Articles Posted in Search and Seizure

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.

In Wisconsin, there is a pending marijuana case that started when the police received a tip that the defendant was growing marijuana plants on his property. The local police solicited the assistance of the DEA who went on the property without consent and without a search warrant and installed video cameras to record the marijuana grow operation and the activities of the defendant who owned the land. Once the video cameras recorded the defendant handling marijuana from the marijuana plants, the DEA obtained a search warrant. The police found thousands of marijuana plants on the property and arrested the defendant on multiple serious marijuana charges.

The criminal defense lawyer for the defendant filed a motion to suppress the evidence on video and also the evidence seized by police after obtaining the search warrant. The defendant had a large piece of property, but it was marked with “No Trespassing” and “Private Property” signs. The state argued that the DEA went into an open field and the DEA agents were not trespassing. For some reason, the Wisconsin court decided it was legal for the government to come onto the defendant’s property and install surveillance cameras without a search warrant. Normally, the police would need a search warrant to enter upon a person’s private property to search or conduct surveillance. However, the case has been appealed to the United States Supreme Court so the ultimate decision as to whether the DEA acted legally has not yet been made.

In Florida, there are generally two common bases that allow a police officer to search a person, vehicle, residence or anything else in which a person has a privacy right. If a person consents to a police search, the police can search pursuant to the terms of the consent. If the police go to a judge with probable cause to believe there is evidence of a crime and the judge agrees, the police can search pursuant to a search warrant. Most searches are conducted based on one of those two reasons. However, there are other situations where a police officer can search a person, vehicle or residence without consent and without a search warrant.

One situation occurs when there is a medical emergency. For instance, if a person has a seizure in his bed and his friend flags down a police officer outside, the police officer can probably come into the house and check on the person. If the police officer happens to see a bag of marijuana or cocaine in the room and makes an arrest, there is a good chance that search and seizure will be upheld. However, a search based on a medical emergency has its limits.

In a recent case near Jacksonville, Florida, the mother of the defendant called the police because the defendant appeared to be passed out in his room next to some pills. However, when the polcie arrived, the defendant was outside in front of the house. The police officer asked the defendant some questions, and he did not appear to need medical treatment. The police officer noticed a pill bottle in his pants. The defendant said it was blood pressure medication. The police officer then told the defendant to give him the pill bottle. The defendant complied, and the police officer determined that the pill bottle contained illegal pills. He arrested the defendant, and later found a bag of marijuana on him.

Many drug cases start with a simple traffic stop that turns into a search of the vehicle by police and/or a police K9 and ultimately an arrest on some drug charge. However, in order for that drug charge to be valid, the initial stop of the suspect and the search must be valid under the Constitution. In most cases, for the initial stop to be valid, the police must have probable cause, or at least reasonable suspicion, that the driver is violating a traffic law or committing some other crime. For the search to be valid, the police officer normally must have consent to search the vehicle or probable cause to believe there are drugs or is evidence of criminal activity in the vehicle.

In a recent drug trafficking case near Jacksonville, Florida, the defendant was driving a blue Ford when a police officer saw him and ran the tag. Apparently, the tag was registered to the same type of vehicle but the color on the registration information was green. Based solely on the color inconsistency, the police officer stopped the driver. The driver told the police officer that he had recently had the vehicle painted. The police officer smelled marijuana coming from the vehicle and searched it. Inside the vehicle, the police officer found marijuana and crack cocaine. The defendant was arrested for trafficking in marijuana and cocaine.

In most cases, a police officer can only stop a driver if there is specific evidence giving the officer at least a reasonable suspicion of criminal activity. The criminal defense lawyer argued that changing the color of a vehicle is not illegal or suspicious, and there is no legal obligation to report a change in vehicle color to the state. As a result, the court found that a police officer cannot stop a vehicle just because the vehicle’s color is different from the color on the registration information. This factor alone is insufficient evidence of criminal activity. However, there have been some courts in other states that have allowed a police officer to stop a vehicle based solely on a color discrepancy.

In Florida, the United States and Florida constitutions afford citizens certain rights to prevent police officers from unreasonably stopping them, detaining them and searching them. The term “unreasonable” in this context refers to police searches and seizures that are done without sufficient, specific evidence to establish the person is involved in criminal activity or possesses evidence of criminal activity.

