Bernie v. State

This is a petition to review State v. Bernie, 472 So.2d 1243 (Fla. 2d DCA 1985), in which the district court expressly construed article I, section 12, Florida Constitution, relating to search and seizure, as amended in 1982. The district court applied the exclusionary rule’s “good faith” exception and upheld the search and seizure of cocaine from a residence. We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and approve the result of the district court decision.

On October 13, 1983, Emery Air Freight received an envelope addressed to petitioner Vickie Bernie. The envelope broke open during transit, revealing a suspicious substance. Emery notified a drug enforcement agent, who tested the substance and identified it as cocaine. Emery then notified the Sarasota County sheriff’s office. Petitioner Bruce Bernie came to Emery’s Tampa office to check on the whereabouts of the package, at which time Emery’s employees advised him that the package would be delivered the following day, October 14.

On October 14, based on an affidavit setting forth the preceding facts, police obtained a search warrant for the Bernies’ residence relative to the prospective controlled delivery of the cocaine. A few minutes after the controlled delivery, police executed the warrant, arrested the Bernies, and charged them with possession of cocaine.

The Bernies moved to suppress the evidence on the grounds that it was the product of an unreasonable search and seizure, relying on the provisions of section 933.18, Florida Statutes (1983), and Gerardi v. State, 307 So.2d 853 (Fla. 4th DCA 1975). Section 933.18, Florida Statutes (1983), concerns the issuance of a search warrant for a private home and provides:

933.18 When warrant may be issued for search of private dwelling. — No search warrant shall issue under this chapter or under any other law of this state to search any private dwelling occupied as such unless:

(5) The law relating to narcotics or drug abuse is being violated therein;

... No warrant shall be issued for the search of any private dwelling under any of the conditions hereinabove mentioned except on sworn proof by affidavit of some creditable witness that he has reason to believe that one of said conditions exists, which affidavit shall set forth the facts on which such reason for belief is based.

(Emphasis added.) In Gerardi, the Fourth District Court of Appeal held that section 933.18 “not only does not authorize issuance of a search warrant for search of a private dwelling for violations of the law relating to narcotics or drug abuse unless such law is currently being violated therein, it expressly prohibits such issuance.” Id. at 855 (emphasis added). On the basis of this authority, the trial judge granted the Bernies’ motion to suppress.

On appeal, the Second District Court reversed. The district court recognized that the requirements of section 933.18 were clear: “[A] present or known violation of a narcotics law must exist in the home to be searched prior to the issuance of the warrant for the search of that home.” Bernie, 472 So.2d at 1245. Since the allegation in the affidavit failed to allege that any narcotics law “was being violated therein,” the affidavit was legally inadequate and the warrant should not have been issued. Id. at 1246. The district court held that Ger-ardi, which required suppression of the evidence, was inapplicable because of the amendment to article I, section 12, of the Florida Constitution in 1982. The district court applied our recent decision in State v. Lavazzoli, 434 So.2d 321 (Fla.1983), interpreting the new constitutional provision as linking Florida's exclusionary rule to the federal exclusionary rule and determined that United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984), were applicable. The district court concluded that the “exclusion of the cocaine would be improper because ‘there is no police illegality and thus nothing to deter.’ ” Bernie, 472 So.2d at 1247, quoting Leon, 468 U.S. at 921, 104 S.Ct. at 3419.

Article I, section 12, of the Florida Constitution, relating to search and seizure, as amended in 1982, effective January 3,1983, states:

Searches and seizures. — The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.

The underlined portions constitute the 1982 amendment.

Part I. Prospective Application of the 1982 Amendment

Prior to passage of this amendment, Florida courts “were free to provide its citizens with a higher standard of protection from governmental intrusion than that afforded by the Federal Constitution,” Lavazzolli, 434 So.2d at 323. With this amendment, however, we are bound to follow the interpretations of the United States Supreme Court with relation to the fourth amendment, and provide no greater protection than those interpretations. Indeed, an exclusionary rule that was once constitutionally mandated in Florida can now be eliminated by judicial decision of the United States Supreme Court.

We are furthermore bound by prospective decisions of that Court, even though the electors, in considering the 1982 amendment, could not have foreseén, nor ratified, those decisions. The argument has been advanced that this Court could not be bound by future decisions of this country’s highest court. Nevertheless, decisions rendered by the United States Supreme Court after adoption of the 1982 amendment must have the same controlling weight as those rendered before. The language of article I, section 12, clearly indicates an intention to apply to all United States Supreme Court decisions regardless of when they are rendered.

Part II. Validity of the Search Warrant

The proliferation of illegal drugs has intensified the use of commercial delivery services to transport this type of contraband. Law enforcement personnel are occasionally informed by transportation employees that certain packages contain drugs. This information is utilized to search and seize the package and have it delivered to the addressed premises, where the package is seized in the possession of the addressee. This is characterized as an “anticipatory search,” which is defined as one based upon an affidavit showing probable cause that at some future time, but not presently, certain contraband will be at the location set forth in the warrant. See 2 W. LaFave, Search and Seizure § 3.7(c) (2d ed. 1978). The law is clear that such warrants are not constitutionally invalid for lack of a present violation of law at the premises where the contraband will be delivered in the future.

