Articles Posted in Search and Seizure

A common scenario in Florida occurs when the police pull over a driver for a traffic violation and suspect the driver has drugs in his/her vehicle and finds a way to search the vehicle. For possession of marijuana or trafficking in marijuana cases, the police report often indicates that the police officer smelled marijuana in the vehicle. Is this alleged odor of marijuana sufficient for a police officer to search a person’s vehicle?

In a possession of marijuana case near Jacksonville, Florida, a police officer pulled the defendant over for running a stop sign. When he approached the defendant’s vehicle, he said he smelled an odor of marijuana coming from the vehicle. The police officer then told the defendant to get out of the vehicle, searched the car and found marijuana inside a closed container. The criminal defense lawyer filed a motion to suppress the evidence of the marijuana arguing that the smell of marijuana is not sufficient for a police officer to search a vehicle without a search warrant. The court disagreed and found the opposite. In Florida, if the police officer says he/she smells an odor of marijuana coming from a vehicle, he/she can search it.

The obvious problem is that the police officer can always say he/she smells marijuana coming from the vehicle and search the vehicle every time. If he/she finds marijuana, then he/she must have been right. If he/she does not find marijuana, the police can always say there must have been marijuana recently in the vehicle but removed.

In Florida, police officers are allowed to search a person or his/her property in limited circumstances. One situation where a search is usually legal is when the owner of the property or the person with authority over the property gives the police consent to search the property. However, a person cannot give police consent to search property that is not his/hers or over which he/she does not have authority.

For example, in a possession of cocaine case near Jacksonville, Florida, the police pulled a vehicle over in a high crime and drug area. The police officer suspected the occupants of buying crack cocaine. There was a male driver and a female passenger in the vehicle. After some discussion, the police officer asked the driver if he could search his car. The driver agreed, and the police officer asked the driver and the passenger to step out of the car. The police officer did not find any drugs in the car, but he did find some drugs in a purse that was on the passenger seat. The police officer arrested the female passenger for possession of the cocaine found in the purse.

The criminal defense lawyer moved to suppress the evidence of the cocaine because the police officer did not have authority to search the purse. If a police officer gets consent to search a car from the driver or owner, that usually means he can search all over the car, the glove compartment and even containers in the car depending on whether the consent is limited or general. However, if an item or container likely belongs to someone else who did not give consent, the police officer cannot use the driver’s consent as authorization to search another person’s property. In this case, it should have been fairly obvious that the purse belonged to the female passenger. There was no evidence that the driver owned the purse or had authority to give consent to search the purse. If the police officer wanted to search the purse, he should have asked the person most likely authorized to give consent to search the purse. Because he did not, he did not get proper authorization to search the purse, and the evidence of the cocaine was suppressed. The possession of cocaine charge was dropped.

People in Florida have very strong privacy rights in their homes, and police can only enter a person’s home in limited circumstances. Normally, the police will either need a valid search warrant, consent from an authorized person or an emergency making it necessary to enter a person’s home when there is no time to get a search warrant. Absent one of those situations, a police officer’s search of or in a person’s home will likely be illegal.

In a recent possession of marijuana case near Jacksonville, Florida, the police responded to a domestic disturbance call involving a husband and wife. The husband and wife met the police officers in the front yard, and everyone decided that the husband should spend the night somewhere else. The police officers offered to give the husband a ride to a friend’s house. The husband indicated he had a knife on him that he needed to put back in his house. The police officers followed him into the house and saw that he had a bag of marijuana in his pocket. The police officers arrested him for possession of marijuana.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana. The criminal defense attorney argued that the police officers did not have a right to enter the defendant’s home and as a result, any evidence found in the home should be suppressed. The Court agreed. The police officers did not have a search warrant, and there was no emergency that justified entry into the defendant’s house. While the defendant apparently did not object when the police officers followed him into his house, that is not the same as affirmative consent. Because the police officers did not have a legal basis to enter the house where they found the marijuana, the evidence of the marijuana was suppressed and the possession of marijuana charge was thrown out.

