IN THE SUPREME COURT OF FLORIDA. ROBERT KOENEMUND, Petitioner, v. CASE NO. SC DCA No. 5D

Transcription

1 IN THE SUPREME COURT OF FLORIDA ROBERT KOENEMUND, Petitioner, v. CASE NO. SC DCA No. 5D STATE OF FLORIDA, Respondent. DISCRETIONARY REVIEW OF A DECISION OF THE SECOND DISTRICT COURT OF APPEAL PETITIONER S BRIEF ON JURISDICTION A. R. Mander, III GREENFELDER, MANDER, MURPHY DWYER & MORRIS Third Street Dade City, Florida (352) Florida Bar No Attorneys for Robert Koenemund

2 TABLE OF CONTENTS TABLE OF CITATIONS iii STATEMENT OF THE CASE AND FACTS 1 SUMMARY 3 ARGUMENT A. THE DECISION OF THE FIFTH DISTRICT COURT OF APPEAL IN KOENEMUND APPLIED A GOOD FAITH EXCEPTION TO ARIZONA V. GANT EFFECTIVELY PROHIBITING GANT S CHANGE OF LAW TO BE APPLIED TO SEARCHES OCCURRING BEFORE THE DATE OF THE GANT DECISION. 3 B. STATEMENT WHY THIS SUPREME COURT SHOULD EXERCISE DISCRETION AND ENTERTAIN THIS CASE. 6 CONCLUSION 8 CERTIFICATE OF FONT 9 CERTIFICATE OF SERVICE 9 ii

3 TABLE OF CITATIONS Cases Aldin v. State, 21 So.3d 68 (Fla. 3 rd DCA 2009) Arizona v. Gant, U.S., 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) Brown v. State, 24 So.3d 671 (Fla. 5 th DCA 2010) Chandler v. Crosby, 916 So.2d 728 (Fla. 1988) Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987) Murphy v. State, 34 Fla. L. Weekly D 2406 (Fla. 2 nd DCA Nov. 20, 2009) New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1891) People v. Arnold, 394 Ill. App. 3d 63, 914 N.E.2d 1143, , 333 Ill. Dec. 331 (Ill. App. Ct. 2009) People v. Key, 2010 Colo. App. LEXIS 361 (March 18, 2010) Smith v. Commonwealth, 55 Va. App. 30, 683 S.E.2d 316, (Va. Ct. App. 2009) State v. Harris, 154 Wn. App. 87, 2010WL (Wash. Ct. App. 2010) State v. K.S., 28 So.3d 985 (Fla. 2 nd DCA 2010) State v. McCormick, 152 Wn. App. 536, 216 P.3d 475, (Wash. Ct. App. 2009) State v. Riley, P.3d.,, 2010 Wash. App. LEXIS 273, 2010 WL (Wash. Ct. App. 2010) United States v. Buford, 623 F. Supp. 2d 923 (M.D. Tenn. 2009) iii

4 United States v. Davis, No (11 th Cir. March 11, 2010) United States v. Gonzalez, 578 F.3d 1130, (9th Cir. 2009) United States v. Gray, 2009 U.S. Dist. LEXIS , 2009 WL (D. Neb. 2009) United States v. Grote, 629 F. Supp. 2d 1201, 1206 (E.D. Wash. 2009) United States v. Johnson, 457 U.S. 537, 562, 102 S. Ct. 2579, 73 L. Ed. 2d 202 (1982) United States v. McCane, 573 F.3d 1037, (10th Cir. 2009) United States v. McGhee, 2009 U.S. Dist. LEXIS , 2009 WL (S.D. Ohio 2009) United States v. Peoples, 2009 U.S. Dist. LEXIS , 2009 WL Witt v. State, 387 So. 2d 922 (Fla. 1980) iv

5 STATEMENT OF THE CASE AND FACTS The Defendant, Robert Koenemund, pled nolo contendere to various drug charges and judgment and sentence was entered on August 15, The charges arose after Mr. Koenemund s vehicle had been stopped by two Florida Highway Patrol troopers because his vehicle had an illegal window tint and a tail light appeared not to be operable. After the initial stop law enforcement discovered that Mr. Koenemund s driver s license was suspended. The troopers then asked Mr. Koenemund to exit the vehicle and walk to the rear of the vehicle. Mr. Koenemund was then placed under arrest for driving on a suspended license. He was handcuffed and put in the back of the patrol car. While Koenemund was inside the squad car, one of the troopers then searched Mr. Koenemund s vehicle as a search incident to an arrest. The searching trooper opened up a black camera bag located inside the vehicle and discovered narcotics inside. Subsequently, Mr. Koenemund filed a Petition for Habeas Corpus in the Florida Supreme Court, SC challenging his convictions. Mr. Koenemund argued that the decision in Arizona v. Gant, U.S., 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) announced a change in constitutional law which should be applied retroactively to his case. Arizona v. Gant held that it is unreasonable for police to search the passenger compartment of a vehicle incident to a recent occupant s -1-

