Articles Posted in Search and Seizure

The Constitutional right to privacy prevents the police from entering a person’s home to search for drugs or other evidence except in certain circumstances. If the police have a valid search warrant or someone with authorization gives the police consent to enter and search the house, that is one thing, but without one of those two circumstances, it is rare for the police to have authority to enter someone’s home.

In a recent marijuana case near Jacksonville, Florida the police received an anonymous tip that the defendant was in his home and engaged in some type of drug activity. An anonymous tip is practically never going to be a valid reason for the police to search a person’s home. Understanding that, the police decided to walk up to the house, knock on the door and see what happens. The police are usually allowed to go to a suspect’s house, knock on the door and see if someone inside will open the door and talk to them. If the police see or smell drugs or the person who opens the door gives them consent to enter, then the police can likely move forward with a drug investigation. The other side of that is a person is free to ignore the police if they come knocking on the door.

In this case, the police knocked on the door. The defendant stepped out of a side entrance, saw the police and ran back inside. Based on that, the police searched the house, found marijuana inside and arrested the defendant for possession of marijuana.

Normally in Florida, the police can only search a person if he/she has committed a crime, the police have consent to search or the police have specific, reliable evidence that the person is in possession of evidence of a crime such as drugs or a gun. However, there are circumstances under the law when the police can search a person without any of those things.

In a recent possession of cocaine case near Jacksonville, Florida, the police came across a person who was exhibiting serious signs of mental instability, although he was not committing any crime. The law does allow the state to briefly detain a person, under what is commonly known as the Baker Act, for a brief period of time if the police believe the person will likely be a threat to himself or others in the near future. The Baker Act in Florida allows the police to secure the person and take him/her to a mental health facility. That is what occurred here. However, before the police transported him to the facility, they searched him for weapons. If was the police department’s policy to search anyone for weapons before being transported to a facility under the Baker Act. When the police searched the defendant in this case, they found cocaine and ultimately charged him with possession of cocaine.

The criminal defense lawyer argued that the evidence of the cocaine should be suppressed because the police did not have probable cause or consent to search the defendant. However, the court disagreed and found that the policy of searching a person during the Baker Act process was reasonable. Since the police found the cocaine during a reasonable search, they could use the cocaine against him.

In a recent trafficking in cannabis/marijuana case in South Florida, the police received an anonymous tip that a house was being used to grow marijuana plants. The police went to the suspected marijuana grow house to investigate further. It is clear that the police cannot search a house based on an anonymous tip of criminal activity. The police need to make their own specific observations that corroborate the tip. The police came with a drug dog. The two police officers walked the drug dog up to the front door. The drug dog alerted to the odor of marijuana coming from the house.

It is also clear, based on a recent Florida court case, that the police cannot walk a drug dog onto a person’s property to smell for drugs without a search warrant or consent. However, one of the police officers said he smelled marijuana coming from the house. The other police officer, likely a newer police officer, admitted that he did not smell marijuana coming from the house. The police officers also reported that all of the blinds were closed, there were three cars in the driveway and the air conditioning was running continuously. Based on that, they searched the house, found many marijuana plants and arrested the occupant for trafficking in cannabis/marijuana.

The evidence of the drug dog alert was inadmissible because walking the drug dog onto the property without a warrant or consent was not legal. The court still held that the search was valid based on the conflicting evidence of the odor of marijuana, the cars in the driveway, the blinds and the air conditioner.

Can the police detain a person just because he/she ran from the police? Of course, if the police had a legitimate basis to tell the person to stop and the person ran, then the police would have a legal basis to catch and detain the person. That would require specific evidence giving the police officer reasonable suspicion of a crime. What about when the police are driving through an area, a person sees the police and just runs away? Is that sufficient to allow the police to chase the person, stop him/her and detain him/her? It could be.

In a recent case near Jacksonville, Florida, the police received an anonymous tip of people selling marijuana and crack cocaine in a particular area. They drove to the neighborhood, which they considered a “high crime area”, and saw some people engage in what could have been drug transactions. When they saw the police, they ran. The police chased them, caught the defendant and found marijuana and crack cocaine on him. He was arrested for possession of marijuana and possession of crack cocaine.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana and cocaine arguing that the police did not have a specific basis to stop, detain and search the defendant. The criminal defense attorney argued that it is not illegal to run from the police so that should not be the basis for a legal search and seizure. The court disagreed and held that the police may have a right to stop and detain people who run from the police without being provoked in a high crime or drug area when the police do not make an unreasonable show of force.

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.