Search and Seizure

Most Company Executives and Owners Cannot Challenge a Search of Their Business

Published on: April 15, 2009 | by Lasnetski Gihon Law

Federal law enforcement authorities show up at your company with a search warrant to search the entire premises of the business including computers, customer files, billing and accounts receivable information, internal memoranda, bank account information and training materials. They conduct an extensive search and seize a variety of materials from the business which leads to federal criminal charges against you, the company president, your vice president and the company itself. You retain a federal criminal defense attorney and attempt to have this evidence thrown out so it cannot be used against you in court because the search warrant was vague or overly broad, i.e. the search warrant was not limited to items for which there was probable cause to search and seize. Can you, the president of the company, challenge the search of your business? In most cases, the answer is no, according to a recent federal criminal case out of the U.S. Court of Appeals for the Ninth Circuit.

The Fourth Amendment to the Constitution protects citizens and companies against unreasonable searches and seizures. Fourth Amendment protections are realized in a couple of ways, one of which is the requirement that police and law enforcement authorities obtain a search warrant that must be signed by a judge before searching a person’s home or business. If the police obtain a search warrant, conduct a search of a business and seize evidence that results in criminal charges, a motion to suppress can be filed to suppress such evidence if it is determined that the search warrant was invalid, for instance because it was overly broad. The end result is that the evidence obtained pursuant to that invalid search warrant is thrown out and cannot be used against the defendant in the criminal case.

However, after a questionable search and seizure, a person or company can only move to suppress the seized evidence if he/she has standing. Standing relates to a person’s reasonable expectation of privacy in the place that is searched. A classic example is one’s home. Without legal standing, the judge will not even hear a defendant’s argument on a motion to suppress evidence. The question raised by this Ninth Circuit case, United States v. SDI Future Health, Inc., was whether a company president/part owner had standing to challenge a search of his business.

Jacksonville Police Use Search Warrant to Obtain Blood After DUI Suspect Refuses Breathalyzer

Published on: April 2, 2009 | by Lasnetski Gihon Law

If a police officer in Jacksonville or anywhere else in Florida pulls you over and suspects that you are under the influence of alcohol, he/she will likely conduct a DUI (driving under the influence of alcohol or drugs) investigation. This typically consists of questions about where you have been, whether you have been drinking and if so, how many drinks. This is followed by a request to submit to field sobriety tests, the results of which are based on the subjective opinions of the police officer. You have a right to refuse to answer these questions and a right to refuse to take the field sobriety tests by politely requesting to speak with your criminal defense lawyer.

The typical DUI investigation in Jacksonville, Florida will also involve a request by the police officer for you to submit to a breath, blood or urine test to measure your blood alcohol content. Usually, the request is for the breath test. Drivers often refuse to submit to these breath, blood or urine tests during a DUI investigation.

However, in one case in Jacksonville, Florida, the police officer took the driver to jail and then obtained a search warrant for the driver’s blood to test the blood for alcohol content after the driver refused the breathalyzer. The officer contacted a judge who signed the search warrant and authorized the forced seizure of the driver’s blood for alcohol content testing purposes. The criminal defense attorney for the driver later challenged the state’s right to use the blood test in court in the criminal case. However, the court allowed the state to use the results from the forced blood test because a valid search warrant was obtained for the blood. The court noted that driving is a privilege and can be strictly regulated by the state. As a result, a driver may have the option to refuse a breath, blood or urine test, but a driver does not have the right to refuse, and the state may be able to force a blood test pursuant to a valid search warrant.

Can the Police Arrest and Search a Person For Giving a False Name in Jacksonville, Florida?

Published on: March 21, 2009 | by Lasnetski Gihon Law

A common situation that occurs in Jacksonville, Florida involves a Jacksonville Sheriff’s Office officer responding to a crime and questioning people in the vicinity of the crime to learn who committed the crime. Let’s assume that the police suspect that a bystander committed the reported crime, approach him and ask him some general questions, such as his name and what he is doing. Let’s also assume the bystander gives the police officer the wrong name. When the police officer learns that the bystander gave the police the wrong name, the police officer arrests the bystander, searches him and finds drugs in his pocket. Is this a valid arrest and search?

This would most likely be ruled to be an invalid arrest, and the evidence (the drugs) that were found pursuant to that arrest would likely be thrown out of court. Giving a false name to police is not a crime unless that person gives the wrong name during a lawful detention or arrest. If the police officer did not have a sufficient basis to detain or arrest the bystander in the first place, the bystander did not commit a crime when he gave the officer the wrong name. If a police officer merely suspects that a person has committed a crime, without having any specific, concrete evidence, that is not a sufficient legal basis to detain or arrest a person. Additionally, if a police officer searches a person incident to an arrest and finds evidence, such as drugs or property belonging to another person, that evidence cannot be used against that person if the arrest was unlawful. The criminal defense attorney would get that evidence thrown out pursuant to a motion to suppress. Such tainted evidence is referred to as fruit of the poisonous tree, the poisonous tree being the unlawful arrest.

