Search and Seizure

Police Seize Mortgage Fraud Documents When Suspect is Arrested in Her Vehicle

Published on: September 21, 2010 | by Lasnetski Gihon Law

In a Florida mortgage fraud case, the police obtained an arrest warrant for a person they claimed had obtained fraudulent mortgage loans by using straw buyers and falsifying salary and employment information on loan documents. The police located the suspect driving near her home, stopped her vehicle and arrested her. When she was arrested in her vehicle, the police saw a bag in the backseat containing various documents. The police seized the bag of documents when they arrested her.

The suspect was ultimately convicted after her trial for mortgage fraud, grand theft and racketeering. Her criminal defense lawyer tried to have the documents found in the bag thrown out claiming the police illegally seized those documents. The criminal defense attorney claimed that the police did not have a search warrant for the bag of documents and had no reason to believe the bag contained evidence related to the case at the time the bag was seized. The criminal defense lawyer argued that unlike drugs or guns, nothing about a bag of papers suggests that it is evidence of criminal activity, and therefore the police do not have a right to take it without a search warrant.

However, the judge disagreed and allowed the state to use the documents as incriminating evidence to convict the defendant of the mortgage fraud and the related criminal charges. Under Florida law, when the police arrest a person in his/her vehicle, the police are permitted to search the vehicle if the suspect is within arm’s reach of items in the passenger compartment of the vehicle at the time of arrest or there is reason to believe the vehicle has evidence related to the crime(s) for which the suspect is being arrested. In this case, the judge found that latter standard to have a very low threshold. Basically, the judge found that since mortgage fraud is the kind of crime where one would expect there to be physical evidence, perhaps in a vehicle, the police were authorized to assume the bag they seized might have contained evidence of the related crimes. As a result, the police were justified in seizing the bag.

Police in Florida May Have a Right to Search a Vehicle After a Valid Arrest

Published on: August 24, 2010 | by Lasnetski Gihon Law

For example, where a person gets arrested in or near his/her vehicle, the police officer may have the legal authority to search the vehicle depending on the circumstances. Many drug cases are made this way. Arrests for driving with a suspended license or driving under the influence (DUI) are obviously common arrests involving people and their vehicles.

If there is a sober person at the scene, such as a friend or relative of the person getting arrested who has permission to take the vehicle, the police officer should let that person drive the vehicle away. If not, and there is no one available to drive the vehicle from the scene, the police can impound the vehicle. In those cases, the police are allowed to conduct what is called an inventory search. The official reason for an inventory search is to document any valuable items in the vehicle so they can be secured and returned to the suspect. However, police use that opportunity to search for drugs, guns and any other evidence in the vehicle
One other basis for searching a vehicle after an arrest is the search incident to an arrest. This kind of search has been limited fairly recently, but it basically allows a police officer to search a vehicle if the person arrested is close to the vehicle to make sure there are no weapons or anything else to which the defendant may have access. However, in most cases, when the police arrest someone, they place that person in handcuffs and safely in their patrol car. If that is where the suspect is, he/she obviously cannot reach anything in his/her vehicle. In that case, there is no basis for the police officer to search the vehicle.

Police in Florida Can Get Your Pharmacy Records Without a Subpoena and Without Notice

Published on: August 15, 2010 | by Lasnetski Gihon Law

In a recent criminal case near Jacksonville, Florida, the defendant was charged with obtaining prescription drugs by fraud, which is a felony crime. This crime is actually more common these days as more people gain access to various prescription drugs. Many police departments have special units designed to make arrests relating to illegal possession and sale of prescription drugs.

In this case, the police received a tip that the defendant was doctor shopping. Doctor shopping involves a person going to different doctors to obtain the same or similar prescriptions. The suspect will not tell the subsequent doctor that he/she has already seen a previous doctor to obtain the same or similar prescription. The suspect will then obtain multiple prescriptions to be filled at different pharmacies to obtain a larger quantity of prescription drugs.

