1983-02-23T14:05 /audio/cases/1982/81-2318_19830223-argument.mp3 81-2318-jc.cha Harry A. Blackmun William J. Brennan, Jr. Warren E. Burger Sandra Day O'Connor Thurgood Marshall Lewis F. Powell, Jr. William H. Rehnquist John Paul Stevens Unidentified Justice Byron R. White Ms. Carolyn M. Snurkowski Arthur F. McCormick Florida v. Casal
ORAL ARGUMENT OF CAROLYN M. SNURKOWSKI ON BEHALF OF THE PETITIONER We'll hear arguments next in Florida against Casal and Garcia. Ms. Snurkowski, you may proceed whenever you're ready. Mr. Chief Justice, and may it please the Court: The issue before the Court today is whether the search of the San Rafael was authorized pursuant to an exception to the Fourth Amendment warrant requirement of the United States Constitution. The facts in this case are relatively simple. On September 18, 1977, Officer Soli and Officer Walker, both Marine Patrol officers with the Florida Marine Patrol were traveling along near Sugarloaf Key which is close to Key West. They were on their way back. Their tour of duty had almost ended and they were returning to port when they came upon the San Rafael. Within 50 feet of the boat they put their spotlight on the boat, and approaching the boat identified themselves as Marine Patrol officers and asked, at that point, if they could see the registration papers or the registration certificate for the boat which is required pursuant to Florida statutes. At that point, two individuals who had departed the cabin area came to the side of the boat and produced papers. Those papers did not comport with the statute requirement, but rather, were documentation papers of unspecified nature, and tax receipts reflecting the purchase of the boat. May I ask you something right here. Now, does Florida law require every boat to have a registration certificate? Is that clear? Those boats that travel in the waters and conduct fishing activities in that area, yes. And does the absence of a registration certificate give a right for a valid custodial arrest? I believe it does. I believe the statute... if there's a penalty, a second degree penalty for failure to have it aboard and available, upon that showing... the officers are not really... even having to board the boat is a matter of standing on their own boat and asking do you have it. It's not a matter of having to board the boat in this instance. And if it's not available they can, in fact, arrest the individuals because those statutes are very clear with regard to-- Is that statute part of our-- --I believe it is part of the petitioner's reply to the brief in opposition to certiorari. I think he can put that as part of his pleadings. But specifically, the statutes applicable with regard to having the registration onboard is 371.051, Subsection 5. And that's of the 1977 statutes. There has been a modification, and so I do not have the change because I was looking specifically at the applicable statutes. Once there was no response by the defendants for the certification papers, Officer Soli, because of the bobbing of the boats, asked if she could board the boat. At that point, consent was given and she made a statement at the suppression hearing and at trial that the reason she was boarding was to help them find these papers and also, to conduct a search, to do her duty, is what she said. --Didn't she also say that really what she was inspecting for was illegal seafood? That came... there was a statement to that effect later on, but she was initially going onboard for was for safety inspection and to help them find the papers. They apparently were confused with regard to papers. They said no, they didn't have them, but they were not the owners of the boat, nor did the papers that they did tender have their names on it. Would it make a difference whether the search was made for safety violations or for illegal seafood? The search, the subsequent search? We have contended that there are three bases upon which the Florida Supreme Court could have legitimatized the search, and that the court missed its mark, actually, when they found that the initial stop was correct. We have contended first of all, that an inspection was lawfully to ensue, and that by not holding that that inspection was valid in this case, they missed their mark. But secondly, we said that as the circumstances developed in this case, and that is where Officer Soli followed the respondents to the cabin area of the boat, she asked if she could look into the ice chest there, and they gave consent for that. This is part of her inspection. She opens it up, finds no ice and finds that there are some bits of food that have been rotting in there. Now, this triggered-- I thought it was putrefying fish or something like that. --I don't remember it being putrefying fish. All I remember is rotten food. But if that was what the record-- It smells the same. --Yes, I think it stinks. The point being-- Suppose actually she was inspecting only for illegal seafood, nothing to do with a safety violation. She hadn't any authority to