Saturnino-Boudet v. State
Saturnino-Boudet v. State
Opinion of the Court
Appellant, Jose Satumino-Boudet, appeals his conviction and sentence for drug trafficking charges. Boudet was convicted after he pled nolo contendere to the charges, but he specifically reserved his right to appeal the denial of his motion to suppress. We affirm the denial of this motion for the reasons which follow.
The salient facts are basically undisputed. In March 1989, the narcotics section of the Metro-Dade Police Department conducted a drug investigation at the South Dade home
When Boudet declined to give his consent for a search of his car, Iturralde requested Boudet to accompany him inside of Daniels’ residence. As Boudet sat down in the living room, he was read his Miranda rights
Boudet unsuccessfully moved to suppress the cocaine in the court below. On this appeal, Boudet argues that the trial court erred in denying his motion where Boudet was effectively arrested without probable cause when the police ordered him into Daniels’ home to await the arrival of the police canine unit. He further asserts that the
We disagree with Boudet’s first contention that his 30-40 minute detention by the police to await the arrival of the police canine unit was the de facto equivalent of an arrest without probable cause. As both parties correctly recognize on this appeal, there are three levels of encounters between the police and citizenry. The first and least intrusive level is commonly referred to as the “consensual encounter.” Florida v. Royer, 460 U.S. 491, 497-98,103 S.Ct. 1319,1324, 75 L.Ed.2d 229, 236 (1983); Cross v. State, 560 So.2d 228, 230 (Fla. 1990); Thames v. State, 592 So.2d 733, 735 (Fla. 1st DCA), rev. denied, 599 So.2d 1280 (Fla. 1992); State v. Simons, 549 So.2d 785, 786-87 (Fla. 2d DCA 1989). In the consensual encounter, an officer may question anyone on the street without founded suspicion, and unless the officer attempts to prevent the individual from exercising the right to walk away, any such questioning will usually constitute a consensual encounter rather than a stop. Royer, 460 U.S. at 497-98,103 S.Ct. at 1323-24; State v. Starke, 574 So.2d 1214, 1215 (Fla. 2d DCA 1991); State v. Wilson, 566 So.2d 585, 587 (Fla. 2d DCA 1990). No Fourth Amendment protection is implicated at this level.
The second level of a police encounter involves the Terry stop
The third and final level of a police encounter is that of the formal arrest. This
It cannot be disputed in the case before us that Boudet’s initial encounter with the police wherein Boudet inquired about Daniels’ whereabouts and detective Iturralde requested him to produce identification was nothing more than a consensual encounter. Boudet, without question, was free to leave at that time. Boudet argues, however, that this otherwise lawful police encounter quickly escalated into a de facto arrest without probable cause when he was detained for 30-40 minutes to await the arrival of the canine unit. We disagree.
Based upon our de novo review of the evidence presented below,
The United States Supreme Court has acknowledged the difficulty in drawing a distinction between an investigative detention and a de facto arrest. United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605, 615 (1985). As Sharpe instructs, a critical factor in determining the reasonableness of the detention is whether the law enforcement authorities “diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.” 470 U.S. at 686, 105 S.Ct. at 1575; see also United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). While the Sharpe Court declined to place a bright-line time limit on the investigative detention of persons or property, the Court made it clear that the detention should “last no longer than is necessary to effectuate the purpose of the stop.” 470 U.S. at 684, 105 S.Ct. at 1574 (quoting Royer, 460 U.S. at 500, 103 S.Ct. at 1325). An examination of federal and state decisions reveals that the actual time of the detention is less significant than other factors in determining whether the detention is reasonable. See United States v. French, 974 F.2d 687, 693-94 (6th Cir. 1992) (holding a 45-minute delay while drug dog brought to truck stopped on highway proper where officer had already smelled what appeared to be marijuana), cert. denied, 506 U.S. 1066, 113 S.Ct. 1012, 122 L.Ed.2d 160 and cert, denied, 507 U.S. 978, 113 S.Ct. 1431, 122 L.Ed.2d 798 (1993) and cert. denied, — U.S. —, 115 S.Ct. 158, 130 L.Ed.2d 96 (1994); U.S. v. Hardy, 855 F.2d 753, 758-61 (11th Cir. 1988) (finding stop properly continued total of 50 minutes to summon narcotics detection dog when drug suspects gave inconsistent stories), cert, denied, 489 U.S. 1019, 109 S.Ct. 1137, 103 L.Ed.2d 198 (1989); Cresswell v. State, 564 So.2d 480 (Fla. 1990) (approving detention of 45 minutes while awaiting canine unit as reasonable); Rogers, 586 So.2d at 1151 (holding 25-minute detention while awaiting canine unit reasonable) (citing State v. Nugent, 504 So.2d 47 (Fla. 4th DCA 1987) (holding 30-minute delay did not transform Terry
Where, however, the detained individual is physically removed from the scene and involuntarily transported to the police station for questioning and/or investigation, the courts have had little difficulty in construing such a detention to be a de facto arrest requiring either probable cause or prior judicial authorization. E.g., Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985) (deciding petitioner’s involuntary transportation to police station without probable cause or judicial authorization for fingerprinting purposes violated petitioner’s Fourth Amendment rights); Dunaway v. New York, 442 U.S. 200, 207, 99 S.Ct. 2248, 2253, 60 L.Ed.2d 824, 832 (1979) (holding defendant is seized, for Fourth Amendment purposes, when involuntarily taken to police station for questioning; such seizure is not roughly analogous to narrowly-defined intrusions authorized by Terry and its progeny); State v. Rivas-Marmol, 679 So.2d 808 (Fla. 3d DCA 1996) (finding defendant de facto arrested for D.U.I. where handcuffed, placed in patrol car and transported to police station for purposes of administering a breathalyzer test); State v. Delgado-Armenta, 429 So.2d 328, 330-32 (Fla. 3d DCA 1983) (finding police’s actions in taking defendant involuntarily to police station constituted significant interference with defendant’s liberty sufficient to activate Fourth Amendment rights; therefore, defendant demonstrated warrantless arrest sufficient enough to shift burden to state to show arrest was valid).
