Search and Seizure

Florida Search Warrant With Multiple Errors Upheld by the Court

Published on: November 10, 2014 | by Lasnetski Gihon Law

In a recent drugs and marijuana case near Jacksonville, Florida, the police received a tip of illegal drug activity at a particular apartment. They conducted surveillance on the apartment and observed what they considered to be suspicious activity. They ultimately obtained a search warrant to search the apartment for drugs. The conducted the search and found marijuana and guns inside.

The criminal defense lawyer challenged the search because the search warrant had several errors in it. A search warrant must describe the place to be searched with specificity. In this case, the search warrant had the wrong street number, the wrong street name and the wrong directions to the apartment. The police presumably were still able to locate and search the correct apartment because the police were familiar with it from previous surveillance.

The purpose of requiring a proper and specific description of the place to be searched in a search warrant is to make sure the police do not have a general license to go searching a wide range of places with one warrant. A specific location is included in the warrant so it is clear that the police are only permitted to search that one specific place. Additionally, the description is important so the police actually search the correct place. If the description or other parts of the search warrant are inaccurate, the search warrant may get thrown out. If that happens, the evidence the police found as a result of the search may not be used against the defendant in court.

Florida Police Needed a Search Warrant to Track a Suspect’s Cell Site Location

Published on: October 20, 2014 | by Lasnetski Gihon Law

In Florida, a person has a Constitutional right to be free from unreasonable searches and seizures. Sometimes this is obvious. A police officer cannot just search a person’s home or car without consent or a search warrant in most cases. However, it can also get complicated as old rules may be difficult to apply to newer technologies.

In a recent trafficking in cocaine case near Jacksonville, Florida, the case started as most drug cases do with a confidential information telling police that the defendant was moving large quantities of cocaine throughout the area. The informant indicated he had phone conversations on the suspect’s cell phone where large cocaine transactions were discussed. With this information, the police obtained a pen register and trap and trace device on the suspect’s phone with a court order. The pen register records the phone numbers dialed from that phone. The trap and trace device records the phone numbers of incoming calls to the phone.

The informant later told police that the suspect was going to make a large drug deal on a particular date. Without getting a court order, the police obtained information from the suspect’s cell phone provider that helped the police track the defendant’s real time location through his cell phone. Cell phones give off information as to its location that police can use to track a person with the cell phone. The police successfully located the suspect through his cell phone and stopped him. They found a kilogram of cocaine in his vehicle and arrested him for trafficking in cocaine.

Florida Police Were Not Permitted to Search Hotel Room For Drugs With Occupant’s Permission

Published on: October 10, 2014 | by Lasnetski Gihon Law

The Constitution establishes privacy rights, and one of the more sacred privacy rights protects people from unreasonable searches and seizures when it comes to their property. For instance, in most cases, the police are not allowed to go into a person’s residence without a valid search warrant or consent from the person who lives at the residence. The rules are somewhat different when it comes to hotel rooms. The police cannot just walk into a hotel room that is being rented by a hotel customer. Likewise, the police cannot merely get consent from the hotel owner or employee to go into a hotel room that is being rented by a hotel customer. The police must either have a valid search warrant or get permission to enter and search a hotel room from an authorized person who rented or is staying in the room.

In a recent drug case near Jacksonville, Florida, hotel management received an anonymous tip that the occupants of one of the hotel rooms had cocaine in the room. The hotel manager called the police. The police went to the hotel, got the room number and the name of the suspect who rented the room and then proceeded to the room. The police officers knocked on the door, and an individual answered. The police officers asked the individual if they could come in to search the room, and he agreed. Inside the room, the police found cocaine and drug paraphernalia. The defendant, who was the one who actually rented the room but did not answer the door, was arrested for possession of cocaine and possession of drug paraphernalia.

