Articles Posted in Search and Seizure

We recently reviewed a drug case in the Jacksonville, Florida area with the following facts. The police received a general tip of illegal drug and other criminal activity occurring in the suspect’s home. That certainly was not a sufficient basis to obtain a search warrant so the police decided to go to the house, knock on the door and ask questions of the occupant(s). This house was in a rural area. The police arrived at the house, knocked on the front door and no one answered. The police officers were not deterred and decided to walk around the side of the house into the backyard and knock on the back door. While in the backyard, the police found marijuana. The owner of the house was subsequently arrested on possession of marijuana charges.

Was this a proper search of the defendant’s property and seizure of the marijuana? No. Police officers are permitted to approach someone’s home, knock on the front door and ask questions about possible drug or other illegal activity. However, if no one answers, the police cannot just violate a person’s right to privacy in his property by entering his backyard. A person’s 4th Amendment right to be free from unreasonable searches and seizures is strongest in his/her home. Police officers cannot just enter a person’s home or backyard without specific evidence of illegal activity and a search warrant in most cases.

In this case, the criminal defense attorney filed a motion to suppress the marijuana that was found in the defendant’s backyard. At the hearing, the police officers testified that it is common in rural areas for residents to accept visitors at their back door and the police officers had some reason to believe someone was inside the house. These two points are irrelevant. It really does not matter what the custom may be for receiving visitors in this area or that the police thought someone was home but just not answering the door. What does matter is that the defendant has a Constitutional right to privacy that protected him from the police entering his property without a search warrant beyond walking up to the front door to knock.

When police want to search a person’s house for illegal drugs or other evidence of criminal activity, the general rule is that they need to have probable cause and a search warrant signed by a judge to do so. However, there are circumstances where a police officer may be able to search a person’s home with little more than a hunch. Police officers often conduct what are called “knock and talks”. For instance, if a Jacksonville Sheriff’s Office police officer thinks there may be illegal drugs or other evidence in a person’s home, he/she may “knock” on the door and “talk”, or ask the owner or occupant if he/she can search the house. If the owner or occupant says yes and consents to the search, the JSO officer may be able to search the house without probable cause or a search warrant.

Under Florida search and seizure laws, a police officer does not need to have probable cause and a search warrant or even reasonable suspicion to conduct a knock and talk. There are cases which allow a police officer to approach a house, knock on the door and ask for consent to search for drugs based on only a hunch or educated guess. The theory is that if a sales person or stranger is allowed to knock on a person’s door and ask a question, a police officer can too.

When a police officer conducts a knock and talk to look for illegal drugs or other evidence, the issue is whether the owner or occupant gives consent to search freely and voluntarily. Even where the owner or occupant agrees to a search, that consent may not be considered free and voluntary under the law if certain factors are present such as a prolonged detention by the police officer(s), repeated requests to search, a threat that the police officer(s) will get a search warrant if consent is refused or any sort of show of force or intimidation by the police officer(s) to obtain consent. If police do anything more than simply ask for consent to search the house, the consent may not be valid under the law.

It is not uncommon in Jacksonville, Florida or other areas in Florida for police to make a drug arrest based on a tip from someone commonly referred to as a Confidential Informant (CI). These tips can come from a variety of different people and can be anywhere from very general to very specific. Some CI’s are more reliable than others, and some of the tips are more thorough and accurate than others.

For instance, consider a case where a CI tells a Jacksonville Sheriff’s Office (JSO) officer he saw a man conduct a hand to hand drug transaction on a street corner in downtown Jacksonville, Florida. The CI is someone who has provided reliable information to the Jacksonville police officer in the past that resulted in drug arrests. The CI described the street corner, the clothes the man was wearing and said the drugs were in his left front pocket. The Jacksonville police officer then goes to that street corner, sees the man and makes an arrest. The police officer finds a bag of crack cocaine in his left front pocket.

