Search and Seizure

Can Police in Florida Pull You Over if the Color of Your Vehicle Does Not Match the Color Listed on the Registration?

Published on: July 13, 2014 | by Lasnetski Gihon Law

Many drug cases, DUI cases, gun cases and other kinds of criminal cases begin with a simple traffic stop in Florida. A police officer will make a routine traffic stop and then claim to observe signs that the driver is impaired from alcohol or smell the odor of marijuana or observe other suspicious signs of possible criminal activity. From there, a criminal investigation begins, and a much more serious police encounter results in an arrest.

When this happens, the criminal defense lawyer can file a motion to suppress any evidence of criminal activity that was obtained by the police officer after the initial stop if there is reason to believe the original stop of the defendant was unlawful. If successful and the court agrees that the original stop was illegal, then the evidence obtained after the stop will likely be thrown out followed by the criminal charges being dismissed.

In a recent marijuana case near Jacksonville, Florida, a police officer saw what he considered to be a suspicious green vehicle driven by the suspect. As they often do, the police officer ran the vehicle’s tag in his computer. His computer showed that the registration on the tag was for the same make of vehicle but a blue color. Based on the fact that the vehicle’s color did not match the color listed on the registration, the police officer stopped the vehicle. The police officer then smelled an odor of marijuana coming from the vehicle, searched it and found a large quantity of marijuana inside. The driver was arrested for felony possession of marijuana.

There is No Reasonable Expectation of Privacy in One’s Bank Records

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

We have written at length about various search and seizure issues including whether the police need a search warrant to conduct certain searches. As many people know, the Fourth Amendment protects people from unreasonable searches and seizures conducted by the government. However, in order to be afforded such protection, a defendant in a criminal case must establish that he/she had a reasonable expectation of privacy in whatever was searched. For instance, a person clearly has a reasonable expectation of privacy in his/her home so the police cannot just come in to search it without consent or a search warrant in most cases. As for a vehicle, a person normally has a reasonable expectation of privacy in his/her vehicle, however if he/she leaves what is clearly identified as marijuana on the seat where a police officer walking by can see it through the window, that might be a different story.

We recently discussed how a recent United States Supreme Court ruling requires the police to get a search warrant before searching a person’s cell phone or similar mobile device. However, people may not know that the Court does not believe a person has a similar reasonable expectation of privacy in his/her bank records. A person who deposits money into a bank and uses a bank credit card does not have a reasonable expectation of privacy in those bank records. This allows the government to obtain those bank records with only a subpoena (a document the government signs without a judge’s approval and without the suspect knowing about it) sent to the bank rather than a search warrant that requires probable cause and a judge’s approval.

Bank records are critical in a lot of criminal cases brought by the government. They can establish that a suspect deposited money in amounts and at times consistent with theft or fraud allegations. They can show wire transfers among co-conspirators. They can show credit card or withdrawal transactions that can put a person at a given location at a certain time. Bank records can establish a lot of critical points the government needs to make in order to prove a criminal case. Based on the current state of the law, the government can obtain those records without a search warrant in many cases.

Supreme Court Holds That Police Need Search Warrants to Search Cell Phones

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

In Florida, we have seen many cases where the police will look into a person’s cell phone before or after an arrest without a search warrant or even without probable cause to believe that there is incriminating evidence in the cell phone. Cell phone evidence has been used in court to incriminate many defendants, particularly in drug cases. However, a recent case was before the United States Supreme Court that challenged the state’s right to search a person’s cell phone without a search warrant. The government largely relied on the argument that the police can search a person’s pockets to make sure they are not armed or in a position to destroy evidence without a search warrant. The state argued that cell phone content can be easily deleted so the police should have a similar ability to search a person’s cell phone without taking the time to get a search warrant during which a defendant can remove incriminating information.

