Search and Seizure

Police Could Not Stop Suspect For Drugs Based on Alleged Hand to Hand Transaction in Florida

Published on: February 5, 2014 | by Lasnetski Gihon Law

When the police approach someone and stop him/her to ask questions about a crime, it is typically considered a detention in Florida. The police are not allowed to detain someone for investigation without consent or specific evidence that the person is involved in criminal activity. It is very common for police to be patrolling what they call high crime or high drug areas and watch what they believe to be drug transactions. The most common suspected drug transaction that results in a detention is the hand to hand transaction. However, when a police officer observes a suspected hand to hand transaction, that does not necessarily give the police the right to stop the people involved.

In a recent crack cocaine case south of Jacksonville, Florida, the police were watching an apartment complex that they said was in an area known for street level drug activity. The police observed the defendant walk up to another person receive some amount of cash and then give something to the other person. The police assumed this was a drug sale. The police then stopped the defendant and found money and crack cocaine.

The criminal defense lawyer filed a motion to suppress the evidence of the money and crack cocaine because the police did not have a legal basis to stop the defendant and search him. The police can stop and investigate a person they reasonably believe is committing a crime. In the context of a street level drug sale, the police would need to show more than a hand to hand transaction. The police would need to establish how often drugs are sold in the area, more specifics about the particular transaction and/or possibly something about the individuals involved in the transaction. In this case, the police said it was a high crime area, but apparently the police had not made a drug arrest in the area in more than a month. The police also knew nothing about the two people involved in the transaction (i.e. did one or both of them have a criminal background).

There is a Constitutional Right to Privacy in Hotel Rooms in Florida

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

In Florida, there is a well-protected Constitutional right to privacy and to be free from unreasonable searches and seizures in one’s home. While the privacy right is not as strong, one also has a similar Constitutional right in his/her hotel room. The police cannot just barge into a hotel room because they think it contains drugs or other evidence just because the occupant does not own the room. The police need to have one of the standard legal bases to enter the hotel room such as consent from one of the occupants of the room, a search warrant or an emergency situation.

In a recent case near Jacksonville, Florida, police received a call of a home invasion robbery. Earlier that day, the police had stopped two people in a vehicle that appeared suspicious. After the call, the police believed they had something to do with the robbery. During the previous stop, the police learned that they were staying at a nearby hotel. The police went to the hotel room and walked inside without consent or a search warrant. Only after they entered the hotel room did the police obtain consent to search from the occupants. After obtaining consent to search, they discovered evidence related to the robbery in the hotel room.

The criminal defense lawyer filed a motion to suppress the evidence found in the hotel room. He argued that it was unlawful for the police to enter the room without a search warrant, consent to enter or an emergency. The court agreed. It was clear that the police cannot just walk into an occupied hotel room just because they think there may be evidence of a crime inside. The police did obtain consent to search the hotel room after entering the hotel room, but by then, the Constitutional violation had already occurred. The police cannot rectify a Constitutional violation by getting retroactive consent to search after they have illegally entered the hotel room.

Bondsman Assists Police with Marijuana Cultivation Arrest in Florida

Published on: January 2, 2014 | by Lasnetski Gihon Law

In most drug cases, particularly cases where the police arrest someone for manufacturing or growing marijuana, the case starts out with the police getting a tip that the suspect is growing marijuana in his home or on his property. The police conduct surveillance, check the trash, check electricity bills for a spike in activity due to the increased lighting and ventilation, and other investigative techniques to try and determine if the information is reliable. The police also often just walk up to the door, knock and see if the resident will answer questions or consent to a search.

In a marijuana case near Jacksonville, Florida, a person who was on bond missed court so his bondsman went to look for him. The bondsman went to the last known address of the person and another suspect answered the door. The bondsman asked if he could search the house to look for the person. The suspect agreed, and the bondsman found a marijuana grow operation inside. The suspect was fairly open about his marijuana cultivation with the bondsman. A bondsman is not a police officer, and does not work for the state. His job is normally to find people who are on bond who have missed court so they can be surrendered to the jail or otherwise made to come to court. A bondsman would not necessarily care about someone else committing a crime.

