Search and Seizure

Florida Trafficking in Cocaine Case Thrown Out Because Search Took Too Long

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

In a recent trafficking in cocaine case that took place a couple of hours south of Jacksonville, Florida, a police officer found cocaine in a person’s vehicle and arrested him after a long police encounter that was initiated as merely a traffic stop. Because the police officer too too long to conduct the search, the court ultimately threw the case out due to an illegal search.

Many drug arrests start out simply as traffic stops but turn into something more serious after the police officer searches the car. Once the police officer has stopped the driver for speeding, running a red light or some other traffic violation, the police officer may try to look for a way to conduct a search of the vehicle. Most of the time, the police officer will simply ask the driver for consent to search the vehicle. Everyone should understand that they have an absolute right to refuse when a police officer asks for permission to search a vehicle or anything else owned by that person.

If the police officer cannot get consent to search, he/she may look for evidence that drugs or other evidence of illegal activity are in the vehicle and use that as a basis for a search. However, if the basis for the traffic stop was a traffic violation, the police officer has limited time to come up with such evidence. The police officer cannot ask a bunch of questions or make up reasons to keep the driver at the scene while he/she waits for a drug dog to show up. If the police officer cannot uncover specific evidence of illegal activity within the time it would take to write a normal citation or warning for the traffic violation, he/she cannot extend the encounter in the hopes that incriminating evidence will surface or the drug dog will get there to sniff the vehicle. Once the time necessary for the traffic violation investigation has elapsed, the police officer has to let the driver go if no other incriminating evidence is revealed. If the police officer keeps the driver at the scene any longer, any evidence that is ultimately uncovered should be thrown out of court pursuant to the criminal defense lawyer’s motion to suppress.

Police in St. Johns County, Florida Arrest Two for Drug Trafficking

Published on: March 23, 2010 | by Lasnetski Gihon Law

Police in St. Johns County, Florida arrested two people after conducting a search warrant in a home that resulted in the seizure of cocaine, marijuana plants and prescription pills, according to an article on News4Jax.com. According to St. Johns County police, they received anonymous complaints about the house and obtained a search warrant for drugs as a result. They apparently seized about $50,000 worth of illegal drugs in the house.

In a drug trafficking case like this, one of the first things a criminal defense lawyer would look at is whether the police had the right to enter and search the house. The police apparently had a search warrant, but that is not an automatically legitimate basis for searching a house. The search warrant has to be based on specific and reliable evidence that there is illegal activity taking place in the house. The article only references anonymous complaints about the house. The police may have had more specific information when they obtained the search warrant, but anonymous tips, without more, usually would not be sufficient information to obtain a valid search warrant. Anonymous complaints may be enough for police to initiate an investigation of the house, but without more specific evidence and corroboration of the anonymous complaints, the validity of the search warrant may be called into question. If the search warrant is found to be invalid in court after the criminal defense attorney files a motion to suppress, all of the drugs and other evidence found pursuant to the illegal search warrant would be thrown out of court.

People in Florida Have No Right to Privacy in Historical Cell Phone Site Information

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

Cell phones have become so common that just about everyone has one and many people have multiple cell phones. They are also effective tools to help police investigate crimes and make arrests. Police officers can obtain information from cell phone service providers that tell the police where a person was at any given time when he/she was using a cell phone. This can be particularly important when a person is charged with a crime and the police need evidence that the person was at or near the crime scene around the time the crime occurred.

In a recent criminal case in Florida south of Jacksonville, a defendant was charged with committing a robbery and a battery at a house in a particular neighborhood. The police obtained the defendant’s historical cell site records to show that he was in the area of the robbery and battery around the time the crimes occurred. The criminal defense lawyer tried to suppress those records claiming that the police obtained those cell site records in violation of the defendant’s Fourth Amendment rights. However, the court disagreed with the criminal defense attorney. Because the cell site records show only where a person has been (and not where he/she is presently), the Fourth Amendment protections do not apply.

In other words, in Florida the police can fairly easily obtain a person’s historical cell site records to establish where a person with his/her cell phone was around the time of the crime by claiming that such evidence is relevant to an ongoing criminal case.

Drug Case Thrown Out in Florida After Police Improperly Detain Defendant

Published on: January 13, 2010 | by Lasnetski Gihon Law

In a recent criminal case that occurred south of Jacksonville, Florida, the police stopped a vehicle for a traffic violation. The vehicle was occupied by a driver and a passenger. The police became suspicious of the two occupants and asked each of them if they could search the vehicle. Both occupants consented to the search. For some reason, although neither occupant had committed a crime, the police officer handcuffed the passenger and placed her in his patrol car for approximately 30 minutes while the police searched the vehicle. The police did not find any drugs in the vehicle and let the two occupants go with only a traffic ticket.

However, when the police officers returned to their car, they found a bag of cocaine where the passenger had been sitting in the patrol car during the search. The police officers then chased after the vehicle and arrested the passenger for possession of cocaine.

