Search and Seizure

At a Traffic Stop in Jacksonville, Florida, Your Statements to Police May be Used Against You in Court

Published on: January 8, 2009 | by Lasnetski Gihon Law

Most people are familiar with Miranda warnings which warn a suspect that, among other things, he/she has a right to remain silent and a right to an attorney before the police ask him/her questions about suspected criminal activity. If the police are required to give those Miranda warnings and do not and then ask questions of a suspect, the suspect’s answers will likely be inadmissible at the criminal trial. However, it is not always clear when the police are required to give Miranda warnings. For instance, are the police required to give the Miranda warnings to a suspect during a routine traffic stop before the officer asks the suspect questions about a possible crime? It depends on the circumstances.

For instance, consider a situation that occurred near Jacksonville, Florida that involved two people racing their vehicles, which is a misdemeanor crime in Florida. A police officer observed the race and pulled both vehicles over. He questioned both drivers, and they both admitted to racing. Both drivers were then given notices to appear in court to answer to criminal charges for racing. The police officer did not give the Miranda warnings to the drivers before asking them questions about the suspected racing crime.

The criminal defense lawyers tried to have those statements thrown out of court because the defendants were not given their Miranda warnings before being asked about the racing. The criminal defense lawyers were not successful. Whether a police officer needs to give Miranda warnings before asking investigative questions of a suspect depends on the nature of the encounter between the police officer and suspect. If it reasonably appears to the suspect that he/she is in custody or is under such pressure that his/her right to remain silent seems compromised, the police officer must give Miranda warnings before questioning the suspect about a crime. However, this is a fairly gray area. Some of the factors that determine whether a suspect is “in custody” are: the length of time of the questioning, the number of police officers involved in the encounter, whether the suspect is handcuffed, placed in the police car or otherwise moved to a different location and whether the suspect was searched. If some of these factors are present, the defendant likely has a good argument that he/she should have been given Miranda warnings prior to questioning and any answers he gave about any criminal activity are inadmissible in court. If, as in the racing case referenced above, the police encounter is more consistent with a normal traffic stop that is fairly brief and involves only a few questions while the suspect has not been constrained in any way, there is a good possibility that any answers he/she gives to police questioning could be used against him/her in court even if no Miranda warnings were given.

When Placed on Probation for a Crime, You Give Up Certain Constitutional Rights

Published on: November 30, 2008 | by Lasnetski Gihon Law

In Florida, when a defendant pleads guilty or no contest to a charge or is convicted of a crime at trial, he/she may be sentenced to a term of probation. At the beginning of the probation, the defendant, now referred to as a probationer, signs a form acknowledging that he/she consents to searches of his/her home, vehicle, person and personal effects by the probation officer(s). Normally, pursuant to the Constitution, for a person who is not on probation, the police or any law enforcement official must have a warrant, probable cause or at least reasonable suspicion of a crime before any type of search can take place. However, once a defendant is under a probationary sentence, he/she gives up those rights to some degree, and he/she is subject to searches by the probation officer(s) for no apparent reason.

However, there is a question as to what law enforcement officials can do if they find evidence, such as illegal drugs, in the search of the probationer’s home as a result of a search without a warrant or probable cause. In that case, the probation officers can use such evidence in a violation of probation proceeding. However, if police officers are involved in the search and do not take the steps to obtain a warrant prior to the search as the Constitution normally requires, the evidence likely cannot be used to support a new criminal charge. In other words, if a probationer has his/her home or other property searched without the normal Constitutional safeguards such as a warrant or probable cause, any evidence located can likely only be used against the probationer in a probation revocation proceeding. If the police or probation officer(s) suspect a probationer is committing a crime and intend to secure evidence to support a new criminal charge, they would need to obtain a warrant or otherwise follow the normal Constitutional safeguards.