do that, did she? --She has authority... that's part of the scope of their authority, once they're lawfully aboard the boat. To inspect for illegal seafood? Pardon me? To inspect for illegal seafood? Part of their function, part of the Marine Patrol function in Florida is to maintain boating safety and to maintain the maritime, the fisheries and control or regulate fishing in the area. As a matter of fact, that is perhaps the majority of their work. They look for individuals who sell shorttails-- Does the state statute cover all of this? --Yes. No matter what the purpose of the inspection is? The statute is very clear as to the regulatory responsibilities and the duties of the Marine Patrol with regard to investigating all activities concerning marine life and boating. As a matter of fact, they also have a general proviso in their authority that they have the right to investigate and arrest for all violations of law of Florida. As I understand it, there's a state statutory probable cause requirement, whether it's for illegal fishing or for safety violations, is an act? I'm sorry, I didn't hear. Isn't there a state statutory probable cause requirement? There's a state statutory requirement to board the boat; 371.58 says-- Does that require probable cause? --It requires either consent or probable cause to board the boat for a safety inspection. The state would contend that the officers in this case had both the probable cause and consent to board the boat for the safety inspection when the papers were not produced. There was something awry with this boat, and that was sufficient probable cause to board. But more importantly, the record reflects, and of course-- I know, but if the holding is that there was a probable cause requirement as required by state statute, why doesn't this case turn on an adequate state ground; why do we have to get into it? --Because the probable cause that the Florida Supreme Court found the search to be in violation of was a Fourth Amendment probable cause finding as opposed to the state statute. I think the state statute is limited to boarding the boat for inspection. The state statute is very clear; it says that you have to have consent of the owner or probable cause for the officer, so he may board the boat to conduct an inspection, to check safety equipment. That is not the probable cause that the Florida Supreme Court found to be the culprit in this particular case with regard to the searching of the ice hold which came subsequent to this. Suppose... if we read what the Florida Supreme Court says, that they turned this on the statutory probable cause requirement, because that's the basis of it,-- Well, they cite to two cases. They cite to Hill and they cite to Tingley versus Brown. --Well, I know, but both of those were state cases, weren't they? They are, but they are not squarely on what we're suggesting is the probable cause. I'm asking you if we don't read it the way you suggest we should and we find that it did rest on that state probable cause requirement, isn't that the end of the case as far as we're concerned? Well, sir, I think... and to answer your question is a yes/no proposition. Yes, if you really push me to the wall, but no because I believe this Court has modified its review of an ambiguous holding by a supreme court. In Delaware versus Prouse you did it, and apparently, and I really must admit-- There's no question that the Florida court thought the stop was all right. --Yes. And the boarding. Pursuant to Delaware v. Prouse, that it just-- And the boarding. --And the boarding, yes. So you're legally on the boat. Oh, yes. And the only argument that-- That we're trying to get-- --That you and Justice Brennan are discussing is what occurs after that. --Exactly. And I'm suggesting that the probable cause of the statute, 371.58, does not concern the search. That follows straight line Fourth Amendment, which the Florida Supreme Court has always followed. But that initial boarding had to be either probable cause or consent, and that was what the statute was to control. Is it not correct that insofar as the Florida Supreme Court was talking about the boarding and the stopping, it relied on federal cases. And then when it got to the search, it cited the statute, and from that point on in its opinion it cited nothing but Florida cases. That is true, but I think that is because only of its own practice of citing its own decisions-- There's a problem in this particular case because the Third District Court of Appeals who originally saw this on the appellate level did not even address the search because they cut us off at the pass when they nixed us on the initial stop. So therefore, that particular issue was not developed. It was only developed when we got to the Florida Supreme Court and we had lost. But you're asking us to reverse the portion of the Florida Supreme Court's opinion that cites nothing but Florida authority. No, I don't believe that's true. The majority cites nothing but Florida authority. The minority, Justice