In Florida, if the police want to search a person’s home for drugs or other incriminating evidence, they would normally need a search warrant that can only be validly obtained if the police have probable cause to believe drugs or other evidence is in the home. The police can always go to the house and ask for consent to search it, but without that consent, a search warrant is typically required.

However, there can be exceptions. In a recent manufacture of marijuana and possession of marijuana case near Jacksonville, Florida, the police got an anonymous tip that the defendant was growing marijuana in his house. An anonymous tip alone is never going to be sufficient to get a valid search warrant for a house so the police did what is called a knock and talk where they walk up to the front door, knock and talk to the occupant. When the defendant opened the door, the police indicated they smelled marijuana in the home. The police officer went into the house and saw marijuana in plan view. They then got consent to search the home from the defendant. The police found more marijuana and marijuana plants and arrested the defendant for the marijuana charges.

The criminal defense lawyer filed a motion to suppress evidence of the marijuana arguing that the police did not have a right to enter the home where they saw the marijuana. The police should have obtained a search warrant or consent to search before entering the home. Since they got consent to search only after entering the home illegally, the consent to search the home was invalid.

The general rule in Florida is that a police officer cannot search a person’s belongings unless an established legal exception applies. Examples include: consent, a search warrant, a search incident to an arrest and probable cause to believe incriminating evidence is present and exigent circumstances. However, if a person abandons the property, he/she may no longer have standing to challenge an alleged improper search of that property.

In a recent drug case south of Jacksonville, Florida, police officers were investigating a complaint that some individuals were selling cocaine and marijuana. The police officers arrived and saw three individuals standing near the street. The police officers saw one of the individuals pass a bag to another who then dropped it behind some bushes. A police officer then went behind the bushes, grabbed the bag and opened it. He found marijuana and cocaine inside and arrested the first individual who had the drugs.

The defendant’s criminal defense lawyer filed a motion to suppress the drugs arguing that the police officer did not have a legal basis to seize the bag and search it for illegal drugs. The issue was whether the defendant abandoned the property so that the officer was free to search it. In the search and seizure context, abandonment of property occurs when a person relinquishes his/her reasonable expectation of privacy in the property. The issue is not whether the person gave up his/her right to the property so that another person can take ownership of it.

Under search and seizure law in Florida, the police need to have reasonable suspicion that a suspect is involved in criminal activity before he/she can briefly detain the suspect for further investigation. A detention does not necessarily consist of a police officer telling a person to stop or stopping a person for a traffic violation. Sometimes, a detention can be a little more subtle. If the police officer does not have a legitimate legal basis to detain a suspect, any evidence that police officer may find as a result of the detention should be thrown out.

In a recent drug case near Jacksonville, Florida, a police officer was patrolling a known drug area in the early morning hours when he saw someone alone in a vehicle parked near a residential area. The vehicle was legally parked, but the officer found it suspicious that the person was alone in a vehicle at that hour with all of the lights off. The police officer drove up to the suspect and stopped his police car near the vehicle. The police officer activated his emergency lights because he wanted to make sure other cars could see his vehicle and shined his flashlight into the suspect’s vehicle. The police officer approached the suspect and said he smelled an odor of marijuana coming from the vehicle. The police officer said he saw a partially smoked marijuana blunt in the ashtray and arrested the suspect. Upon arrest, the police officer found some cocaine on the suspect. The suspect was eventually charged with possession of marijuana and possession of cocaine.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana and the cocaine. He argued that the police officer did not have a right to detain the defendant just based on a suspicion when he merely saw the defendant alone in his vehicle in the dark. The state argued that the police officer did not actually detain the defendant until he smelled the marijuana and saw the marijuana blunt. At that point, the police officer did have reasonable suspicion to detain the defendant for committing the crime of possession of marijuana and had probable cause to arrest him on that charge.