Police Cannot Seize and Forfeit Property Without Showing Owner’s Knowledge of Criminal Activity

Published on: October 3, 2008 | by Lasnetski Gihon Law

If Jacksonville police officers are investigating a drug crime or other felony and determine that a crime has occurred or is occurring, the Jacksonville police officers may seize money or other property that is being used in connection with that crime or is proceeds of the drug or other criminal activity. The law that allows the police to take, and try to keep, property from people that is connected to a crime is called the Florida Contraband Forfeiture Act. Basically, the Florida Contraband Forfeiture Act (FCFA) sets up procedures whereby police can seize and ultimately forfeit property that is used in connection with a drug or other felony crime.

In Jacksonville, this seizure and forfeiture of property in connection with a drug or other felony crime commonly occurs when an officer pulls over a suspect and finds drugs and cash in the vehicle. The police officer may then seize the cash and the vehicle as well as the drugs and claim that the cash and vehicle were used to facilitate a drug crime or were proceeds of a drug crime. The government then has to notify the owner(s) of the property seized that they intend to forfeit, or keep, that property. The owner(s) then has to actively make a claim for the property, and the case is litigated through the civil court system.

It is also common for the police to seize and attempt to forfeit property that is owned by someone who has no knowledge of any criminal activity. For instance, if in the example above, the vehicle belonged to a friend or relative who let the criminal suspect borrow his/her car and had no idea drugs would be transported in the vehicle, that owner would be what is called an innocent owner. The Florida forfeiture laws do not allow the police and the government to forfeit property from someone who had no knowledge of the drug or other criminal activity that is the basis of the forfeiture. In the past and in some states other than Florida, it was up to the innocent owner of the property to show that he/she did not know and had no reason to know that his/her property was used in connection with drug or other felony criminal activity. However, under the Florida forfeiture laws, the government has the burden of proving that it is more likely than not that the owner of the property they seek to forfeit did not, and had no reason to, know of the criminal activity. If the government cannot meet that burden, that property must be returned to the owner under the Florida forfeiture laws.

Thirteen year Old Unlawfully Stripped Searched at School to Find Extra Strength Advil

Published on: September 27, 2008 | by Lasnetski Gihon Law

A thirteen year old honor student was strip searched at her public school based on the uncorroborated statement of a middle school classmate that she may have been in possession of extra strength Ibuprofen (which is basically a stronger Advil or Motrin that requires a prescription but is commonly used to treat pain and inflammation). According to a recent appellate court decision from the 9th Circuit Court of Appeals, public school officials violated the girl’s Fourth Amendment rights when they strip searched her looking for the Ibuprofen.

In this case, the girl, Redding, was a 13 year old honor student in 8th grade at a public middle school in Arizona. She had no prior disciplinary record and no history of involvement with drugs. Another girl was caught at school with one over the counter Naproxen pill (a common pain reliever) and one extra strength Ibuprofen (which requires a prescription). After being caught with the pills, the girl said that Redding gave them to her. There was no other direct evidence that this accusation was accurate. The school officials pulled Redding from her class and asked her if she knew anything about the pills. Redding denied knowledge of the pills or how the other girl obtained them. Redding then consented to be searched. The school officials searched her backpack and found nothing. A nurse was called who then took Redding into a room and asked her to remove her clothes, pull back her bra to expose her breasts and pull up her underwear to expose her pelvic area. Redding complied, and no pills were found. Redding subsequently sued the school district and the school officials involved in the search.

After an initial decision that the school was justified in the search, the appellate court ruled that the search violated Redding’s Fourth Amendment rights. Pursuant to the Fourth Amendment, individuals have the right to be free from unreasonable searches and seizures. What constitutes an unreasonable search and seizure depends on the circumstances of the case. Students in public schools retain their Fourth Amendment rights, but they are modified to consider the special circumstances of the school environment. In other words, public school officials are often given a little more leeway to search students and their belongings to accommodate the particular need to keep children safe from drugs and crime.