Alderman and Justice McDonald disagree and say how can you apply the Fourth Amendment-- I'm talking about the majority opinion, you're right. --They cite to Chimel and they cite to Carroll and they say how could you have done this in this particular case. Because clearly, clearly-- I suppose the answer is Florida doesn't have to follow those cases if it doesn't want to. --Well, that is certainly one outcome, but Florida has been... and there's a host of cases starting with State versus Hetlin that have always... and I repeat always... applied Fourth Amendment in the same way Fourth Amendment is to be applied federally. I mean, that is the practice of the state. As a matter of fact, our Article I, Section 12 is in line with that, and as a matter of fact, we have just modified... this last election year we had a referendum to codify how we are going to interpret it, and that is by seizing upon decisions of this Court in its interpretation of the Fourth Amendment. So as far as search and seizure is concerned, we are following the Fourth Amendment, and if the court is talking about it, I believe their opinion is ambiguous at best, but certainly in the mode of the Fourth Amendment review. And certainly, I would suggest that this court does have jurisdiction in that vein. Once we're on the boat-- Is it your view that in all doubtful cases, we should assume there's jurisdiction? --No, Your Honor. I appreciate the problem-- You do agree this is a doubtful case? You're saying that presumption should be in favor of federal jurisdiction. --I think this is a close case to Delaware versus Prouse, and that case is the case... you've accepted that, and I appreciate that in yesterday's decision. I haven't had a chance to read it, but there was a problem in that case. It supports you. Yes. [Laughter] I haven't had a chance to read it but I thought it might. But the point is that we don't really feel we have that kind of a problem in this particular instance, and the history of the Florida Supreme Court's review of the Fourth Amendment has always been under the United States Constitution's application of it. When the minority mentions the federal cases and the majority ignores it, what conclusion do I draw? That the state was perhaps a little remiss in its briefing of the case because we were concerned with getting the stop found to be okay, and we did not ever think in our mind that we would lose the search. I'm talking about the opinions... the majority-- I am suggesting-- --does not mention the federal points-- --That's right. --which were called to their attention by the minority. That's right. So certainly, they read them. They just didn't find them persuasive, I would submit. And I might add there was a rehearing-- If they didn't find it persuasive, why should I find it persuasive? --That they ruled on a Fourth Amendment ground as opposed to an independent state issue? Or that they're applicable, the Fourth Amendment is applicable. I'm sorry, I don't appreciate your question. My question is that the majority did not rule on the Fourth Amendment point as such, they cited state cases. The minority cited the Fourth Amendment and federal cases. Right. They cited-- So, the state, the majority knew about that, and did not mention it. What conclusion do I draw from that as to the majority opinion? --Your Honor, I don't know... I cannot pretend to understand what you would draw from that. What I would draw from that is that they just did not appreciate the impact that those cases... and their applicability to this particular instance. Because again, the nature of the case... it came up to the Florida Supreme Court on certiorari review, conflict certiorari review, regarding the initial stop. The subsequent search, which became the subject matter for grounds before this Court, was a secondary issue that they fortuitously resolved. Once the officers were onboard... or Officer Soli was onboard the boat, at that point Officer Soli asked if they could check the ice hold that was in the front of the boat. Garcia indicated that... do you have a warrant. Officer Soli said I'd like to check for fish products. He says, do you have a warrant. At that point, Officer Walker testified in the suppression hearing and at the trial that, we do not need a warrant; we are not going to search, you're under arrest for failing to have certificate papers, your registration papers. At that point, no time went by, based on everybody's testimony. Garcia says, you got me, in essence, there's marijuana all over the boat. At that point, Miranda warnings were given, the officers asked him to reconfirm what he said. He said there's marijuana on the boat. At that point, Officer Walker asked if they would accompany Officer Soli to the ice hold, at which point the top or the lid was removed and marijuana... the aroma of marijuana was everywhere and apparently, leaf materials... it was just filled to the gills with marijuana. The state contends that the minority opinion by the Florida Supreme Court that the