Mark ROYER, Appellant, v. The STATE of Florida, Appellee, 389 So. 2d 1007

CHARLES CARROLL, Associate Judge. The appellant, Mark Royer, was charged by information with unlawful possession of a controlled substance, cannabis, in an amount greater than five grams, and of the crime of unlawful possession thereof with intent to sell or deliver the substance. The defendant moved to suppress evidence consisting of 65 lbs. of marijuana found in his possession, on the ground that the search and seizure thereof without a warrant was unlawful.

The court denied the motion on the ground that the defendant freely and voluntarily consented to the search, and on the ground that with the defendant fitting the profile of a drug courier and officers had probable cause to be-* lieve his luggage contained contraband, justifying a search. After denial of his motion to suppress, the defendant withdrew his plea of not guilty and pled nolo contendere, with reservation of right to appeal the order. Adjudication was withheld, and no sentence was imposed.

The defendant was placed on probation for two years, with one of the conditions of probation being a requirement that he spend 30 days in jail. The defendant appealed, contending the denial of his motion to suppress was error. We hold no reversible error has been shown, and affirm the judgment. The facts leading up to the search and seizure of the marijuana were the following.

Officers Johnson and Magdalena, of the Dade County Public Safety Department, were plainclothes detectives assigned to the County’s Crime Bureau, Narcotics Investigation Section, performing duty at Miami International Airport as members of what was known as the Smuggling Detail, consisting of a sergeant and eight officers, who worked in pairs, on shifts. Said officers had acquired knowledge of a “profile” by which it was possible with a substantial measure of certainty to recognize couriers or carriers of drugs in air travel.

Such profile had been arrived at by experiences of narcotics officers with a great number of such persons in main drug distribution centers and the target city destination places.- Miami was a known point from which imported drugs, including marijuana, were transported to other target destination cities, one of which was New York City. It was known that commercial airlines were used for such transport of drugs by such couriers and others. On a certain day, at the Miami International Airport, the above-named officers observed the defendant as he was about to purchase a ticket on an airline.

The defendant’s appearance and mannerisms, his luggage and the way he dealt with it, and his means of obtaining his ticket, etc., as observed by the officers were such as to fit the profile, the details and nature of which we purposely do not here state. As disclosed through the testimony of Officer Johnson, the defendant was observed to fit the profile of a drug courier. The defendant checked his two suitcases, placing identification labels thereon bearing the name “Holt”, but without stating his address or telephone number in the spaces provided therefor on the labels.

The officers noted the name which the defendant placed on the suitcases. As the defendant was proceeding to enter the concourse leading to the boarding area, after having obtained his ticket and checked his suitcases, the officers approached him, identified themselves as police officers, and asked him if he had time to talk with them, which he said he did. There followed a series of requests by the officers, to none of which the defendant objected, and to each of which the defendant assented.

Those consisted of his initial consent to talk to the officers, his production upon request of his ticket (which was to New York City), and his driver’s license for identification (which showed his name to be Mark Royer, not Holt which was the name on the ticket); his consent to move with them out of the main room into a vacant side room for further conversation; his consent to the officer’s request that the suitcases be opened (after Johnson had retrieved the suitcases).

When the officers requested his consent to the opening of the suitcases, the defendant produced a key from his pocket and unlocked one of the cases. He explained that he did not know the combination of the combination lock on the other suitcase, and upon request gave his consent to the opening of the other case by the officers, which they did with the aid of a screwdriver. The search revealed the suitcases contained 65 pounds of marijuana.

The testimony given by Officer Johnson, which the court chose to believe, was sufficient to establish, as fact, the consent of the defendant to the several requests of the officers. In his testimony the defendant did not state that he had objected to, or that he had not consented to any of such requests of the officers.

The defendant testified that during the time he was in the presence of the officers he was not told that he was free to leave; and as to each of the steps or requests to which the defendant consented, he testified (1) he was not told that he did not have to consent, and (2) as to each of such consents, when asked by his lawyer why he consented, he gave the same answer, viz., “They were police officers and I thought I had to.” On appeal the defendant does not argue that the court committed error by finding, on the totality of the evidence, that he did so consent, but contends the court’s finding of consent was error because he was not told he could refuse consent, and that because such consents were given to police officers as a matter of law it could not be held that his consents were free and voluntary.

We reject those contentions as being without merit in this case. The ruling of the trial court denying the motion to suppress comes here with the support of a presumption of its correctness; and in testing it, on review of the order on appeal, the evidence and the inferences and intendments reasonably deducible therefrom are to be viewed in the light most favorable to sustain the ruling. Rodriquez v. State, 189 So.2d 656, 610 (Fla. 3d DCA 1966). In this case there is little need to summon to our aid that presumption and that rule.

