Articles Posted in Search and Seizure

In a recent possession of marijuana case in Florida, the criminal charges against a juvenile were dropped because the juvenile was searched illegally by the police officer. The police officer found the juvenile near a high school during school hours. He approached the juvenile and determined that he was supposed to be in school at the time. A police officer does have a right to detain a juvenile if he has reason to believe that the juvenile is skipping school. The purpose of the detention is to return the juvenile to the school.

In this case, the police officer detained the juvenile, searched her pockets and found marijuana. Normally, a police officer is allowed to search someone who has been arrested to make sure the suspect does not have a weapon and presents no risk to the police officer’s safety. However, truancy, i.e. skipping school, is not a crime so this juvenile was not arrested. As a result, the police officer could not use the search incident to arrest basis to search the juvenile. If the officer has a right to detain someone, as he did here, he/she can pat that person down for weapons to ensure officer safety, but the officer chose not to do that and went straight into a search instead.

Alternatively, if the police officer had some reason to believe that the juvenile was in possession of marijuana or other illegal drug, he may have been permitted to search the juvenile. If the officer had patted the juvenile down first and felt something that seemed to be drugs or a weapon, then a search would likely have been authorized. At the hearing on the motion to suppress the marijuana, the police officer testified that he searched the juvenile for officer safety because he was about to place him in his patrol car to take him back to school. But since no arrest was made, this was not a valid basis to search the juvenile under the Fourth Amendment.

An Air National Guard helicopter flying around Bradford County, Florida (about an hour southwest of Jacksonville, Florida) spotted a marijuana plant growing in the backyard of a Starke, Florida resident, according to an article on News4Jax.com. Local police officers subsequently searched the property including the house and found marijuana and guns. This investigation was part of a special effort in Bradford County and Union County to target illegal drug dealers and drug users.

One question in a drug case like this is whether the homeowner’s rights were violated when law enforcement observed the marijuana plant in his backyard and then searched his house and property. All individuals have very strong privacy rights in their homes and their adjacent property. As criminal defense attorneys, we have handled cases where police officers have gone into the backyards of people without search warrants and found illegal drugs only to have those cases thrown out because that kind of search is a Fourth Amendment violation. The analysis is different when the initial observation is done by a helicopter in the air space over a house. Whether the initial search of the property and observation of the marijuana is legal depends on several factors, such as whether the helicopter pilot had a right to be where he was and whether he had to use any special equipment to see one marijuana plant in the yard from a helicopter.

Any time the police or someone acting on behalf of the police observe suspected illegal drugs or suspected illegal activity in or near someone’s home without a search warrant, there is the potential for a Fourth Amendment violation that needs to be investigated. If there is such a Fourth Amendment violation, evidence of illegal drugs or other illegal activity should be thrown out..

In a recent trafficking in methamphetamine and marijuana case, the police went to the house of the suspect with a warrant for his arrest. The police officers knocked on the door without announcing who they were and why they were there. The police officers then opened the door and found the suspect inside. They also found marijuana in the home that was the basis for the trafficking in marijuana charge. After his arrest, the suspect made some statements that the State intended to use against him in court.

Later in the case, the criminal defense lawyer moved to have the evidence of the marijuana and the defendant’s statements thrown out based on an illegal arrest. In Florida, we have a law that says the police must knock and announce themselves and their purpose before entering a person’s home to execute an arrest warrant. This is a compromise between a person’s a 4th Amendment privacy interest in his/her home and the State’s right to serve valid arrest warrants at a person’s home. In addition to knocking and announcing who they are and why they are there, the police must give a person a chance to open the door and let the police inside before coming in on their own.

In this case, the police violated the knock and announce statute by failing to make the proper announcements and waiting to see if someone would answer the door. The question then is: what is the proper remedy for the defendant after such a violation? The proper remedy is not that the charges that were the basis of the arrest get dropped. However, there is support in the law in Florida that if the police obtain any evidence as a result of the improper arrest, that evidence will get thrown out and may not be used against the defendant in court. Therefore, if the police violate the knock and announce statute, any evidence they find in the house after the illegal entry and any statements they get after entering the house may be thrown out of court.

Consider a fairly common situation where a police officer makes a traffic stop of a vehicle. The police officer testifies that he saw the driver shuffling around in the vehicle as if he was trying to hide or grab something, such as a gun or illegal drugs. In this case, the police officer testifies that he suspected that the driver may be armed and/or involved in drug activity so he removes the driver from the vehicle to conduct a brief search for weapons. This is referred to as a patdown for weapons. Can the officer handcuff the driver prior to the brief patdown? Normally, where the officer can testify to specific facts indicating there may be a threat of harm, he/she can briefly handcuff the suspect(s) and briefly pat him/her down to see if he/she is in possession of a gun or other weapon.

