for reasons other than a traditional police search for contraband or evidence of a crime. Barlow's, Inc. involved an inspector working for the U.S. Occupational Safety and Health Administration (OSHA) who sought to inspect an electrical and plumbing installation business for compliance with certain safety requirements. The Court observed that for the purposes of an administrative search, probable cause "may be based not only on specific evidence of an existing violation but also on a showing that `reasonable legislative or administrative standards . . . are satisfied. . . .'" 436 U.S. at 320, 98 S.Ct. at 1824 (footnote omitted). Thus, if such standards are clearly defined, warrantless searches may be sustained in furtherance of a regulatory scheme, and the owner of property so regulated "cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes." Donovan v. Dewey, 452 U.S. 594, 601, 101 S.Ct. 2534, 2539, 69 L.Ed.2d 262, 270 (1981).
The theory for permitting a lessened standard of probable cause for the purposes specified under Chapter 371 is somewhat analogous to border searches. Stops and searches conducted in a maritime locale are viewed from a special perspective, United States v. Williams, 617 F.2d 1063 (5th Cir. 1980), and those who venture on the seas are presumed to do so cognizant of the myriad number of regulations designed to promote their safe passage. United States v. Whitmire, 595 F.2d 1303 (5th Cir. 1979), cert. denied, 448 U.S. 906, 100 S.Ct. 3048, 65 L.Ed.2d 1136 (1980). Customs officials have been granted broad statutory authority to board vessels and conduct inspections. See United States v. Freeman, 579 F.2d 942 (5th Cir. 1978), and 19 U.S.C. § 1581 (a). As a result, one's reasonable expectation of privacy is often less aboard a vessel than on land. United States v. Whitmire, 595 F.2d at 1313; United States v. Ortega, 644 F.2d 512, 514 (5th Cir. 1981).
Once having lawfully boarded the boat, and while conducting an inspection for the limited purposes authorized under Chapter 371, Florida Statutes (1979), Officer Cook saw in plain view methaqualone tablets, which he was then empowered to seize. Plain view is the type of situation, described in Ensor v. State, 403 So.2d 349, 352 (Fla. 1981), in which an officer is legally inside, by warrant or warrant exception, a constitutionally protected area and inadvertently observes contraband within the area. The doctrine requires the existence of two discrete factors: (1) the officer's presence within the constitutionally protected area must have come about through a prior valid intrusion, and (2) the officer's observations must come about through inadvertence rather than deliberation.
Both factors are satisfied in the instant case. Officer Cook was legally on board the vessel because the operator had failed to produce the required registration certificate; he was legally conducting a search of the vessel, restricted in scope to the purposes delineated in Chapter 371, and while doing so, inadvertently observed the contraband — unlike the situation that occurred in Casal. Compare Albo v. State, 379 So.2d 648 (Fla. 1980).
AFFIRMED.
SHIVERS, J., concurs.
WENTWORTH, J., dissents.
I respectfully disagree with the conclusion that the erroneous finding of consent can be disregarded. The record clearly negates the assumption in the majority opinion that Officer Cook boarded the vessel "because the operator had failed to produce the required registration certificate . . . and . . . inadvertently observed the contraband." To the question, "Did he have [registration] numbers on his boat?" the officer answered, "Yes, sir," and stated further that there were no violations apparent before the boarding, that he told appellants the certificate of registration was not necessary, that he had "no authority to make any of these inspections unless there is consent," and with respect to such inspection of a boat on its trailer "the only way you could do this was to get their consent."
In addition to my disagreement on the foregoing factual premises, the opinion in Casal, infra, approves only "random stopping and brief detention . . . for . . . checking registration certificates." That purpose, in any event, did not exist in this case, which does not involve either an inadvertent observation or a prior valid intrusion. The officer here assumed consent from silence, boarded the boat only because of that erroneously assumed consent and not because appellants were not "able to produce the certificate of registration" which, as noted above, he told them was not required. He commenced his search by removing a tarpaulin before any contraband was observed, which the State does not in this case claim to be inadvertent.