However, this bondsman decided to cal the police and tell them about the marijuana grow operation he saw. The police came to the house and searched it without valid consent. The police were apparently also in the process of obtaining a search warrant based on the evidence provided by the bondsman that was confirmed by the first police officer to respond, but they searched the house before the search warrant was signed.

Florida Students in School Have Less Protection Under Search and Seizure Provisions

Published on: December 30, 2013 | by Lasnetski Gihon Law

In Florida, people have a strong constitutional protection to be free from unreasonable searches and seizures from the police. This protection is stronger or weaker depending on what is being searched. For instance, it is the strongest when it comes to one’s residence and somewhat weaker when it involves a person’s vehicle. In any case, the police cannot just search a person or his/her belongings without a search warrant, consent to search or one of the limited exceptions to those two circumstances.

However, in Florida, a student in school has a more limited protection against searches and seizures of his/her property. In a recent gun case near Jacksonville, Florida, the principal received an anonymous tip that a student had a gun at his public school. Based on this anonymous tip, the principal removed the student from class, took his book bag and searched it. The principal found a gun in the book bag, and the student was arrested for carrying a concealed weapon and possession of a firearm on school grounds.

The criminal defense lawyer filed a motion to suppress the evidence of the gun claiming the principal did not have probable cause to search the defendant’s book bag. The motion was denied. Under normal circumstances, an anonymous tip, without more evidence, would practically never be a legitimate reason to search someone or his/her property. If this was at the student’s home, a traffic stop, an encounter on the street or any number of other situations, this search would have been illegal. However, things are different in public school. With a Fourth Amendment issue and the search and seizure laws, the primary issue is whether the search was reasonable under the circumstances. There are several factors that determine what is reasonable. Some of those factors include: the suspect’s expectation of privacy in the property searched, the reliability of the information about the alleged criminal activity and the state’s interest in protecting the public.

Police Withholding Facts From Judge May Not Negate Search Warrant in Florida

Published on: December 6, 2013 | by Lasnetski Gihon Law

In Florida, if the police want to come on to a person’s property to search it for drugs or other evidence of criminal activity, they normally need a valid search warrant signed by a judge. Alternatively, they can usually go up the residence, knock on the door and ask for consent from the homeowner or someone authorized to give consent. However, a person with drugs in his/her house or who otherwise would prefer not to have the government rummaging through their personal belongings might refuse to give such consent.

Whether the police have sufficient evidence to obtain a valid search warrant depends on the circumstances of each case. In a recent marijuana case near Jacksonville, Florida, the police, as is often the case when these kinds of cases start, received an anonymous tip that the defendant was growing marijuana on his property. The police went to his house, but they could not see anything because the defendant had a tall fence surrounding his property that was lined with fabric preventing anyone from seeing through the fence. The police then flew a helicopter over the property, but they did not see any marijuana. They did notice two sheds in the back yard. Next, the police looked through the trash bags that the defendant set out on the street. The trash bags revealed burnt marijuana blunts and large marijuana stems. The police took this information along with the fact that the defendant had prior drug convictions to a judge to get a search warrant for the property. They obtained a search warrant, searched the property and found that the defendant was growing marijuana in the sheds in his back yard. He was arrested on various cultivation and trafficking in marijuana charges.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana. When applying for the search warrant, the police failed to inform the judge that they flew over the property and did not see any indication of marijuana cultivation or possession. The criminal defense attorney argued that the search warrant was invalid because the police misled the issuing judge when they failed to disclose this information. If the police omit certain facts to mislead a judge in issuing a search warrant and the omitted facts negate the probable cause the police seemingly have without the omitted facts, then the evidence the police find as a result of the search warrant is inadmissible.

Police in Florida Cannot Get Valid Consent to Search After Illegally Entering Residence

Published on: November 26, 2013 | by Lasnetski Gihon Law

In Florida, there are few exceptions to the requirement that police officers must obtain a search warrant signed by a judge before they enter someone’s residence to search for evidence. One such exception is that the police can normally approach a residence, knock on the door and ask the occupant if they can search the residence. Of course, the occupant can always refuse to allow the police to come in and search the residence, and in that case, the police would likely need to obtain a search warrant to initiate the search.