The criminal defense lawyer filed a motion to suppress the evidence of the cocaine found in the room based on the argument that the police did not have a legal basis to enter the room. The court agreed. The police cannot enter a hotel room without a search warrant or permission from an authorized person or a person with apparent authority to give the consent. Some guy staying in the room with the person who rented the room is not someone with authority to give the police consent to enter and search the room for drugs. The state tried to argue that the person who answered the door had apparent authority to give consent. The police can rely on someone who appears to live in a residence or to be staying in a hotel room to give authority to enter and search. However, in this case, the police knew the name of the person who rented the room, so it was as simple as the police asking the person who answered the door whether he was the person whose name was on the room registration. Because they didn’t do that basic investigation, they could not rely on the guy’s apparent authority to give consent. Since the police did not have legal justification to enter the room, the cocaine they found inside was suppressed.

Florida Police Lose Armed Robbery Case by Illegally Searching Trunk of Car

Published on: October 1, 2014 | by Lasnetski Gihon Law

In a recent armed robbery case west of Jacksonville, Florida, three suspects entered the victim’s home and stole certain items from him at gunpoint. The three suspects fled in a vehicle, and the victim called the police providing a description of the suspects and the vehicle. Shortly thereafter, a police officer saw a vehicle with three occupants that matched the descriptions given by the victim. The police officer stopped the vehicle and detained the occupants by handcuffing them and placing them in his police car. The police officer looked in the passenger compartment of the vehicle through the windows and did not see any evidence of the armed robbery. The police officer then opened the trunk and searched it. The police officer found a gun and drugs in the trunk. Based on this evidence, the police officer searched the passenger compartment more closely and found the items stolen in the armed robbery. Each of the occupants was arrested for armed robbery.

The criminal defense lawyers filed a motion to suppress all of the evidence arguing that the search of the trunk was illegal and that illegal search led to the subsequent search, thereby making it illegal as well. When the police stop someone in a vehicle and detain or arrest that person, they can no longer search the vehicle if the suspect is secured and no longer a threat to the officer. In the past, the police could conduct a “search incident to arrest” which was an automatic search of a car when the driver was arrested. The law changed, and now if the driver is secured, i.e. handcuffed and in the police car, that driver obviously is not a threat to the officer so the officer cannot just search the car for protection. If the police officer does have some specific reason to believe there is some danger, the police officer can search the car as a protective sweep. However, without that specific evidence of danger, the police officer can no longer search a vehicle just because the driver was arrested.

In this case, the police officer testified that he searched the trunk because he thought there might have been a suspect in the trunk. This was easily rejected by the court. A mere suspicion without any supportive facts is not going to be a legal basis for a search. A police officer must have a specific indication of evidence, danger or criminal activity to satisfy the search and seizure provisions of the Constitution.

Anonymous Call Was Not Sufficient to Stop Defendant in Florida

Published on: September 28, 2014 | by Lasnetski Gihon Law

In Florida, the police are not allowed to stop a vehicle without probable cause to believe the person committed a traffic violation or at least reasonable suspicion of criminal activity. Most stops are easily justified by the police with testimony that the driver was speeding, ran a red light or in violation of any other traffic law. However, if the police officer wants to stop a vehicle for another reason, the police officer must articulate a specific legal basis to do so.

In a recent case near Jacksonville, Florida, the police received an anonymous call of a disturbance at a residence. The caller neither provided his name nor any specifics as to criminal activity. The police officer arrived at the location as the defendant was driving away. The police officer motioned for the defendant to stop his vehicle and drove in front of it, blocking its path. Thereafter, the police officer recognized the driver as someone on probation whose driver’s license was suspended and arrested him.

The criminal defense attorney filed a motion to suppress arguing that the police officer had no legal basis to stop the defendant who was driving away. When the police officer stopped the defendant and blocked his vehicle, this was considered a seizure under the law. The police officer must have a legal basis to effect such a seizure, such as specific information that the defendant was involved in criminal activity at the time.

