Articles Posted in Drug Crimes

The search and seizure laws deal with when, and under what circumstances, police officers can search a person or his/her property for drugs or other evidence of criminal activity. A general rule is that the police officer can ask a person if he/she can conduct a search and if the person consents, then the police officer is free to search without probable cause or a search warrant. However, there are exceptions to this general rule.

In a recent case south of Jacksonville, Florida, a police officer was responding to a call of suspicious activity and observed the defendant walking near a house in a residential neighborhood. The police officer made contact with the suspect and asked him for his driver’s license. The suspect gave up his driver’s license, the police officer ran the information in his computer and did not find any warrants for the suspect. After checking the suspect and finding nothing illegal, the police officer asked the suspect if he could search him. The police officer still had the suspect’s driver’s license at the time. For some reason, the suspect agreed, and the police officer found illegal pain pills in his pocket. The suspect was arrested for possession of hydrocodone.

The criminal defense lawyer filed a motion to suppress the evidence of the pain pills. The criminal defense attorney argued that the suspect was being detained at the time the police officer asked for consent to search, and the detention was not based on any evidence of illegal activity. Therefore, the consent to search was tainted and invalid.

The United States Constitution, along with the Florida Constitution, protects people from unreasonable searches and seizures. There are many cases decided by state and federal courts which elaborate on what is a legal search and seizure by the police and what violates a person’s right to privacy under the Constitution. However, as many legal cases as there are, they do not perfectly cover every situation. This is particularly true where a new technology is developed that gives the government access to people and information that was not possible before.

Somewhat recently, government officials have attempted to track people via GPS in their phones and otherwise. As a result, there have been court decisions in Florida and throughout the United States discussing whether the police need a warrant before they can track someone’s movement by GPS. There is now a new technology called Stingray that allows the government to track cell phone signals inside vehicles, homes and certain buildings. With this technology, the government can use a person’s cell phone data, such as text messages and emails, to determine the exact location of the cell phone. Law enforcement officials are apparently using this technology to track people without first applying for a search warrant and getting permission from a judge. The government’s position is that the technology does not retrieve information on the cell phone, just its location, so a search warrant is not required.

This tracking device, which apparently costs between $60,000 and $175,000, is primarily being used in drug cases (the government does love to spend money on the war on drugs). As of now, we have not seen any legal opinions that have directly addressed this particular Stingray technology. However, as the government makes greater use of it and makes drug and other arrests as a result, the issue of whether the government can track a person by his/her cell phone data without a warrant will likely be the subject of future criminal cases and appeals.

In Florida, in order for the state to prove a drug possession case, it has to prove that the defendant either actually possessed the illegal drugs or constructively possessed the illegal drugs. Actual possession is fairly straightforward. if a person is holding drugs or has them in his/her pocket, that would be actual possession. Constructive possession of drugs can be more complicated and can be more difficult to prove. It does not mean the state cannot prove drug possession, but it can certainly make it harder for the state to prove its drug case. Constructive possession basically means the drugs are located in a place where the defendant knows they exist and the defendant has some control over them.

As an example, I have some CD’s in a case in my car. I am nowhere near my car, but the car is in my name, a lot of other things belonging to me are in the car and I have the keys to the car which is locked right now. There is a strong argument that I am in constructive possession of my CD’s. Of course, this scenario also lends itself to some defenses to a possession charge. If other people also have keys to the car, I share the car with other people, other people’s belongings are also in the car and/or someone else is using my car when the police find the CD’s inside, there is an argument that those are not my CD’s and there is no evidence I put them there or even know they are in my car.

In a recent case near Jacksonville, Florida, undercover police officers conducted a purchase of Oxycodone pills from the defendant. They arrested the defendant for sale of Oxycodone. They went back to his residence, where he came from prior to the drug sale, and searched it. Inside, they found more Oxycodone and marijuana. The defendant was also charged with possession of marijuana and trafficking in Oxycodone for the drugs found in the house.

We wrote a previous entry about a case being decided by the United States Supreme Court regarding whether the police can have a drug dog walk onto someone’s property and sniff for the odor of illegal drugs without a search warrant. In many cases, a police officer will call for a drug dog, or K-9, during a traffic stop when the police officer believes the person has illegal drugs in his/her vehicle. If the drug dog alerts to the odor of marijuana, cocaine or other illegal drugs as it walks around the vehicle, then the police will search the vehicle looking for the drugs. The traffic stop situation is different from the issue decided in the Supreme Court case because, among other reasons, in the case of a traffic stop, the police presumably had a legal basis to stop the vehicle- typically a violation of a traffic law. The police officer cannot keep a driver who violated a traffic law at the scene for too long, but the police officer would be able to hold the driver at the scene while he/she is writing the traffic ticket and for a reasonable period of time thereafter.

