Jacksonville Criminal Lawyer Blog

For example, where a person gets arrested in or near his/her vehicle, the police officer may have the legal authority to search the vehicle depending on the circumstances. Many drug cases are made this way. Arrests for driving with a suspended license or driving under the influence (DUI) are obviously common arrests involving people and their vehicles.

If there is a sober person at the scene, such as a friend or relative of the person getting arrested who has permission to take the vehicle, the police officer should let that person drive the vehicle away. If not, and there is no one available to drive the vehicle from the scene, the police can impound the vehicle. In those cases, the police are allowed to conduct what is called an inventory search. The official reason for an inventory search is to document any valuable items in the vehicle so they can be secured and returned to the suspect. However, police use that opportunity to search for drugs, guns and any other evidence in the vehicle

One other basis for searching a vehicle after an arrest is the search incident to an arrest. This kind of search has been limited fairly recently, but it basically allows a police officer to search a vehicle if the person arrested is close to the vehicle to make sure there are no weapons or anything else to which the defendant may have access. However, in most cases, when the police arrest someone, they place that person in handcuffs and safely in their patrol car. If that is where the suspect is, he/she obviously cannot reach anything in his/her vehicle. In that case, there is no basis for the police officer to search the vehicle.

In a recent criminal case near Jacksonville, Florida, the defendant was charged with obtaining prescription drugs by fraud, which is a felony crime. This crime is actually more common these days as more people gain access to various prescription drugs. Many police departments have special units designed to make arrests relating to illegal possession and sale of prescription drugs.

In this case, the police received a tip that the defendant was doctor shopping. Doctor shopping involves a person going to different doctors to obtain the same or similar prescriptions. The suspect will not tell the subsequent doctor that he/she has already seen a previous doctor to obtain the same or similar prescription. The suspect will then obtain multiple prescriptions to be filled at different pharmacies to obtain a larger quantity of prescription drugs.

Pharmacies keep computer files of patients, their prescriptions, the dates prescriptions were filled and the doctors who prescribed them for at least two years. The police in this case obtained the computer printout for the suspect from the pharmacy without a subpoena or court order and saw that she had multiple prescriptions for drugs from different doctors in a short period of time. The prescriptions were for common drugs like Oxycontin and Oxycodone. The police then obtained the prescriptions and showed them to the prescribing doctors who indicated they did not know of the other prescriptions when they wrote their particular prescription.

After being charged with the crime for obtaining prescription drugs by fraud, the criminal defense lawyer filed a motion to suppress the evidence of the different prescriptions because the police did not get a search warrant before obtaining that information from the pharmacies. The criminal defense attorney argued that prescription drug information is private, and a court order, or subpoena, is required before such information can be released.

In Florida, one's medical records are private and are protected from unreasonable searches and seizures. Neither a police officer nor anyone else can look at another person's medical records without express permission or a court order. However, controlled substance records at a pharmacy do not carry the same privacy protections in Florida. In fact, Florida law specifically allows the police to obtain a person's pharmacy records without a subpoena or search warrant and without notifying the patient in advance. Therefore, if the police are involved in an investigation of a person relating to prescription drugs that are controlled substances (such as Vicodin, Percocet, Xanax, Oxycontin and many other common drugs), they may be able to look into your pharmacy records without your knowledge.

In a recent drug case south of Jacksonville, Florida, the police received a call that a black male wearing a t-shirt, jeans and sneakers was selling drugs beside a particular road. Police responded to the area and saw the defendant who met the general description. However, the police did not observe the defendant selling drugs or doing anything else that appeared to be illegal. One police officer drove right up to the defendant and put his spotlight on him while the other police officer asked the defendant some questions including permission to search the defendant for illegal drugs. The defendant emptied his pockets, and the police recovered a bag with cocaine inside. The defendant was arrested for possession of cocaine.

This was a bad search, and the criminal defense lawyer was able to file a motion to suppress the evidence that resulted in the evidence of the cocaine being thrown out. Every person has a Constitutional right to be free from unreasonable searches and seizures. That means the police cannot just approach someone in an intimidating manner giving the impression that the person cannot leave and request a search for drugs or anything else. Likewise, the police cannot detain or search a person based on an anonymous tip of illegal activity if the police do not verify that the person is actually engaged in any illegal activity.