No language in either the Florida Constitution or the United States Constitution prohibits issuance of a warrant for service at a future time. One court found no probable cause defect in an anticipation warrant “as long as the evidence creates substantial probability that the seizable property will be on the premises when searched.” People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656, 282 N.E.2d 614 (1972). A number of federal circuit courts of appeals have expressly upheld similar anticipatory searches. In United States v. Hendricks, 743 F.2d 653 (9th Cir.1984), cert. denied, 470 U.S. 1066, 105 S.Ct. 1362, 84 L.Ed.2d 382 (1985), customs intercepted a box arriving from Brazil, addressed to the defendant at a residence. The box contained a suitcase which held approximately seven pounds of cocaine. Although the court found the search warrant invalid because it failed to establish a sufficient probable cause nexus between the box containing the cocaine and the house, Leon applied and the evidence was admissible. In United States v. Goff, 681 F.2d 1238 (9th Cir.1982), the court found the informant’s information sufficiently corroborated and the search warrant not invalid merely because it anticipated that the defendants would arrive at the airport within a reasonable time. In United States ex rel. Beal v. Skaff, 418 F.2d 430 (7th Cir.1969), a search warrant for a parcel believed to contain marijuana that would be delivered at a specified time was deemed constitutionally valid. The affidavit did not allege that marijuana was on the premises to be searched, only that it would be on the premises in the future. The execution of the warrant about thirty minutes after delivery was held constitutionally valid. See also United States v. Foster, 711 F.2d 871 (9th Cir.1983), cert. denied, 465 U.S. 1103, 104 S.Ct. 1602, 80 L.Ed.2d 132 (1984); United States v. Valenzuela, 596 F.2d 824 (9th Cir.), cert. denied, 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071 (1979). Without question, this type of search is constitutionally permissible with a warrant.

The United States Supreme Court, however, in its recent decision in Illinois v. Andreas, 463 U.S. 765, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983), determined no warrant was necessary under the limited circumstances in that case. In Andreas, the United States Supreme Court held that the war-rantless reopening of a sealed container, in which contraband drugs had been discovered in an earlier lawful search of the contraband in transit, did not intrude on any legitimate expectation of privacy. Further, the warrantless search did not violate the fourth amendment where there was no substantial likelihood that the container’s contents had been changed during a gap in surveillance.

The factual circumstances in Andre-as and the instant case are similar. The facts in the instant case establish a prior legal search resulting from the fact that the envelope carrying the prohibited drugs broke open during transit and the contents were properly examined and identified as a prohibited drug. Under the principles established in Andreas, given this proper pri- or legal search, the recipients no longer enjoyed any expectation of privacy in the package. Further, the resealed package of cocaine remained in the constructive possession of law enforcement officials for its subsequent controlled delivery to the Bernies. Andreas clearly allows this type of warrantless, controlled delivery and subsequent search and reopening where there is no substantial likelihood that the container contents were changed. See also United States v. DeBerry, 487 F.2d 448 (2d Cir.1973). The law is now clear that neither the Florida Constitution nor the United States Constitution requires issuance of a warrant for this type of search.

We must, however, consider the effect of section 933.18. Section 933.18 requires issuance of a warrant for the entry into a private dwelling. It provides, in part: “No search warrant shall issue under this chapter or under any other law of this state to search any private dwelling occupied as such unless” ... [t]he law relating to narcotics or drug abuse is being violated therein. (Emphasis added.) The drugs involved in the instant case were in the constructive possession of the law enforcement officers because of their prior legal search and seizure. The evidence and supporting affidavit in the instant case show that the Bemies requested delivery of the contraband to their residence and that they knew the contraband was presently in transit and would arrive on a particular day. Since the contraband had already been discovered by a legal search, the Bemies had no expectation of privacy in the contraband package. We find that a reasonable construction of the emphasized words in the statute allows a warrant to be issued when the evidence and supporting affidavit show that the drugs have already been discovered through a legal search and seizure and are presently in the process of being transported to the designated residence which is being used as the drug drop. It is our view that this is not the type of in futuro allegation for a warrant that the legislature intended to prohibit by this statute. In this circumstance, the state already knows the drug laws have been violated. Because we hold the warrant valid under our statute, the application of Leon is unnecessary. There was clearly probable cause to obtain a warrant, as required by section 933.18, to seize a package already in law enforcement’s constructive possession and which law enforcement knew contained contraband drugs.

Conclusion

To summarize, we hold (1) the 1982 amendment to article I, section 12, of the Florida Constitution brings this state’s search and seizure laws into conformity with all decisions of the United States Supreme Court rendered before and subsequent to the adoption of that amendment; (2) the anticipatory search warrant issued under the circumstances of this case is valid and does not violate the provisions of the United States Constitution, the Florida Constitution, or section 933.18.

For the reasons expressed, we approve the decision of the district court of appeal.

It is so ordered.

MCDONALD, C.J„ SHAW, J., and BEN C. WILLIS (Ret.), Associate Justice, concur as to Part I and Part II.

EHRLICH, J., concurs as to Part I and Part II with an opinion, in which MCDONALD, C.J., and SHAW, J., concur.

OVERTON, J., concurs in the judgment, agrees to Part II, but concurs in result only in Part I, with an opinion.

KOGAN, J., concurs as to Part I, but dissents as to Part II with an opinion.

BARKETT, J., dissents as to Part I and Part II with an opinion.