Pharmacies keep computer files of patients, their prescriptions, the dates prescriptions were filled and the doctors who prescribed them for at least two years. The police in this case obtained the computer printout for the suspect from the pharmacy without a subpoena or court order and saw that she had multiple prescriptions for drugs from different doctors in a short period of time. The prescriptions were for common drugs like Oxycontin and Oxycodone. The police then obtained the prescriptions and showed them to the prescribing doctors who indicated they did not know of the other prescriptions when they wrote their particular prescription.

Police Had No Reason to Detain Defendant, Drug Case Thrown Out

Published on: July 30, 2010 | by Lasnetski Gihon Law

In a recent drug case south of Jacksonville, Florida, the police received a call that a black male wearing a t-shirt, jeans and sneakers was selling drugs beside a particular road. Police responded to the area and saw the defendant who met the general description. However, the police did not observe the defendant selling drugs or doing anything else that appeared to be illegal. One police officer drove right up to the defendant and put his spotlight on him while the other police officer asked the defendant some questions including permission to search the defendant for illegal drugs. The defendant emptied his pockets, and the police recovered a bag with cocaine inside. The defendant was arrested for possession of cocaine.

This was a bad search, and the criminal defense lawyer was able to file a motion to suppress the evidence that resulted in the evidence of the cocaine being thrown out. Every person has a Constitutional right to be free from unreasonable searches and seizures. That means the police cannot just approach someone in an intimidating manner giving the impression that the person cannot leave and request a search for drugs or anything else. Likewise, the police cannot detain or search a person based on an anonymous tip of illegal activity if the police do not verify that the person is actually engaged in any illegal activity.

In this case, the police received an anonymous tip that someone was selling drugs. They found the person described in the tip, but the police officers did not see any evidence of illegal activity. When they drove up to the defendant, shined the spotlight on him and started interrogating him, that was considered a detention. Since the police did not have any reasonable suspicion that the defendant was doing anything illegal, it was an illegal detention and any cocaine or other evidence found by the police during the illegal detention was thrown out of court and the possession of cocaine charge was ultimately dropped.

Marijuana Manufacturing and Cocaine Possession Case Thrown Out Due to Illegal Search Warrant

Published on: July 25, 2010 | by Lasnetski Gihon Law

In a recent criminal case near Jacksonville, Florida where the defendant was charged with marijuana manufacturing and cocaine possession charges, the case was ultimately thrown out because it was found that the police searched the defendant’s home and found the drugs based on an improper search warrant. In this case, the police received an anonymous tip that the defendant was growing marijuana and had a quantity of cocaine in his home. The tip also provided certain information about the defendant’s identity, home and place of employment. The police were able to confirm the details about the defendant’s identity, vehicle, home and job. However, the police did not corroborate any details that indicated the defendant was growing marijuana plants, had cocaine in his home or was actually doing anything illegal.

The police obtained a search warrant and found marijuana plants, fluorescent lights, a generator, digital scales, guns, cocaine and other drug paraphernalia in the home. The defendant was arrested for manufacturing marijuana, possession of cocaine and other charges.

The criminal defense lawyer was able to have the evidence of the drugs, guns and drug paraphernalia thrown out because the search warrant was improper. The police are allowed to search a person’s home for drugs or other evidence of a crime with a search warrant only if the search warrant is valid. A search warrant that is based on information in an anonymous tip is not valid if there is no indication that the police corroborated any of the incriminating information in the tip. It is not enough for the police to corroborate general, easily obtained information about the tip, such as a description of a person or vehicle, an address or a place of employment. The police have to actually corroborate some fact that indicates the suspect is committing a crime. Without that corroboration, the anonymous tip of illegal activity is not sufficiently reliable, and any search warrant based on that tip will be invalid.

