Jacksonville Criminal Lawyer Blog

In Florida, the general rule for searches and seizures is that the police cannot search a person, a vehicle, a home or other private property without a valid search warrant. Of course, there are exceptions to this general rule which allow the police to search a person or his/her property without a search warrant in many situations.

One common exception to the search warrant requirement is the search incident to an arrest. When the police arrest a person for a crime in Florida, that police officer can search that person incident to the arrest. There are two primary bases for the search incident to an arrest exception to the search warrant requirement. First, the police officer is allowed to search the person, any container on the person and any container within the person's immediate reach for officer safety. The police officer has a right to make sure the person being arrested does not have a weapon in his/her possession or within arm's reach that could be a threat to the officer. The other basis for a search incident to arrest is to protect against the destruction of evidence. For instance, if the police officer arrests someone for a drug crime, the officer has a right to search the person to make sure he/she does not have more drugs or other evidence on him/her that can be thrown away, swallowed or otherwise destroyed.

The search can cover the entire person, his/her clothing and any closed containers on that person. Does that include a person's cell phone? In other words, can a police officer in Florida search the contents of a person's cell phone without a search warrant after arresting that person? This can certainly be a significant issue in any criminal case. Cell phones contain pictures, text messages, emails, website histories and phone records which can provide the police with all sorts of evidence in criminal cases. Each person clearly has a significant privacy interest in the contents of his/her cell phone.

In a recent case near Jacksonville, Florida, a guy was arrested for the sale of cocaine. After arresting the suspect, the police officer searched him and found his cell phone. The police officer then searched the cell phone and found text messages relating to the sale of cocaine and phone calls with people involved in the cocaine business. The police officer never obtained a search warrant for the cell phone. The criminal defense lawyer filed a motion to suppress the information found in the cell phone because it was a warrantless search and did not fall within the search incident to an arrest exception. The court agreed with the criminal defense attorney and threw out that evidence. The court reasoned that the two justifications for a search incident to an arrest of a cell phone were inapplicable. There is no officer safety issue with a cell phone as it is not, and would not contain, a weapon. There was also no threat that the suspect would destroy evidence in the cell phone. Once the police officer arrested the suspect, he took custody of his cell phone and handcuffed the suspect. There was no threat of losing any evidence in the cell phone and no reason the police officer could not apply for a search warrant.

Many courts across the country seem to allow the police to search a person's cell phone after an arrest and without a warrant. They rely generally on the premise that a search incident to an arrest allows the police officer to conduct a full search of the suspect, including any containers on the person. This seems to be a more literal interpretation of the exception without consideration of the bases for the exception.

The bottom line is that there is no certain answer to this question at this point as different courts disagree about a police officer's right to search a person's cell phone without a warrant after an arrest. It is probably an issue that will be decided with some level of certainty down the road. In the meantime, we believe that the logical answer based on the purpose for the search incident to arrest exception to the warrant requirement would prevent the police from searching a person's cell phone without a search warrant after an arrest.

We continue to be amazed at how many people give police officers consent to search them, their vehicles, their homes or anything else that contains illegal drugs or other evidence of criminal activity. Everyone should understand that the the Constitution gives each person a right to refuse a police officer's request to search his/her private property or belongings.

In any case, there are legal issues that arise that address who is actually authorized to give consent to search a residence when more than one person lives there. Certainly, the owner/occupant can give consent to search, but what about someone else is also staying there or someone who is just visiting?

In a recent case south of Jacksonville, Florida, the defendant was charged with possession of a firearm by a convicted felon and possession of ammunition by a convicted felon after police found the gun and ammunition during a search of his apartment. In this case, the police responded to a domestic violence call at the defendant's apartment. When the police arrived, they found the 911 caller in the front yard, and she showed some signs of a recent physical altercation. She told the police she lived in the apartment with the defendant for the past two months, but she was not listed as an occupant on the lease. With the woman's consent, the police officers went inside the apartment to help her retrieve some of her belongings. Once inside, the police officers found an assault rifle and ammunition. The police officers also found a pile of women's clothes which corroborated her story that she was staying at the apartment.

The defendant was ultimately arrested for possession of the firearm and ammunition after previously being convicted of a felony. His criminal defense lawyer filed a motion to suppress the evidence of the firearm and ammunition claiming the police did not have a right to enter and search his apartment. The court denied the motion and upheld the validity of the search because the evidence was sufficient for the police officers to believe the woman had authority to give consent to search the apartment.

