MARVIN J. PEDERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Pederson pleaded nolo contendere to possession of marijuana after refusing inspection at an agricultural station, but reserved his right to appeal the denial of his motion to suppress the search warrant. The court reversed, holding that the search warrant violated the Fourth Amendment because it lacked traditional probable cause, not merely administrative probable cause.
The court held that Section 570.15(1)(b) incorporates the traditional criminal probable cause standard from Carroll v. United States, not the administrative probable cause standard from Camara, and the facts alleged in the affidavit did not establish probable cause that Pederson's vehicle was carrying contraband or agricultural products in violation of law.
[1] A search warrant issued under Florida Statute § 570.15(1)(b) must be based upon traditional probable cause, not administrative probable cause.
[2] The probable cause standard for obtaining a search warrant under Florida Statute § 570.15(1)(b) incorporates the criminal probable cause test established in Carroll v. …
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Join FLexlaw to unlock all legal intelligence“Section 570.15(l)(b) refers not only to the criminal probable cause standard in war-rantless cases, but provides that a search warrant shall be obtained as provided by law for the obtaining of search warrants in other cases.”
The court's interpretation that the statute incorporates traditional criminal probable cause, not administrative probable cause
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Join FLexlaw to unlock all legal intelligenceOn December 17, 1977, Inspector Pease observed Pederson's truck pass through an agricultural inspection station without stopping. Pease stopped the ve…
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MELVIN, Judge.
Pederson pleaded nolo contendere to possession of marijuana, and reserved the right to appeal the trial court’s denial of his motion to suppress. Pederson alleges that the search warrant which was issued violated constitutional and statutory prerequisites because the warrant was not based upon probable cause. U.S.Const. Amend. IV; § 570.15(l)(b), Fla.Stat. (1977). We agree and reverse.
At 10:40 p. m. on December 17, 1977, Pederson passed an agricultural inspection station at a normal rate of speed without stopping at the station. Inspector Pease stopped Pederson and requested permission to inspect the cargo in the truck. Pederson refused and both men returned to the inspection station where the defendant was formally arrested for violating Section 570.-15(2).
Pederson refused to permit inspection and Pease obtained an agricultural search warrant two or three hours later. The affidavit supporting the search warrant particularly described Pederson’s truck and alleged that agricultural products were being kept in the truck in violation of Chapter 570 and the agricultural laws pertaining to the transportation of agricultural products. The following supporting facts were contained in his affidavit:
At approximately 10:40 p. m. on Saturday, Dec. 17, 1977, while on duty at the agricultural inspection station on 1-75 North, I personally observed one grey pickup with a topper on the back go by the inspection station without stopping for inspection. I pursued the vehicle, never losing sight of the vehicle until I stopped the vehicle approximately 2V4 miles north of the station. The driver, identified as M.
J. Pederson of 7719 Sawyer Brown, Nashville, Tenn, was advised that he had run the inspection station and that I would need to look into the vehicle for agricultural products. The driver first tried to open the back of the vehicle, and their [sic] advised me that the truck was not his and he did not have a key to the back. Being advised that he would have to return to the station and while following me to the station, Mr. Pederson stopped me and asked if this could be worked out. Mr. Pederson was advised no and then returned without incident to the inspection station. While at the inspection station I smelled what, from my training and experience, including being worked [sic] for DOR, I think is the smell of cannabis.
I have been employed by the Dept, of Agriculture and Consumer Services for 4 months and has [sic] observed agriculture products on various occasions in vehicles of the general description of the vehicle described herein, and is [sic] personally aware that the vehicle described herein is the type of vehicle used in the transportation of agricultural or horticultural products within the State of Florida. I have within the last six weeks, found citrus and tomatoes in a quantity of such so as to make an inspection violation in trucks of this type.1 The search warrant authorized the Florida Department of Agriculture or any of its duly constituted agents to search Pederson’s vehicle for agricultural products kept in violation of Chapter 570 and the laws pertaining to the transportation of agricultural products.
. Appellant argues that Section 570.-15(l)(b), referring to Section 933.19, incorporates the criminal probable cause test as stated in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), for the issuance of any search warrant under the statute. Section 570.15(l)(b) states:
If such access be refused by the owner, agent, or manager of such premises or by the driver of such aforesaid vehicle, the inspector or road-guard inspection special officer may apply for a search warrant which shall be obtained as provided by law for the obtaining of search warrants in other cases, or may conduct a search of any of aforesaid vehicles without a warrant pursuant to s. 933.19.
Section 933.19, Florida Statutes (1977), states that the provisions of Carroll are adopted as the statute law of the state and are applicable to searches and seizures under Section 12, Article I of the State Constitution, when searches and seizures are made by the proper officers exercising police authority in the enforcement of any law of the state relative to the unlawful transportation of liquors, illegal drugs, or other contraband. Carroll stated that warrant-less searches of vehicles could be justified only where there was probable cause for believing that the vehicle was carrying contraband or illegal merchandise. 267 U.S. at 154, 45 S.Ct.