case was instant to a lawful arrest, that it was a probable cause search and that, indeed, indeed, the search of the ice hold would have been justified pursuant to an inspection type check, all justified the search, and that the Florida Supreme Court was incorrect in finding that there was no consent and no probable cause. I think a review of the decisions concerning consent... and I think the reason I am going to consent is that although the state never specifically argued that consent was given to search the ice hold, even though there was this kind of open statement like there's marijuana all over the boat, the state would contend that the fact that somebody's in custody, that they're not able to leave... the totality of the circumstances must be reviewed, and in this particular instance the consent was there. But more importantly, the statement that was given was not coerced in any way, fashion or form. And, therefore, there was sufficient... at that point, when the officer heard that Garcia said there is marijuana all over the boat, it developed the requisite probable cause to conduct the search of the entire boat, as this Court has suggested in Ross. More importantly, as soon as Garcia and Mr. Casal were under arrest, the search instant to a lawful arrest was appropriate under Belton. We're talking about a vessel which is no different than the automobile and certainly, the area that was to be searched was not a private sector of the boat, it was not someone's locker on the boat; it was a fish hold that... there are federal district court cases that have held that even the fish hold is not a private sector; it's open to the public and does not contain privacy protections. Based on these three arguments, the state would contend that the Florida Supreme Court erred in determining that the particular search herein was unlawful. Thank you. Mr. McCormick?
ORAL ARGUMENT OF ARTHUR F. McCORMICK, Esq. ON BEHALF OF THE RESPONDENT Mr. Chief Justice, and may it please the Court: It is the position of the defendants that the judgment of the Supreme Court of Florida should be withheld. The grounds that are being offered by the defendants in support of the decision of the Supreme Court, the judgment of the Supreme Court, are, number one, that the stopping was unlawful; number two, that the search was unlawful; number three, that there was a deception that was exercised by the police officers in the process of representing that a search warrant was not necessary; and number four, that the arrest was also unlawful. But you're not arguing that the judgment rests on an adequate state ground? Yes, sir, that also. How about the boarding? You were rejected on that. No, I wasn't totally rejected, as in the brief by the state I was accused of using a thunderbust, and so I'm somewhat restricting my shot right now and eliminating the boarding aspect of it. Based upon the arguments in the prior case,-- So we are judging this case as though the boarding was constitutional. --The boarding I don't believe was by consent because-- I know, but was the boarding constitutional or? --If it was not by consent then it wasn't constitutional. I know, but the Florida Supreme Court has said it was. The Florida Supreme Court, in interpreting the facts-- Said the stop and the boarding was constitutional. --They said that-- You haven't processed an appeal to that. --No, sir, I haven't. But as far as the grounds for supporting the judgment of the Supreme Court of Florida, I'm not implying that the boarding was unlawful. I believe that the decision of the Supreme Court of Florida can be withheld, I mean, can be sustained without analyzing the boarding aspect of it. All right, so we judge it as though the boarding was legal and from then on, you say whatever happened was enough to sustain the judgment. Judge, that, if you see that the boarding was illegal, I don't want to disagree with you in that respect at all. I didn't know that was an issue here, the legality of the boarding. I'm not raising it at this point, Judge. At this point. You've lost an opportunity to raise it. And this is the last time. No, sir. The reply brief of the state objects to the analysis of the case on these points by the defendants. We are satisfied with the judgment of the Supreme Court of Florida, and that being the case, we did not file any cross-petition seeking certiorari. Did you ever challenge the propriety of the arrest? Yes, ma'am. Is that the propriety of the arrest was challenged initially by a written pleading on the motion to suppress. And that was back on April 3, 1977. The arrest was objected to and that was used as one of the grounds for the motion to suppress. You concede now that the arrest was lawful? No, ma'am. Our position is that the arrest was unlawful. In addition to that, before the Third District Court of Appeals, our brief on page 21 contains our objection to the arrest. Before the Supreme Court of Florida, our Answer Brief on page 18, 19 and 40, and argument number vii. Mr. McCormick, are you