Police Officer Justified in Searching Pill Bottle in Florida Drug Case

Published on: September 25, 2014 | by Lasnetski Gihon Law

In Florida, the police are not permitted to search a person’s belongings unless the police officer has consent to search from someone authorized to provide such consent, the officer has probable cause in certain circumstances or the officer has a search warrant. Police officers often assume they can search a pill bottle because they believe there will be illegal drugs inside, but the existence of a pill bottle does not automatically entitled a police officer to search it.

In a recent case near Jacksonville, Florida, the police officer stopped the defendant driver for driving erratically. Upon approaching the defendant’s vehicle, the police officer asked the driver if he could search his vehicle. The defendant agreed. The police officer found a pill bottle next to the driver’s seat. The police officer noted the bottle had the driver’s name on it and drug information for the drug Suboxone. However, the police officer said he could see into the bottle and recognized that one of the pills was Xanax and he did not recognize the other pill. Because the Xanax pill did not match the drug description on the bottle, the police officer opened the pill bottle and ultimately determined that the other pill was Oxycodone. The driver was arrested for possession of Oxycodone and Alprazolam (Xanax).

The criminal defense lawyer filed a motion to suppress the evidence of the Xanax and Oxycodone arguing that the police officer did not have a legal basis to search the pill bottle. Consent to search the car is not the same as consent to search every container within the car. The question, then, was the police officer had probable cause to search the pill bottle without permission. The court ruled that the police officer did have a legal basis to search the pill bottle. Assuming the police officer’s testimony to be true, because the police officer could see that the pills in the bottle did not match the description of the pills on the bottle, there was reason to believe the defendant was in possession of drugs without a proper prescription. The court basically ruled that if a person has pills in a container that is not designated for that particular drug, the police will have a right to search the container and make an arrest. As a result, the conviction for possession of Oxycodone and Xanax was affirmed.

Police in Florida Can Request Identification But if They Hold Onto it, it Becomes a Detention

Published on: August 25, 2014 | by Lasnetski Gihon Law

In Florida, the police do have the right to approach people and suspects on the street and ask questions. The police do not need reasonable suspicion or probable cause that a person is engaged in criminal activity to approach someone and ask questions. This includes asking for identification like a driver’s license. However, what happens next can turn a police encounter into a detention or seizure. If a police encounter becomes a detention or seizure under the search and seizure laws, the police need to show specific evidence indicating criminal activity in order to detain a person, search the person and even ask the person if he/she would consent to a search.

The primary issue is whether the subject reasonably believes he/she is free to leave. If a judge finds that a reasonable person would have felt free to leave the encounter, that is not a detention, and the police are free to ask questions. For instance, when a police officer approaches a person on the street, that police officer is free to ask questions and ask for ID since, at least theoretically, the person is free to walk away. On the other hand, if the person provides his/her driver’s license and/or other property like a wallet, and the police officer does not return the property, that person does not reasonably believe he/she is free to leave. It is not reasonable for a person to believe he/she can walk away from a police encounter when the police officer still has his/her property.

Therefore, when a police officer approaches a person and ask questions, that person is free to refuse to answer and/or walk away. If the police officer does not let the person leave, then it likely becomes a detention that requires evidence of criminal activity. If the person provides an ID or other property to the police officer, and the officer keeps it for a period of time, the encounter also likely becomes a detention because a person will normally feel compelled to stay to retrieve his/her property.

Police in Florida Cannot Always Search a Suspect’s Cell Phone During a Valid Arrest

Published on: August 15, 2014 | by Lasnetski Gihon Law

In Florida, it is a general practice among police officers to search a person after that person has been lawfully arrested. While most searches require consent of the person being searched or a valid search warrant, one exception is the search incident to a lawful arrest. At a minimum, this exception allows the police to search a person once he/she has been arrested. This exception also generally allows the police to search a person’s belongings that he/she has on him/her at the time of the arrest. One of the primary reasons for a search incident to a valid arrest is that the police officer is preparing to place the suspect into his/her custody, drive him/her to the jail and then process him/her into the jail. Therefore, the police have a right to make sure the suspect does not have any weapons or anything else that might harm the officer or create a dangerous situation.