In a recent drug trafficking case in Jacksonville, Florida, the police obtained information that a cell phone with incriminating evidence on it was located in an apartment. They did not want to reveal how they tracked the cell phone to the apartment so they decided not to try and get a search warrant. Instead, they went to the apartment, knocked on the door and asked the resident if they could search the apartment. The resident refused, as he had a right to do. However, as is often the case, the police did not take no for an answer and entered the apartment anyway. Once inside the apartment, they started to search and found the cell phone. At some point, the police apparently obtained consent to search after they had entered the apartment. The defendant was ultimately arrested for drug trafficking based on the evidence obtained in the apartment.

The criminal defense lawyer filed a motion to suppress the evidence found in the apartment based on the fact that the consent was not legally obtained. Normally, when the police ask for consent to search and get it, the police can conduct a reasonable search under the circumstances. However, the consent has to be given free from any improper police conduct. In this case, the police violated the law by entering the apartment without a search warrant and after consent to search was denied. As a result, the consent that was obtained after the illegal entry was tainted and invalid. The evidence recovered in the apartment as a result of the illegal search was thrown out.

Florida Police Cannot Stop and Arrest Suspect for Loitering Without Specific Evidence of Threat or Crime

Published on: November 16, 2013 | by Lasnetski Gihon Law

In a recent burglary and loitering case south of Jacksonville, Florida, the victim reported to police that a person knocked on his door asking for someone who didn’t live there and then left abruptly in a black vehicle. This occurred in a neighborhood with a lot of recent burglaries. The police responded to the area and stopped the defendant who was driving a black vehicle slowly in the neighborhood. The police officer stopped the vehicle and asked the defendant questions about why he was in the area and why he was driving slowly in front of the various houses. The police officer was not satisfied with the defendant’s answers and arrested him for loitering and prowling. The police officer then searched the defendant’s vehicle and found multiple items that had been reported stolen in burglaries in the area. He was then arrested for burglary as well.

The criminal defense lawyer challenged the charges arguing that the police officer did not have probable cause to stop the defendant, arrest him for loitering and prowling and then search his vehicle for evidence. In order for a person to be properly arrested for loitering and prowling, the state must show that the defendant’s conduct was unusual and indicated an immediate threat to the safety of persons or property. Vague suspicions are not sufficient for an arrest for loitering and prowling. A person driving slowly through a neighborhood and stopping occasionally may be suspicious, but is not a specific indication of a threat or criminal activity. Additionally, that behavior alone is not cause for alarm for public safety. As a result, the police officer did not have a legal basis to arrest the defendant for loitering and prowling. Since the initial arrest was unlawful, the search of the vehicle which uncovered the stolen items was also illegal. Therefore, the state could not use the evidence of the stolen items, and all of the charges were thrown out.

Can a Police Officer in Florida Make a Valid Drug Arrest Based on Inaccurate Information From His Computer?

Published on: October 21, 2013 | by Lasnetski Gihon Law

In a marijuana and drug paraphernalia case near Jacksonville, Florida, the defendant was driving when a police officer decided to run his tag on the officer’s computer. The computer showed that the defendant’s tag was registered to a different vehicle. As a result, the police officer stopped the defendant and found marijuana and drug paraphernalia in his vehicle. The defendant was arrested. It later turned out that the DMV had incorrect information and there was nothing wrong with the defendant’s tag.

The criminal defense lawyer filed a motion to suppress the drug evidence found in the vehicle. In Florida, if the initial stop of a defendant is not valid, the general rule is that any evidence found as a result of that illegal initial stop cannot be used against the defendant in a criminal case. In this case, the criminal defense attorney argued that because the defendant’s tag was valid and he was not violating any traffic laws, the police officer did not have a legal basis to stop him. Therefore, the drugs and drug paraphernalia the police officer found as a result of the illegal stop should be suppressed. The state, on the other hand, argued that the police officer was merely using the information he had and did not know it was inaccurate so the stop was valid.