Presented with the totality of the circumstances, the trial court found the consent to the search was made freely and voluntarily. That finding of consent by the court is supported by clear and convincing evidence, and defendant does not contend the evidence, as such, showed otherwise. If we were so inclined, which we are not, to substitute our judgment for that of the trial court on its finding of free and voluntary consent, by re-evaluation of the testimony and evidence from the record before us, it would not be proper to do so. Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Westerman v.

Shell’s City, Inc., 265 So.2d 43 (Fla.1972). A warrantless search which is made pursuant to consent does not offend the Fourth Amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). We hold to be unsound the contention of the defendant that the consents he gave in this instance should be disregarded because prior thereto he was not told he could refuse to consent.

The failure of the officers to have advised the defendant that he did not have to consent to any request by them, including request to search the suitcases, did not operate to render involuntary the consents given by the defendant, although that circumstance, as shown in the evidence, was a factor to be considered by the trial court in assessing the totality of the circumstances on the question of volun-tariness, in ruling on the motion to suppress. Schneckloth v. Bustamonte, supra; State v. Spanierman, 267 So.2d 102 (Fla. 2d DCA 1972); State v. Custer, 251 So.2d 287 (Fla. 2d DCA 1971); Taylor v.

State, 355 So.2d 180, 185 (Fla. 3d DCA 1978). The absence of such advance advice to the defendant was emphasized in the testimony of the defendant, thereby acquainting the court with that circumstance. In holding that the defendant’s consent, otherwise free and voluntary, was not thereby rendered involuntary, the trial court was not in error. Taylor v. State, supra [350 So.2d at 185]. When the defendant was talking to the officers voluntarily, he had not been arrested.

The fact that at their request he voluntarily went with the officers into a side room where they continued to talk with him and where he remained while his suitcases were retrieved and opened with his permission, did not amount to being in custody so as to have required the giving of Miranda warnings at that time. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); Barfield v. Alabama, 552 F.2d 1114 (5th Cir. 1977). The case of United States v. McCain, 556 F.2d 253 (5th Cir. 1977), is distinguishable on the facts. Consent can validate a warrantless search despite lack of warning.

On the question of whether the defendant’s consent to the search, found by the trial court to have been freely and voluntarily made, should be held on appeal to be involuntary because it was made to and in the presence of the police officers, we hold that it should not. A consent to a search, which is given to police officers can be voluntary where not the product of duress or coercion by the officers, although a consent to a search which is found to be the product of duress or coercion, express or implied, of the officers, is not a voluntary consent.

Therefore, the question of whether a consent to a search was “voluntary” or was the product of duress or coercion is one of fact to be determined from the totality of all the circumstances. See State v. Othen, 300 So.2d 732, 733 (Fla. 2d DCA 1974), which quotes at length on this subject from the opinion of the Supreme Court of the United States in Schneckloth v. Bustamonte, supra. Here there was no coercive action by the officers. There was no use of force. They did not touch him, or display any weapon, or make any demands.

There was no show of force other than the fact, as revealed to the defendant, that Johnson and Magdalena were police officers. The statement to the defendant by one of the officers, when requesting his consent to the opening of the suitcases, that they had reason to believe the cases contained drugs or contraband was not a threat, but rather an explanation of why they were requesting consent to search the cases. The requests which the officers made of the defendant were made politely, and the defendant so testified.

Here each step taken by the officers, to and including the opening of the suitcases, was upon consent given after polite request. In that respect, this case differs from Taylor v. State, supra, 355 So.2d 180 (Fla. 3d DCA 1978), where it was held that the trial court had improperly denied a motion to suppress contraband evidence found on a search of a boat when the consent to search, upon which the trial court had relied, was obtained by officers after they had begun an unlawful search of the boat.

In Taylor, the court said: “The central question presented for review is whether a free and voluntary consent to conduct a warrantless search of a boat may be obtained by a law enforcement officer from the boat’s owner after such officer has begun an admittedly unlawful search of the boat. We hold that, absent a clear and convincing showing of an unequivocal disavowal or break from the prior illegal search sufficient to dissipate the taint of the prior illegality, no such free and voluntary consent can be given as it is tainted by the prior illegal search.

