Search and Seizure

Police Search With Consent Became Illegal When it Went Too Far in Florida Drug Case

Published on: August 5, 2016 | by Lasnetski Gihon Law

Many drug cases in Florida are the result of police suspecting that a suspect has drugs and requesting that the defendant consent to a search of his/her vehicle, home, person or other belongings. People always have the right to refuse a police officer’s request to search, but people often allow the police to search anyway. When a person gives the police consent to search, as long as it is not under duress or after some search and seizure violation, that eliminates the need for the police to get a search warrant, have probable cause or rely on one of the few exceptions to the search warrant requirement. However, when a person gives the police consent to search, it is not a blank check for the police to search wherever they want and for whatever they want. A search by consent is limited to the area to which the consent applies and the nature of the item for which the police are looking.

As an example, in a possession of cocaine case south of Jacksonville, Florida, the police were investigating a robbery during which an I-phone was stolen. They tracked the I-phone to an apartment complex and started knocking on doors and requesting permission to come inside and search for it. The defendant in this case gave the police consent to search his apartment for the I-phone. The police went into the apartment and found the I-phone on a table. After that, they continued searching the apartment and found cocaine in a drawer. The defendant was arrested for possession of cocaine.

The criminal defense lawyer filed a motion to suppress the evidence of the cocaine arguing that the search conducted after the I-phone was located was illegal. The consent to search was limited to a search for the I-phone. Once the I-phone was located, the consent to search terminated. Therefore, without further evidence or additional consent, the police had no lawful basis to continue searching inside the apartment.

If a Suspect in Florida Throws Evidence Away, it Becomes Abandoned Property and Fair Game for Police

Published on: April 28, 2016 | by Lasnetski Gihon Law

It is pretty clear in Florida that a police officer cannot search a suspect for drugs or other evidence of illegal activity without a proper legal basis such as consent, probable cause or a valid arrest. A police officer might be able to do a quick pat down of a suspect if there is some evidence of criminal activity and that leads more evidence which can lead to a more thorough search. However, there has to be some specific information indicating criminal activity before a search can commence, unless the suspect agrees to a search. That applies to a person’s body and clothes as well as his/her possessions. it does not apply to property that has been abandoned under the law.

As an example, in a trafficking in cocaine case near Jacksonville, Florida, the suspect was stopped by police while driving. After it became clear the police officer was investigating the suspect for a drug related crime, the suspect threw a small bag out of the car window. The police officer probably did not have a legal basis to search the vehicle or the suspect at that point, but he walked around the car and retrieved the bag which contained cocaine. The suspect was arrested for trafficking in cocaine. The criminal defense lawyer filed a motion to suppress the bag of cocaine arguing that the police officer did not have probable cause to search the vehicle or the bag that came from the vehicle. The court disagreed. Once the suspect threw the bag away from the vehicle, under Florida law, that bag became abandoned, and the police have a right to search abandoned property.

This comes up in other situations as well. One common scenario occurs when the police believe a suspect is growing marijuana or otherwise manufacturing drugs in his/her home. The police will often go through a person’s trash outside to see if they can find discarded items that are commonly used to manufacture drugs. As long as the property is trash and the police do not have to enter a person’s property to retrieve it, this is normally considered abandoned property that police can search and seize without a search warrant. Of course, the police cannot go into your house or garage or otherwise trespass on to your property to take your trash, but if you leave a trashcan out on the curb for pickup, that is something the police can likely go through.

Can a Passenger of a Vehicle Leave the Scene of a Traffic Stop in Florida?

Published on: April 6, 2016 | by Lasnetski Gihon Law

In Florida, the police have a right to stop a person driving a vehicle if the driver commits a traffic violation and detain that driver for a relatively short period of time to write a traffic citation. If during that time the police officer develops reasonable suspicion that the driver is committing a crime, the police officer can detain the driver temporarily while the police officer investigates the criminal activity. This is how many driving under the influence of alcohol or drugs (DUI) cases start. However, the right to detain a driver is limited. Once the traffic ticket is written, if there is no reason to further detain the driver, the driver is free to leave. If the police officer does not develops reasonable suspicion of criminal activity independent of the traffic violation, he/she must let the driver leave.

Does this same concept apply to a passenger in the vehicle in Florida? Passengers can obviously be stopped for traffic violations by virtue of being in the vehicle. But, is the passenger free to leave once the vehicle is stopped? In a recent possession of cocaine and tampering with evidence case just south of Jacksonville, Florida, a driver was stopped for having an improper tag and not wearing his seat belt. The passenger immediately exited the vehicle and tried to leave the scene. The police officer told him to get back in the vehicle. The police officer then saw a bag of cocaine in the passenger side of the vehicle, and the passenger was arrested for possession of cocaine.

