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In Florida, the general rule is that the police cannot search a person’s property without a search warrant or specific consent from the owner of that property.  There are exceptions, of course, but a police search without a search warrant or consent is generally going to be illegal.  When the police arrest someone, they can always search that person because the police have a right to determine if the suspect has any weapons or evidence that can be destroyed on him/her.  However, that search is generally limited to the person and only after a valid arrest.  The police cannot go searching a person’s vehicle or home just because of an arrest.

In a recent drug case near Jacksonville, Florida, the police had an outstanding warrant for the defendant and received a tip that he was at a particular residence.  They located the suspect and arrested him in the front yard.  The police then walked around to the back of the residence and looked through a window where they saw guns and illegal drugs inside the house.  They used this information to obtain a search warrant to search the house and seize the guns and marijuana.

The criminal defense lawyer filed a motion to suppress the evidence of the guns and marijuana arguing that the police did not have a legal basis to walk to the back of the defendant’s property to look through the window.  Police cannot walk into a person’s home to search without a search warrant or consent, and this also applies to what is called the curtilage of a home, which is the area of land surrounding a residence including any closed structures.  In this case, the area next to and behind the house was considered the curtilage.  It is often considered the area adjacent to the home where the public is not normally expected to go.  For instance, a member of the public might walk up a person’s driveway to knock on the front door, but he/she is not likely to walk around a house and look through windows on the side or back of the house.

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As most people are aware in Florida and elsewhere, when the police arrest a suspect or take a suspect into custody, the police are required to read the suspect the Miranda warnings before attempting to take a statement from the suspect.  The Miranda warnings discuss a variety of rights, but a primary right that must be disclosed to the suspect is that he/she has a right to remain silent.  This means that the suspect can refuse to speak with the police at any time, and the state cannot use the defendant’s silence against the suspect in court.  In order for a defendant to assume the protection of the Fifth Amendment right to remain silent, the suspect must clearly state that he/she would like to remain silent or that he/she would like to speak with an attorney before talking to the police.  Vague or unclear statements about the right to remain silent and the right to an attorney are not generally held up in court.  Additionally, the police want to talk to suspects for a reason- to get evidence they can use to convict them.  Therefore, the police may disregard anything but a clear and confident declaration of the right to remain silent and the right to talk to an attorney.  If the police think the suspect’s position leaves room for interpretation, the police will often move forward with trying to take a statement.

However, once the suspect is clear that he/she does not want to talk to the police or wants to speak with a lawyer, the police are required to shut down any attempts to take a statement from the suspect.  In other words, once a suspect or defendant invokes the right to remain silent, that remains in effect for the remainder of that case.  The defendant can always change his/her mind and make contact with the police or the state, but the state is not supposed to try to take a statement from the defendant on their own initiative.

This applies to the police directly trying to speak to the defendant, but it also applies to the police trying to get a statement from the defendant using more indirect methods.  In a recent sexual battery case south of Jacksonville, Florida, the defendant was arrested for sexual battery and the police tried to take a statement from the defendant after his arrest.  After he was read his Miranda warnings, the defendant requested a lawyer and refused to give any statements.  The defendant was taken to jail and remained there as he was unable to bond out.  While in jail, the defendant started talking about his case to one of the inmates in his cell.  That inmate went to the police and told the police that the defendant was talking about his case.

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Every now and then, and often during holiday time like New Year’s Eve coming up, the police in Florida and other states will set up DUI checkpoints in strategic areas of the city.  These checkpoints are normally located down the street from a popular bar or other area where people often drink alcohol.  Florida law does not allow the police to just set up a checkpoint at any time whenever and wherever they want.  The police have to plan their DUI checkpoints and follow certain rules for a checkpoint to be legal.  For instance, the police must get approval in advance, they must establish certain written rules for the checkpoint, the checkpoint can only last for a certain period of time and they must follow all of those rules during the checkpoint.  The police cannot just use their discretion to pick and choose which drivers they are going to stop.  They must stop drivers based on a predetermined plan.  For instance, the police can decide to stop every fourth vehicle, but they cannot use some arbitrary criterion to stop vehicles as they go.  Assuming the police establish proper rules and follow them, they are allowed to set up DUI checkpoints and stop drivers as they come through to determine whether they are driving under the influence of alcohol or drugs.