Police officers are generally not allowed to enter a person's home without either a valid search warrant or consent from someone authorized to give consent to search the premises. In addition to the owner/occupant, someone else who has some common authority over the premises may also give consent to search it. This is generally established by showing the person has common use and access to the premises. Some of the relevant factors include; a key to the premises, a license, bill or some other document showing the person lives at that address, keeping clothes at the premises, a person's child at the premises or being on the lease. If the person giving consent to search the premises has what appears to be common authority and access to the premises, it is likely that a police officer's search of the place may hold up in court after consent to search from that person is obtained.

People familiar with the drug methamphetamine and its production know that it can be made using many products that can be found at your typical household. One of the key ingredients of methamphetamine is pseudoephedrine, which is found in many cold pills such as Sudafed. Once police realized that these cold medicine products were flying off of the shelves at pharmacies and grocery stores and making their way to methamphetamine labs, police agencies and legislatures started making and enforcing laws to try to make it more difficult for people to buy pseudoephedrine in large volumes. As a result, cold medicines containing pseudophedrine are no longer out on the shelves for anyone to purchase. They are kept in a locked container and/or behind the counter requiring the assistance of a store employee to retrieve them. Also, there are limits on the number of pseudoephedrine products a person can buy at any given time, and everyone buying pseudoephedrine products must show identification and sign a register. In some states, that information is entered into a statewide computer database for tracking. That way, when police are investigating methamphetamine manufacturing cases, they have a quick and easy source to determine who may be supplying one of the most important ingredients in the production of methamphetamine.

A recent article by the Associated Press looked into whether these laws have been effective in curbing the manufacture of methamphetamine. The article concluded that not only have the laws not reduced methamphetamine production, but production has increased recently. Additionally, as anyone with a historical perspective would expect, a black market has developed where people are acquiring large quantities of pseudoephedrine products and selling them to methamphetamine manufacturers at a premium. Because the laws have artificially affected the supply and demand, pill brokers are using various people to go store to store to buy pseudoephedrine pills for $7 to $8 per box and then selling them for $40 to $50 per box.

Despite the laws and with the assistance of the pseudoehopedrine black market, methamphetamine related activity (including arrests, seizures and discoveries of meth labs) was up 34% in 2009. Methamphetamine related activity increased more in the states that require electronic tracking of pseudoephedrine purchases. People in the black market and those involved in meth production are enlisting the help of friends, family members and customers to acquire pseudoephedrine pills- a practice known as "smurfing". In that way, the laws have resulted in more people being involved in the production of methamphetamine while in the past methamphetamine production required fewer people.

There is a valid argument to be made that not only have the methamphetamine tracking laws not reduced methamphetamine production, they have helped to increase the number of people involved in methamphetamine production.

The Florida Supreme Court recently decided a marijuana case that discussed the search and seizure issues involved with the police walking a drug dog around the outside of a person's home to smell for marijuana or other drugs. The police and the state argued that walking a drug dog around the front of a person's home without going inside is not considered a search pursuant to search and seizure constitutional law because there was no intrusion into the person's home. They also argued that if it was considered a search, the police needed something less than probable cause to believe drugs were inside the home to validate the search. The defendant, who was charged with growing marijuana plants in his home, argued that it should be considered a search when police officers and a drug dog come onto his private property with the intention of smelling for illegal drugs.

In this case, police officers received an anonymous tip that the defendant was growing marijuana in his home. The police did not do anything to verify the accuracy of this tip with corroborating facts or observations. Instead, the police walked onto the property with a drug dog and conducted a sniff test right outside of the front door. The drug dog alerted to drugs inside, and the police officer indicated he smelled marijuana as well. Based on this information, the police obtained a search warrant for the home. Inside, they found marijuana plants and marijuana growing equipment. The defendant was arrested for cultivating marijuana.

The criminal defense lawyer for the defendant moved to suppress the evidence of the marijuana plants and growing equipment arguing that the defendant's constitutional right to be free from unreasonable searches and seizures was violated when the police and the drug dog walked onto his property to smell the area near his front door without probable cause.

The state cited other cases where a drug dog sniff test is not considered a search. For instance, when a person is stopped in his/her vehicle for a legitimate traffic violation, the police can use a drug dog to smell the outside of the vehicle if the drug dog is already at the scene or is brought to the scene fairly quickly. Additionally, the police are allowed to use drug dogs to smell the outside of a person's luggage at the airport without probable cause or a search warrant.