While a police officer cannot go up to a person who looks suspicious and stop him for interrogation, a police officer can always go up to a person and ask questions in a consensual manner. For instance, in a recent marijuana case near Jacksonville, Florida, a police officer saw two juveniles walking down the street during school hours carrying full backpacks. The police officer stopped his vehicle without activating his emergency lights or siren and asked the juveniles some questions. The police officer asked the juveniles what they were doing there and for their identifications. Both juveniles agreed to answer the questions and provide their ID’s. Next, the police officer asked if he could search their backpacks, and the juveniles consented to the search. The police officer found marijuana and marijuana paraphernalia inside and arrested them both for possession of marijuana.

This was a legal police encounter. A police officer can always go up to a person and ask basic questions and ask for ID. Of course, the other side of the coin is that a person can refuse to answer the questions and walk away. As long as there is no evidence the person is involved in criminal activity, the police officer should not have a legal basis to stop the person and make them answer questions or provide ID. In this case, the juveniles agreed to talk to the police officer and let him search their backpacks to find the marijuana. Obviously, that was a bad decision and one was likely the result of the juveniles not knowing their constitutional rights. If a person has marijuana or other drugs on him/her and consents to a police officer search, that is a guaranteed arrest and criminal charge.

In a trafficking in marijuana case near Jacksonville, Florida, police officers were given a tip from a person who said the defendant was growing large quantities of marijuana in his home. A tip like that by itself is rarely sufficient to get a search warrant, but it is usually the starting point for further investigation by the police. In this case, the police conducted some surveillance of the house and then walked up to the house and knocked on the door. When the defendant opened the door, the police said they heard the sounds of a generator which was consistent with equipment used to grow marijuana. They also smelled a strong odor of marijuana coming from the house. The police then entered the home for what they said was a protective sweep to make sure no one else was in the house potentially destroying evidence. At the same time, they went to get a search warrant to search the house for marijuana and marijuana growing equipment.

When looking through the house, the police found marijuana and the equipment used to grow marijuana. They ultimately obtained the search warrant and seized the incriminating evidence. The defendant was charged with trafficking in marijuana and other charges. The criminal defense lawyer filed a motion to suppress the evidence of the marijuana and growing equipment based on the fact that the police entered the home and saw the drugs and equipment prior to getting the search warrant.

The court agreed that the police did not have a right to enter the home based on the tip, the sound of the generator and the odor of marijuana. The police officer said they entered the home because they thought someone might destroy the evidence. However, that was pure speculation, and there was no specific evidence that destruction of evidence might occur. The police could only legally enter the home with a search warrant at that point. However, the marijuana evidence was not suppressed because the police ultimately did get a search warrant and seized the marijuana thereafter. Since the police were ultimately within their rights to search the house pursuant to the search warrant, the marjuana evidence was admissible.

In a recent drug case near Jacksonville, Florida, the police obtained a search warrant to search the defendant’s house for ecstasy pills (MDMA). The search warrant authorized by the judge was a knock and announce search warrant. A knock and announce search warrant is fairly self-explanatory. When the police officers approach a house, they have to knock, announce themselves as police and give the residents sufficient time to come to the door. The police cannot just show up, knock down the door and start searching.

In this case, the police officers showed up to the house late at night, knocked on the door for approximately 20 seconds and broke down the door after no one answered within 20 seconds. They searched the house and found large quantities of ecstasy pills. The defendant, who owned the house, was arrested for trafficking in ecstasy.

The criminal defense lawyer filed a motion to suppress the evidence of the ecstasy pills because the police officers violated the provisions of the the search warrant. Because this was a knock and announce search warrant, the police were required to knock and then announce their presence and wait a sufficient period of time for the people to answer the door. The court found that 20 seconds was not a sufficient period of time to wait for the occupants to answer the door for a knock and announce search warrant, especially at night when most people are sleeping. Since the police officers did not comply with the terms of the search warrant, the evidence of the ecstasy pills was thrown out, and the trafficking in ecstasy case was dismissed.