Employees Do Not Have Complete Privacy Rights in Their Text Messages

Published on: July 22, 2010 | by Lasnetski Gihon Law

The United States Supreme Court ruled recently that supervisors at work may read an employee’s text messages if they think the employee may be violating work rules. The case stemmed from a situation in California where a police chief read thousands of text messages between a sergeant on the police force and his wife. The texts were sent on a pager that was issued to employees by the police department. The police chief said he searched and read the employee’s text messages because he suspected employees of using the pagers for personal use rather than purely work purposes.

The Fourth Amendment to the U.S. Constitution protects people against unreasonable searches and seizures. We often see the Fourth Amendment come into play when police officers search people, their vehicles, their homes and other belongings. Of course, this protection applies to people as they work in government jobs, but it does not extend to searches conducted by private employers in the private sector.

In this case, the Court found that the search was reasonable because the search was for a legitimate work-related purpose. This opinion establishes that the Fourth Amendment does protect public employees from unreasonable searches and seizures by employers and supervisors. It also establishes that a search of one’s allegedly private text messages or emails may be reasonable and valid if the employer has a policy against using a government-issue pager, cell phone or computer for personal reasons.

Drug Case Dismissed After Police Illegally Enter Suspect’s Home

Published on: June 30, 2010 | by Lasnetski Gihon Law

In a recent trafficking in cocaine case that occurred south of Jacksonville, Florida, the criminal case was dismissed after the court found that the drugs were illegally seized when the police entered the defendant’s home without consent, a search warrant or exigent circumstances. In order for the police to lawfully enter one’s residence, they must either have consent to enter, a valid search warrant or emergency circumstances.

In this case, the suspect called the police after a robbery occurred at his apartment. The police arrived approximately 30 minutes after the robbers left the apartment. When the police arrived, the robbery was clearly over and there was no indication that any of the robbers were in the area. However, the police entered the defendant’s apartment without permission and found cocaine and other drugs inside. At that point, the person who called the police was arrested for trafficking cocaine and possession of illegal pills.

The criminal defense lawyer for the defendant filed a motion to suppress the drugs found in the apartment and asserted that the police did not have a right to be in his apartment in the first place since the defendant did not give them permission to enter, the police did not have a search warrant and there were no exigent circumstances allowing the entry and search. The state argued that the recent robbery provided the exigent circumstances to justify the entry and search. The state argued that because a robbery had just occurred and the suspects could be inside the apartment, the police had a right to look for them. This might be true and a legitimate basis for a search without a warrant if the robbery was recent and there were some specific facts leading the police to believe the robbers were still in the apartment. However, the police could not point to any specific facts indicating there was anything in the apartment related to the robbery that needed to be searched on an emergency basis. As a result, there was no legitimate basis for the police to enter the apartment, and the search for the drugs was found to be illegal. The drugs were thrown out of court along with the drug charges.

Police Arrest Suspect Outside Home, Cannot Search Inside Home For Drugs

Published on: June 12, 2010 | by Lasnetski Gihon Law

In a recent drug case that occurred south of Jacksonville, Florida, police had information that heroin, marijuana and other illegal drugs were being kept and sold at a particular house. The police conducted surveillance of the house and saw one person exit the house and sell drugs to a customer. The police ultimately arrested that person for sale of heroin in the front yard of the house. Upon arrest, the police observed that the front door was open and people were in the house. The police went inside the house without a search warrant and found more heroin, marijuana and other drugs. The other occupants of the house were then also arrested for trafficking and possession of heroin and illegal drugs.

The criminal defense lawyer for the defendants filed a motion to suppress evidence of the seized drugs based on the fact that the police search of the house was unlawful. The general rule is that police cannot enter and search a person’s house without consent or a valid search warrant. There are exceptions. For instance, when the police make an arrest, they are permitted to search the immediate area to make sure there are not any threats to the safety of the officers. This is called a protective sweep. However, the police cannot do this automatically. There must be evidence indicating there is may be some threat to the police officers. In this case, there was no specific evidence indicating that there was anything in the house that was a threat to the police officers who made the arrest outside of the house. There was no evidence that anyone in the house was armed or any threat to any police officer. As a result, the police did not have a right to enter and search the house for drugs without consent or a search warrant. Because the search was unlawful, all of the evidence of the heroin, marijuana and other drugs in the house was thrown out.