In this case, the police received an anonymous tip that someone was selling drugs. They found the person described in the tip, but the police officers did not see any evidence of illegal activity. When they drove up to the defendant, shined the spotlight on him and started interrogating him, that was considered a detention. Since the police did not have any reasonable suspicion that the defendant was doing anything illegal, it was an illegal detention and any cocaine or other evidence found by the police during the illegal detention was thrown out of court and the possession of cocaine charge was ultimately dropped.

In a recent criminal case near Jacksonville, Florida where the defendant was charged with marijuana manufacturing and cocaine possession charges, the case was ultimately thrown out because it was found that the police searched the defendant's home and found the drugs based on an improper search warrant. In this case, the police received an anonymous tip that the defendant was growing marijuana and had a quantity of cocaine in his home. The tip also provided certain information about the defendant's identity, home and place of employment. The police were able to confirm the details about the defendant's identity, vehicle, home and job. However, the police did not corroborate any details that indicated the defendant was growing marijuana plants, had cocaine in his home or was actually doing anything illegal.

The police obtained a search warrant and found marijuana plants, fluorescent lights, a generator, digital scales, guns, cocaine and other drug paraphernalia in the home. The defendant was arrested for manufacturing marijuana, possession of cocaine and other charges.

The criminal defense lawyer was able to have the evidence of the drugs, guns and drug paraphernalia thrown out because the search warrant was improper. The police are allowed to search a person's home for drugs or other evidence of a crime with a search warrant only if the search warrant is valid. A search warrant that is based on information in an anonymous tip is not valid if there is no indication that the police corroborated any of the incriminating information in the tip. It is not enough for the police to corroborate general, easily obtained information about the tip, such as a description of a person or vehicle, an address or a place of employment. The police have to actually corroborate some fact that indicates the suspect is committing a crime. Without that corroboration, the anonymous tip of illegal activity is not sufficiently reliable, and any search warrant based on that tip will be invalid.

The United States Supreme Court ruled recently that supervisors at work may read an employee's text messages if they think the employee may be violating work rules. The case stemmed from a situation in California where a police chief read thousands of text messages between a sergeant on the police force and his wife. The texts were sent on a pager that was issued to employees by the police department. The police chief said he searched and read the employee's text messages because he suspected employees of using the pagers for personal use rather than purely work purposes.

The Fourth Amendment to the U.S. Constitution protects people against unreasonable searches and seizures. We often see the Fourth Amendment come into play when police officers search people, their vehicles, their homes and other belongings. Of course, this protection applies to people as they work in government jobs, but it does not extend to searches conducted by private employers in the private sector.

In this case, the Court found that the search was reasonable because the search was for a legitimate work-related purpose. This opinion establishes that the Fourth Amendment does protect public employees from unreasonable searches and seizures by employers and supervisors. It also establishes that a search of one's allegedly private text messages or emails may be reasonable and valid if the employer has a policy against using a government-issue pager, cell phone or computer for personal reasons.

As criminal defense lawyers in Jacksonville, Florida, we can see how this ruling may have an effect on criminal cases. If a person works at a government job, that employee may be susceptible to having his/her computer, cell phone or pager searched if the employer suspects the employee of violating office policies regarding the use of those items. We have seen cases where such a search becomes the beginning of a criminal case depending on what is found on that equipment. If incriminating evidence is found and an arrest results, the criminal defense attorney can still file the appropriate motion to suppress to have any such evidence illegally obtained thrown out of court.

In a recent trafficking in cocaine case that occurred south of Jacksonville, Florida, the criminal case was dismissed after the court found that the drugs were illegally seized when the police entered the defendant's home without consent, a search warrant or exigent circumstances. In order for the police to lawfully enter one's residence, they must either have consent to enter, a valid search warrant or emergency circumstances.

