Articles Posted in Search and Seizure

In Florida, the general rule for searches and seizures is that the police cannot search a person, a vehicle, a home or other private property without a valid search warrant. Of course, there are exceptions to this general rule which allow the police to search a person or his/her property without a search warrant in many situations.

One common exception to the search warrant requirement is the search incident to an arrest. When the police arrest a person for a crime in Florida, that police officer can search that person incident to the arrest. There are two primary bases for the search incident to an arrest exception to the search warrant requirement. First, the police officer is allowed to search the person, any container on the person and any container within the person’s immediate reach for officer safety. The police officer has a right to make sure the person being arrested does not have a weapon in his/her possession or within arm’s reach that could be a threat to the officer. The other basis for a search incident to arrest is to protect against the destruction of evidence. For instance, if the police officer arrests someone for a drug crime, the officer has a right to search the person to make sure he/she does not have more drugs or other evidence on him/her that can be thrown away, swallowed or otherwise destroyed.

The search can cover the entire person, his/her clothing and any closed containers on that person. Does that include a person’s cell phone? In other words, can a police officer in Florida search the contents of a person’s cell phone without a search warrant after arresting that person? This can certainly be a significant issue in any criminal case. Cell phones contain pictures, text messages, emails, website histories and phone records which can provide the police with all sorts of evidence in criminal cases. Each person clearly has a significant privacy interest in the contents of his/her cell phone.

The Florida Supreme Court recently decided a marijuana case that discussed the search and seizure issues involved with the police walking a drug dog around the outside of a person’s home to smell for marijuana or other drugs. The police and the state argued that walking a drug dog around the front of a person’s home without going inside is not considered a search pursuant to search and seizure constitutional law because there was no intrusion into the person’s home. They also argued that if it was considered a search, the police needed something less than probable cause to believe drugs were inside the home to validate the search. The defendant, who was charged with growing marijuana plants in his home, argued that it should be considered a search when police officers and a drug dog come onto his private property with the intention of smelling for illegal drugs.

In this case, police officers received an anonymous tip that the defendant was growing marijuana in his home. The police did not do anything to verify the accuracy of this tip with corroborating facts or observations. Instead, the police walked onto the property with a drug dog and conducted a sniff test right outside of the front door. The drug dog alerted to drugs inside, and the police officer indicated he smelled marijuana as well. Based on this information, the police obtained a search warrant for the home. Inside, they found marijuana plants and marijuana growing equipment. The defendant was arrested for cultivating marijuana.

The criminal defense lawyer for the defendant moved to suppress the evidence of the marijuana plants and growing equipment arguing that the defendant’s constitutional right to be free from unreasonable searches and seizures was violated when the police and the drug dog walked onto his property to smell the area near his front door without probable cause.

Normally, a person in Florida has a privacy right attached to the vehicle he/she is driving and as a result, a police officer is not allowed to search that vehicle for illegal drugs or other evidence without permission, a search warrant or probable cause to believe there is evidence of a crime in the vehicle. The driver does not have to be the owner of the vehicle to maintain this privacy protection. If the driver has borrowed the vehicle or is just renting the vehicle, that driver still has a privacy right to that vehicle and its contents that protects him/her from unreasonable searches and seizures by police. However, a person does not maintain the same privacy protection in a stolen vehicle.

In a recent criminal case just south of Jacksonville, Florida, the police stopped a vehicle due to a traffic violation and then arrested the driver because he did not have a valid driver’s license. After arresting the driver and placing him handcuffed in the patrol car, the police officer searched the vehicle and found illegal pills and drugs inside. The driver was then charged with possession of a controlled substance. The police later learned the vehicle had been reported stolen.

Normally, this would not be a legal search. A police officer is not allowed to search someone’s vehicle under those circumstances unless the police officer has permission, a search warrant or a reasonable belief based on specific facts that there is evidence of drugs or other criminal activity in the vehicle. The police officer in this case apparently did not have any legal basis to search the vehicle and seize the drugs. However, the driver was not allowed to challenge the search because he did not have a privacy right in the stolen vehicle. In legal terminology, the defendant did not have standing to challenge the search. Standing is a threshold matter that needs to be established before a person can challenge an illegal search and seizure. If standing does not exist, the defendant will not be able to prevail on a motion to suppress evidence even if the search and the seizure were illegal.

The United States and Florida Constitutions protect citizens from unreasonable searches and seizures by police. One example where the police will stop and search someone is when they receive an anonymous tip of criminal activity. However, anonymous tips alone are not enough to justify a search and seizure of a person. Even where the anonymous tip very specifically identifies the suspect and his/her predicted behavior, that alone is insufficient to justify a search and seizure.