Consensual Encounter with Police Officers vs. an Illegal Detention

Published on: June 12, 2008 | by Lasnetski Gihon Law

When is an encounter with a police officer considered consensual and when is it considered an illegal detention under Florida law? The answer could be the difference between incriminating evidence being used against a defendant charged with a crime like possession of drugs or possession of a firearm by a convicted felon and having crucial evidence like drugs or a gun being thrown out of court.

The general rule in Florida is that the police may request identification, typically a driver’s license, from a person and briefly hold onto that identification for a reasonable period of time, perhaps long enough to check the person for outstanding warrants. This is considered a consensual encounter with police. However, depending on the circumstances, if the police officer holds onto a person’s license or other identification for longer than necessary for the warrants check or if the police officer shows other signs of authority, the encounter may turn into an illegal detention. If the encounter with police turns into an investigatory detention and there is no reasonable suspicion of criminal activity to support the detention, the detention may likely be considered illegal and any evidence obtained as a result should be thrown out.

Factors that support the argument that an encounter with the police has shifted from consensual to an investigatory detention are:

Police Officer Named in Search Warrant Should Be Present For Search

Published on: June 6, 2008 | by Lasnetski Gihon Law

Consider a Jacksonville, Duval County, Florida search warrant scenario where Jacksonville Sheriff’s Office Officer A goes to a judge and presents evidence to establish that there is probable cause to search a house for the presence of marijuana, cocaine or other illegal drugs. The search warrant directs Officer A to perform the search. After the judge signs the search warrant, Officer A calls a fellow officer to tell him the search warrant has been signed. The other police officers at the residence start the search while Officer A is en route. Marijuana is found at the residence by one of the other police officers. Is this a valid search of the residence? Probably not according to a recent case out of south Florida.

It is likely that the police officers’ search of the residence for marijuana will be found to be improper because of how it was executed. If the search warrant directs the affiant (the police officer testifying to the judge regarding probable cause to issue the search warrant) to perform the search, that police officer must be present when the search is undertaken. If he or she is not present, any evidence found during the search, such as drugs or guns, may be thrown out of court.

A criminal defense lawyer should determine if any police officer(s) was directed to perform the search in the warrant and if that officer(s) was in fact present for the search. Of course, other police officers can assist any police officer named in the search warrant as the search is performed. Additionally, other police officers are permitted to secure the premises to prepare for the search, and this does not have to be done in the presence of the police officer named in the search warrant.

Duval County, Florida Criminal Case Illustrates Different Levels of Police Encounters

Published on: May 17, 2008 | by Lasnetski Gihon Law

Criminal defense lawyers often file what are called Motions to Suppress to try and keep out evidence that the prosecution is attempting to use against a defendant in a criminal case when the criminal defense attorney believes the police were not justified in stopping the defendant and/or seizing the evidence. The Fourth Amendment protects people from unreasonable searches and seizures and can be used to prevent the prosecution from using evidence against a defendant in a criminal case if the court finds that a search or seizure was unlawful.

A recent criminal case out of Jacksonville, (Duval County) Florida does a good job of explaining the difference among the three categories of encounters with police. The first level of police encounter is a consensual encounter that involves minimal police contact and where the other person is free to comply with police or leave the encounter at any time. The second level of police encounter is often referred to as an investigatory stop where a police officer can detain a person temporarily if the police officer has a reasonable suspicion that the person has committed, is committing or is about to commit a crime. The police officer must be able to point to specific facts that are the basis for this reasonable suspicion of criminal activity. The third level of police encounter is an actual arrest where the person is detained and removed from the scene. This level of police encounter requires the higher standard of probable cause that a person has committed, is committing or is about to commit a crime.