In this case, the suspect called the police after a robbery occurred at his apartment. The police arrived approximately 30 minutes after the robbers left the apartment. When the police arrived, the robbery was clearly over and there was no indication that any of the robbers were in the area. However, the police entered the defendant's apartment without permission and found cocaine and other drugs inside. At that point, the person who called the police was arrested for trafficking cocaine and possession of illegal pills.

The criminal defense lawyer for the defendant filed a motion to suppress the drugs found in the apartment and asserted that the police did not have a right to be in his apartment in the first place since the defendant did not give them permission to enter, the police did not have a search warrant and there were no exigent circumstances allowing the entry and search. The state argued that the recent robbery provided the exigent circumstances to justify the entry and search. The state argued that because a robbery had just occurred and the suspects could be inside the apartment, the police had a right to look for them. This might be true and a legitimate basis for a search without a warrant if the robbery was recent and there were some specific facts leading the police to believe the robbers were still in the apartment. However, the police could not point to any specific facts indicating there was anything in the apartment related to the robbery that needed to be searched on an emergency basis. As a result, there was no legitimate basis for the police to enter the apartment, and the search for the drugs was found to be illegal. The drugs were thrown out of court along with the drug charges.

In a recent drug case that occurred south of Jacksonville, Florida, police had information that heroin, marijuana and other illegal drugs were being kept and sold at a particular house. The police conducted surveillance of the house and saw one person exit the house and sell drugs to a customer. The police ultimately arrested that person for sale of heroin in the front yard of the house. Upon arrest, the police observed that the front door was open and people were in the house. The police went inside the house without a search warrant and found more heroin, marijuana and other drugs. The other occupants of the house were then also arrested for trafficking and possession of heroin and illegal drugs.

The criminal defense lawyer for the defendants filed a motion to suppress evidence of the seized drugs based on the fact that the police search of the house was unlawful. The general rule is that police cannot enter and search a person's house without consent or a valid search warrant. There are exceptions. For instance, when the police make an arrest, they are permitted to search the immediate area to make sure there are not any threats to the safety of the officers. This is called a protective sweep. However, the police cannot do this automatically. There must be evidence indicating there is may be some threat to the police officers. In this case, there was no specific evidence indicating that there was anything in the house that was a threat to the police officers who made the arrest outside of the house. There was no evidence that anyone in the house was armed or any threat to any police officer. As a result, the police did not have a right to enter and search the house for drugs without consent or a search warrant. Because the search was unlawful, all of the evidence of the heroin, marijuana and other drugs in the house was thrown out.

As criminal defense lawyers in Jacksonville, Florida, we handle many drug cases and quite often, the search that led to the seizure of the illegal drugs was questionable. One example that occurred in a few of the drug cases we have is the police search for drugs based on an anonymous tip.

It is not uncommon for someone to call the police and, without identifying him/herself, claim that some person is committing some crime. The caller may say that a person is selling drugs somewhere or has drugs in his/her home or may be burglarizing a particular location. When the caller does not identify him/herself, the tip is considered anonymous. That puts the information in a different category in terms of reliability as opposed to information that comes from a known source. When police get an anonymous tip that a particular person is committing a particular crime, the police cannot just get a search warrant or just go and search the house, vehicle, person, etc. For instance, let's say the police get a tip that Joe Smith who drives a while Chevrolet Malibu with blue stripes is growing marijuana at his pink and purple house at 123 Main Street. Police show up and see a pink and purple house with the exact car in the driveway. The identification information is confirmed, but unless the police observe something that corroborates the illegal activity, i.e. the marijuana growing, the police cannot search that house. When an anonymous tip is the basis for the investigation, the police need to see some evidence that corroborates the illegal activity, not just the identification information that anyone can see just by walking past the house.

Likewise, if the police received a tip that a white male wearing a orange shirt, green pants and a yellow hat is selling crack cocaine on the corner of Main and 1st streets, can the police stop and search him if they show up to Main and 1st and see that exact guy standing on the corner? No, not without some evidence corroborating the tip that he is actually selling drugs. The corroboration of the individual and his appearance is not sufficient to detain or search someone. If the police showed up, saw the guy and saw a couple of quick, hand to hand transactions, that would probably be enough for a brief detention to see if he was selling cocaine. However, when police get an anonymous tip of drug or other illegal activity, they need to verify the part of the tip relating to illegal activity before they can stop and search. If they just show up, confirm the identity of the suspect, house or vehicle and then search, any drugs or evidence obtained from the search may be thrown out of court.