Checkpoints and road closures for other purposes do not have to follow those same rules.  For instance, in a DUI case just outside of Jacksonville, Florida, the police had blocked off the road for an air show and set up a checkpoint where only certain authorized vehicles could pass.  The defendant approached the checkpoint in his vehicle, rolled down his window and asked the police officer for directions.  The police officer noticed that the defendant smelled of alcohol and slurred his speech and he saw an open container of alcohol in his vehicle.  The police officer stopped the defendant, investigated further and arrested the defendant for DUI.

The criminal defense lawyer filed a motion to suppress the evidence of the defendant’s impairment arguing that the police officer conducted a checkpoint that did not establish the rules necessary for a proper DUI checkpoint.  The court disagreed because this was not a DUI checkpoint.  The police were not stopping drivers as they approached to check them for DUI.  They were only stopped and asked to turn around because they were not allowed to pass.  Because this was not a normal DUI checkpoint where some drivers were checked for potential impairment, the police were not required to have written, specific rules for the checkpoint.  As a result, the police officer was entitled to investigate further for a potential DUI arrest when the driver appeared to be drunk driving.



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This unlawful search took place in a Florida school south of Jacksonville, Florida.  In this case, students at the Florida school reported to school officials that some other students were playing with a taser on school grounds.  The school security officer spoke to some kids who indicated that the suspect was the one with the taser, however the suspect had gone home for the day.  The next day, the principal and security officer had the suspect come into the principal’s office, and they searched her purse.  They did not find the taser and let her leave for class.  Later that day, they brought the suspect back into the principal’s office, searched her purse and found a taser.  She was arrested for possession of a weapon on school property, which is a felony.

The criminal defense lawyer filed a motion to suppress the evidence of the taser arguing that the principal and security officer did not have a legal basis to conduct the second search after the first search did not result in any incriminating evidence.  The rules for searching students and their property are a little different in schools.  Students and their property can be searched at a school if there is reasonable suspicion that the student is involved in criminal activity or evidence of a crime will be found.  A search of a student at school is considered reasonable as long as the search is reasonable in scope.  At schools, the more serious the threat, the more leeway the school or a police officer will have in conducting a more extensive search.

In this case, because students indicated the suspect had a weapon on school property, the court ruled that the first search of the student was reasonable.  However, since the first search was unsuccessful, the school could not conduct a second search of the same property later without new information that evidence of a crime was present.  In other words, the school and/or the police only get one shot at a search based on reasonable suspicion, and if they do not find anything, they cannot go back for a second search later without some new evidence that justifies it.  A second search of property that initially yielded no results is a search based on mere suspicion which does not meet the appropriate search and seizure standard.  For the second search to be justified, the state would have had to present testimony of new evidence that was uncovered after the first unsuccessful search.  The weapon charge was thrown out.

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In order for the police to be able to search your home for evidence of a crime, they either have to have a valid search warrant or they have to have consent from the owner or someone with proper authorization to give that consent.  For the latter method, the police are generally allowed to walk up to your front door, knock and ask to come inside.  As long as people give the police permission to come inside their homes and search, the police almost never have to get search warrants by explaining to a judge what legal reason they have to enter a residence.  Therefore, it is important for people to understand that they can always (and usually should) refuse when police ask to search their property.

Unless your property is gated or otherwise partitioned from public access, the police can go to your door, knock and try to get permission to enter in Florida.  What can the police do if you do not answer the door or if you are not home?  If you are not home, they cannot enter since they would not have permission.  They would have to get a search warrant from a judge.  If you are home, the police can see or hear that you are home and you do not come to the door, can they enter the home?

In a recent case near Jacksonville, Florida, police went to the defendant’s apartment to investigate a battery call, but they also had information that the defendant was selling marijuana.  When they arrived at the apartment, they knocked, but the defendant did not answer.  The police walked a few feet to the front window and were able to see the defendant inside.  They knocked on the window, but the defendant still did not answer.  They sent the defendant a text message asking if he would come outside, and he still did not answer.  At this point, the police claimed to have smelled marijuana coming through the air conditioning unit and then got the apartment manager to let them inside the apartment.  (If this testimony sounds ridiculous, the criminal defense attorney had an air conditioning professional testify that this would not have been possible with the defendant’s air conditioning unit.  This is another sad statement as to the lengths police will go to arrest people for possessing a plant.)

