Articles Posted in Search and Seizure

In Florida, the police are generally not allowed to search a person’s home for drugs or evidence of other crimes unless the police have a valid search warrant or consent from the owner or someone authorized to give consent to search. There are, however, exceptions to this general rule. One such exception is called the community caretaker exception.

The community caretaker exception allows a police officer to conduct a search in an emergency situation for the limited purpose of protecting the safety of the general public. For example, if the police are patrolling and someone tells them a guy is having a heart attack in his house. If the police go to the house and see the through the window a guy lying on the floor, the police may be authorized to enter the home to help the victim. If the police find drugs on the table next to the victim, the police may be able to seize those drugs and make an arrest for a drug charge. Normally, the police would not be allowed to enter a person’s home and seize drugs they find in plain view. However, if there was a valid emergency requiring them to enter a house and the drugs were found as they were responding to the emergency, the search may be valid under the community caretaker exception.

The following is an example of when the community caretaker exception is not a valid exception to the search warrant requirement. In a recent case near Jacksonville, Florida, the police went to the defendant’s house to serve an old arrest warrant. Once inside, the police officer saw that the defendant had a young child at the home. They agreed to wait for the defendant’s sister to arrive so someone could take the child. When the sister arrived, none of them had the keys to the house. The police officers did not want to leave the house unlocked so the police officers searched the house for the keys. They found the keys in the defendant’s bedroom on a table next to some ammunition. The defendant was a convicted felon so it was a felony crime for him to be in possession of a firearm or ammunition.

It is clear that going onto or into someone’s property to search for evidence is a search under the Constitution, and as a result, police typically need a search warrant or consent for such a search to be valid. However, is it also a search if the police place a GPS device on a vehicle and monitor the vehicle’s movements? The police are not technically searching anything but are able to track where a person goes in the vehicle with the GPS device.

The United States Supreme Court recently addressed this issue in the context of a cocaine trafficking case. The police placed a GPS device on the defendant’s vehicle and monitored his movements for 28 days. The police did get a warrant to place the GPS device, but they did not comply with the terms of the warrant. Over the 28 days, the police were able to track the vehicle’s movements to within 50-100 feet. The GPS tracking device relayed more than 4,000 messages to the police about the vehicle’s location.

The criminal defense lawyer moved to suppress the evidence obtained from the GPS tracking device as a violation of the defendant’s Fourth Amendment rights. The government argued that a valid warrant was not necessary as a person does not have a reasonable expectation of privacy with regard to his/her movements on public roads.

Most people in Florida understand that they have a strong privacy right in their homes. As a result, police are generally not allowed to come in and search a person’s home without a search warrant or consent. However, does this strong protection against unreasonable searches and seizures extend to the workplace in Florida?

In a recent case near Jacksonville, Florida the defendant was charged with kidnapping, armed sexual battery, robbery and other charges. After the incident, the victim identified the defendant in a photo lineup. As part of their investigation, the police went to the defendant’s place of work, which was a hotel where he was a manager and shared an office and a desk with another employee. Without the defendant’s knowledge, the police asked the defendant’s employer if they could search his office desk. The defendant’s manager gave the police consent to search his desk, and they found the victim’s cell phone in one of the drawers.

The defendant’s criminal defense attorney filed a motion to suppress the evidence of the victim’s cell phone claiming that the police did not have a right to search the defendant’s desk without a search warrant or consent from the defendant. He also claimed that the general manager did not have the right to give the police consent to search his desk.

In order for police in Florida to search a person’s home, they either need a search warrant, exigent circumstances or consent to search. Focusing on the latter issue, consent to search is normally given by the person who owns the home or is listed on the lease as the tenant. However, the police can also request consent to search a home from someone who does not own the residence and is not on the lease if it appears that the person has unrestricted access to the premises. This can include a roommate or someone temporarily staying at the residence. And, according to a recent case near Jacksonville, Florida in which a person was convicted of possession of a firearm by a convicted felon, a wife separated from her husband can also give police consent to search her husband’s home.

In this case, the defendant had been living with his wife, but due to some alleged abuse, she had moved out of the residence. A few days later, she called the police to report the domestic violence. After she reported the domestic violence, she also told police that the defendant was a convicted felon and had a firearm in his home. She then gave the police consent to search the home although she was not staying there at the time. The police went to the home, searched it and found a firearm inside. The defendant was arrested for possession of a firearm by a convicted felon.

The criminal defense lawyer filed a motion to suppress the evidence of the firearm based on the argument that the police did not have authority to enter and search the home. The court denied the motion. Any person who has joint access or common authority over the residence can give police consent to search the residence. In this case, although the wife left the home, there was no evidence that her access to the home had been restricted in any way. Because she apparently still had joint access to the home, the judge ruled that she was permitted to give the police consent to search and look for the firearm.

In Florida, there are multiple levels of police encounters, and with each one, there may be certain legal requirements on the part of the police officer to justify the police officer’s actions. The first level encounter is a brief, consensual encounter where a police officer is not required to have any evidence that the suspect is involved in criminal activity. In these encounters, because the police officer does not have any evidence of criminal activity and is just casually requesting information, the suspect is free to refuse the police officer’s requests and leave the scene. However, if the encounter becomes more serious and a reasonable person would not believe he/she was free to ignore the police officer and leave, it becomes more than a casual, consensual encounter.

In a second level encounter, the police can briefly detain a suspect to see if the suspect is involved in any criminal activity and/or possibly armed and a threat to the officer’s safety. As stated, this encounter must be quick and cannot be too intrusive. In order to justify such an encounter, the police officer must know of specific facts giving the officer reasonable suspicion that criminal activity is occurring or the person is armed and dangerous. If that reasonable suspicion is not quickly confirmed, the encounter must end.

The third level encounter involves a long, intrusive detention by the police officer or an outright arrest. In order to justify this kind of detention, the police officer must have probable cause to believe the suspect was involved in criminal activity or an actual arrest warrant.

As criminal defense lawyers in Jacksonville and the North Florida area, a very common scenario that we see a lot occurs when police are patrolling what they call high crime areas and a suspect runs when he/she sees police in the area. A common question results from this scenario. When the police are in a high crime area and see someone running from them but there is no evidence of a specific crime occurring, what can the police do? This issue has been addressed by courts in Florida and all over the country. Years ago, the United States Supreme Court decided that when a person is unprovoked and runs from the police in a high crime area, the police have a right to chase the person and briefly detain him/her to investigate further, i.e. to quickly determine if the person ran because he/she was involved in criminal activity.

However, the police can not do more than that without specific evidence of criminal activity or specific evidence that the person is armed and a possible threat to the police officer’s safety. If a person runs upon seeing police, the police officer chases and catches him/her and then searches the suspect for drugs and/or weapons, that is an illegal search. The chase and the brief detention are legal, but the search would be illegal without specific evidence that the person was committing a crime or armed. Running from the police in a high crime area allows the police to chase and stop the suspect but, without more evidence, it does not allow the police officer to pat down or search the suspect. If the police do conduct a pat down or search under those circumstances and find illegal drugs or guns, that evidence should be thrown out of court.