In Jacksonville, Florida, we handle a lot of drug cases that arise from an arrest after a drug dog or K-9 alerts to the alleged odor of illegal drugs in a vehicle. In many of these cases, the police officer makes a routine traffic stop and then is suspicious that the person has illegal drugs in his/her car and either has his/her drug dog walk around the vehicle or calls for an officer with a drug dog to come to the scene to have the drug dog sniff the outside of the vehicle. If the drug dog alerts to the odor of illegal drugs from the vehicle, the police officer then thoroughly searches the vehicle looking for the drugs. If the police officer finds drugs, the police use that as an example of the drug dog’s reliability. If the police officer does not find drugs in the vehicle, they assume there were drugs in the vehicle but recently removed.

When these cases go to a trial or result in a motion to dismiss the evidence of the illegal drugs by the criminal defense attorney, the police officer who handled the drug dog is required to come into court and explain to the judge or the jury how the drug dog can reliably indicate to the odor of illegal drugs.

However, what exactly the police officer is required to establish with the drug dog is not clear. Criminal defense attorneys have complained that police officers get a free pass when it comes to proving that a drug dog has been reliable in prior cases. When inquiring into a drug dog’s prior track record, police officers often testify that when a drug dog has alerted to illegal narcotics in cases where no illegal drugs are found, it only means that the illegal drugs must have been in the vehicle earlier but removed. With that argument, a drug dog can never be wrong when alerting to the odor of illegal drugs.

In Florida, most people understand that the police cannot search a person’s home for drugs or other evidence of criminal activity without a valid search warrant or consent from someone with authorization. This privacy right may also extend to a person’s front and back yards. While a police officer may walk onto a person’s open property to knock on the door and talk about criminal activity, a police officer may not enter gated areas to search without a warrant or consent to search.

In a recent case south of Jacksonville, Florida, the defendant lived at a home that was surrounded by an electric gate. Someone tipped police that he was growing marijuana in his home. The police went to his house and conducted surveillance but did not see any marijuana, marijuana plants or drug transactions. When the defendant exited the house and opened the gate to take out the trash, the police approached him to talk to him. The police asked if they could talk inside the gate. The defendant agreed to talk inside the gate but nothing more. Once inside the gate, one of the police officers spoke to the defendant while another one started searching around the house. The other officer indicated he smelled marijuana in the house. They detained the defendant until they could get a search warrant for the house. With the search warrant, they searched the house and found a large amount of marijuana. The defendant was arrested for trafficking in marijuana.

The criminal defense lawyer filed a motion to suppress the marijuana based on an illegal search. The state argued that the defendant gave consent to enter the premises, the police officer then smelled marijuana and then had probable cause to get a search warrant which allowed them to enter the house. However, the state’s argument was rejected. The key issue was the scope of the consent given by the defendant. The defendant only gave the police officers authority to enter the gate to talk. The police officers were not allowed to search the premises. When the officer left the front yard to search around, he exceeded the scope of the consent. Once he did that, any evidence of marijuana he smelled or found was based on an unlawful search. Likewise, the search warrant was only obtained based on the illegal search. Therefore, the search warrant was not valid.

In Florida, if the police conduct an illegal search of a person and find drugs or evidence of other criminal activity, that person can challenge the search and have the evidence thrown out if successful. However, what if the police conduct an illegal search of another person that detrimentally affects the defendant? A defendant does not have standing to challenge the search of another person, or another person’s property, because that illegal search does not implicate the defendant’s own 4th Amendment privacy rights.

For instance, in a recent criminal case south of Jacksonville, Florida, a police officer was on patrol when he saw suspect, who he previously knew as a drug trafficker, reach into a parked car and hand what appeared to be cash to the defendant, who was in the driver’s seat, in exchange for a brown bag. The police officer assumed this was a drug transaction and stopped both the suspect and defendant. The police officer searched them both and found cocaine on the suspect and $1,000 in cash on defendant.

Both of the individuals were arrested on cocaine charges. Defendant’s criminal defense lawyer filed a motion to suppress the evidence of the cash found on defendant as well as the cocaine found on suspect. The court denied the motion as to the cocaine found on suspect because defendant did not have the right to challenge the search of another person. A defendant cannot challenge the illegal search of another person even if the evidence found on that other person affects the defendant and produces damaging evidence for the defendant’s case.