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In our last post, we discussed when the police can search the contents of a cell phone belonging to a suspect.  We referenced a case where the police illegally searched a password protected cell phone that had been abandoned by the defendant.  Since it involved an abandoned cell phone, that was a strong statement that the police are not generally going to be able to search a password protected cell phone without a search warrant or specific consent from the owner of that cell phone.  Given that cell phones these days often contain a wealth of information that can be used by the state to incriminate a defendant, it is important for people to protect their cell phones and make sure they understand the Constitution affords them a right to privacy in the information contained in that cell phone.

This post refers to another case near Jacksonville, Florida that looked at this issue of when the state can access the information in a defendant’s cell phone.  In this case, the defendant was arrested for using the camera on his cell phone to violate the privacy of women in public.  He was arrested for video voyeurism.  After he was arrested, the state requested consent to search his cell phone to look for pictures and videos of the victims.  The defendant refused.  The police appropriately applied for a search warrant for the cell phone.  Through their investigation and interview with the defendant, they obtained sufficient information about the cell phone to adequately identify it for a search warrant application.  It is unlikely that a judge would grant a search warrant application for a generic cell phone belonging to the defendant that the police knew nothing about and did not have in their possession.  Because the police had information about the specific cell phone allegedly used in the crime, the search warrant was granted.

The police located the cell phone, but it was protected by a password and the defendant would not provide it, as was his right.  The state then filed a motion to compel the defendant to provide the pass code for the cell phone.  The criminal defense lawyer argued that a defendant has a constitutional right against self incrimination, therefore the defendant could remain silent about all aspects of the case, including his cell phone pass code that could lead to the discovery of incriminating evidence.

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In Florida and elsewhere, the general rule for searches and seizures is that the police cannot search a person’s property without a search warrant or specific consent from a person with the proper authority to give such consent.  There are exceptions to that rule depending on the circumstances, but the general rule applies in most situations.  This has been the law for a long period of time.  However, there are new situations, and new technologies, that require a unique interpretation of search and seizure law.  Cell phones are not exactly new, but they have created circumstances where the courts cannot necessarily rely on prior cases alone and need to interpret the Constitution to determine if searches and seizures are lawful.  Additionally, the storage capacities and capabilities of cell phones are always improving so new search and seizure scenarios are common.

We have discussed cases where the police have made arrests and then sought to search a person’s cell phone without a warrant.  These days, cell phones can contain all sorts of information that can incriminate a defendant, such as photographs, text messages, call records, internet searches, and a plethora of other data.  These items can be critical in many different types of criminal cases.

The question remains: when can the police access the data contained in a suspect’s cell phone?  In a case near Jacksonville, Florida, the police stopped a vehicle after running the tag and finding that the vehicle had been reported stolen.  The suspect fled the vehicle on foot.  The police officer did not catch the suspect, but he did find a cell phone that was left in the vehicle.  The cell phone was protected with a password, but someone at the police department was later able to access the data in the phone.  No search warrant was obtained to do this.  Once inside the cell phone, the police were able to identify the suspect and his contact information.  He was located and arrested for burglary of a conveyance.

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In Florida, it is illegal for anyone to possess a “weapon” at school or a school-sponsored event without authorization.  A violation of this criminal statute is a third degree felony that carries up to five years in prison.  There are a variety of items that are considered “weapons” under the statute including razor blades and box cutters, in addition to the obvious weapons like guns and knives.  There is also a separate Florida statute that adds other items to the definition of a “weapon” such as brass/metal knuckles, tear gas and slingshots.  Whether other items are considered “weapons” under the statue is unclear.  Pocket knives are specifically excluded from the definition of a “weapon”, but what is considered a pocket knife depends on its size and other characteristics.  The obvious problem is that the Florida laws and statutory definitions do a poor job of telling students and parents what items are legal and what items could result in a felony charge.