6 arrest after the person has been removed from the vehicle and arrested. The request for relief was filed as a habeas petition in the Florida Supreme Court because there is a conflict within this Court as to the appropriate place to file, or procedure to employ, when raising a retroactivity issue. See, Chandler v. Crosby, 916 So.2d 728 (Fla. 1988). The Florida Supreme Court issued an order on October 29, 2009 transferring the motion to the Citrus County Circuit Court for consideration as a motion for postconviction relief. The order stated that it was not to be construed as an adjudication or comment on the merits, nor as a determination that the transferee court has jurisdiction. The Supreme Court order did not explicitly resolve the conflict raised in Chandler, but in fact left that jurisdiction issue open by the language used in the order. On November 19, 2009, the Honorable Richard A. Howard, Citrus County Circuit Court Judge, issued an order determining that Arizona v. Gant should not be applied retroactively to Mr. Koenemund s case and denied postconviction relief. (See Appendix ps. 2-3 per Committee notes to Fla.R. App. P ) Mr. Koenemund appealed the denial to the Fifth District Court of Appeal which per curiam affirmed the circuit court decision specifically citing Brown v. State, 24 So.3d 671 (Fla. 5 th DCA 2010) in support of the decision. (App. p. 1) -2-

7 Notice to invoke the discretionary jurisdiction of this Court was filed on April 28, And this jurisdictional brief follows. SUMMARY The principal situations justifying the invocation of the Florida Supreme court s jurisdiction to review decisions from District Courts of Appeal are, (1) the announcement of a rule of law which conflicts with a rule previously announced by the Florida Supreme Court or of another district court of appeal, or (2) the application of a rule of law to produce a different result in a case which involves substantially the same controlling facts as a prior case. The district court opinion in Koenemund decision specifically cited Brown v. State, 24 So.3d 671 (Fla. 5 TH DCA 2009). Brown conflicts with the decisions and results from the Second and Third District Courts of Appeal and yields a different result than in similar cases involving substantially the same facts. ARGUMENT A. THE DECISION OF THE FIFTH DISTRICT COURT OF APPEAL IN KOENEMUND APPLIED A GOOD FAITH EXCEPTION TO ARIZONA V. GANT EFFECTIVELY PROHIBITING GANT S CHANGE OF LAW TO BE APPLIED TO SEARCHES OCCURRING BEFORE THE DATE OF THE GANT DECISION. The Fifth District Court of Appeal affirmed the circuit court denial of postconviction relief without addressing the retroactivity claim or the jurisdictional -3-

8 issue raised by Mr. Koenemund. (Appendix p. 1) The district court did not simply affirm the rationale of the lower court; instead, the decision implicitly found that the change in law announced in Gant retroactively applied, but with its citation to Brown v. State, 24 So.3d 671 (Fla. 5 TH DCA 2009) affirmed the lower court decision on the alternative basis that the good faith exception to the exclusionary rule prevented the change of the law from applying to Mr. Koenemund s case. The Brown decision stated exclusion of the evidence seized from a vehicle under Gant-type circumstances where the occupant of the vehicle was already under arrest would not fulfill the purpose of the exclusionary rule because police were acting in good faith reliance on the widely accepted interpretation of New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1891) which at the time had not been declared unconstitutional. The Fifth District Court applied the good faith exception, noting that the widely accepted interpretation of the Belton holding and the obvious good faith reliance upon it by police, called for the application of the good faith exception. The application of the good faith exception to override the change in constitutional law from Arizona v. Gant conflicts with decisions of the Second District Court of Appeal in State v. K.S., 28 So.3d 985 (Fla. 2 nd DCA 2010) and the Third District Court of Appeal in Aldin v. State, 21 So.3d 68 (Fla. 3 rd DCA 2009). -4-

9 In State v. K.S., 21 So.3d 68 (Fla. 3 rd DCA 2009) the defendant was stopped for a traffic violation and for fleeing and eluding. K.S. was separated from his car, handcuffed and under the supervision of other officers when his vehicle was searched as an incident of the arrest. The second district found the circumstances surrounding the arrest did not justify a search incident to a lawful arrest, concluded the search was unreasonable under Arizona v. Gant and suppressed the illegal evidence even though the officer s actions occurred prior to the Arizona v. Gant decision and, while not specifically addressed, were presumably based upon the officer s good faith belief that the then current state of the law permitted such a search. See also, e.g. Murphy v. State, 34 Fla. L. Weekly D 2406 (Fla. Dist. Ct. App. 2d Dist. Nov. 20, 2009). In State v. Aldin, 21 So.3d 68 (Fla. 3 rd DCA 2009) police suspected Aldin of a burglary and performed surveillance at his residence. When Aldin arrived at his residence, parked his van and got out officers approached him and conducted an investigation resulting in his arrest. After Aldin was arrested, police searched the van based in part on their claim that the search was a permissible automobile search. The Third District Court of Appeal rejected this argument, failing to find justification for the search based on Arizona v. Gant. The good faith exception was not specifically addressed in the above cases. -5-