The criminal defense lawyer filed a motion to suppress the evidence of the cocaine because the passenger was improperly detained when the police officer did not allow him to leave. Since the passenger did not violate a traffic law and there was no evidence he was involved in any criminal activity, he should have been free to leave. The court disagreed. Essentially, the court looked at the case from an officer safety perspective. The court weighed the passenger’s right to be free from an unreasonable search and seizure with the concern for the safety of an officer. The court found that the officer safety issue prevailed. The court noted that a passenger fleeing or exiting a traffic stop could cause a risk of harm to a police officer who would have a difficult time focusing on multiple people doing different things. Due to the inherent risk in this scenario, the officer is allowed to detain the driver and any and all passengers in a vehicle during a traffic stop while legitimately writing the ticket and/or investigating criminal activity. Once the time for those activities is finished, everyone should be free to leave.

Florida Police Officer Did Not Have a Right to Search Vehicle of Suspect on Probation

Published on: February 15, 2016 | by Lasnetski Gihon Law

In Florida, a person who is on probation for a crime does lose some of his/her constitutional rights. For instance, any other person has the right to be free from unreasonable searches and seizures in his/her home. This means that a police officer or other agent of the state cannot normally enter a person’s home without valid consent from the owner or a search warrant. When a person commits a crime and goes on probation, his/her constitutional rights are often compromised. For instance, a condition of probation may be that the defendant’s probation officer is allowed to show up to the defendant’s house unannounced and come inside to search. The idea is that a probation officer is allowed to take steps to make sure a person on probation is following the conditions of probation, and a person who commits a crime and goes on probation forfeits some of his/her rights to privacy during the probationary period.

However, this does not extend to all of a probationers’ property and all agents of the state. A police officer does not have free reign to search the property of a person who is on probation.

In a recent drug case near Jacksonville, Florida, the defendant was pulled over for a traffic violation. When the police officer ran his information, he found that the driver was on probation for a drug trafficking charge. When the police officer returned to the defendant’s vehicle, he asked him if he could search his vehicle. The police officer still had the defendant’s driver’s license and had not indicated he was free to leave. The defendant was under the impression that he was required to allow the police officer to search his vehicle because he was on probation. He said that to the police officer, and the police officer allowed the defendant to believe that. The police officer searched the vehicle and found Methamphetamine inside. The defendant was arrested and charged with possession of Methamphetamine.

United States Supreme Court to Decide if Police Can Search Your Cell Phone Without a Warrant

Published on: February 4, 2016 | by Lasnetski Gihon Law

When a person in Florida gets arrested for a crime, the police are generally permitted to search him/her. This is considered a search incident to an arrest, and it allows the police officer to search the suspect to make sure the suspect does not possess anything that could harm the police officer as the suspect is placed in the police car, driven to jail and booked into the jail. The police can also search the person for evidence of the crime if the officer has a reasonable basis to believe the suspect has evidence of the crime or any weapon that could put the officer’s safety at risk.

Does this authorization to search a suspect incident to an arrest extend to all of the suspect’s possessions? The law used to allow a police officer to search a person’s vehicle if the suspect is arrested in or at his/her vehicle. This kind of search really did not comport with the logic behind a search incident to an arrest. Once a person is arrested, handcuffed and placed in the police car, he/she does not have much of an opportunity to grab a weapon in his/her car and harm the officer. The law was changed by a Supreme Court case a few years ago which now only allows the police to search a vehicle incident to an arrest if the suspect has access to the car at the time of the arrest. This usually is not the case since police officers generally handcuff the suspect and put him/her in the police car when the arrest is made.

What are the search and seizure rules when it comes to cell phones at the time of an arrest? Cell phones have obviously evolved over the years to the point that they can contain a lot of information, including incriminating information, such as contacts, phone numbers, notes, photographs, websites, text messages, emails and other data and communications. A police officer could learn a lot about a person and criminal activity fairly quickly by looking through one’s cell phone. On the other hand, cell phones are more like computers today, and police are generally not allowed to search a person’s computer without a search warrant or consent from the owner.

There Are Some Exceptions to the Search Warrant Requirement in Florida, but They Are Limited

Published on: January 29, 2016 | by Lasnetski Gihon Law

In Florida, the police are not generally allowed to enter a person’s residence without a valid search warrant or consent to enter and search by the owner or someone with authorization to give the consent to the police. Perhaps the strongest privacy rights and right to be free from unreasonable search and seizure by police is in one’s home. However, there are some limited circumstances when a police officer can enter your home without consent or a search warrant.

For instance, there is a concept in criminal and search and seizure law that deals with exigent circumstances, or emergency situations. The police might be able to enter your home without a search warrant or consent if there is specific evidence of a medical emergency inside. An example might be if the police received a call of a hostage situation in a house and heard gunshots and screaming, the police would likely be able to go into the house to see if someone’s life or health was in danger. The police would not be able to use the emergency as an excuse to search the place, but if they did see some illegal drugs or evidence of other illegal activity while they were lawfully in the home, they would be able to pursue that.

To use this exigent circumstances exception in Florida, there must be clear and specific evidence of some medical or similar problem that needs immediate attention. In a possession of Methamphetamine case near Jacksonville, Florida, the police drove by a house they suspected was being used to make Methamphetamine. They saw that the front door was open, some lights were on and mail was on the floor near the door. The police officer used that as an excuse to go inside to check on the welfare of the residents. Once inside, he saw Methamphetamine and materials used to make Methamphetamine. The resident who was home at the time was not in any medical distress, but he was arrested for Manufacture of Methamphetamine.