As criminal defense lawyers in Jacksonville, Florida, we handle a lot of drug cases of all kinds. In many of them, the police ask someone to search their home, vehicle or person and find the illegal drugs. After the person is arrested and comes to discuss their case with us, we always inform him/her about the Constitutional right to refuse any police request to search anything belonging to them.

If a police officer asks you if he/she can search you, your vehicle, your bag, your home or anything else you own or possess, it is important to politely but clearly say no if you do not want him/her to conduct the search. Courts in Florida have allowed searches where the suspect did not affirmatively agree to the search but made some gesture indicating the search may be authorized. For example, in one case, police came to an apartment to search it for drugs, and the suspect answered the door. When the police officer asked to search the apartment for illegal drugs, the suspect did not consent, but he did move out of the way so the police could enter. The Florida court did find this search to be valid. In another case, police asked a suspect if they could search his person. The suspect did not agree but held up his hands and spread his feet. This search was also determined to be valid.

It is very important to understand that police in Florida do not necessarily have a right to search anyone or anything that you own or possess without a search warrant. If a police officer asks you for consent to search, you have a right to politely refuse. If you do not make your refusal clear, it could be interpreted as consent and the resulting search may be upheld in court.

In a recent trafficking in cocaine case that took place a couple of hours south of Jacksonville, Florida, a police officer found cocaine in a person's vehicle and arrested him after a long police encounter that was initiated as merely a traffic stop. Because the police officer too too long to conduct the search, the court ultimately threw the case out due to an illegal search.

Many drug arrests start out simply as traffic stops but turn into something more serious after the police officer searches the car. Once the police officer has stopped the driver for speeding, running a red light or some other traffic violation, the police officer may try to look for a way to conduct a search of the vehicle. Most of the time, the police officer will simply ask the driver for consent to search the vehicle. Everyone should understand that they have an absolute right to refuse when a police officer asks for permission to search a vehicle or anything else owned by that person.

If the police officer cannot get consent to search, he/she may look for evidence that drugs or other evidence of illegal activity are in the vehicle and use that as a basis for a search. However, if the basis for the traffic stop was a traffic violation, the police officer has limited time to come up with such evidence. The police officer cannot ask a bunch of questions or make up reasons to keep the driver at the scene while he/she waits for a drug dog to show up. If the police officer cannot uncover specific evidence of illegal activity within the time it would take to write a normal citation or warning for the traffic violation, he/she cannot extend the encounter in the hopes that incriminating evidence will surface or the drug dog will get there to sniff the vehicle. Once the time necessary for the traffic violation investigation has elapsed, the police officer has to let the driver go if no other incriminating evidence is revealed. If the police officer keeps the driver at the scene any longer, any evidence that is ultimately uncovered should be thrown out of court pursuant to the criminal defense lawyer's motion to suppress.

In this case, the police officer pulled the defendant over for speeding. After a few minutes, the officer indicated he was going to give the driver a warning for the speeding offense. Thereafter, the police officer asked the driver and his passenger a bunch of questions about who they were, where they came from and where they were going. He asked the driver questions about the rental car and his occupation while he was waiting for the drug dog to show up. After almost 30 minutes, the police drug dog arrived, sniffed the exterior of the car and alerted to cocaine inside. The driver was arrested for trafficking in cocaine after the cocaine was found by the officer in the vehicle. However, the evidence of the cocaine was ultimately thrown out because the police officer had detained the driver for much longer than it took to handle the speeding offense. Because the drug dog did not arrive to locate the cocaine for almost 30 minutes and the stop was only based on a speeding violation, the detention of the driver was too long and violated his Constitutional rights. As a result the trafficking charge was ultimately dismissed.