Anonymous Tip of Illegal Drug Activity is Not Enough for a Search or Seizure in Florida

Published on: June 9, 2010 | by Lasnetski Gihon Law

As criminal defense lawyers in Jacksonville, Florida, we handle many drug cases and quite often, the search that led to the seizure of the illegal drugs was questionable. One example that occurred in a few of the drug cases we have is the police search for drugs based on an anonymous tip.

It is not uncommon for someone to call the police and, without identifying him/herself, claim that some person is committing some crime. The caller may say that a person is selling drugs somewhere or has drugs in his/her home or may be burglarizing a particular location. When the caller does not identify him/herself, the tip is considered anonymous. That puts the information in a different category in terms of reliability as opposed to information that comes from a known source. When police get an anonymous tip that a particular person is committing a particular crime, the police cannot just get a search warrant or just go and search the house, vehicle, person, etc. For instance, let’s say the police get a tip that Joe Smith who drives a while Chevrolet Malibu with blue stripes is growing marijuana at his pink and purple house at 123 Main Street. Police show up and see a pink and purple house with the exact car in the driveway. The identification information is confirmed, but unless the police observe something that corroborates the illegal activity, i.e. the marijuana growing, the police cannot search that house. When an anonymous tip is the basis for the investigation, the police need to see some evidence that corroborates the illegal activity, not just the identification information that anyone can see just by walking past the house.

Likewise, if the police received a tip that a white male wearing a orange shirt, green pants and a yellow hat is selling crack cocaine on the corner of Main and 1st streets, can the police stop and search him if they show up to Main and 1st and see that exact guy standing on the corner? No, not without some evidence corroborating the tip that he is actually selling drugs. The corroboration of the individual and his appearance is not sufficient to detain or search someone. If the police showed up, saw the guy and saw a couple of quick, hand to hand transactions, that would probably be enough for a brief detention to see if he was selling cocaine. However, when police get an anonymous tip of drug or other illegal activity, they need to verify the part of the tip relating to illegal activity before they can stop and search. If they just show up, confirm the identity of the suspect, house or vehicle and then search, any drugs or evidence obtained from the search may be thrown out of court.

Consent to Search for Drugs May Be Inferred By Police

Published on: June 3, 2010 | by Lasnetski Gihon Law

As criminal defense lawyers in Jacksonville, Florida, we handle a lot of drug cases of all kinds. In many of them, the police ask someone to search their home, vehicle or person and find the illegal drugs. After the person is arrested and comes to discuss their case with us, we always inform him/her about the Constitutional right to refuse any police request to search anything belonging to them.

If a police officer asks you if he/she can search you, your vehicle, your bag, your home or anything else you own or possess, it is important to politely but clearly say no if you do not want him/her to conduct the search. Courts in Florida have allowed searches where the suspect did not affirmatively agree to the search but made some gesture indicating the search may be authorized. For example, in one case, police came to an apartment to search it for drugs, and the suspect answered the door. When the police officer asked to search the apartment for illegal drugs, the suspect did not consent, but he did move out of the way so the police could enter. The Florida court did find this search to be valid. In another case, police asked a suspect if they could search his person. The suspect did not agree but held up his hands and spread his feet. This search was also determined to be valid.

It is very important to understand that police in Florida do not necessarily have a right to search anyone or anything that you own or possess without a search warrant. If a police officer asks you for consent to search, you have a right to politely refuse. If you do not make your refusal clear, it could be interpreted as consent and the resulting search may be upheld in court.