As such, any search conducted pursuant to such coerced consent is unreasonable within the meaning of the Fourth and Fourteenth Amendments of the United States Constitution and

Article I,

Section 12, of the Florida Constitution, and the fruits of such a search are inadmissible in evidence.” In cases of this kind, as said in Schneckloth v. Bustamonte, supra, “two competing concerns must be accommodated in determining the meaning of a ‘voluntary’ consent — the legitimate need for such searches and the equally important requirement of assuring the absence of coercion.” In this case, on weighing those competing concerns, the balance was properly found to tilt in favor of finding voluntary consent.

Accordingly, we affirm the order denying the defendant’s motion to suppress as evidence the contraband the search revealed, on the ground, as found by the court, of defendant’s consent to the search. In so ruling, we are following a recent decision of this court upholding a warrant-less search based on consent in a substantially similar fact situation. See Myles v. State, 374 So.2d 83 (Fla. 3d DCA 1979). In conflict with Myles (and now in conflict with the decision in the present case) is the decision of this court rendered after Myles, in which the Myles case was not cited or discussed. See State v.

Frost, 374 So.2d 593 (Fla. 3d DCA 1979). In Frost the court held the consented-to search was invalid on the theory that the period during which the officers were obtaining the person’s identity and his consent was a period of unlawful detention, vitiating the consent to the search. That view in Frost appears to be predicated on an assumption that probable cause which the officers had to believe the person carried contraband drugs would not entitle arrest without a warrant.

To the contrary, the view of the majority in this case is that although the officers, when having probable cause to believe the person about to depart was transporting drug contraband, did not make an arrest prior to the (consent) search, they were lawfully entitled to have arrested the person had they chosen to do so.

Basically the conflict between Myles and this case, on the one hand, and Frost, on the other hand, is a difference of opinion as to the effect of a recognized profile of a drug carrier, that is, whether such profile, which gives trained officers probable cause to believe that a person about to depart in air transit is transporting drug contraband in his luggage, can or cannot be the basis for effective action by the officers absent a warrant.

The rationale of the ruling in this case is that when trained officers spot a departing air travel passenger who with his luggage fits the profile of a drug courier or carrier, giving them probable cause to believe the person is transporting drug contraband, thereby the officers will have probable cause to arrest the person without a warrant in the obvious exigency, and, a fortiori, to search his luggage if he gives consent thereto; and further, as explained below, would be entitled to search the person’s luggage even without his consent, in the exigency created by his impending departure therewith.

On the other hand, if we should accept the view that such trained officers, having probable cause to believe a departing person is carrying drug contraband cannot ask his identity and permission to search his luggage without thereby effecting an illegal arrest, then the officers, upon spotting a profile drug carrier would be relegated to stand idly by and watch the passenger and his luggaged contraband depart unimpeded, We regard the question on which such conflict exists as to the validity of a consent search in such circumstances, to be one of legal and public importance, the ultimate determination of which either will promote the effectiveness or increase the ineffectiveness of law enforcement against smuggling or transportation of drugs through and out of the Miami International Airport by persons who match the profile used to spot drug carrying airline passengers.

That brings us to consideration of the second ground upon which the trial court denied the defendant’s motion to suppress.

The substance of that separate ground was that luggage which is in air transit, of one who fits the profile of a drug courier, because of the exigent circumstance that it is about to depart in transit can be searched without obtaining a warrant and without the owner’s consent, by officers who have probable cause to believe it contains contraband; in this era of drug smuggling, as it was held to be permissible in the prohibition era to stop and search an automobile without warrant or consent, by officers who had probable cause to believe the automobile contained contraband liquor. See Carroll v.

United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1926). We agree with the trial court, and affirm also on that separate ground. In United States v.

Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), the decision that because of an owner’s expectation of privacy as to the contents of his luggage, probable cause of officers to believe that it contained contraband drug would not authorize a warrantless search of luggage, as it would of an automobile, was a holding made with reference to luggage which is not immediately associated with the passenger person, and which is not subject to any exigency to support an immediate search.

From the opinion in Chadwick it is clear that the Court did not foreclose warrantless searches of luggage that is immediately associated with the passenger person and which have the support of an exigency creating a need for immediate search. Thus, in Chadwick, the Court said: “Here the search was conducted more than an hour after federal agents had gained exclusive control of the footlocker and long after respondents were securely in custody; the search therefore cannot be viewed as incidental to the arrest or as justified by any other exigency.

Even though on this record the issuance of a warrant by a judicial officer was reasonably predictable, a line must be drawn. In our view, when no exigency is shown to support the need for an immediate search, the Warrant Clause places the line at the point where the property to be searched comes under the exclusive dominion of police authority.