The case has not been finally decided yet. There is a case that suggests the stop could be valid if the incorrect information came from an agency that is not considered a “law enforcement agency.” In other words, since the incorrect information came from the DMV, which may not be considered a “law enforcement agency” under the Fourth Amendment, the defendant may not be able to claim he was unreasonably stopped by law enforcement. However, a later case seems to suggest that the DMV is considered a “law enforcement agency”, and therefore the Fourth Amendment could be used to invalidate this unreasonable stop. In that case, the criminal defense lawyer’s motion to suppress would prevail to throw out the evidence of the drugs and drug paraphernalia.

Police Officer Can Investigate a Person To Check His/Her Welfare in Florida

Published on: September 21, 2013 | by Lasnetski Gihon Law

Normally, for a police officer to stop or detain a person in Florida, the officer needs consent from the person or specific evidence that the person is involved in criminal activity. However, there are exceptions to the search and seizure laws, and one of them involves a situation where it appears to the police officer that a person’s welfare may be in danger. This often occurs when a person is asleep in the driver’s seat of a vehicle. The police officer will normally anticipate a DUI arrest in this situation, but he/she can use the welfare check exception as a reason to further investigate when the presence of alcohol and/or drugs are initially not apparent. In these cases, if the police officer reasonably believes the person may be at risk or need medical attention, the police officer can take steps to assist the person or investigate further to determine if there is in fact some kind of health risk or medical emergency. And if the police officer discovers a crime while doing this welfare check, then the officer can investigate that crime and make an arrest.

In a case near Jacksonville, Florida, a police officer was patrolling a mall parking lot and saw a vehicle parked behind one of the businesses where customers do not normally park. The officer approached the vehicle and noticed the defendant squatted down in the vehicle. The vehicle was running. The police officer knocked on the window and told the defendant to roll the window down. When the defendant complied, the police officer saw a bag of marijuana in the vehicle and arrested the defendant for possession of marijuana.

The criminal defense lawyer filed a motion to suppress arguing that the police officer did not have the legal authority to order the defendant to roll down his window so he could see into the vehicle. The criminal defense attorney argued that the police officer had no evidence that the defendant was involved in any criminal activity when he ordered the defendant to roll down his window. However, the court disagreed. The court found that the police officer had a legitimate reason to have the defendant roll down the window to make sure there was no medical problem. Since the police officer discovered the marijuana as soon as the window was rolled down, according to the police officer, he was within his rights to investigate the marijuana and make the arrest for possession of marijuana.

Suspect Arrested for Drugs After Stopped Walking in Street in Florida

Published on: September 10, 2013 | by Lasnetski Gihon Law

In drug cases in Florida, the police are not allowed to stop a person and investigate him/her for drugs or other illegal activity without probable cause to believe the person is committing a crime. The police can always approach a person and ask to talk to him/her and/or search him/her, but that person also has a right to refuse the police. Many times, a drug arrest is the result of a vehicle traffic stop where a police officer observes a person violate a traffic law, conducts a traffic stop and either gets consent to search the vehicle and finds drugs or allegedly develops probable cause and searches the vehicle, perhaps after smelling the odor of marijuana and having a drug dog alert to the vehicle.

Stopping pedestrians is more rare because the police do not normally have a traffic violation that can be used to initiate the encounter with the suspect. However, it can still happen that way. In a possession of cocaine case south of Jacksonville, Florida, a police officer observed the defendant walking down the middle of a street. He was not in danger and he was not bothering anyone but it is against the law for a pedestrian to walk in the middle of the street. This became a valid basis to stop the defendant. After the stop, the defendant agreed to let the police officer pat him down. Upon doing so, a pill bottle fell from his pants, they found crack cocaine inside and he was arrested for possession of cocaine.

The criminal defense lawyer tried to suppress the evidence of the drugs, but between the pedestrian violation, the consent to the pat down and the pill bottle falling to the ground, the state was able to proceed with the possession of crack cocaine charge. Had the defendant stayed on the sidewalk or refused consent to pat him down, it is unlikely he would have been arrested.