Can the Police in Florida Search My Garbage and Other Items I Throw Away?

Published on: January 13, 2016 | by Lasnetski Gihon Law

In Florida, the police are limited in what and when they can search items that belong to you. Obvious examples include your house, your vehicle and your person. The police are not permitted to search any of those things unless they have a search warrant, they have consent from someone authorized to give consent to search or in other limited circumstances. A criminal defense lawyer can file a motion to suppress evidence that is obtained as a result of an illegal search in a criminal case and get it thrown out of court.

But what if the police want to search something that used to belong to you but has been abandoned or thrown away? Especially in drug cases, the police will often search a person’s trash without consent or a search warrant. The police will often look for evidence of drug activity like drug packaging materials or materials used to make drugs like in Methamphetamine cases.

In a recent criminal case near Jacksonville, Florida, the police received a call that the suspect placed a suspicious box in a trash can outside of his home. The police arrived and found the box in the trash can, which was in the street a couple hundred feet from the home. The police asked people in the area, and no one claimed ownership of the box. The police took the box to their police station and x-rayed it. They saw that it had a gun inside. When they opened the box, they found the gun and cocaine. The suspect who was identified as having placed the box in the trashcan was arrested for possession of cocaine and possession of a firearm by a convicted felon.

A Property Owner in Florida May Not Have a Right to Privacy in Leased Premises

Published on: December 14, 2015 | by Lasnetski Gihon Law

In Florida, an owner of property has strong constitutional privacy rights in his/her property. This means that, with few exceptions, the police cannot enter to search that property with consent from the homeowner or a valid search warrant. If the police knock on a property owner’s door and request to search the property, the owner has every right to refuse.

This right to privacy generally does not change when the property owner takes in a roommate or tenant. It generally does not change when the owner leases the property entirely to someone. However, it depends on the circumstances. The general idea is that if the law recognizes that the owner had a reasonable expectation of privacy in the property, even if it is leased to someone else, the owner maintains his/her privacy rights in that property with respect to the state. This means the owner can refuse entry into the property or challenge a search of that property by police in court.

Two examples may illustrate the difference. A property owner leases property to a tenant. The property owner keeps a key and goes inside the residence to check on it, make repairs and collects rent. The tenant lives at the residence, but the property owner maintains the right to go onto the property and go into the residence within reason. In this case, the property owner would exercise sufficient control over the property to maintain his/her privacy rights.

The Inevitable Discovery Rule in Florida

Published on: December 11, 2015 | by Lasnetski Gihon Law

There is a search and seizure rule in Florida that many people are not aware of that can be quite onerous, depending on how it is applied. It is called the inevitable discovery rule. To understand the rule, it is important to first understand your rights. The Constitution guarantees a person the right to privacy in one’s home, vehicle and other property. This means the police cannot search a person’s property without consent to search, a valid search warrant or some other narrow exception. If the police do search a person’s property without authorization, any incriminating evidence can be thrown out of court with a motion to suppress.

However, the inevitable discovery rule gives the state an avenue to save their case even when the search is illegal. Basically, it says that even if the police conduct an illegal search and find incriminating evidence like illegal drugs, the state can still use the evidence against the defendant if the police would have discovered the evidence anyway by some other legal means. This rule has been applied to save a lot of criminal cases when the search was illegal.

However, there are limitations to the inevitable discovery rule in Florida. For instance, the rule only applies if there is a legitimate investigation taking place when the illegal search is conducted. For instance, in a case near Jacksonville, Florida, a guest in the defendant’s home saw that he was growing marijuana plants in the home and called the police. Several police officers came to the defendant’s home wearing masks with guns drawn and obtained consent to search the house. They found the marijuana plants inside and arrested the defendant for cultivation of marijuana.

In Florida, You Have a Right to Privacy in Your Home, But Not Necessarily Your Computer

Published on: December 4, 2015 | by Lasnetski Gihon Law

In Florida, there are fairly strict rules that address when police can search your residence, your vehicle, yourself and your belongings. Essentially, if you have a reasonable expectation that the thing to be searched is private, then the police are limited in when and how they can search it. Certainly, this applies to your home, yourself and your vehicle. However, it does not apply to everything you own and in some cases, you lose your expectation of privacy when you use a belonging in a certain way.

For instance, if you have a computer, whether it’s a regular home computer or a laptop you carry with you or any mobile device that stores data and acts like a traditional computer, the police generally cannot take it from you and search it without a search warrant or consent from you. They also normally cannot use a program to search the contents of your computer or mobile device. However, if you use your computer in certain ways, the police can take steps to view the data on your computer or mobile device.

If you are on your computer and sharing files on a peer to peer network with other people, such as Gnutella, you open yourself up to allowing the state to see what you are doing. Since you are publicly sharing your information with others, you no longer have a reasonable expectation of privacy in those items and on that network. State and federal law enforcement agencies have catalogued certain files that are associated with criminal activity, such as child pornography, and when they see these items shared and/or downloaded, law enforcement can obtain the IP address and then subpoena the internet service provider to find an actual address. A search warrant and seizure of all computers and storage devices in the home will likely follow.