Respondents were therefore entitled to the protection of the Warrant Clause with the evaluation of a neutral magistrate, before their privacy interests in the contents of the footlocker were invaded.” (Emphasis added) For example, if officers stopped an automobile which they had probable cause to believe contained contraband, since they could search the automobile, to the extent of dismantling parts of it, it would be unreasonable to assume that because of the holding in Chadwick, the officers could not search suitcases found in the automobile.

Accordingly it has been held that upon stopping and searching an automobile under those circumstances, luggage, including suitcases and footlockers contained therein, can be searched. In the instant case the defendant’s suitcases were immediately associated with him. Until he checked them (upon purchasing his ticket), he had actual possession. When the suitcases were checked and he held the check stub, he was in constructive possession thereof. Moreover, in this case the impending departure of the person with his suitcases constituted an exigency creating need for immediate search. As noted in Carroll v.

United States, supra, by common law and by acts of Congress warrantless searches may be made in many instances. No useful purpose would be served by listing them here. In general they are authorized where their use appears essential for effective law enforcement (Internal Revenue, Customs, vessels at sea, etc.) and conditions of exigency. More recently, there is the approved practice of warrantless searches of carry-on luggage of airline passengers.

Recognizing that the reason for such searches is to guard against passengers’ transporting weapons or explosives which could represent a danger in air travel, it should be noted that such warrantless searches are authorized to be made of the carry-on luggage of all departing passengers indiscriminately, aside from and without any profile or circumstances pointing to a particular person as being one who reasonably could be thought to be carrying such banned objects.

The exigency which supports war-rantless search of a passenger’s carry-on luggage has been held to support the seizure of drug contraband which is found upon such a search of a person’s carry-on luggage, with the result that drugs so seized were held to be admissible in evidence on his prosecution for possession of the drugs. See United States v. Skipworth, 482 F.2d 1272 (5th Cir. 1973).

We hold, as did the trial judge, that when a person with his luggage is about to depart in air travel, if to trained officers the conduct and the appearance of the person and his luggage are such as to make him fit the profile of a drug courier, thereby giving trained officers reasonable cause to believe he is transporting drug contraband, the exigency created by the impending departure is sufficient to support an immediate search of his luggage without a warrant.

To prevent warrantless searches in such exigent circumstances would take away from the officers the power they must have, to be of effective service, for if they cannot search in such exigent circumstances, they are rendered ineffective to control air transportation of drugs by passengers, even when having probable cause to believe the luggage with which a passenger is about to depart contains drug contraband. For the reasons stated, the order appealed from is affirmed. . In denying the motion to suppress, the trial court stated as follows: “Motion to suppress be in (sic) the same is hereby denied.

We are dealing with an unusual circumstance. Profile searches, as they have been called, I believe, is something new. But then at the time [of] the Carroll decision, the search of an automobile and the manner in which it took place, was something new. What is reasonable in one circumstance may not be reasonable in another circumstance. Number one, the Court’s ruling, on denying the motion to suppress, is that the Court believes that the consent was freely and voluntarily given.

By the same token, I think under circumstances such as this where the police officers are in an airport and are surveilling, as testified to by the officer, with a specific profile that they are following, that the officer doesn’t have the time to run out and get a search warrant because the plane is going to take off. If there is going to be anything occurring, it’s going to occur long before they can take any type of action. So it’s a denial on dual grounds. Might as well get it tested whether it’s reasonable or unreasonable because, I assume you are taking an appeal?” .

Each of the charged offenses was a third degree felony under § 893.13(l)(a)(2), Fla.Stat. (1975), and was punishable by a term of imprisonment not to exceed five years [§ 775.082, Fla.Stat. (1975)]. . The testimony of Officer Johnson and of the defendant conflicted on only one item. Johnson testified that when he asked the defendant for permission to open the suitcases the defendant produced a key from one of his pockets and used it to unlock the one case.

The defendant testified that previously the officers had had him empty his pockets, and that he had obtained the key with which he opened one of the cases from the top of a desk upon which the contents of his pockets had been placed by him. In rebuttal thereto, Johnson testified again that the defendant took the key from his pocket to open the case, and testified that the defendant had not been requested to empty his pockets until after he was arrested, after the suitcases had been opened. . State v. Wise, 356 So.2d 920 (Fla. 2nd DCA 1978); Cockerham v. State, 237 So.2d 32 (Fla. 1st DCA 1970); James v.

State, 223 So.2d 52 (Fla. 4th DCA 1969). . The establishment of such a rule of law would operate to permit a person, by purposely and intentionally giving his consent to officers to make a warrantless search which revealed contraband, thereby to make sure that subsequently there could be no use of the contraband as evidence. . As arrest was made in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). There the travel was by Amtrak train, from San Diego to Boston. The luggage was a footlocker. The arrest, prior to search of the luggage, was based on profile.