We believe that the police in the instant case detained Boudet no longer than was reasonably necessary under the circumstances for them to dispel their founded suspicion that Boudet was involved in illegal narcotics activity. Since Boudet remained at the scene at all times during this investigation and was never transported away by the police, we do not agree with Boudet’s contention that he was de facto arrested on less than probable cause.
We also do not agree with Boudet’s final contention that the search of his car was not supported by probable cause. We conclude that the police’s founded suspicion later ripened into probable cause for Boudet’s arrest and the search of this car once the narcotic-sniffing dog alerted to the presence of cocaine therein. The United States Supreme Court has held that the use of a narcotics sniff dog constitutes neither a search nor a seizure within the meaning of the Fourth Amendment. Place, 462 U.S. at 707, 103 S.Ct. at 2644-45. Accordingly, this court has said:
[Ojnce the defendant was legally stopped, the use of a sniff dog was not an unconstitutional search under the Fourth Amendment. A sniff dog’s “alert” can constitute probable cause to conduct a search. Once probable cause existed to search the vehicle, no warrant was needed to authorize the search. Just as no police officer need close his eyes to contraband in plain view, no police officer armed with a sniff dog need ignore the olfactory essence of illegality.
State v. Orozco, 607 So.2d 464, 465 (Fla. 3d DCA 1992) (alteration in original) (quoting State v. Taswell, 560 So.2d 257 (Fla. 3d DCA 1990)), rev. denied, 614 So.2d 503 (Fla. 1993); State v. Williams, 565 So.2d 714 (Fla. 3d DCA 1990), rev. denied, 576 So.2d 295 (Fla.), cert. denied, 500 U.S. 955, 111 S.Ct. 2265,114 L.Ed.2d 717 (1991); see also Denton v. State, 524 So.2d 495, 498 (Fla. 2d DCA), rev. denied, 534 So.2d 398 (Fla. 1988); Cardwell v. State, 482 So.2d 512, 515 (Fla. 1st DCA 1986). Moreover, once probable cause was established by the dog’s positive alert, the state was not also required to show exigent circumstances for the warrantless search of Boudet’s car because they are always presumed. Pennsylvania v. Labron, — U.S. —, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996).
For these reasons, we find that the trial court properly denied Boudet’s motion to. suppress the evidence and we affirm.
Affirmed.
.It is not entirely clear from the record how wide the door was left open. One of the state's witnesses indicated that the door was left partially opened; another testified that it was left slightly ajar, approximately six to eight inches.
. Iturralde testified that he informed Boudet of his right to decline consent since Iturralde did not have a search warrant.
. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
. It has been observed by the First, Second, Fourth and Fifth Districts that Florida's search and seizure jurisprudence, at least as it pertains to traffic stops, has been substantially altered by Whren v. United States, -U.S.-, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (validating traffic stops where the officer has probable cause to believe that any traffic violation has been committed). Art. I, § 12, Fla. Const.; State v. Holland, 680 So.2d 1041 (Fla. 1st DCA 1996); State v. Corvin, 677 So.2d 947 (Fla. 2d DCA 1996); Indialantic Police Dep’t v. Zimmerman, 677 So.2d 1307 (Fla. 5th DCA 1996); Petrel v. State, 675 So.2d 1049 (Fla. 4th DCA 1996). Whren does not control Boudet's case, however, because he was not detained as a result of a traffic infraction. Clark v. State, 677 So.2d 903, 904 n. 2 (Fla. 2d DCA 1996).
. See Ornelas v. United States, — U.S. —, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (holding determinations of reasonable suspicion and probable cause for a warrantless search are entitled to a de novo review on appeal).
Reference
- Full Case Name
- Jose SATURNINO-BOUDET v. The STATE of Florida
- Cited By
- 1 case
- Status
- Published