The Court disagreed and found that a person has a Constitutional right to privacy in his/her cell phone and other devices such as an Ipad or similar mobile device that stores information. The quantity and type of information people keep on their cell phones deserve privacy protection just like tangible items people keep in their vehicles and homes. As a result, except in very limited circumstances, if the police want to search someone’s cell phone or similar mobile device, they need to get a search warrant signed by a judge to do so. This is true even after an arrest where the cell phone or mobile device is in the possession of the person arrested and easily accessible by the police.

Florida Court Finds Police Stop is Valid When Driver Stops Just Past Stop Bar

Published on: May 30, 2014 | by Lasnetski Gihon Law

In Florida, many criminal arrests start out with a much less serious traffic stop. When a person commits a traffic violation like speeding or running a red light, he/she is normally just looking at a fine and possibly some points on his/her driving record. However, when the police stop a person for a traffic violation, it can turn into a much more serious criminal violation. Most DUI’s and many drug cases start with traffic stops and turn into criminal investigations followed by arrests.

There are many different traffic violations that a police officer can use to stop a driver to write a traffic citation or as an excuse to investigate criminal activity. In a recent case near Jacksonville, Florida, the driver came to a stop sign and instead of stopping behind that stop bar line that is at most stop signs, the driver stopped just past it so that part of the front tire and hood were in front of the stop bar. Seeing this, the police officer stopped the driver for running the stop sign. When the police officer approached the car to write the traffic ticket, he said he smelled marijuana inside the vehicle. The police officer ultimately arrested both the driver and passenger for marijuana and cocaine possession charges.

The criminal defense lawyer filed a motion to suppress the evidence of the drugs arguing that the driver did not truly violate a traffic law. if the original basis for the stop is not valid, than any evidence the police officer discovered as a result of the initial traffic stop should be thrown out of court.

When Can Police in Florida Search a Person’s Hotel Room for Drugs?

Published on: May 23, 2014 | by Lasnetski Gihon Law

The Constitution protects a person’s home, vehicle and other property from unreasonable searches. This normally means that the police must either have consent to search or a search warrant before they search something that belongs to another person. However, some items or locations are not as clearly protected from police searches.

For instance, what Constitutional protections are involved with hotel rooms? The law is not completely clear and whether a search is valid depends on the circumstances of the case, but some rules do seem to be fairly certain. If a person registers for a hotel room, pays the fee and is lawfully in the room, that hotel room has similar Constitutional protections to a house. In that situation, the police cannot just walk in without permission or a search warrant. The police also cannot go to the manager’s office or hotel security and have them let the police into the hotel room without the consent of the person who rented the room or a search warrant. However, if the room is rented until a certain date and time and the occupant does not pay to keep renting the room beyond that time, the police can likely have the manager let them in the room to search it. For instance, if a person rents the room for Monday night and checkout time is 10:00 am on Tuesday and the person does not pay for Tuesday, the police may be able to go into the room to search it after 10:00 am on Tuesday.

What about a guest of the person who rented the room? If Person A rents the room and allows Person B to stay in the room as well, can Person B challenge an illegal search of that room? That depends on the circumstances. If Person B can establish that he had a legitimate expectation of privacy in the room, Person B may be able to challenge a search of the hotel room. For instance, if the hotel knew Person B was staying there, the hotel did not have a policy against it, Person B had his belongings in the room and had already been in the room for a sufficient period of time, Person B may have a expectation of privacy in the room that would allow him to challenge an illegal search of the room. On the other hand, if the guest had only been in the room for a short period of time, did not have any belongings in the room and the hotel did not know the guest was in the room, it would be more difficult for that person to argue that he has standing to challenge an illegal search of the room. In that case, the police search could be highly illegal and the police could find a lot of drugs or other evidence and that person may not be able to challenge that search.