10 However, the same reliance upon New York v. Belton which formed the basis for the Brown decision is present in every pre-gant case. The upshot is that under substantially similar facts, evidence seized in violation of Gant has been suppressed in the Second and Third Districts while the good faith exception was applied in the Fifth District based upon identical police conduct. As a result of the conflict, some defendants go free based upon unconstitutional searches while similarly situated defendants in the Fifth District are incarcerated. B. STATEMENT WHY THIS SUPREME COURT SHOULD EXERCISE DISCRETION AND ENTERTAIN THIS CASE. 1. The import of the decision in Brown v. State is to do away with the retroactive application of changes in constitutional law in all cases. As in the situation of law enforcement s reliance upon New York v. Belton, presumably law enforcement will have similarly based a prior practice found to be unconstitutional on some previous good faith interpretation of the law. Hence, by definition, the old police practice, found to be unconstitutional, will be deemed to have been taken in good faith. Ergo, changes in constitutional law will never be applied retroactively if the good faith exception espoused in Brown is permitted to be the prevailing view. This conflict regarding the application of the good faith exception is not unique to Florida. The importance of the issue is evident by the increasing number -6-

11 of jurisdictions that are considering the two sides of the issue. The Ninth Circuit Court of Appeals has concluded that principles of retroactivity bar the application of the good-faith exception to Gant cases. In United States v. Gonzalez, 578 F.3d 1130, (9th Cir. 2009), the court concluded that applying the good-faith exception would create an "untenable tension" with existing Supreme Court law concerning the retroactive application of new decisions. Accord United States v. Buford, 623 F. Supp. 2d 923 (M.D. Tenn. 2009)(holding that the retroactivity doctrine precludes application of the good-faith exception where police search violated Gant); see also, People v. Arnold, 394 Ill. App. 3d 63, 914 N.E.2d 1143, , 333 Ill. Dec. 331 (Ill. App. Ct. 2009); Smith v. Commonwealth, 55 Va. App. 30, 683 S.E.2d 316, (Va. Ct. App. 2009); State v. Harris, 154 Wn. App. 87, 2010WL *6-*7 (Wash. Ct. App., 2010); State v. McCormick, 152 Wn. App. 536, 216 P.3d 475, (Wash. Ct. App. 2009). Other courts have concluded that the exclusionary rule should not apply to exclude evidence when police officers searched an automobile in reliance upon settled case law. See, United States v. Davis, No (11 th Cir. March 11, 2010); United States v. McCane, 573 F.3d 1037, (10th Cir. 2009); accord United States v. Grote, 629 F. Supp. 2d 1201, 1206 (E.D. Wash. 2009); United -7-

12 States v. McGhee, 2009 U.S. Dist. LEXIS , 2009 WL , at *6 (S.D. Ohio 2009); People v. Key, 2010 Colo. App. LEXIS 361 (March 18, 2010); State v. Riley, P.3d., 2010 Wash. App. LEXIS 273, 2010 WL , at *4 (Wash. Ct. App. 2010). See also, United States v. Peoples, 2009 U.S. Dist. LEXIS , 2009 WL , at **2-8 (holding that the retroactivity doctrine does not bar application of the good-faith exception, but ruling that the good-faith exception should not extend to police reliance on case law). Changes in constitutional law must apply to all cases pending on direct review (See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987); United States v. Johnson, 457 U.S. 537, 562, 102 S. Ct. 2579, 73 L. Ed. 2d 202 (1982)) and to final cases where the change has been held to be retroactive. (See, Witt v. State, 387 So. 2d 922 (Fla. 1980). Applying a good faith exception to a change in constitutional law eviscerates the above law. CONCLUSION Accordingly, resolving the conflict regarding whether the good faith exception to the exclusionary rule applies to Gant-type situations and to all constitutional law changes is an important issue worthy of this Court s discretionary review. -8-

13 I HEREBY CERTIFY that this Jurisdictional Brief is typed in 14 point (proportionately spaced) Times New Roman, in compliance with Rule of the Florida Rules of Appellate Procedure. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Jurisdictional Brief has been furnished to Kristen L. Davenport, Assistant Attorney General, 444 Seabreeze Blvd., Fifth Floor, Daytona Beach, Florida by regular U.S. mail delivery on May 11, GREENFELDER, MANDER, MURPHY, DWYER & MORRIS Attorneys for Robert Koenemund Third Street Dade City, Florida (352) By: A.R. MANDER, III Florida Bar No

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