However, the Florida Supreme Court agreed with the criminal defense attorney and found the situation involving a person's home to be different from the car or luggage examples. A person's home is given the greatest protection under the Fourth Amendment. When the police go to a person's home in large numbers and start walking a drug dog around the exterior, this has the tendency to bring public humiliation upon the resident. These were two of the factors leading the Court to decide that this kind of police encounter at a person's home is a search and requires probable cause. As a result, if the police want to go onto a person's private property with a drug dog to sniff the home, they will likely need probable cause to do it. An anonymous or otherwise uncorroborated tip that illegal drugs or other criminal activity is inside will not be sufficient.

New Florida Governor Rick Scott and Attorney General Pam Bondi have indicated they plan to target doctors and pharmaceutical manufacturers who, according to them, distribute pain pills such as Oxycodone and Oxycontin to drug abusers and drug dealers. The recently announced the formation of a new strike force for that purpose and applied $800,000 in unused federal grant money to fund the new strike force. The believe Florida is the a haven for pill mills or pain clinics which disburse these pain pills that are ultimately abused by drug users or re-sold on the street. They state that more Oxycodone has been distributed in Florida than all other states combined, and many of those pills are distributed to people who move them to other states.

According to newly elected Attorney General Bondi, the pill mill issue "is the mission of [her] life right now."

We have seen the effects of this emphasis on pill mills or pain clinics. Many pain clinics have been shut down in Florida and many people from the employees to the doctors to the owners have been arrested on state and federal charges. Pain clinics are under tremendous scrutiny right now, and many people who assume they have done nothing wrong are being investigated and arrested. If you have any questions about owning, operating or working with a pain clinic in some capacity, feel free to contact us for a free consultation.

In Florida, burglary is a very serious crime that can result in a significant prison sentence. Ordinarily, burglarizing a person's home or dwelling is considered more serious than burglarizing a vehicle or a business. Most people understand burglary to include a situation where a person breaks into another's home with the intent to steal something or commit another crime inside. Is it also a burglary of a dwelling to steal something from another's yard?

In Florida, burglary of a dwelling is not limited to the victim's actual residential structure. It also includes the curtilage of the residence. What does curtilage mean? That term is not specifically defined in the Florida criminal statutes. However, prior criminal cases in Florida have indicated that the curtilage includes some form of enclosed area near the residence. Most likely, an enclosed shed or outhouse of some sort in the yard near the house would be included in the curtilage. However, the same structure on the property but far away from the house may not be within the curtilage of the home. The backyard of a residence would likely be within the curtilage of the home if it was enclosed by a fence. However, if a person walked onto another's property and stole some items laying in the yard which was not fully enclosed by a fence, that would not be burglary of a dwelling.

Whether a crime involving property outside of one's home is a burglary to a dwelling depends on the circumstances of the property and the theft. However, generally, if the suspect breaches any sort of enclosure on or near the residence with the intent to commit a theft or other crime, it is likely to be a burglary of a dwelling.

In Florida, the laws regarding weapons, violence and threats of violence at school have become much more strict over the last several years. Every now and then, there will be a news story of a child getting arrested or suspended for seemingly harmless conduct. In a recent criminal case south of Jacksonville, Florida, a child was arrested after the school principal found a pocket knife with a 3 3/4 inch blade in his pocket. Under Florida law, it is illegal for a student to possess a firearm or any other kind of weapon at school, on the school bus or at any school-sponsored event. A violation of this statute is a felony. The ramifications of a student getting a felony conviction, or adjudication, at a young age for such a violation are obvious.

The question, of course, is: what is considered a weapon? The criminal statute clearly indicates that box cutters and razor blades are not allowed unless otherwise permitted by the school. However, what about pocket knives, which are fairly common possessions of young kids? Florida law does define the term "weapon" by giving some examples of weapons and also says that any knife is a weapon except common pocket knives, blunt table knives and plastic knives. For some reason, in the case cited above, the principal, the police, the state attorney's office and even the judge all thought the child's possession of a 3 3/4 inch pocket knife was serious enough to convict the kid of a felony charge (a conviction is actually referred to as an adjudication when juveniles are involved). Fortunately, the appellate court read the statute and reversed the child's conviction by finding that the 3 3/4 inch pocket knife was a common pocket knife which is not considered a "weapon" under the Florida criminal statute, and the case was dismissed.

Of course, a school has a right to ban such items from school grounds, however possessing a common pocket knife cannot be the basis of a felony crime in Florida.