Florida Defendant Denies Ownership of Cell Phones, Cannot Challenge Search of Cell Phones

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

When the police search property and find incriminating evidence, the criminal defense lawyer would file a motion to suppress that evidence if there is an argument that the search was not legal. If the criminal defense attorney is successful with the motion to suppress, the evidence that was obtained by the police cannot be used against the defendant in court. There are, however, some rules which may not afford a defendant the right to even challenge an illegal search. For instance, a defendant has to establish that he/she has standing to challenge a search. Standing basically means that the defendant has a privacy interest in the property searched. For example, if the police come into my house and seize evidence, I have standing because I own the house where the property was seized. On the other hand, if the police go into a neighbor’s house and find evidence that incriminates me, I may not have standing to challenge that search since I do not own or live in my neighbor’s house.

In a recent lewd or lascivious exhibition and child abuse case near Jacksonville, Florida, the police responded to a domestic dispute. Once inside, a police officer saw an electronic tablet and started looking at some pictures. The police officer saw child pornography pictures on the tablet. The suspect denied that the tablet was his. He also denied that he owned some cell phones that were in the house. The police officers seized the cell phones, later obtained a search warrant for them and found more child pornography pictures on the cell phones.

The criminal defense lawyer filed a motion to suppress the evidence of the child pornography pictures found on the tablet and cell phones alleging that the police did not have consent to seize or search those items and did not have a warrant to seize them. This may have been a strong argument, but the court found that the defendant did not have standing to contest those searches and seizures. When a person voluntarily abandons or disclaims ownership of property, he/she cannot challenge an illegal search of that property, i.e. he/she has no standing. That can present a tricky situation. A person does not want to claim ownership of something that contains incriminating evidence. On the other hand, if the person disclaims ownership of the item, he/she may not be able to challenge an illegal search in court. Often, the best course of action is to exercise one’s right to remain silent in such situations.

Can an Unauthorized Driver of a Rental Car Challenge an Illegal Serch in Florida

Published on: April 19, 2014 | by Lasnetski Gihon Law

In Florida, the police are generally not allowed to search a suspect’s vehicle unless the driver or owner gives consent to search, the police have probable cause to believe there is evidence of criminal activity inside or there is an arrest of an occupant of the vehicle and there is a danger that evidence may be compromised. The police cannot stop a driver and then search the vehicle based on any assumptions or anonymous tips that there may be illegal drugs or other evidence in the vehicle.

When the police conduct an illegal search, the defendant’s remedy is to have the criminal defense lawyer file a motion to suppress to have any evidence obtained as a result of the illegal search thrown out of court. However, the defendant must have what is called standing in order to have the criminal defense attorney properly file the motion. Standing is another word for the legal right to challenge the alleged illegal search. If the driver who was arrested also owned the vehicle, or had authorization from the owner to drive the vehicle, that defendant would likely have standing to challenge an illegal search. Likewise, if a person rented the vehicle, the renter would have standing to challenge an illegal search. But what about a person driving a rental car that was not listed as an authorized driver?

In a recent drug case near Jacksonville, Florida, a police officer stopped the defendant for traffic violations. The officer asked for consent to search the vehicle, but the driver refused. The officer noted the driver was driving a rental car and asked to see the rental car agreement. The police officer saw that the agreement mentioned only one authorized driver, and the person driving was not him. The police officer ultimately searched the vehicle and found marijuana and marijuana paraphernalia inside. The driver was arrested for possession of marijuana with intent to sell.

Can Police in Florida Come Up to Your House and Knock if You Have a Closed Gate?

Published on: April 4, 2014 | by Lasnetski Gihon Law

In Florida, the police generally need a search warrant to enter your home and search for illegal drugs or other evidence of criminal activity. When they do not have a search warrant, they can still try and gain legal access to your home by walking up to your door, knocking, asking some questions and requesting consent to enter and search your home. For the most part, police officers have the same right to approach your front door, knock and ask questions as anyone else does. If you decide to open your door, answer questions from the police, let them come in and then they find guns or drugs or other evidence, that was your choice.