talking about the arrests for not having a registration statement? Not having a registration? Yes, sir. Well, at page 28 I think of your brief you say that those arrests were false arrests. Yes, sir. What did you mean by that? By that I mean that they were unlawful. Is that there was no reasonable grounds to believe... I'm talking now about the initial arrests. Actually, we've got two arrests involved. We've got the first arrest-- I'm talking about the one for not having a registration. --They never perfected that. They told the men onboard, they said, you're under arrest, but they never followed it up by any type of a citation or anything else. That is the arrest that I'm talking about that was unlawful. You say that arrest was federally infirm? Are you saying that was federally infirm? No. Constitutionally? I'm saying that it was unlawful by the laws of the state of Florida, and by the same token, if there wasn't probable cause to believe that a crime had been committed when they were arrested for not having the registration papers, by the same token, it would be federally infirm. We're attacking the... or, we're supporting the decision of the Supreme Court of Florida on these grounds, based primarily upon the Langley struck doctrine, the decision by Justice Cardozo in the Mauley Construction and Maryland Casualty case, as well as Gresman Supreme Court Practice, 477, 479. The state, in its presentation of the facts of the case, I believe there should be some additions to it in order that the total picture can be appreciated in deciding this case. Is that to begin with, this was off of Sugarloaf Key, is that... I don't know if you Justices are familiar with the Keys, but Sugarloaf is between Marathon and Key West, and it's a rather remote area of the Florida Keys and it was approximately three miles offshore. It was about 1:00 o'clock in the morning and the seas were rough. The evidence was that the Marine Patrol had a suspicion that there was lobster being stolen from fishermen's traps in this area. Further was the evidence that they had no reason for suspicion of any kind that the defendants were involved in any type of illegal activity. As a matter of fact, both of the Marine Patrol officers said that when they approached the vessel they had no knowledge or suspicion of any kind that these men were transgressors of the law. Nevertheless, they decided to stop the vessel. The vessel at this time was approximately three miles offshore, the seas were very rough and they approached the vessel from the stern, and then threw the floodlight on when they were approximately 50 feet away. One of the officers asked the pilot of the San Rafael to take the vessel out of gear and to bring it to a stop. Of course, it's bring it to a stop as best you can considering the roughness of the sea. When a vessel is brought... is taken out of gear when the seas are rough, it has a tendency to be be thrown in the direction that the sea wishes it to be thrown. Is that you lose control of a vessel when you take it out of gear in heavy seas. The record indicates that the Marine Patrol boat was pulled up alongside of the San Rafael and that the two vessels were pounding together in the heavy sea while the Marine Patrol officer questioned the men onboard if they had their registration papers. I believe at this juncture it should be pointed out that as far as the registration law, is that Florida has its registration law for power boats, motor boats as they're called. Most states have their own individual laws for registering motor boats. It used to be that the federal government had the exclusive right in this area, but then they delegated this to the states and permitted the states to pass their own registration laws. Florida passed it, and by definition under the Act, is that they state that all motor boats... and I believe this has application to an inquiry by you, Justice Powell, is that all motor boats must be registered. But then what they do is they say that the following vessels are not to be considered as motor boats under the Act. They talk about boats strictly used for racing, they talk about other vessels from other states where they are properly registered. And more importantly, they say documented vessels are not labeled as motor boats, and they don't have to have registration papers. The evidence was at this point that the defendants produced the documentation papers for the vessel. And even though the documentation papers were produced clearly indicating to the police officers that registration papers were not necessary, they insisted upon the registration papers. Officer Soli then requested permission to get aboard, and at this time the boats are still pounding together in the heavy seas, and there's no indication inside of the record that permission was ever granted. All it is is that she proceeded to get aboard and was given assistance while getting aboard by the defendants. Once aboard, she immediately engaged in a search of the vessel. Is that she states that the