Articles Posted in Search and Seizure

In a criminal case just south of Jacksonville, Florida the suspect was driving in his vehicle and playing his music in a loud manner when he was pulled over by the police for a noise violation. The police officer checked the driver’s license and learned that it was suspended. When the police officer searched the car subsequent to the arrest, he found a large quantity of cocaine and marijuana in the car. The suspect was then arrested for trafficking in 28 grams of more of cocaine and possession of marijuana.

The criminal defense lawyer for the suspect filed a motion to suppress the cocaine alleging that the search was illegal because the police officer did not have authority to pull the driver over for the noise violation. If the initial stop of the suspect was illegal, then the subsequent arrest of the suspect for driving with a suspended license and search incident to that arrest would be illegal. In that case, the evidence of the cocaine seized after the illegal search would be thrown out.

The criminal defense attorney argued that a person has a First Amendment right to play music loudly and the noise violation was unconstitutional. The Florida noise statute basically says that a person operating a vehicle on the roads cannot play music that can be heard at least 25 feet away from the vehicle. The court agreed that the noise statute was unconstitutional because amplified music is protected under the First Amendment and the noise statute unnecessarily allowed certain types of noise beyond 25 feet while prohibiting others.

In Florida, a common scenario in drug cases occurs when the police pulls a driver over and suspects the driver has illegal drugs in his/her vehicle. The piolice officer may ask for consent to search the vehicle for drugs, or the police officer may bring a drug dog, or K9, to the scene to sniff the area around the vehicle for the odior of illegal drugs such as marijuana, cocaine, heroin and methaphetamine. The drug dog is presumably trained and certified to detect to the odor of illegal drugs and indicate a particular signal to the police officer handler who recognizes the signal as an indication that there is an odor of illegal drugs coming from the vehicle. In some jurisdictions, when the drug dog alerts, this is sufficient problable case to justify a search of the vejhicle by the police.

However, in Florida, the state has the burden of proof that a search of one’s vejhicle for illegal drugs is based on probable cause, and merely presenting evidence that a trained drug dog alerted to an odor of illegal drugs does not meet this burden. The state must prove that the drug dog, and the police officer handler, were sufficiently trained and certified to detect the odor of illegal drugs. However, this is the beginning of the analysis, not the end. The state must provide details of the drug dog’s training and the drug dog’s performance during training. The state must also present evidence of how often the drug dog gave false alerts in training and in the field after training. The court should also look at instances where the drug dog alerted to a residual odor of illegal drugs, i.e. where drugs were not found in the vehicle but evidence sugests they were previously in the vehicle.

In some cases, the courts have been satisfied with a drug dog’s reliability to detect an odor of illegal drugs as long as the state has shown the drug dog had the proper training and credentials. However, Florida law requires a much more detailed huistory of the training, success and failure of a drug dog’s ability to actually detect the presence of illegal drugs.

In Florida, police officers are not allowed to seize a person without a reasonable belief based on specific facts that the person is engaging, or is about to engage, in criminal activity. If police officers do seize or detain a person without the required reasonable suspicion, any evidence found on the person, such as illegal drugs or guns, will be inadmissible and thrown out of court. This seizure does not necessarily require a physical detention or even a command directed at the person. If the action of the police officers indicate a show of authority without direct commands or a physical seizure, it can still be considered a “seizure” under the search and seizure laws in Florida.

For instance, in a recent marijuana case south of Jacksonville, Florida, the defendant was sitting on the steps of an apartment complex. Several police cars drove up and six police officers approached the area where the defendant was sitting with bullet proof vests and guns drawn. The police officers were there to raid one of the apartments. They had no knowledge the defendant was involved in criminal activity. None of the police officers touched the defendant or even addressed him specifically. When he saw the police officers approaching him, the defendant threw down a few bags of marijuana. He was then arrested, and the police officers found more marijuana in his pocket. He was charged with felony possession of marijuana.

His criminal defense lawyer filed a motion to suppress the evidence of the marijuana arguing that the defendant was seized when the officers approached him without any reasonable suspicion since the defendant was merely sitting on the steps. The court agreed to throw out the evidence of the marijuana. In determining whether police action constitutes a seizure, the court must determine whether a reasonable person would feel like he/she was free to leave the area under the circumstances. If the court determined that a reasonable person would not feel free to leave given the actions of the police, this constitutes a seizure that is illegal unless the police officers can show specific evidence of the defendant’s criminal activity. The court found that when several police officers approached the defendant in full uniform with guns drawn, the defendant did not reasonably feel like he could leave. This was a seizure under Florida law without legal justification so the evidence of the marijuana found during the illegal seizure was inadmissible.