In a recent weapons case near Jacksonville, Florida, school officials conducted a random search of students at a local public school.  They removed the kids from the classroom, scanned them with a metal detector and searched each of them.  They also searched their book bags and other belongings.  They found a BB gun in the defendant’s book bag.  The school officials said the BB gun looked and felt like a real gun.  It was not loaded.  The defendant was arrested for possession of a weapon on school property.

The criminal defense lawyer filed a motion to dismiss the charge since a BB gun is not a deadly weapon as referenced in the statute.  That statute lists certain specific items that are considered weapons along with any other “deadly weapon.”  BB guns are not specifically listed as “weapons” in the statute.  Therefore, the criminal defense attorney argued that since the BB gun is not specifically mentioned as a “weapon” in the statute, and a BB gun certainly is not a “deadly weapon” as also mentioned in the statute, the defendant cannot be charged with possession of a weapon on school property for a BB gun.

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In Florida, there are a variety of criminal statutes that deal with fraudulently using a credit card or altering a credit card to use it in an unauthorized manner.  When a defendant allegedly violates one of these criminal statutes, it is up to the state to make sure they charge the appropriate crime.  If they do not use the correct charge, the case might get thrown out.

For instance, in a case just south of Jacksonville, Florida, the defendant had apparently used altered gift cards to purchase items at a grocery store.  The manager at the grocery store noticed that the gift cards had been altered and called the police.  When the police arrived and arrested the suspect, they found more altered gift cards in his possession.  The state charged the defendant under a Florida statute that deals with using an altered credit card to fraudulently obtain goods or services.  The criminal defense attorney moved to dismiss the charges because the credit card statute does not apply to gift cards.  Under the statute, the term “credit card” is specifically defined.  The statute gives examples of different cards that apply.  Each example refers to a card that is issued for the use of the cardholder.  The “cardholder” is also defined under Florida law as the person or organization whose name is on the card and for whom the card was issued.

As most people know, gift cards generally are not issued for a specific user.  They normally do not have the name of the recipient printed on the card.  Therefore, because the Florida criminal statute specifically refers to credit cards which are defined a certain way, and gift cards do not fall under the definition of credit cards, the criminal defense attorney argued that the defendant could not be guilty of that crime.  The court agreed, and the case was dismissed.

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In Florida, the state has a certain period of time from the date a crime has occurred to prosecute the defendant.  Like other states, Florida has statutes of limitation which set out a number of years within which the state must prosecute a person for committing certain crimes.  The period of time provided in the statute of limitations depends on the nature of the crime.  Two years is common for misdemeanor crimes in Florida, and four to five years is more common for felony crimes.  For instance, for a felony, if the state does not prosecute a defendant within five years of the date of the crime, the criminal defense lawyer can file a motion to dismiss the case because the statute of limitations has run.  This situation commonly occurs when the police believe a suspect has committed a crime and issue a warrant or capias for that person.  However, the suspect is not caught and brought to court for several years, beyond the time period indicated in the statute of limitations.  In that case, the criminal defense attorney may be able to have the case dismissed.

However, there are exceptions to the statute of limitations.  The Florida statute itself is fairly ambiguous, but a recent Florida Supreme Court case attempted to clarify one of the confusing parts of the statute.  In this case, the defendant allegedly committed the crime in 2009, and a warrant was issued for his arrest.  The statute of limitations for the crime was three years.  The state did not arrest and charge the defendant until later in 2012, more than three years after the crime was committed.  The criminal defense lawyer filed a motion to dismiss the case because the state was attempting to prosecute the defendant more than three years after the crime occurred.

The state argued that the statue of limitations was tolled, or delayed, because the suspect was continuously out of state for part of those three years, as the statue specifically mentions a defendant being out of state as an exception to the running of the limitation period.  The criminal defense attorney argued that the state has to show that they diligently searched for the defendant in order to avail itself of the benefit of the tolling of the statute.  The statute is not clear as to how these two factors interact with each other.  The question is whether the state merely has to show that the defendant was out of state for a continuous period, which tolls the statute of limitations during that time, or whether the state also has to prove they diligently searched for the defendant and his/her absence thwarted their prosecution of the defendant.