However, once the suspect is patted down and no weapons, drugs or other illegal items are found, the officer must remove the handcuffs. Additionally, any basis for a further patdown or more invasive search has disappeared once the patdown has been completed and no threat is apparent.

This came up in a recent drug case south of Jacksonville, Florida where the initial patdown did not produce any guns, drugs or other evidence of criminal activity. However, the police officer kept the suspect in handcuffs. A second police officer came to the scene, patted the suspect down and found a crack pipe and some cocaine. That person was charged with possession of cocaine and possession of drug paraphernalia, but the case was later dismissed because that search was illegal. Once the initial officer conducted the pat down and did not find anything, there was no additional basis for a second patdown. The officer should have removed the handcuffs and allowed the person to leave. The second patdown was illegal, and the evidence seized as a result of that patdown could not be used in court.

In a recent drug case south of Jacksonville, Florida, the defendant’s drug charges were thrown out after the court ruled that the police officer was not authorized to enter the defendant’s home and any drugs that were found in his home were illegally seized.

In this case, police officers responded to a call of several people trespassing at an apartment complex. The police arrived and saw several people at the complex. The police approached the group and started to ask questions about what they were doing there. Rather than stay around and answer questions, the defendant walked away from the police and into his apartment nearby. One of the police officers followed the defendant into his apartment and saw him drop some bags containing marijuana and cocaine. The defendant was then arrested for possession of marijuana and possession of cocaine.

However, these charges were thrown out and the case was dismissed because the police officer did not have authority to enter the defendant’s apartment.

In a recent case south of Jacksonville, Florida, the police got a call of a suspected burglary at the house next to the caller’s house. When the police arrived, they found the defendant moving items from the house to a car parked next to the house. The front door to the home showed signs consistent with a break-in. The police determined that the defendant was the suspect about whom the neighbor called. Additionally, when the police arrived, the owner of the house was present standing on the front porch. The defendant was the husband of the homeowner.

The police officers arrested the defendant and then walked in the house to search it without getting consent from the owner. The officers referred to this search as a protective sweep search. The police officers opened a closet and found a large amount of marijuana inside. The defendant was charged with trafficking in cannabis, or marijuana.

The defendant’s marijuana trafficking charge was ultimately dismissed because the police conducted an illegal search. The criminal defense lawyer for the defendant filed a motion to dismiss the marijuana evidence because the police did not have a right to enter the house.

Lasnetski Gihon Law was called by a client who had been arrested a few counties south of Jacksonville, Florida for possession of marijuana. The client was at his home on his back porch. A police officer was responding to a noise complaint made by the client’s neighbor about the client. The police officer knocked on the front door, and no one answered. The police officer said that he heard voices around back so he walked around the house into the backyard. When he was in the backyard, he saw our client and some marijuana on a table near our client. Our client was arrested for possession of that marijuana.

This was clearly a bad search. After we filed our Motion to Suppress the marijuana seized as a result of the illegal search, the prosecutor agreed with our position and dropped the case. The reason this was an obviously illegal search is because a person has a strong privacy interest in his/her home and that includes the backyard. A police officer may not walk into a person’s home or walk around a person’s home into the backyard without a search warrant or a clear exception to the search warrant requirement such as consent or exigent circumstances. In this case, the police officer did not have a search warrant or consent to search, and an investigation into a noise complaint would not establish exigent circumstances.

Because the police officer did not have any right to walk behind his house into his backyard and violate our client’s privacy rights, any marijuana he found as a result of the illegal search was thrown out and the possession of marijuana charge could not stand.

A recent possession of cocaine case was dismissed after a judge ruled that the police did not have a right to enter the defendant’s apartment and search the defendant for drugs without a search warrant. In this case, the police received a tip that drug activity was taking place at a specific apartment. When police officers responded to the tip, they saw that the apartment door was open. The police officers were able to see the defendant in the kitchen wiping off the counter. They noticed a digital scale on the counter along with a white, powdery substance that appeared to be cocaine and a straw. The police officers entered the apartment, handcuffed the defendant, searched him and found two bags of cocaine in his pocket.

The criminal defense lawyer for the defendant filed a motion to suppress alleging that the police did not have a right to enter the defendant’s apartment and arrest and search him. As a result, all evidence of cocaine possession should be thrown out.

Everyone has a Fourth Amendment right to be free from unreasonable searches and seizures. This Constitutional protection is strongest in one’s home. As a result, a police officer typically needs a search warrant if he/she is going to lawfully search someone’s home. There are exceptions to the search warrant requirement if the police officer can prove that he/she could see the illegal drugs from a place the police officer had a legitimate right to be, it is immediately clear that the item seen is illegal or incriminating and the officer had a lawful right to access the drugs or other incriminating item. If all of those factors are not present, the police officer can only enter someone’s home to conduct a search if there are urgent, or exigent, circumstances or the owner of the home consents to the search.