Is this a valid drug arrest for possession of crack cocaine by the Jacksonville police officer? We would say no. The law says that a police officer must have a reasonable basis to stop a person for suspected drug or other criminal activity and must have probable cause of drug or other criminal activity prior to making an arrest. In situations involving a tip by a CI, two primary factors come into play. First, how reliable is the CI? Has he/she provided reliable tips that led to arrests in the past or are his/her tips often, or even sometimes, unreliable? In this case, the CI was apparently reliable with his tips. The second important factor is how specific and thorough the particular tip is. In this case, the tip was too general and did not provide enough information to allow the officer to just walk up to the man and make a drug arrest. The tip did not describe in any detail the activity that the CI considered a “hand to hand drug transaction.” How is the police officer, and later the judge, supposed to know that this CI can accurately detect a hand to hand drug transaction from some other type of hand to hand transaction? And how does anyone know at what angle and distance the CI observed the man and for how long? Additionally, the CI did not indicate the type of illegal drug involved, the packaging or anything else about the alleged transactions. Finally, when the polcie officer saw the man, he did not conduct any surveillance to confirm the tip nor did he know anything about the history of the alleged drug seller.

As the number of people laid off and otherwise unemployed in Florida grows, one Florida legislator has proposed to require people to pass a drug test before they can receive unemployment benefits, according to an article at Rawstory.com. The Florida legislator claimed that he is concerned that the unemployment compensation fund is in danger of running out and this would be a way to limit unemployment benefits to those who were intended to receive them.

As the representative for the Drug Policy Alliance points out, the individuals who are seeking unemployment benefits after having lost their jobs have already paid their own money into the system in order to receive these benefits when unemployed. Additionally, when they paid that money for unemployment insurance while employed, they would not have been told that they could only recover their unemployment benefits on the condition that they passed a drug test. The article also raises the question that it is unfair to make people already out of a job to pay for drug tests they were never told they would have to take to receive unemployment benefits.

One other state has tried to require people to undergo drug testing prior to receiving public assistance. However, that policy was successfully challenged in federal court on the grounds that such blanket drug testing was a violation of the individual’s Fourth Amendment right to be free from unreasonable searches and seizures.

All residents of Florida, and the United States as a whole, are protected by the Fourth Amendment which protects people from unreasonable searches and seizures by police. One aspect of the law on searches and seizures generally requires police to obtain a search warrant before entering someone’s home to look for evidence. A search warrant must be based on specific evidence that gives the police probable cause to believe that evidence of a crime can be located in a particular place. Normally, when a Jacksonville, Florida police officer asks a judge to issue a search warrant, that police officer swears to knowledge of evidence providing probable cause to believe that evidence of a crime, such as marijuana or cocaine possession or trafficking, is currently located in a specific place, such as a suspect’s house.

What if a Jacksonville police officer suspects that illegal drugs, like a shipment of marijuana or cocaine, will be delivered to a particular location in the future? Can the police officer obtain a search warrant now for evidence of illegal drugs that may materialize later? This is referred to as an anticipatory search warrant- where the police allege that there is evidence indicating that drugs or other evidence will be at a specific place at a specific time in the future. Anticipatory search warrants are not automatically illegal, but they require an additional element.

As stated, in order for a regular search warrant for existing drugs or evidence to be valid, there must be probable cause to believe that the drugs or evidence are present at the specific place to be searched. For an anticipatory search warrant, where the drugs or evidence are not present when the search warrant is requested but expected to be present in the near future, the police officer must establish that some triggering event will occur that will cause the drugs or evidence to appear. For instance, in a drug trafficking investigation, a confidential informant may inform the police that a suspected drug dealer will be getting a shipment of marijuana, cocaine or some other drug delivered to his/her house or apartment. The triggering event would be the delivery of the drugs by some specified person. The police officer may request a search warrant now to search that location at some specified time in the future. In order for the search warrant to be valid, there must be probable cause not only to believe that the drugs will be at that particular location but also that the triggering event will occur. In other words, the police officer must show some specific evidence indicating that the triggering event, i.e. the delivery by the person, will take place in the relevant time frame. The police officer may not just generally assert that a delivery will be made at some point and obtain a search warrant.