Over the years and as cell phones have become more and more prevalent, police officers expanded this exception to go through a person’s cell phone to look for incriminating evidence. As we all know, a cell phone is capable of storing all sorts of information about a person, his/her contacts and his/her activities including phone numbers, emails, text messages, photographs, and many other items. A cell phone could potentially bring all sorts of information to the police and be the basis for many new charges. Initially, courts were allowing these spontaneous searches by finding that police officers can search just about anything found on a person at the time of his/her arrest.

Fortunately, these warrantless searches were being challenged enough that some rational constitutional arguments started to win out. The Constitution provides that people have a right of privacy in their belongings. It is one thing to allow a police officer to search a person and his belongings after an arrest to make sure there are no safety issues. However, there clearly is not an immediate safety concern with the information stored on a cell phone. Ultimately, the courts seemed to recognize this and required the police to have consent or a search warrant to search a person’s cell phone in his/her possession upon arrest.

An Anonymous Tip of Drug Activity is Not Sufficient for a Search of a Residence in Florida

Published on: July 31, 2014 | by Lasnetski Gihon Law

If the police want to search a house for drugs or other evidence of criminal activity, there are two primary ways they can do that. One, depending on how the the property is situated, the police can usually walk up to the front door, knock and ask to search the residence if someone answers the door. If the person who answers the door has apparently authority to give the police permission to search the residence, and does so, then the police can search the residence. Two, if the police have specific evidence that there are drugs or other evidence of criminal activity in the house, they can apply to a judge for a search warrant. If the judge signs the search warrant, the police can use that search warrant to search the residence.

Even where there is a search warrant, a criminal defense lawyer can still challenge the search in the subsequent criminal case. Search warrants are difficult to overcome in criminal cases because the criminal defense attorney is basically asking a judge to rule that the initial judge who signed the search warrant made a mistake. Judges do not like to do that. Even worse, the second judge already knows drugs or other criminal evidence were found in the house, otherwise there would not be a criminal case in which to file the motion to suppress.

But, every now and then, a criminal defense lawyer can successfully challenge a search warrant. In a recent case near Jacksonville, Florida, the police received an anonymous tip that the suspect was making and selling methamphetamine in his house. Normally, the police will then take steps to try and corroborate the tip- conduct surveillance outside the house, knock on the door and see if they can detect an odor or get someone to answer questions, check the trash on the side of the road and other law enforcement techniques. In this case, the police did some surveillance but did not see anything indicating there was drug activity at the house. They also checked the criminal histories of the occupants of the house and noted they had prior drug convictions. Based on this, the police went to a judge, got a search warrant, searched the house and found methamphetamine and drug paraphernalia inside.

Police in Florida Cannot Grab Suspect Without Reasonable Suspicion of Criminal Activity

Published on: July 28, 2014 | by Lasnetski Gihon Law

The Constitution protects people from unreasonable searches and seizures in Florida. What constitutes a search and/or seizure is not always obvious. For instance, if the police pull you over while driving, that is clearly a seizure under the law. If the police start searching your vehicle after the stop, that is clearly a search under the law. However, some encounters with the police are not so obviously searches and seizures.

For a criminal defense lawyer trying to get evidence thrown out of a criminal case, the attorney must argue that the encounter was a seizure and/or search and that the police did not have specific evidence that the defendant was involved in criminal activity to justify the seizure and/or search.

In a recent robbery case near Jacksonville, Florida, the defendant had allegedly robbed a convenience store with a gun while wearing a mask. The cashier put the money in a bag, and the suspect left. The police searched the area and found the defendant on the street. He matched the description of the robber, but he was wearing different clothes. The police officer blocked his path and asked him to come talk to the officer. The officer then put his hands on the defendant’s chest and back to see if his heart rate was elevated. The police officer detained the defendant, searched the area and found evidence of the robbery in the nearby bushes. They also obtained statements from the defendant. The defendant was arrested for armed robbery.