purpose of going onboard... her true purpose in going onboard was to find seafood products. The Florida statute on point 370.021 specifically states that there must be reason to believe that the conservation law has been violated in order for the Marine Patrol officer to conduct a search of a vessel in that respect. So in violation of that section of the Florida statute, she nevertheless proceeded to try and search the vessel. The first area she went into was the wheelhouse. The record indicates that she followed the men into the wheelhouse. She didn't receive any consent to go into the wheelhouse; she just went into it from the cockpit. She then went into the grocery box, and she wasn't looking for the registration papers when she went into the grocery box. Well, Mr. McCormick, supposing that a state custom agent, state marine officer, has legally boarded the boat and there isn't just a standoff between the captain or whoever it is. The captain realizes the officer is there and walks to the wheelhouse and goes to the wheelhouse himself. Do you think that when the state police officer comes from the outside part of the boat to the inside part of the boat he has to ask permission if the captain has simply gone on ahead, indicating for him to follow? Well, if the captain indicated that he should follow, then I would go along with you, but the record doesn't indicate that the captain indicated to him to follow. Well, what does the record indicate? The record indicates that once Office Soli got onboard, she immediately commenced to search for seafood products. But from your description of how she got to the wheelhouse, it sounds as though she had followed the captain there. Not that she pushed the captain over to one side and went into the wheelhouse on her own. That's right. Yes, sir. But then she went into the grocery box, and she wasn't following the captain when she went into the grocery box. She was really conducting a search. Well now, the Florida Supreme Court opinion says that in this case, consent was freely given to board the vessel and to look in the icebox. Now, we have to take that as the correct finding, do we not? You didn't come here on a petition for certiorari to dispute that. We have to assume those things are true. I did not cross-petition, and I believe it's our position that it's not necessary for us to cross-petition based upon the Langley-Cardozo decision. Well, you can't ask us to disregard that state court's factfinding. Well, that's the reason why I said I don't want to have our position rely strictly upon the boarding or the illegality of the boarding of the vessel, because of that point. But now as far as the icebox goes,-- Well, it can't rest on that point at all. --Pardon? It can't rest on that point at all. Don't we judge this case on the grounds that the officers were legally on the vessel? I believe so. The icebox consent was given to look in the icebox but no place else. It was after the Marine Patrol officer conducted a search of the wheelhouse, the grocery box and the cabin and then the icebox that she proceeded to the forward hold and indicated to Garcia that she wanted to see what kind of fish products Mr. Garcia had in the forward hold. It was then that Mr. Garcia said, do you have a search warrant. And Officer Soli said all we want to do is take a look in there and see what kind of fish products you have. And he again repeated the question, and this dialogue was going on and Officer Walker, in the Marine Patrol boat alongside shouted out then and said, we don't have a search warrant, we don't need a search warrant. We're not searching your boat. You're under arrest for not having your registration papers. And that's the arrest that I was speaking about that I say is unlawful. Why, again, do you say it was unlawful? Because they didn't prepare something like a certificate of arrest? No. I said it was unlawful because the Florida statutes specifically state that registration papers are not necessary for a documented vessel. So you're saying there was no offense for which-- Yes, sir. --But didn't the Supreme Court of Florida disagree with you on that? No, it didn't. You say under Florida law he could not have been arrested for not having a boat registration certificate onboard. Yes, sir, that's correct. The Florida Supreme Court opinion, however, says, and I quote, "They" meaning the officers, "then asked to see the boat's registration certification, which is legally required to be onboard. " And they cite a statute. And we're supposed to disregard that? It's supposed to be onboard a vessel for a motorboard, but this isn't a motorboat. It's a vessel that has documentation-- But they were dealing with this particular case, though. --Yes, ma'am. And they've told us in this case in that sentence that it was legally required. Then I advance this as an argument that was rejected by the Supreme Court. And I believe, according to the Langley decisions as well as the other authorities that I mentioned, we're able to advance not only