However, there is an exception to this fruit of the poisonous tree concept. If the police would have discovered the tainted evidence anyway based on some other lawful basis, the evidence could be used against that person. For instance, assume the police are responding to a burglary and suspect that the perpetrator ran into his friend’s house across the street from the victim’s house. The police go to that friend’s house and get consent to search the house from the owner/friend. The police officer finds the suspect sitting on a bed in one of the rooms and asks his name. The suspect gives a false name. The police arrest him, search the room and find some of the victim’s property that was stolen in the burglary under the bed in that room. The arrest for giving a false name is invalid, and any search incident to that arrest is also invalid. However, the property found under the bed could still be used against the suspect because while the police could not use the suspect’s arrest as a basis to search the area near him, they could use the friend/owner’s permission to search the house as a legal basis to search under the bed.

Clay County (Orange Park), Florida Police Arrest Two For Suspected Marijuana Operation

Published on: March 5, 2009 | by Lasnetski Gihon Law

Police in Orange Park, Clay County, Florida raided a house pursuant to a suspected illegal marijuana growing operation, according to an article on News4Jax.com. According to the article, the Clay County police officers seized numerous marijuana plants and observed marijuana growing equipment such as lights and ventilation equipment in the house. Charges have not been filed at this early stage, but it is likely that felony marijuana charges will result from the search and arrests.

The article on the Jacksonville, Florida paper’s website indicates that the police discovered the house based on “intelligence.” One issue that is sure to arise in the following criminal case is what specific facts the Clay County police had to justify a search warrant for the house and the subsequent search and seizure of the marijuana plants and other evidence. At a motion to suppress evidence in the criminal case, the Clay County police will have to show that they had a legitimate factual basis to obtain a search warrant and search the house. This is just one of the several issues that arise in a drug case involving search warrants and the seizure of evidence from someone’s home.

If you have any questions about your Fourth Amendment rights to be free from unreasonable searches and seizures or a police officer’s right to search you, your vehicle, your home or any other belonging, feel free to contact us for a free consultation about the laws related to drug cases and illegal searches and seizures.

Federal Government Will No Longer Raid Medical Marijuana Establishments

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

The new U.S. Attorney General in President Obama’s administration stated that the federal government has changed its policy and will not raid medical marijuana establishments in states where selling marijuana for medicinal purposes is legal. Medical marijuana is legal in thirteen states. Florida is not one of them, and none of those states are in the South.

One might ask how law enforcement officials can legally raid a medical marijuana facility if the state has made it legal to sell marijuana with a doctor’s prescription. The reason is that the particular state’s law may say it is legal but federal law may say it is not. As a result, under the Bush administration, federal Drug Enforcement Agency agents and other federal law enforcement officials were directed to raid medical marijuana locations pursuant to federal drug laws despite the contrary state marijuana laws.

However, under Obama, that is expected to change. This should not directly affect residents of Jacksonville or other cities in Florida (unless and until Florida legalizes marijuana for medicinal purposes), but it does clearly indicate a shift in the priorities of the current federal government away from targeting and prosecuting marijuana users, at least in the states where medical marijuana is legal.

Georgia and Federal Agents Raid Doctor’s Office in St. Simon’s Island, Georgia

Published on: February 26, 2009 | by Lasnetski Gihon Law

On Wednesday of this week, Georgia and federal law enforcement officials searched the offices of Dr. William Nelson pursuant to a joint investigation involving Drug Enforcement Agency agents and Glynn County and City of Brunswick, Georgia local police (St. Simon’s Island, Georgia is just over an hour north of Jacksonville, Florida). The law enforcement officers were executing a federal search warrant and seized boxes of documents from Dr. William Nelson’s family and emergency medical practice.

According to the article on Jacksonville.com, Dr. Nelson is a board certified doctor in emergency medicine, but his medical license had been suspended due to alleged issues with his child support obligations. It is unclear at this time what evidence the law enforcement officials were looking for, however the article does make reference to prescriptions for patients for drugs such as Oxycontin, Xanax, Percocet, Valium, Methadone and Hydrocodone.

An Example of an Illegal Search of a Person for Drugs

Published on: February 19, 2009 | by Lasnetski Gihon Law

The following situation occurred south of Jacksonville, Florida and involved an illegal search of a person for drugs. The person was the passenger of a vehicle that was stopped due to an inoperable taillight. The police officer suspected that the occupants of the vehicle may have had drugs or stashed drugs in the vehicle because of what the officer described as suspicious movement made by the occupants after being stopped by the police officer. The police officer had a drug dog who walked around the vehicle. The drug dog did not alert to the odor of illegal drugs. The police officer then asked for consent to search the driver. The driver agreed. While the police officer was searching the driver, a second police officer arrived and told the passenger that he was going to be searched and asked him he he had anything on him. The passenger reached into his pocket and gave the second police officer a pill bottle with some marijuana and illegal prescription drugs. He was then arrested for drug possession.