Kidnapping is a very serious crime in Florida. Kidnapping can be committed in several different ways, but the most common method of kidnapping may be defined as forcibly imprisoning a person against his/her will with the intent to harm the person or commit a felony. In Florida, kidnapping is a first degree felony punishable by up to 30 years in prison, or even life in prison if the victim is under 13 years of age and is abused or injured during the crime. From movies and television, many people may think that kidnapping requires some prolonged confinement of a person against his/her will. However, kidnapping only requires fairly minimal confinement or imprisonment to complete the crime.

In a recent criminal case near Jacksonville, FL, the defendant became angry with the victim, hit her with a chair, dragged her by her hair into the next room, beat her until she was unconscious and dragged her outside and continued to beat her. The entire incident lasted approximately seven minutes. The defendant was charged with and convicted of kidnapping and attempted second degree murder. The criminal defense lawyer for the defendant tried to have his conviction for kidnapping reversed based on the fact that the movement of the victim was not independently significant to the attempted murder charge and was only slight and incidental to that charge. However, the appellate court disagreed and found that these facts were sufficient to establish a kidnapping conviction.

Kidnapping is a very serious charge with significant penalties in Florida. In order to be convicted of kidnapping, the state does not have to prove the defendant confined the victim for a long period of time. If the confinement or movement of the victim is truly slight and incidental to another crime, the evidence may not be sufficient to support a kidnapping conviction. However, even a few minutes of holding a person down or moving the victim to another area against his/her will can be enough for a kidnapping conviction and a long prison sentence.

With oil speculators wreaking havoc with the oil markets and gas prices continuously increasing once again, we thought it might be helpful to post this article addressing rules for riding your bicycle in Florida. Yahoo! Sports cited Shorstein & Lasnetski, LLC in the article so we will return the favor and post their article on our blog.

Normally, a person in Florida has a privacy right attached to the vehicle he/she is driving and as a result, a police officer is not allowed to search that vehicle for illegal drugs or other evidence without permission, a search warrant or probable cause to believe there is evidence of a crime in the vehicle. The driver does not have to be the owner of the vehicle to maintain this privacy protection. If the driver has borrowed the vehicle or is just renting the vehicle, that driver still has a privacy right to that vehicle and its contents that protects him/her from unreasonable searches and seizures by police. However, a person does not maintain the same privacy protection in a stolen vehicle.

In a recent criminal case just south of Jacksonville, Florida, the police stopped a vehicle due to a traffic violation and then arrested the driver because he did not have a valid driver's license. After arresting the driver and placing him handcuffed in the patrol car, the police officer searched the vehicle and found illegal pills and drugs inside. The driver was then charged with possession of a controlled substance. The police later learned the vehicle had been reported stolen.

Normally, this would not be a legal search. A police officer is not allowed to search someone's vehicle under those circumstances unless the police officer has permission, a search warrant or a reasonable belief based on specific facts that there is evidence of drugs or other criminal activity in the vehicle. The police officer in this case apparently did not have any legal basis to search the vehicle and seize the drugs. However, the driver was not allowed to challenge the search because he did not have a privacy right in the stolen vehicle. In legal terminology, the defendant did not have standing to challenge the search. Standing is a threshold matter that needs to be established before a person can challenge an illegal search and seizure. If standing does not exist, the defendant will not be able to prevail on a motion to suppress evidence even if the search and the seizure were illegal.

The governor of Kentucky recently signed a new law that was designed to save money, decrease the number of prison inmates and reduce crime by reducing prison time for non-violent offenders who possess illegal drugs. The money saved from the lower prison inmate population is diverted to drug rehabilitation programs for those who need them. According to the governor, the new law is expected to save $422 million over the next ten years (although it is unclear where that number comes from).

Other states facing severe budget deficits have also discussed ways in which they can save money by reviewing the criminal justice and prison systems. Florida may follow suit after Governor Scott promised to take bold steps to save money in a variety of ways. Florida has the third largest prison population with approximately 100,000 prisoners in the state system. That prison population has grown over the past five years despite a declining crime rate. Florida also has a $2.4 billion dollar budget to deal with its prisoner population.

Florida currently has a significant gap in its budget. Governor Scott has promised to cut $1 billion from the corrections budget over the next seven years. It seems likely that Governor Scott will try to implement similar reforms to those in Kentucky that focus on fewer prisoners due to simple drug possession charges with an emphasis on attempting to treat non-violent drug offenders so they do not continue to re-offend and go back to prison at a significant and unnecessary cost to the state.