As stated by the Supreme Court, “Because Machado [one of the two departing passengers] matched a profile used to spot drug traffickers” the railroad officials notified the federal agents in San Diego who passed the information on to their Boston counterparts, with descriptions of the passengers and luggage. When the passengers arrived in Boston, claimed the footlocker, and were loading it into an automobile which arrived to meet them, they and the driver of the automobile were arrested, and they with the footlocker were taken to the Federal Building.

There, an hour and a half later, the footlocker containing contraband was opened without a search warrant having been obtained. In the trial of that case, the exclusion as evidence of the contraband from the footlocker was not on the ground that the arrest had been illegal, but on the ground that the search and seizure were unlawful, when made without a warrant after such period of time when the footlocker had been taken and was held in exclusive custody of the Government and when there was no exigency to support need for immediate search. . In Carroll v.

United States, supra, in which the opinion of the Court was written by William Howard Taft, Chief Justice of the United States, it was held that an automobile could be stopped and searched (for contraband liquor) when “the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported.” In Carroll, the facts as stated by the Court were as follows.

On September 20, 1921, the officers involved, posing as civilians, in an apartment maintained by them in Grand Rapids, Michigan, met with Carroll, Kiro and Krus-ka, known to them to be bootleggers based in Grand Rapids. The officers arranged to purchase three cases of whiskey from them, and they left to get the whiskey. Kruska returned and reported it could not be delivered then, but that it would be delivered the next day. No such later delivery was made. The officers had observed the Oldsmobile roadster in which the men had come to the meeting.

Several weeks later, on October 6, 1921, while said officers were patrolling the Detroit to Grand Rapids highway, they were passed by Carroll and Kiro in the Oldsmobile, driving east toward Detroit. The officers followed, “to see where they were going,” but lost sight of them in the traffic. Two months later, on December 15, 1921, while driving east on said highway, the officers were passed by Carroll and Kiro in the Oldsmobile, driving west. The officers turned around, and overtook and stopped the Carroll automobile at a point 16 miles east of Grand Rapids.

They searched the car and seized 68 bottles of contraband imported whiskey and gin, which they found hidden behind the upholstery of the automobile seats, from which the filling had been removed. In Carroll, the probable cause of the officers to believe the Carroll automobile carried contraband liquor was based in substantial part on a profile. Augmenting knowledge that Carroll and Kiro were bootleggers, there was only the profile situation to cause belief that the car, on that occasion, contained contraband.

The officers did not have any advance information or tip that said automobile would be on the highway that day carrying liquor.

On the contrary, as noted by the Court in its statement of the facts, “The officers were not anticipating that the defendants would be coming through on the highway at that particular time, but when they met them there they believed that they were carrying liquor; and hence the search, seizure and arrest.” The fact that Carroll and Kiro were known to be bootleggers would not have authorized an officer to stop and search the Carroll automobile in all circumstances, such, for example, as if Carroll had been observed driving his car on a residential street in Grand Rapids on a Sunday morning en route to his home from church.

The profile circumstances which authorized the search at the time and place when it was made were that Detroit was known to be a main point of distribution of imported contraband liquor, and that the Detroit to Grand Rapids highway was known to be a route used by bootleggers in the transportation and distribution of such contraband by automobile to Grand Rapids and to the “hinterland.” Based thereon the Court held that upon observing the bootleggers driving toward Grand Rapids on the Detroit to Grand Rapids highway the officers had probable cause to believe the automobile contained contraband liquor, and thereby were authorized to stop and search the automobile without a warrant. .

United States v. Tramunti, 513 F.2d 1087, 1104-1105 (2d Cir. 1975) (suitcase); United States v. Soriano, 497 F.2d 147 (5th Cir. 1974) (suitcases); United States v. Evans, 481 F.2d 990, 993-994 (9th Cir. 1973) (footlocker). . The holding of this court in Pomerantz v. State, 372 So.2d 104 (Fla. 3d DCA 1979), that a warrantless search of three suitcases which had been checked for air transit was unlawful, is distinguishable on the facts from the situation presented in this case. There, in the handling of the suitcases after they were checked, one of them flew open.

Its contents were disclosed to consist of a filled opaque bag [which in fact contained marijuana]. When it and the other suitcases were searched, the officers had no knowledge as to the ownership thereof, or as to who had checked them. The person who checked the three suitcases had not been observed by officers. There was no profile of a drug-carrying passenger connected with the luggage in question.