IN THE SUPREME COURT OF FLORIDA CASE NO. SC L.T. CASE NO. 3D MATTHEW SANGUINE, Petitioner, -vs- THE STATE OF FLORIDA, Respondent.

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC L.T. CASE NO. 3D MATTHEW SANGUINE, Petitioner, -vs- THE STATE OF FLORIDA, Respondent. ON PETITION FOR DISCRETIONARY REVIEW BRIEF OF RESPONDENT ON JURISDICTION CHARLES J. CRIST, JR. Attorney General RICHARD L. POLIN Criminal Appeals Bureau Chief, Miami Florida Bar Number LUCRETIA A. PITTS Assistant Attorney General Florida Bar Number Office of the Attorney General Department of Legal Affairs 444 Brickell Avenue, Suite 950 Miami, Florida (305) (o) (305) (f)

2 TABLE OF CONTENTS TABLE OF CITATIONS... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 4 THE DECISION OF THE LOWER COURT DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE DECISION OF THE SUPREME COURT OR WITH ANY OF THE DISTRICT COURT OF APPEALS DECISIONS... 4 CONCLUSION... 9 CERTIFICATE OF SERVICE... 9 CERTIFICATION OF FONT AND TYPE SIZE i

3 TABLE OF CITATIONS CASES PAGE Dept of Health and Rehab Srvc v. Nat l Adoption Counseling Srvc, Inc., 498 So. 2d 888 (Fla. 1986)... 4 Phoenix v. State, 455 So. 2d 1024 (Fla. 1984)...3, 5, 6 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 4 Sanguine v. State, 2005 WL (Fla. 3d DCA 2005)... 1, 2 State v. Sills, 852 So. 2d 390 (Fla. 4th DCA 2003)...2, 3, 5, 7 ii

4 STATEMENT OF THE CASE AND FACTS The facts of this case are set forth in Sanguine v. State, 2005 WL (Fla. 3d DCA 2005) are as follows: Officers from the Fort Lauderdale Police Department and the Federal Drug Enforcement Administration (DEA) participated in a joint narcotics investigation. They obtained information that the defendant had placed illegal drugs in a warehouse in northern Miami-Dade County. This was within the territorial jurisdiction of the DEA agents but outside the territorial jurisdiction of the Fort Lauderdale officers. Id. DEA agents detained the defendant at the warehouse. Fort Lauderdale Detective Smith and a DEA agent, Agent Mihock, came to that location. The Fort Lauderdale officer and DEA Agent Mihock met with the defendant. The Fort Lauderdale officer asked the defendant to consent to a search of his warehouse. When he agreed, the Fort Lauderdale officer asked the defendant to sign the DEA consent-tosearch form. The defendant signed the form. A search followed, in which a large quantity of marijuana was seized. Matthew Sanguine entered into a plea bargain wherein he pled nolo contendere to the charge of trafficking in cannabis, reserving his right to appeal the trial court s denial of his motion to suppress evidence. The question is whether the consent to search by defendant-appellant Sanguine was validly obtained. Id. The Third District Court of Appeal held that it was validly obtained. Id. The Court reasoned that [t]he DEA agents were the ones who had detained the defendant. Although the Fort Lauderdale officer was outside of his territorial jurisdiction, he was in the presence of, and cooperating with, DEA Agent Mihock. The DEA 1

5 agents were within their territorial jurisdiction and were present and active. Id. (citing to State v. Vargas, 667 So. 2d 175, 177 (Fla. 1995). Finally, the Court recognized that [t]he defendant relies on State v. Sills, 852 So.2d 390 (Fla. 4th DCA 2003), but that case is not on point. In that case officers of the city of Coconut Creek left the city and conducted a search within the city of Lauderdale Lakes, without the participation of any Lauderdale Lakes officer. Here, by contrast, the Fort Lauderdale officer was acting jointly with DEA agents who were operating within their territorial jurisdiction. Id. The trial court denial of Petitioner s motion to suppress evidence was affirmed. Petitioner has filed a notice of discretionary review and alleges that the lower court s ruling conflicts with decisions of this Court and a Fourth District Court of Appeal. 2

6 SUMMARY OF THE ARGUMENT There is no express or direct conflict with Sills v. State, 852 So. 2d 390 (Fla. 4th DCA 2003) or Phoenix v. State, 455 So. 2d 1024 (Fla. 1984). Phoenix holds that the totality of the circumstances must be viewed in order to determine if an officer has misused the color of office to obtain evidence that he would not have been able to obtain as a private citizen. The lower court s decision applies this holding in determining that under the totality of the circumstances, such as the joint investigation between the DEA and the Fort Lauderdale officers, Petitioner s consent was properly obtained. Also, as discussed by the lower court, Sills is distinguishable because it does not involve a joint investigation with officers or agents that have jurisdiction and the case at bar involves a joint investigation with agents that have jurisdiction. 3

7 ARGUMENT THE DECISION OF THE LOWER COURT DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE DECISIONS OF THIS COURT OR ANY DISTRICT COURT OFAPPEAL. This Court s determination of whether jurisdiction exists is limited to the facts contained within the four corners of the lower court decision. See Reaves v. State, 485 So. 2d 829 (Fla. 1986). Conflict between decisions must be express and direct, i.e., it must appear within the four corners of the majority decision. Neither a dissenting opinion nor the record itself can be used to establish jurisdiction. Id. at 830 (citing to Jenkins v. State, 385 So. 2d 1356 (Fla.1980)). Accord Dept. of Health and Rehabilitative Services v. National Adoption Counseling Service, Inc., 498 So. 2d 888, 889 (Fla. 1986) (the court rejected inherent or implied conflicts). The case at bar involved a joint drug investigation between the Drug Enforcement Agency (DEA) and the Fort Lauderdale police. The DEA detained Petitioner in a Miami-Dade County warehouse, which was within the DEA s territorial jurisdiction. Fort Lauderdale police officers and another DEA agent arrived at the warehouse, which was outside the Fort Lauderdale officers jurisdiction, and a Fort Lauderdale officer asked Petitioner for consent to search. 4