Police in St. Johns County, Florida arrested two people after conducting a search warrant in a home that resulted in the seizure of cocaine, marijuana plants and prescription pills, according to an article on News4Jax.com. According to St. Johns County police, they received anonymous complaints about the house and obtained a search warrant for drugs as a result. They apparently seized about $50,000 worth of illegal drugs in the house.

In a drug trafficking case like this, one of the first things a criminal defense lawyer would look at is whether the police had the right to enter and search the house. The police apparently had a search warrant, but that is not an automatically legitimate basis for searching a house. The search warrant has to be based on specific and reliable evidence that there is illegal activity taking place in the house. The article only references anonymous complaints about the house. The police may have had more specific information when they obtained the search warrant, but anonymous tips, without more, usually would not be sufficient information to obtain a valid search warrant. Anonymous complaints may be enough for police to initiate an investigation of the house, but without more specific evidence and corroboration of the anonymous complaints, the validity of the search warrant may be called into question. If the search warrant is found to be invalid in court after the criminal defense attorney files a motion to suppress, all of the drugs and other evidence found pursuant to the illegal search warrant would be thrown out of court.

Cell phones have become so common that just about everyone has one and many people have multiple cell phones. They are also effective tools to help police investigate crimes and make arrests. Police officers can obtain information from cell phone service providers that tell the police where a person was at any given time when he/she was using a cell phone. This can be particularly important when a person is charged with a crime and the police need evidence that the person was at or near the crime scene around the time the crime occurred.

In a recent criminal case in Florida south of Jacksonville, a defendant was charged with committing a robbery and a battery at a house in a particular neighborhood. The police obtained the defendant's historical cell site records to show that he was in the area of the robbery and battery around the time the crimes occurred. The criminal defense lawyer tried to suppress those records claiming that the police obtained those cell site records in violation of the defendant's Fourth Amendment rights. However, the court disagreed with the criminal defense attorney. Because the cell site records show only where a person has been (and not where he/she is presently), the Fourth Amendment protections do not apply.

In other words, in Florida the police can fairly easily obtain a person's historical cell site records to establish where a person with his/her cell phone was around the time of the crime by claiming that such evidence is relevant to an ongoing criminal case.

In a recent criminal case that occurred south of Jacksonville, Florida, the police stopped a vehicle for a traffic violation. The vehicle was occupied by a driver and a passenger. The police became suspicious of the two occupants and asked each of them if they could search the vehicle. Both occupants consented to the search. For some reason, although neither occupant had committed a crime, the police officer handcuffed the passenger and placed her in his patrol car for approximately 30 minutes while the police searched the vehicle. The police did not find any drugs in the vehicle and let the two occupants go with only a traffic ticket.

However, when the police officers returned to their car, they found a bag of cocaine where the passenger had been sitting in the patrol car during the search. The police officers then chased after the vehicle and arrested the passenger for possession of cocaine.

The criminal defense lawyer for the passenger filed a motion to suppress the evidence of the cocaine because the passenger was illegally detained while she was sitting in the police car. The court agreed and threw out the evidence of the cocaine. The possession of cocaine charge was then dropped.

When the police officers stopped the vehicle and found that the occupants were acting suspiciously, that was not a sufficient basis to search the vehicle nor the driver and passenger. However, the police officers can ask the vehicle owner if they can search the vehicle. If the owner consents, then a reasonable search of the vehicle is valid. Of course, the owner can decline to give consent, and a search would not have been justified. Likewise, the police officers had no legal bases to search the individuals, but they could always ask for consent which each individual can give or refuse. If the owner consents to a search of the vehicle or his/her person, that does not give the police officer the right to handcuff the person and keep him/her in the patrol car for any length of time. If that does happen, that is an illegal detention and any illegal drugs or other evidence that is obtained as a result of that detention should be thrown out, as in this case.

The police officers can always search their own vehicles after a suspect has been placed in the vehicle. However, if a person has been illegally detained in the police officer's vehicle, or anywhere else, and drugs or other incriminating evidence is found as a result of that illegal detention, a criminal charge based on the discovery of the illegal drugs or other evidence will not stand.