Section 371.58, Florida Statutes (1979), permits an officer to board a vessel with consent of the owner or operator or when he has probable cause or knowledge to believe that a violation has taken place. At no time during the proceedings below or in this court has the State contended that the search in this case was conducted pursuant to a probable cause determination. The State has relied solely on its contention, which was accepted by the trial judge, that the search was pursuant to a § 371.58 safety inspection to which appellants consented. The State contends such inspections are administrative in nature and therefore involve a lesser standard for proving consent than that in Fourth Amendment search and seizure cases. No authority is cited for this assertion, and I would conclude otherwise.
Now § 327.56, Florida Statutes (1981).
In State v. Casal, 410 So.2d 152 (Fla. 1982), the Supreme Court considered the legality of a non-consensual search after the operators of a boat had in fact consented to the initial boarding by Marine Patrol officers. Significantly, the court noted that § 371.58 did not permit even the initial boarding without consent or probable cause. The court then went on to hold that although the initial boarding was consented to, there was no consent to the subsequent search. Therefore, the officers were precluded from further search unless there was probable cause to believe that a crime was being, or was about to be, committed.
While the opinion is not specific on the subject, it does not differentiate searches under § 371.58 from constitutional consent standards. If a Marine Patrol officer is not permitted to search a vessel under the guise of a § 371.58 inspection after being permitted to board, it follows that consent under that section should also invoke constitutional standards.
For the purposes of this opinion, I would assume without deciding that the actions of Officer Cook in climbing onto the boat and pulling back the canvas tarp could have been considered proper procedure in performing a § 371.58 safety inspection.
The opinion in Casal provided another helpful guide for determining the standard for finding consent under § 371.58 by noting that marine safety inspections are akin to agricultural inspections and stops on the highways. Under § 570.15, Florida Statutes (1979), Department of Agriculture inspectors may obtain a search warrant when access to certain structures and vehicles is refused. Clearly under that section the State has the burden to establish that consent to the search of a vehicle was free and voluntary. Villari v. State, 372 So.2d 522 (Fla. 1st DCA 1979). The consent may not be founded upon a mere submission to apparent authority of an officer, nor will silent acquiescence or cooperation with the officer constitute consent. Id. Thus, the standard for determining consent to an agricultural inspection would appear to be the same constitutional standard applied in other warrantless search situations. See King v. State, 371 So.2d 120 (Fla. 1st DCA 1978); Ingram v. State, 364 So.2d 821 (Fla. 4th DCA 1978).
Section 570.15 was amended in 1980. § 570.15, Florida Statutes (Supp. 1980).
Finally, the language of the statute itself provides a guide in determining the standard which should be applied. As already mentioned, there are two situations in which an officer may board a vessel for the purpose of conducting a safety inspection: (1) when there is consent or (2) when there is probable cause to suspect a violation. The term probable cause is itself a constitutional standard for determining when a person's private property rights may be invaded. By using that term in conjunction with the word consent, I would assume that the legislature intended to apply constitutional standards for determining a valid consent.
The trial court found, and the State does not contest, that appellants had sufficient possessory control to have a reasonable expectation of privacy in the boat. In fact the trial court correctly found that the burden was on the State to prove that a valid consent to the search was given. As previously noted, however, the court found that under the totality of the circumstances the consent was free and voluntary. From my study of the record, when all possible inferences are considered in a light most favorable to the State, the inescapable conclusion is that consent to the search was not proven.
Clearly there was no actual, verbal consent. The appellants cooperated with the officers and may be deemed to have acquiesced to their apparent authority, but as previously noted this has not been considered equivalent to consent. Further, a finding of consent could not have been based on the subjective opinion of Officer Cook that Michael consented to the search by remaining silent. Bailey v. State, 319 So.2d 22 (Fla. 1975). Although the opinion of the trial judge contains a lengthy statement of the facts, it does not indicate which facts contributed to the circumstances upon which he based his findings of consent. In my view, the record requires a conclusion that the State failed to prove that a valid consent to the search was given.
The decision of the trial court denying appellants' motion to suppress should therefore be reversed.