the arguments accepted by the Supreme Court of Florida, but also, those rejected by the Supreme Court. And even arguments not even advanced to the Supreme Court. But you're unlikely to prevail, whatever you may be able to advance, on an argument that says that the Supreme Court of Florida misunderstood what the Florida police could arrest for, or what was legally required to be onboard under Florida law. There's no indication inside of the decision of the Supreme Court that the arrest was lawful. Suppose under Florida law it was lawful, that having a registration certificate onboard was required, and that you could arrest for not having it. And suppose the officer said to the captain, well, you don't have a registration certificate so we're arresting you for that. Now, if that was a lawful arrest, the only way it could have been lawful is if it were lawful without a warrant. Yes, sir. Now, are you saying that they needed a warrant? No. I'm saying that it was an unlawful arrest because there was no probable cause to believe that the statute was violated. The statute requiring registration papers. Registration papers were not required. Well, they didn't have them. They weren't required because it was a documented vessel. The Florida Supreme Court says they were required. They were required by Florida statute as far as... there certainly is a Florida statute that says that motor boats must have registration papers. But if I may read to you from the record, this is A-15, this is the testimony of Officer Walker. "Two gentlemen came out of the wheelhouse. " "I identified myself as Mark Walker, again with Marine Patrol, and I told them that I would like to check their registration papers for their boat. " "Question: And did they produce the registration papers? " "Answer: At first he handed me a white piece of paper and the tax receipt, taxes paid on the boat. " "I assumed it was paid on the boat. " "I told him that that wasn't what I wanted to see, that I wanted a small square piece of paper which was a Florida registration certificate. " "He returned and handed me the documentation papers for the vessel, and I asked him if he was captain of the boat. " "I don't remember whether he replied whether he was captain or not. " et cetera. Anyway, the Florida Supreme Court opinion says that he could not... the registration certificate could not be located. That's correct. There was no registration certificate. And after having said that the certificate was legally required to be onboard. Anyway, they were legally on the vessel; there was no registration certificate to be found. And if they could be arrested for that... there was no misrepresentation, I suppose, then, about the warrant. If they could arrest for the registration papers, I think next... assuming that was legal for purposes of argument at this stage... is that the next question is would they have the authority to search the vessel. And Section 371.58 states that you're able to conduct a safety check with the owner or operator's consent, or when there has been reasonable cause to believe that a part of that section has been violated. Now, if there was a violation of the safety requirements, then I say, yes, you could. In contrast, if you don't have your registration papers onboard, is that... for example, if you don't pay your income taxes, I don't think that would give them the authority to search the forward hold. And by the same token, if they don't have the registration papers onboard, I don't think that would give them the right to search the forward hold. So you're suggesting, which may be quite right, that under Florida law, even if you need a registration certificate onboard, even if you can be arrested for not having it, you may not search the rest of the vessel, or search the vessel at all, unless you have probable cause to believe you're going to find something besides the non-existence of a registration certificate. I would think, so, yes, sir. You think that's Florida law. Yes, sir. I believe that would be consistent with the Carroll case, and I think it's also consistent with State versus-- Well, it isn't. Justice Stevens suggested to you that the requirement of probable cause is... that was imposed on these officers is purely Florida law. Even if they could have arrested for not having a registration certificate. --Well, that portion of the decision, the last two pages of the opinion in chief, that deals with the aspect of probable cause and the arrest is that if all Florida statutes that they talk about, together with the Hill case and I believe the Taylor case and one other case, and they don't mention anywhere-- Is that the premise of your argument that this judgment, then, rests on an adequate state ground? --Yes, sir, it certainly does. In addition to that, our Article I, Section 12 of the Florida Constitution which was in force in 1977 and which was in force right straight through the trial and the appeals up until last year, was a little bit broader than the Fourth Amendment to the United