In Florida, the state can prove possession in one of two ways. The most obvious involves actual possession. For instance, marijuana found in a person’s hand or pocket would constitute actual possession of marijuana. However, even when a person is not in actual possession of drugs, the state can still prove possession of the drugs under certain circumstances. This other situation involves constructive possession of drugs. For instance, if the police search a person’s house and find a bag of cocaine on that person’s dresser right next to his bed, along with other items belonging to him in room belonging to him where he is the only occupant of the room at the time, that may be sufficient to prove a case of constructive possession of cocaine.

In order to prove constructive possession of drugs, the state needs to prove that the suspect knew the drugs were present and had some sort control over the drugs. For instance, if you go to a party with hundreds of people, you are standing in the kitchen by yourself next to the closed refrigerator and the police come and find a bag of marijuana in that refrigerator, they cannot convict you of possession of marijuana without proof that you knew the marijuana was in the refrigerator and you had some sort of control over it, i.e. you put it there or used some of it. You may have been the closest to the marijuana, but that is just one potentially relevant factor. Without evidence that you knew the marijuana was present and had some significant connection to it, that marijuana cannot be attributed to you in a criminal case.

In a recent criminal case near Jacksonville, Florida, the police pulled a car over for speeding. The police obtained consent to search the car and found a suitcase containing marijuana in the trunk of the vehicle. The police then arrested the driver for trafficking in cannabis/marijuana. There was also a passenger in the vehicle who had the keys to the vehicle prior to the driver.

In a recent case south of Jacksonville, Florida, the police went well beyond what is permissible under Constitutional search and seizure law and trespassed upon a person’s property in order to investigate a complaint relating to growing marijuana. In this case, the police received an anonymous tip that the suspect was growing marijuana at his house. When the police arrived at the house to investigate, they saw that the house was completely surrounded by a tall fence and some bushes. As a result, the police were unable to see the house from public property. Therefore, the police could not observe any criminal activity that would corroborate their anonymous tip or even the house itself.

Generally, the police are not allowed to search a person’s home or go through a private gate onto a person’s property without a valid search warrant or consent to search the premises. In this case, the anonymous tip without any corroborating evidence was not sufficient to allow the police to get a search warrant. Not to be deterred however, when the suspect opened the gate to leave his property, the police officers slipped inside the gate and blocked the suspect from leaving. The police asked the suspect to sign a consent to search form, and, knowing he had a lot of marijuana plants inside his house, he refused. After some period of time, the suspect did open his door and allow the police inside. Once inside, the police found over 100 marijuana plants and arrested the suspect for cultivation of marijuana.

This was clearly an illegal search. The anonymous tip that was not corroborated by specific observations of the police officers was not enough for the police to obtain a warrant. If the police do not have a search warrant, they are not permitted to go onto a person’s private property through a gate clearly meant to keep people out and maintain the homeowner’s privacy. That is a trespass. If the police trespass to get on the person’s property, the property owner’s subsequent consent for the police to search is tainted and likely will not hold up in court.

In Florida, the Constitutional protection against illegal searches and seizures by police is strongest when it involves a person’s privacy interest in his/her residence. Normally, a police officer cannot search a person’s house, apartment or other residence without a valid search warrant or consent to search by a person authorized to give consent to search the home. This protection against illegal searches and seizures also extends to a person’s backyard.

In a recent marijuana case south of Jacksonville, Florida, the police received an anonymous tip that three individuals were outside of a particular house standing next to a white SUV with cocaine and guns. The police arrive and saw the SUV and some people in front of the house, but they did not see anyone matching the description in the anonymous tip nor did they see any drugs or guns.

One of the police officers said he heard voices coming from behind the house. The police officers proceeded to walk through the gate and into the backyard to see if anyone there was armed. While in the backyard, the police officers saw marijuana in the house through a window and arrested the defendant who was also in the house with the marijuana.

In Florida, in order for the police to have a right to search a person’s house, they normally will need a valid search warrant signed by a judge. Police typically obtain a search warrant for a person’s house after conducting surveillance and observing drug related activity at the house or having a confidential informant go to the house to make drug buys. Once the police obtain the search warrant for the house, are they limited to searching inside the house in areas where illegal drugs can be stored or can they search other areas outside, but near, the house?

Many search warrants for someone’s house will also include what is called the curtilage of the house. The obvious questions becomes: What is within the curtilage of the home to be searched? Curtilage is not specifically defined in Florida law, and it depends on the nature of the property. However, the general definition of curtilage is the area around the home that is intimately tied to the home. The factors a criminal court would look at to determine if something is within the curtilage of the home are: how close the area searched was to the house, whether the area searched was enclosed near the home, how that particular area is used at the home and what steps, if any, the homeowner took to protect the privacy of the area.

Therefore, one can assume this includes the driveway of the home and a fenced-in backyard. If there is no fence at the house, the curtilage still likely includes the immediate area around the house.