The criminal defense lawyer for the passenger filed a motion to suppress the evidence of the cocaine because the passenger was illegally detained while she was sitting in the police car. The court agreed and threw out the evidence of the cocaine. The possession of cocaine charge was then dropped.

Can The Police Stop You In Florida For Running From The Police?

Published on: January 10, 2010 | by Lasnetski Gihon Law

One questioin clients ask us regarding criminal cases in Florida is whether the police can stop a person if all that person does is run from the police. The Florida Supreme Court recently decided a case that helps answer that question. As background information, keep in mind that the Florida and United States Constitutions provide that the police are not allowed to stop a person without specific facts suggesting the person is, or has recently been, involved in criminal activity. With that in mind, the general rule has been that running from the police, by itself, is not a basis for stopping a person or arresting them for the crime of resisting without violence. The idea is that if the police do not have specific evidence that a person is, or has recently been, involved in criminal activity, the police officer does not have a right to stop the person so the person can run all he/she wants from the police.

However, in a recent Florida criminal case, the police were responding to a illegal drug and criminal trespass complaint in a high crime area. The police arrived and saw the defendant who ran as soon as he saw the police. The police officers told the defendant to stop, but he kept running. The defendant was ultimately caught and arrested for resisting without violence.

The defendant’s criminal defense lawyer filed a motion to dismiss the criminal charges arguing that it was not illegal for the defendant to run from the police and the police did not have a right to stop the defendant because the police did not have any evidence that this particular defendant was involved in criminal activity before he ran. The Florida court disagreed and determined that the arrest for resisting without violence was lawful. The rationale was that once the defendant ran at the sight of the police in a high crime area, that provided the reasonable suspicion of criminal activity needed to justify the command to stop. When the defendant failed to stop when commanded to by the police, he was committing the crime of resisting without violence.

Florida Court Extends Police Officers’ Right to Search Vehicle of Suspect Recently Arrested

Published on: January 7, 2010 | by Lasnetski Gihon Law

We wrote earlier on this blog about an important change in the law regarding a police officer’s right to search the vehicle of a person recently arrested in his vehicle. Prior to that change, when police arrested a person in or at his/her vehicle, the police had a right to search the passenger compartment (not the trunk) of the vehicle. This was considered a search incident to an arrest and provided the police with an automatic excuse to search a vehicle of a suspect and gather evidence against that person for the crime for which he/she was arrested or a new crime. Many possession of marijuana, cocaine, and other drugs or weapons cases have been made this way.

However, as we noted, the law changed and limited the police officer’s right to search a person’s vehicle after his/her arrest. The new law stated that the police could only search a person’s vehicle after his/her arrest if the person was within arm’s reach of the vehicle or the police officer was aware of specific facts indicating that evidence of criminal activity could be found in the vehicle. The justification for the former basis was that if the suspect had access to the vehicle, the police officer had a right to search it to make sure there were no weapons present that could pose a safety risk to the officer. In practice, this should not be a common scenario as most police officers will secure a suspect with handcuffs and place him/her in the police car upon arrest to make sure the suspect is secure. Once the suspect is in handcuffs and in the police car, the suspect has no access to anything in his/her own vehicle so the police do not have a right to search it for weapons and officer safety. The justification for the latter basis is obvious. If the police officer can articulate specific facts indicating evidence of criminal activity is in the car of a person recently arrested, the officer has a right to search the vehicle for that evidence before the vehicle is driven away.

However, a Florida court (not in the Jacksonville, Florida district) has expanded the police officer’s right to search a suspect’s vehicle incident to arrest in a way that we believe is excessive. In a recent case out of Lake County, Florida, which is about two and a half hours south of Jacksonville, Florida, a police officer stopped a suspect in his vehicle after determining that he had several warrants for his arrest. Two of the warrants were for theft charges. The police officer handcuffed the suspect and placed him in the patrol car. The police officer then looked inside the suspect’s vehicle and saw a woman’s wallet. The police officer checked the wallet and noted that it belonged to an elderly lady. The police officer then searched the vehicle and found three more purses that belonged to elderly women.

Police in Florida Cannot Stop a Person Based on Tip That He Possesses a Concealed Handgun

Published on: December 31, 2009 | by Lasnetski Gihon Law

In Florida, the police are not authorized under the Constitution to stop a person based merely on a tip that the person has a concealed weapon. Consider a criminal case that was decided recently where a person sees the defendant in a restaurant flashing his gun by lifting his shirt and showing the gun in his waistband. That person finds a police officer and tells him that the suspect is flashing a gun in public. The suspect was not, however, pulling the gun out, waiving it or threatening anyone. The police officer then proceeds to stop the suspect, seize his gun and arrest him for carrying a concealed weapon without a permit.