States Constitution. Article I, Section 12 even stated that any evidence that was obtained... that was unreasonable could not be introduced in court proceedings. What happened last year, Mr. McCormick? Well, they changed the constitution and now they're going along with the Supreme Court of the United States. Florida changed its constitution? Yes, sir. It's suggested by the state that the search was incident to the arrest, and that area, I believe the Chimel versus California is still the law here before the Supreme Court is that there has to be, number one, a lawful custodial arrest, is that there's been no indication whatsoever that there was a lawful, custodial arrest here. And that the search be limited to an area into which the arrestee might reach in order to grab a weapon or evidential item. Is that the forward hold... is that the arrest took place in the cockpit of the boat. The forward hold is on the other side of the cabin. There's a hatch. The evidence is that it required two men, strong men, to be able to lift the hatch, and before they could even get to it, there's fish traps located on top of the hatch that have to be removed. So this would certainly not be an area where the arrestee might reach for a weapon or perhaps attempt to get some evidence and destroy it. The Carroll Exception is that... just briefly, the probable cause for the arrest is that it's our contention did not exist. Nor was there probable cause to believe that contraband was onboard. Is that the testimony of Officer Soli and Officer Walker was that they had no suspicion whatsoever that there was any contraband onboard. As a matter of fact, they testified that they just wanted to take a look in the forward hold because they thought they might be able to locate some lobster. I don't know how they're able to say that after they... assuming that they did find the seafood products, that they could identify those seafood products as either being stolen or perhaps legally gained. The evidence was also, by the testimony of the officers, that they had no reason to believe that this boat either fished in Florida waters or ever sold fish products in Florida waters. Well, what were the traps doing there? The traps were onboard the boat, and they-- You said they didn't fish, but what were they doing with traps? --They stated that they were on the way to the Bahamas. It's a caysal bank which is located almost due east of Sugarloaf, approximately 40 miles into the stream. The further position of the state is that this was a lawful administrative inspection. It's our position that as far as it being a lawful administrative inspection, Chapter 370 specifically states that the only time that you can have an inspection is if there is probable cause to believe that the conservation law has been violated. And they, by their own testimony, stated they had no reason whatsoever, even a suspicion, to believe that the conservation law was violated. 371 deals with registration papers and safety equipment. Is that it's the state's position now, which I say lacks vitality because the first time it was advanced was in their reply brief. Is that they say that... the state is contending that the probable cause was gained by the lack of papers onboard, the registration papers. This is the first time that they advance this, in their reply brief. And it's our position, of course, that the failure to have registration papers wasn't... that doesn't give you the probable cause to conduct the search. It is the state's position that the question for review, as indicated in their brief on their petition for certiorari,... it states that the respondents were validly arrested. It stated that the Supreme Court of Florida so found that the respondents were validly arrested, prior to the hold of the boat being searched. Is that nowhere in the opinion is there any indication that the state Supreme Court thought that the defendants were validly arrested. And, of course, this is a pivotal point, is that if you... it has to be established in the first instance that there was a valid arrest. Otherwise, everything else pretty much collapses. Lastly, the decision mentioned inside of the defendants' brief; namely, Bumper v. North Carolina, which I believe is very similar to the case at bar, as well as, of course, U.S. v. Moat, which is at 359 Fed 2nd, and O.J. Sales, Inc., which is a 99 Supreme Court case. Is that similar in kind where there's been a misrepresentation, especially if it's with reference to a search warrant or it's represented to the defendant that authority to search existed when, in fact, it did not, is that any statements made as well as evidence received and especially consent ostensibly given does not constitute consent at all. And as was indicated in the case of State v. Taylor, acquiescence to authority does not constitute consent. Thank you, gentlemen. Do you have anything further? No, Your Honor. Thank you, counsel, the case is submitted. The Honorable Court is now adjourned until Monday next at 10 a.m..