For instance, suppose a person unknown to the police approaches an officer and says that Joe Smith drives to the local motel every day and sells crack cocaine. That person gives a perfect description of Joe Smith, his vehicle and the exact time he will show up to the exact place at the motel. Suppose the police go to the motel the next day and they see Joe Smith arrive just as the tip indicated. Can the police stop Joe Smith at that point and search him? No. Even where the anonymous tip proves to be 100% accurate, the police need more to justify a search and seizure. For instance, the police would need to verify some evidence that Joe Smith is actually involved in criminal activity at the motel before they stop him. If the police went to the motel and saw Joe Smith pull up and then saw him conduct what appeared to be hand to hand drug transactions, that would be different. In the former scenario, the police merely confirmed harmless details about Joe Smith that did not indicate he was involved in criminal activity- his appearance, his vehicle and his location. However, once they actually see Joe Smith engage in conduct that may be consistent with criminal activity, that plus the anonymous tip information would be sufficient to stop Joe Smith.

Most people who are familiar with medical privacy laws know that a person’s medical records are confidential and can only be disclosed with the patient’s permission or under other limited circumstances. However, records of prescriptions for controlled substances (such as Oxycodone and Oxycontin) do not share the same privacy protections. In fact, police seeking a person’s pharmacy records relating to controlled substances do not even need a subpoena or other court order. They can simply call the pharmacy and request a person’s prescription records relating to controlled substances and say that the request is pursuant to their enforcement of the law. A statute in Florida requires pharmacies to keep prescription drug records for at least two years and allow police to inspect those records where the police officers are enforcing the laws. A court order is not needed, and there is no requirement to notify the patient in advance. The way the statute is worded, basically any investigation by the police is good enough to allow the police access to a person’s controlled substance prescription records going back at least two years.

In a recent criminal case of obtaining prescription drugs by fraud south of Jacksonville, Florida, the defendant created a fake prescription for Oxycodone and presented it to the pharmacy. He received 30 pills of Oxycodone. The pharmacy later checked the prescription and saw that the doctor’s name was incorrect. The pharmacist called the police to report the crime of obtaining prescription drugs by fraud. The police officer asked the pharmacy for all of their records relating to the defendant without first getting a search warrant or consent from the defendant. The pharmacy complied without notice to the defendant. The police officer confirmed that the prescription was fake and the defendant had in fact received the Oxycodone from the pharmacy. The defendant was arrested and charged with the felony crime.

The criminal defense lawyer for the defendant tried to have the pharmacy record evidence thrown out alleging that the search and seizure of the defendant’s pharmacy records violated his privacy rights and the Fourteenth Amendment. However, the court found the police officer’s conduct to be proper based on the Florida statute which allows the police to obtain pharmacy records of controlled substances when they are relevant to a criminal investigation.

In a recent case outside of Jacksonville, Florida, the police began investigating a suspect after they saw his vehicle outside of a hydroponic retail store. The police tracked the suspect’s license plate to his house where they saw the vehicle parked. The house windows were covered with blinds, and there was a large fence surrounding the back yard so the police could not determine what was in happening inside the house or in the back yard. Based upon the suspected hydroponic equipment inside the house, the police suspected the house was being used to grow marijuana. One of the first things the police will do upon such a suspicion is check the electricity consumption at the house. Marijuana grow houses typically require much more electricity than other houses. When police see an electric bill at one house that is routinely much higher than the neighboring houses, that is an indication that it is being used as a marijuana grow house.

In this case, the electricity consumption was normal. However, the police still suspected the occupants of the house were cultivating marijuana. The police assumed the occupants were stealing electricity so the total electricity consumption of the house was not reflected on the electric bill. The police contacted an investigator at the electric company to inspect the house for possible electricity theft. The electric company investigator went to the house, broke the lock on the fence and went into the back yard. In the back yard, he discovered that the occupants were running unmetered electricity into the house. The electric company told the police about the electricity theft, and the police asked the occupants for consent to search the house. The occupants of the house refused to consent to a search of the house, but the police were able to obtian a search warrant. They searched the house and found the marijuana cultivation equipment inside. The occupants were charged with trafficking in marijuana, cultivation of marijuana, possession of drug paraphernalia and electric utility theft.

There are many issues that arise in a case like this. First, under the Fourth and Fourteenth Amendments to the Constitution, in order for the police to enter one’s home, or even one’s back yard, the police must either have consent or a search warrant. In this case, it was the electric company investigator who went into the back yard without a warrant or consent. However, those Constitutional protections do not apply to private entities, like the private electric company. The criminal defense lawyer cannot file a motion to suppress evidence found by a private person. An exception to this rule would apply if the police directed the private person to enter one’s home or back yard without a warrant or consent. For instance, if the police asked the electric company investigator to go into the back yard and look for a marijuana grow house, that would be an illegal search. In this case, the court found that the electric company conducted the inspection on its own. Once the electric company investigator learned of the electricity theft and told the police, the court determined that the police had sufficient evidence to obtain the search warrant to find the marijuana cultivation equipment.