280. Carroll found that the facts and circumstances within the officers’ knowledge, and of which they had reasonably trustworthy information, were sufficient in themselves to warrant a man of reasonable caution in the belief that intoxicating liquor was being transported in the automobile which they stopped and searched. 267 U.S. at 162, 45 S.Ct.
280. We think it obvious here that the inspector had no probable cause to believe that Ped-erson’s particular vehicle was carrying contraband or agricultural products.
However, the state argues that only administrative probable cause need be established for the type of search warrant involved here. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).
We disagree.
Section 570.15(l)(b) refers not only to the criminal probable cause standard in war-rantless cases, but provides that a search warrant shall be obtained as provided by law for the obtaining of search warrants in other cases. Nowhere does Chapter 570, 933, or any other statutory provision require that the administrative probable cause standard in Camara apply to agricultural inspections. Contrast Heinlein v. Metropolitan Dade County, 239 So. 2d 635 (Fla.3d DCA 1970). In the past, this court has impliedly recognized that the probable cause standard intended by Section 570.-15(l)(b) is one of traditional probable cause. Seuss v. State, 370 So. 2d 1203 (Fla.lst DCA 1979); Miller v. State, 368 So. 2d 943 (Fla.lst DCA 1979); Powell v. State, 332 So. 2d 105 (Fla.1st DCA 1976).
Accordingly, we are bound to interpret the warrant requirement contained in Section 570.15 in accordance with the statute’s clear meaning. Although it may be constitutionally permissible for the Legislature to impose an administrative probable cause standard for a warrant, or to require no warrant at all,2 we may not judicially create such standards.3 Reversed. McCORD, C. J., concurs.
BOOTH, J., dissents.
. It should be noted that when Pease was deposed he did not remember smelling cannabis in Pederson’s case, but later he recalled smelling the cannabis after reviewing the search warrant at the suppression hearing. At the hearing, the trial judge stated that, in any event, he would not have issued a search warrant based upon Pease’s statement that he thought he smelled cannabis. Accordingly, it has not been argued on appeal, nor is it considered here, that the smell of marijuana was sufficient probable cause supporting the search warrant.
. We do not express an opinion as to the propriety of warrantless inspection searches, but there is authority for such a procedure pursuant to proper legislative authority. State v. Bailey, 120 Ariz. 399, 586 P. 2d 648, 650 (Ariz. App.1978). See also, Delaware v. Prouse,-U.S.-, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), n. 26.
. See Miller, 368 So. 2d at 944.
Cases With Similar Vibessemantic neighbors from the corpus
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Turner v. State, 388 So. 2d 254 (Fla. 1st DCA 1980)…se to believe the pick-up truck with a camper was a truck. Holec v. State, 376 So. 2d 401 (Fla.1st DCA 1979). As to the sufficiency of the inspector’s affidavit that he smelled marijuana to support a search warrant for marijuana, Pederson v. State, 373 So. 2d 367 (Fla.1st DCA 1979), is distinguishable. There the search warrant was issued for agricultural products. The court expressly declined to rule on whether “the smell of marijuana was sufficient probable cause supporting the search warrant.” Pederson, su…
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Mahla v. State, 383 So. 2d 730 (Fla. 1st DCA 1980)…nd unloading the truck of approximately 1270 pounds of marijuana. Mahla was then arrested on the possession charge. Contrary to Mahla’s assertion, this procedure was in accordance with law. §§ 933.04-.08, Fla.Stat. (1977). Compare Pederson v. State, 373 So. 2d 367 (Fla. 1st DCA 1979) (search for agricultural products by the inspector was not supported by probable cause under chapter 570); State v. Webb, 378 So. 2d 884 (Fla. 1st DCA 1979) (search warrant needs to state probable cause for search of agricultural…
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State v. Webb, 378 So. 2d 884 (Fla. 1st DCA 1979)…spicion, based on his past experience, that vehicles of “this type” often carry regulated products. Inspector Pease had no probable cause to believe that Ms. Webb’s vehicle was carrying such products and the affidavit states none. Pederson v. State, 373 So. 2d 367 (Fla. 1st DCA 1979), 27 FLW 1078. AFFIRMED. ERVIN and LARRY G. SMITH, JJ., concur. BOOTH, J., dissents.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carroll v. United States, 267 U.S. 132 (U.S. 1925)
- Camara v. Mun. Court of the City & Cnty. of San Francisco, 387 U.S. 523 (U.S. 1967)
- Delaware v. Prouse, 440 U.S. 648 (U.S. 1979)
- Powell v. State, 332 So. 2d 105 (Fla. 1st DCA 1976)
- Seuss v. State, 370 So. 2d 1203 (Fla. 1st DCA 1979)
- Miller v. State, 368 So. 2d 943 (Fla. 1st DCA 1979)
- Edsel Heinlein and Clara Heinlein v. Metro. Dade Cnty., 239 So. 2d 635 (Fla. 3d DCA 1970)