Is this a valid search and seizure of drugs from the passenger? No. First, the police officer did not have a reasonable basis to search the passenger so the State could not argue that they would have located the drugs anyway pursuant to a legal search. Additionally, when the passenger gave the police officer the drugs, that was not voluntary because he was submitting to police authority after the police officer told the passenger he would be searched anyway. The important points are that a police officer can always ask a person if the officer can search him or her. The person can always refuse. If a person voluntarily consents to a search or gives a police officer drugs or other evidence of a crime, that evidence will likely be used against that person to effect an arrest and in court. However, if a person succumbs to police authority, as in this case, his/her actions may not be voluntary and any evidence that is discovered may be suppressed.

Jacksonville Sheriff’s Office Arrest Three People on Drug Trafficking Charges

Published on: January 18, 2009 | by Lasnetski Gihon Law

The Jacksonville Sheriff’s Office (JSO) announced that three people were arrested (Alex Campbell, Frederick Campbell and Temario Wiley) on drug trafficking charges after police found a large amount of marijuana that had been delivered by UPS to a house on Praver Drive in Jacksonville. The Jacksonville police also seized $500,000 and guns incident to the arrests. According to the article at News4Jax.com, the Florida Department of Law Enforcement (FDLE) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) were also involved in the drug trafficking investigation.

It is not uncommon for an investigation in Jacksonville, Florida or anywhere else for that matter to begin and end this way. Police will often receive a tip of drug related activity from a buyer of illegal drugs or someone involved with or associated with the suspects who has been arrested and then provides information about others to avoid, or reduce his/her exposure to, jail or prison. This way, the police will work their way up the chain to try and arrest those people who are more prominent in selling drugs or bringing them into the city. It is also not uncommon for people to send drugs to each other via UPS, Federal Express, the United States Postal Service and other commercial delivery companies. However, there are employees of those entities who are trained to detect packages containing drugs and when they find such a package, they will alert the police who will bring a drug dog and/or seek a search warrant for the package. If the police decide to conduct a controlled delivery of the package to the intended residence, legal questions arise as to whether the drugs and/or knowledge of the drugs can be attributed to the person who accepts the package and anyone living in or present in the home when the package is delivered.

If you have been investigated or arrested on drug trafficking or other drug charges, contact a law firm whose attorneys understand the many legal issues that are present in drug cases so your rights can be protected.

Jacksonville Elementary School Teacher Arrested After Police Find Marijuana, a Crack Pipe and a Gun in Her Home

Published on: January 18, 2009 | by Lasnetski Gihon Law

A Jacksonville, Florida elementary school teacher at Cedar Hills Elementary School (Gina Cevasco) was arrested after Jacksonville Sheriff’s Office (JSO) officers reportedly responded to her house in reference to a drug complaint, according to an article on News4Jax.com. The JSO officers apparently obtained consent to search the house from her son, and then her, and found the drugs and gun in the house. The article does not give any further details and without them, it is hard to specifically evaluate the several issues that are potentially present, a couple of which include: whether the consent to search initially given by the son was legally sufficient to allow the Jacksonville police to search when and where they did; whether the consent to search obtained from the son and later the mother/teacher was lawfully obtained; whether the tip the police received and any other evidence they may have had were sufficient to rise to the level of probable cause allowing the police to obtain a search warrant if consent had not been given; based on where the drugs and gun were found and the number of people who have been in the house, whether the drugs and gun can be attributed to any particular person.

One issue that immediately came to mind after reading the article is that many people do not know their Constitutional rights when it comes to such encounters with police. If the police approach a person on the street, in his/her car, at his/her home, no matter what the police officer says and how much they purport to know about drug or other illegal activity taking place, a person has a right to refuse to give consent to police to search his/her person, home, car or other belongings.

If you have questions about your rights when it comes to a drug investigation, arrest or charge, an encounter with police or any other search and seizure issue in the Jacksonville, Florida or Northeast Florida area, contact an experienced law firm whose attorneys understand the ever-changing law in this area so your rights can be protected.

Jacksonville School Officials Are Finding a Suprising Number of Guns in Schools

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

In only four months of this school year, Jacksonville, Florida school officials have found twelve guns in Jacksonville area schools, according to an article on News4Jax.com. As school administrators indicated, they may address this problem by increasing searches of students including random searches of their backpacks, their lockers, classrooms and school buses. Not long ago, we discussed an extreme case of school officials strip searching a young student when they suspected she had Advil in her possession. We discussed that students do have the Fourth Amendment right to be free from unreasonable searches and seizures, however that right is qualified somewhat in the school setting. School officials can search students if it is justified and reasonable and the search does not excessively intrude upon the student as a strip search of a young female student to find Advil clearly did.

Based on Constitutional law, school officials generally could have a right to conduct searches in their schools to make sure guns are not brought into the school. However, whether a search of any individual student is Constitutionally legal would depend on the circumstances of the case and the nature of the search.