8 Petitioner agreed and signed a DEA consent form. Illegal drugs were found during the search. In the case at bar, the issue on appeal was whether Petitioner s consent to search was valid. The Third District Court of Appeal held that the trial court properly denied Petitioner s motion to suppress the evidence, because the drugs were obtained during a joint investigation where the DEA had territorial jurisdiction to search and the Fort Lauderdale officers were cooperating with the DEA at all times. This case holding does not expressly or directly conflict with Sills v. State, 852 So. 2d 390 (Fla. 4th DCA 2003) or Phoenix v. State, 455 So. 2d 1024 (Fla. 1984). In Phoenix, Martin County officers became suspicious of camper-covered pick-up trucks in Martin County and followed the trucks into St. Lucie County. In St. Lucie County, the Martin County officers observed further suspicious activity and St. Lucie County officers were notified. The Martin County officers with guns drawn and lights flashing stopped the truck in St. Lucie County. The certified question to this Court was whether the Martin County officer s went beyond their scope of authority to conduct the search. Phoenix, 455 So. 2d at This Court affirmed that the under the office doctrine, which is misusing the power of one s office to observe unlawful activity, gain access to evidence, or make a citizen s arrest, should not have applied simply because the Martin County officers 5

9 identified themselves as officers when they made the arrest. Id. at The case was remanded for further proceedings on other questions relating to the legality of the stop, the search, the arrest, and the admissibility of the evidence derived therefrom. Id. The holding of Phoenix is that it is the totality of the circumstances, and not just one factor, that must be reviewed to determine if an officer is using the color of the office outside the officer s jurisdiction to obtain evidence that is unavailable to private citizens. The holding in the case at bar agrees with the holding in Phoenix, because the Third District s decision was a review of the totality of the circumstances to determine that the consent to search was valid. The Third District determined that, although the Fort Lauderdale police officer asked Petitioner for the consent to search, the totality of the circumstances revealed that the search was conducted within a joint investigation with the DEA, which had territorial jurisdiction to investigate and search; the DEA had detained Petitioner prior to the arrival of the Fort Lauderdale officers; the DEA consent form was signed by Petitioner; and the Fort Lauderdale officers acted with the complete cooperation of the DEA agents. The single factor, that the Fort Lauderdale police officer asked for the consent, would not change the conclusion that the consent was valid under the totality of the circumstances. 6

10 In Sills, Coconut Creek police officers lawfully arrested the defendant in Coconut Creek. After the defendant informed the officers that he had in his home in Lauderdale Lakes a large quantity of illegal pills that he intended to sell, the Coconut Creek officers escorted the defendant in handcuffs to his home in Lauderdale Lakes. The defendant signed a Coconut Creek waiver of search warrant form and gave the officers his oral consent to search. While entering the house, the officers hid their badges and guns and covered the handcuffs with clothing in order to hide that the defendant was being arrested in hope of using the defendant as an informant in the future. The Fourth District Court of Appeal stated that the issue was whether the officers used the power of their office to gain access to evidence, i.e., the defendant s consent to search, not available to a private citizen. Sills, 852 So. 2d at 393. The Fourth District held that the officers improperly used the color of their office to obtain consent by taking the defendant outside their jurisdiction in handcuffs and having him execute a waiver bearing the crest of the Coconut Creek police department. Id. Also, the defendant cooperated with the officers, because of the potential of becoming police informants, which was obviously influenced by their position as police officers. Id. All the evidence supported that the officers obtained the defendant s consent under the color of office. Id. 7

11 Petitioner s case is distinguishable from Sills, because all the factors in Sills supported that the search was conducted under the color of the Coconut Creek office and by no other authority. However, in the case at bar, the evidence is that Petitioner acted under the DEA s authority and jurisdiction in a joint investigation with and cooperation of the Fort Lauderdale officers. Therefore, the joint investigation, and the valid exercise of jurisdiction by the DEA, distinguish the case at bar from Sills. 8

12 CONCLUSION Based upon the arguments and authorities cited herein, this Court should decline to accept the instant case for review. Respectfully Submitted, CHARLES J. CRIST, JR. Attorney General RICHARD L. POLIN LUCRETIA A. PITTS Criminal Appeals Bureau Chief, Miami Assistant Attorney General Florida Bar Number Florida Bar Number Office of the Attorney General Department of Legal Affairs 444 Brickell Ave., Suite 950 Miami, Florida (305) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Brief of Respondent on Jurisdiction was mailed this 15th day of April 2005, Fred Haddad, P.A., One Financial Plaza, Suite 2612, Fort Lauderdale, Florida LUCRETIA A. PITTS Assistant Attorney General 9

13 CERTIFICATION OF FONT AND TYPE SIZE I HEREBY CERTIFY that the font and type size in this Brief of Respondent on Jurisdiction comply with Florida Rules of Appellate Procedure requirements in that Times New Roman 14-point was utilized. LUCRETIA A. PITTS Assistant Attorney General 10