In the recent case, the Jacksonville Sheriff’s Office (JSO) officers were called to investigate a burglary of a vehicle. When the Jacksonville Sheriff’s Office officers arrived, one of them heard a possible witness say the suspect was a white male who ran into the woods. No other description was given. The Jacksonville Sheriff’s Office officers searched the woods and found a CD player that may have been taken in the burglary and then some distance away found the defendant lying on the ground. The defendant was handcuffed, placed in a patrol car and driven back to the scene of the crime where he was identified by a witness.

Florida Proposed Law to Make Seat Belt Violation a Primary Offense Does Not Pass

Published on: May 12, 2008 | by Lasnetski Gihon Law

DUI (driving under the influence) arrests in Jacksonville, Duval County, Florida often start when a police officer pulls a driver over for some traffic violation. However, the failure of a driver to wear his or her seat belt cannot be the reason for pulling a driver over. Of course, a police officer can give a driver a ticket for not wearing a seat belt after pulling the driver over for another reason such as speeding or another moving traffic violation, but a police officer is not allowed to pull a driver over just because that driver is not wearing a seat belt.

In the most recent Florida legislative session, a proposed law that would make the failure to wear a seat belt a primary offense (in other words, a traffic violation that would permit a police officer to pull a driver over on that basis alone) did not pass. Of course, injury accident statistics overwhelmingly support the conclusion that wearing a seat belt is a good idea, and failing to wear a seat belt can still subject a driver to a fine. However, as of now, it is not a legal basis for pulling a driver over.

Florida Criminal Case Illustrates Illegal Drug Search of Student at School

Published on: May 5, 2008 | by Lasnetski Gihon Law

A recent Florida criminal case involving the search of a student in whose wallet marijuana was found illustrates the standard for properly searching a student for drugs at school. According to the Florida appellate court, the search of the student was found to be in violation of the Fourth Amendment to the Constitution because the teacher did not have reasonable suspicion to believe that the student was in possession of the marijuana or other drugs.

The Fourth Amendment to the Constitution protects people from unreasonable searches and seizures. In schools, the standard for searching a student is more liberal, i.e. a teacher or school official can search a student if he or she has a “reasonable suspicion” that the student is in possession of marijuana, cocaine or any other illegal drug. That reasonable suspicion cannot just be a hunch or intuition. A search of the student for illegal drugs must be based upon specific and articulable facts that reasonably warrant the search. In other words, the teacher or school official must be able to point to actual facts and logical inferences that reasonably led him or her to believe that the student was in possession of illegal drugs before the student was searched.

In this recent Florida criminal case, a student walked into a classroom where he did not belong. The teacher asked the unauthorized student to leave and escorted him out of the classroom. When the teacher walked back into the classroom, she smelled an odor of marijuana for the first time. She then took the student to the principal’s office where his wallet was searched. A bag of marijuana was found inside.

Jacksonville, Florida Drug Case Thrown Out Due to Illegal Stop

Published on: April 29, 2008 | by Lasnetski Gihon Law

In a recent Jacksonville, (Duval County) Florida criminal case, a conviction for possession of cocaine was thrown out because the court found that the police officer’s stop of the defendant’s vehicle was illegal in violation of the Fourth Amendment.

In this Jacksonville, Florida criminal case, a police officer stopped the defendant for driving a car with a cracked windshield. The police officer justified his stop on the idea that he could stop a vehicle with an obvious equipment malfunction. The police officer then searched the car and found cocaine inside. However, the appellate court found that the police officer did not have the right to stop the defendant’s car just because the car had a cracked windshield. Because the stop of the defendant’s car was not legal, the cocaine that was found in the car could not be used as evidence against the defendant in court and the conviction for possession of cocaine was thrown out.

The criminal defense lawyer successfully argued that while there is a law that requires each car to have a windshield, there is no law that deals with cracked windshields. The law does not authorize the police to stop any vehicle that has any equipment malfunction. If it did, the police could stop vehicles for dents, broken antennas and other minor malfunctions. The court noted that the law does not contemplate such broad reasons to stop a vehicle.