However, in the case of a person’s house, if the police officer does not have sufficient information to obtain a search warrant, he/she would typically not have a legal basis to come onto a person’s property to search it. The state would argue that a drug dog sniffing around the outside of a person’s home is not really a search under the Constitution, but that was one of the issues the Supreme Court had to consider.

With its decision, the Supreme Court decided that a drug dog sniffing around a person’s home is a search, as contemplated by the United States Constitution, so people have a right to privacy in the area around their homes when it comes to drug dogs and police. As a result, the police cannot just go onto a person’s property with a drug dog and have it smell around for the odor of illegal drugs. In its decision, the Supreme Court correctly noted that there is a higher privacy interest when it comes to a person’s home, as opposed to a vehicle during a traffic stop.

The general rule in Florida is that a police officer is not permitted to enter a suspect’s home without probable cause and a valid search warrant signed by a judge or consent from someone with authorization. The Constitutional protection against unreasonable searches and seizures provides the greatest protection in one’s home. However, there are exceptions to this rule. One exception is that the police may be able to search the residence if there are exigent, or emergency, circumstances.

For instance, in a case outside of Jacksonville, Florida, the police were called to a reported battery. When they arrived, the door to the defendant’s apartment was open, and the police officer saw the defendant sitting on a couch with some marijuana in front of him on the coffee table. The police officer entered the apartment, seized the marijuana and arrested the defendant for possession of marijuana.

The criminal defense attorney filed a motion to suppress arguing that the police officer did not have a right to enter the residence and seize the marijuana because he did not have consent to enter the apartment and did not have a search warrant. Normally, the marijuana evidence would be thrown out, but the court found that there were sufficient exigent circumstances for the police officer to enter the apartment and seize the marijuana. The relevant factors were that the police officer was properly outside of the apartment when he observed the marijuana, the marijuana was clearly recognizable as illegal and the defendant could easily destroy the marijuana if the police officer had to take the time to get a search warrant.

In Florida, many drug cases arise after a suspect has given the police consent to search. We have a hard time understanding why people give police consent to search when they know they are in possession of drugs or other incriminating evidence, but they do quite often. When a suspect gives the police valid consent to search his/her person, vehicle, residence or anything else, it eliminates the need for probable cause and a search warrant. It is often a shortcut between investigation and arrest.

However, when a suspect gives the police consent to search, it can have its limits. The consent to search should be limited to the area that is agreed to by the suspect. For example, if a person is standing in his front yard, the police ask to search his person and the suspect agrees, the police cannot also go into his house without additional consent covering his house.

In a recent methamphetamine case near Jacksonville, Florida, the police received a tip that the defendant was manufacturing methamphetamine at his house. The police went to his house and saw that the defendant was burning something in a pit in his backyard. The defendant said he was just burning trash. The police asked for consent to look around the pit to confirm his story. After looking around the pit, the police saw a pill bottle on the patio and opened it. Inside, they found powder methamphetamine and arrested the defendant for possession of methamphetamine.

In Florida, many drug cases start out as routine traffic stops. A police officer stops a driver for violating some traffic law, suspects that the driver has drugs in the vehicle and then ultimately searches the occupants and/or the vehicle, either after walking a drug dog around the vehicle or getting consent to search from the driver or determining some other basis for probable cause. However, if the initial traffic stop is not valid, any drugs found in the vehicle or on one of the occupants of the vehicle should be thrown out.

In a recent possession of marijuana case near Jacksonville, Florida, the defendant was stopped because he was driving his vehicle without a center rear view mirror. After stopping the defendant for that reason, the police officer said he saw bags of marijuana on the driver’s lap and arrested him for possession of marijuana.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana because the initial stop of the vehicle was illegal. The police officer was incorrect in assuming it is illegal to drive without a center rear view mirror. For that reason, the police officer did not have a valid basis to stop the driver. Since the initial stop was not legal, the evidence of the marijuana found after the stop was not admissible in court, and the possession of marijuana charge was thrown out.