Is this a valid arrest in Florida? No. The key to understanding why this was an improper stop and an improper arrest is the law that a person is allowed to carry a concealed gun or other weapon with a permit. Because of that law, the mere fact that a person has a gun in public does not mean he/she is committing a crime. Therefore, when an informant or police officer sees someone with a handgun in public, that is not evidence of a crime, assuming that person is not waiving the gun around or threatening anyone with it. Because there was no evidence of a crime, the police officer was not justified in stopping and arresting the suspect. If the police officer somehow knew before the stop that the suspect did not have a permit for the concealed gun or saw the suspect threatening someone with a gun, that would be evidence of a crime and a valid basis for a stop. However, mere possession of a concealed weapon is not evidence of a crime. It is not up to the suspect to prove he/she has a permit for the concealed weapon once he/she’s been stopped, it is up to the police to establish specific facts indicating a crime is taking place before he/she stops the suspect.

In Florida, Police May Access Your Drug Records From Your Pharmacy Without a Search Warrant

Published on: December 12, 2009 | by Lasnetski Gihon Law

Most people understand that the Florida Constitution and the U.S. Constitution protect us from unreasonable searches and seizures. That means the police and other law enforcement agencies in Florida cannot search our homes, vehicles, etc. and seize our property without consent, a search warrant or emergent circumstances. However, the law is different regarding controlled substance records at pharmacies.

Florida law says that pharmacies are required to maintain drug records for at least two years. Pharmacies are also required by Florida law to make those controlled substance records available to law enforcement officers without the need for a search warrant, subpoena or other court order. Additionally, the police can obtain controlled substance records from pharmacies without notice to the patient from either law enforcement or the pharmacy. In other words, police in Florida are permitted to go to your pharmacy and obtain your controlled substance prescription records without a warrant and without you knowing about it.

This primarily comes up in two types of cases. Obtaining prescription drugs, such as Vicodin, Percocet and Oxycontin, by fraud is becoming more prevalent these days as we have pointed out on this blog in the past. Doctor shopping, where a patient may go to several doctors to get the same or similar prescriptions, is also fairly common. When the police investigate such crimes, they may go to the pharmacy for a suspect’s records. Florida law allows them to obtain such information more easily than other evidence in other types of crimes.

Cocaine Trafficking Case Thrown Out Due to Illegal Search in Florida

Published on: December 3, 2009 | by Lasnetski Gihon Law

A Florida trafficking in cocaine case was recently thrown out due to the illegal search by the police officer. In this case, the police officer responded to a domestic battery call where the suspect was possibly armed with a handgun. The police officer saw the suspect near the apartment and called to him. The suspect ran and was caught near a vehicle that supposedly belonged to him. The police officer arrested the suspect and searched him but found nothing. After the suspect was placed in the patrol car, the police officer searched his vehicle and found a trafficking amount of cocaine.

The criminal defense lawyer for the suspect filed a motion to suppress alleging that the search of the defendant’s vehicle where the cocaine was found was illegal. The judge agreed and threw out the evidence of the cocaine.

The law has changed on this issue recently. In the past, the police officer could always search a person’s vehicle if he/she is arrested near that vehicle, for instance during a traffic stop. However, now, if a person is arrested near his/her vehicle but at the time of the arrest has been secured and is not within arm’s reach of that vehicle, the police officer does not have an automatic right to search the vehicle. In other words, if the suspect has no way of getting into his/her vehicle, there is no officer safety issue and the police officer cannot just search it automatically. If the officer has reason to believe that there is evidence of the crime for which the suspect has been arrested in that vehicle, then the officer may have a right to search it. But, the police officer’s search is no longer automatic when a person gets arrested at or near his/her vehicle. If the police search the vehicle of someone who has been arrested and secured without specific facts suggesting there is evidence in that vehicle, any evidence of a crime found in the vehicle should be thrown out.

In Florida, Police Cannot Stop You Solely Based on an Anonymous Tip

Published on: November 27, 2009 | by Lasnetski Gihon Law

A criminal defense client asked us whether the police can conduct an investigatory stop, whether on foot or in a vehicle, based on an anonymous tip. For instance, let’s assume that an unidentified person calls the police and says that person X is out on the street with illegal drugs in his possession or person Y is driving recklessly and may be drunk driving. Can the police in Florida approach either of these “suspects” and stop them to investigate them solely based on the anonymous tip? The answer is no.

Each of us has a Fourth Amendment right to be free from unreasonable searches and seizures by the police. That means the police cannot just stop someone without reasonable suspicion, i.e. specific facts, that a crime is taking place or is about the take place. When the police get a tip from some anonymous person, that by itself is not reliable enough to justify a police stop. The police would have the right to investigate further, but can only stop the “suspect” if the police officer observes certain facts that confirmed the tip him/herself .

For instance, in the case of the person who possessed illegal drugs, if the police officer observed the person making what appeared to be hand to hand drug transactions, that may be a basis to stop the person and investigate further. In the case of the alleged drunk driver, if the police located the vehicle and saw that the driver was swerving or speeding or otherwise driving recklessly, that would be sufficient for a stop and subsequent DUI investigation. However, if the police officer located the vehicle and the driver was driving appropriately, a stop based solely on the anonymous tip would be illegal.