However, there are limitations to this. If there is free access between your street and your front door, the police can typically just walk right up and knock. On the other hand, if you have a closed gate or barbed wire or some other obstruction preventing someone from walking up to your door, the police usually cannot cross that obstruction to get to your front door to knock. The police cannot likely open a closed gate or climb a fence to get to your door. They certainly cannot break or unlock anything to get to your door without a search warrant.

In a recent trafficking in marijuana case near Jacksonville, Florida, the defendant lived on a large piece of property that was surrounded by a barbed wire fence and also had a chain linked fence blocking the long driveway. He had “No Trespassing” signs on the fence. After receiving an anonymous tip of drug activity, the police went to the house to do what they call a “knock and talk” (go to the door, knock and hope the suspect starts talking). The police officers opened the gate and drove down the driveway and ultimately approached the front door. The defendant answered, spoke to the police and they ultimately discovered a large amount of marijuana on the property.

Knock and Announce Search Warrant in Florida Requires Police to Allow Occupant Time to Open Door, But Not Much Time

Published on: March 24, 2014 | by Lasnetski Gihon Law

In Florida, there is such a thing called a knock and announce search warrant. If the police have sufficient evidence to believe there are drugs or other evidence of criminal activity in a residence, the police can obtain a search warrant that allows them to search the premises. That does not necessarily give the police the right to barge into the home and start searching. It can be a serious safety risk both to the occupants and the police if they just barge into the home unannounced.

A knock and announce warrant requires the police to knock on the door, announce they are police and give the occupant the opportunity to let the police inside. However, if no one lets the police in, the police can then break open a door or window to gain entry.

One question that comes up is whether the police complied with the requirements of the knock and announce search warrant. Often, it is question of whether the police gave the occupants sufficient time to open the door before busting through the door. On the one hand, there is the safety issue with the police coming into one’s home unannounced. On the other hand, if the police announce themselves and wait too long, the occupants could dispose of drugs or other evidence that are in the residence.

Gun Possession Charge Thrown Out in Florida After Illegal Detention

Published on: February 26, 2014 | by Lasnetski Gihon Law

In Florida, if police obtain evidence of a crime after an illegal detention, the criminal defense lawyer can get that evidence thrown out. In a recent case near Jacksonville, Florida, the police saw some people smoking cigarettes in a public park. Smoking was prohibited in the park so the police officers approached the group. The police learned the group came to the park in a vehicle, but none of them had licenses to drive. The police officers told them not to drive the car. The defendant went to the car to retrieve some property. The police officer then approached the defendant and asked him if he could pat him down, but the defendant refused. The police officer then detained the defendant who later admitted he had a gun in his pocket. The defendant was arrested for possession of a firearm by a convicted felon.

The criminal defense lawyer filed a motion to suppress the evidence of the gun arguing that the police had no legal basis to stop and detain the defendant. The police officer cannot stop and detain someone based on suspicion that the person is involved in criminal activity. The fact that the defendant went to the car to retrieve something is not specific evidence of criminal activity. The police officer may have assumed the defendant got something illegal out of the car, but a bare assumption is no basis to detain someone. While the defendant did ultimately admit that he had a gun, which was illegal since he was a convicted felon, that admission only came during an illegal detention. Since the illegal detention preceded the admission and prompted the admission, the admission does not rectify the illegal detention.

Of course, a police officer is always allowed to approach a person in a public place and ask questions and even ask to search that person. Likewise, that person is free to refuse. In this case, the difference was that the defendant initially refused the officer’s request to pat him down. The officer learned of the gun only after a detention that was not based on any evidence. Had the defendant initially agreed to a patdown and had officer found the gun initially, the possession of a firearm by a convicted felon charge probably would be been allowed to proceed. But since the defendant was smart enough to refuse the patdown, the police did not legally obtain the evidence of the handgun and the charge was ultimately thrown out.