One questioin clients ask us regarding criminal cases in Florida is whether the police can stop a person if all that person does is run from the police. The Florida Supreme Court recently decided a case that helps answer that question. As background information, keep in mind that the Florida and United States Constitutions provide that the police are not allowed to stop a person without specific facts suggesting the person is, or has recently been, involved in criminal activity. With that in mind, the general rule has been that running from the police, by itself, is not a basis for stopping a person or arresting them for the crime of resisting without violence. The idea is that if the police do not have specific evidence that a person is, or has recently been, involved in criminal activity, the police officer does not have a right to stop the person so the person can run all he/she wants from the police.

However, in a recent Florida criminal case, the police were responding to a illegal drug and criminal trespass complaint in a high crime area. The police arrived and saw the defendant who ran as soon as he saw the police. The police officers told the defendant to stop, but he kept running. The defendant was ultimately caught and arrested for resisting without violence.

The defendant's criminal defense lawyer filed a motion to dismiss the criminal charges arguing that it was not illegal for the defendant to run from the police and the police did not have a right to stop the defendant because the police did not have any evidence that this particular defendant was involved in criminal activity before he ran. The Florida court disagreed and determined that the arrest for resisting without violence was lawful. The rationale was that once the defendant ran at the sight of the police in a high crime area, that provided the reasonable suspicion of criminal activity needed to justify the command to stop. When the defendant failed to stop when commanded to by the police, he was committing the crime of resisting without violence.

So, what could or should the defendant have done? Assuming he was not doing anything wrong and did not have any illegal drugs or weapons on him, he should have just stayed where he was. Standing around in a high crime area certainly does not give the police the right to stop or search a person. Even if the defendant did have drugs or weapons on him at the time, if he remained still when the police arrived, they would not have had a legal reason to search him without more specific evidence that he was involved in criminal activity. The police can always ask a person if they can search him, but a person always has a right to refuse such a search request.

We wrote earlier on this blog about an important change in the law regarding a police officer's right to search the vehicle of a person recently arrested in his vehicle. Prior to that change, when police arrested a person in or at his/her vehicle, the police had a right to search the passenger compartment (not the trunk) of the vehicle. This was considered a search incident to an arrest and provided the police with an automatic excuse to search a vehicle of a suspect and gather evidence against that person for the crime for which he/she was arrested or a new crime. Many possession of marijuana, cocaine, and other drugs or weapons cases have been made this way.

However, as we noted, the law changed and limited the police officer's right to search a person's vehicle after his/her arrest. The new law stated that the police could only search a person's vehicle after his/her arrest if the person was within arm's reach of the vehicle or the police officer was aware of specific facts indicating that evidence of criminal activity could be found in the vehicle. The justification for the former basis was that if the suspect had access to the vehicle, the police officer had a right to search it to make sure there were no weapons present that could pose a safety risk to the officer. In practice, this should not be a common scenario as most police officers will secure a suspect with handcuffs and place him/her in the police car upon arrest to make sure the suspect is secure. Once the suspect is in handcuffs and in the police car, the suspect has no access to anything in his/her own vehicle so the police do not have a right to search it for weapons and officer safety. The justification for the latter basis is obvious. If the police officer can articulate specific facts indicating evidence of criminal activity is in the car of a person recently arrested, the officer has a right to search the vehicle for that evidence before the vehicle is driven away.

However, a Florida court (not in the Jacksonville, Florida district) has expanded the police officer's right to search a suspect's vehicle incident to arrest in a way that we believe is excessive. In a recent case out of Lake County, Florida, which is about two and a half hours south of Jacksonville, Florida, a police officer stopped a suspect in his vehicle after determining that he had several warrants for his arrest. Two of the warrants were for theft charges. The police officer handcuffed the suspect and placed him in the patrol car. The police officer then looked inside the suspect's vehicle and saw a woman's wallet. The police officer checked the wallet and noted that it belonged to an elderly lady. The police officer then searched the vehicle and found three more purses that belonged to elderly women.

Based on the fact that the suspect was already secured when the police officer seized the first wallet, the criminal defense lawyer for the defendant moved to suppress evidence of the wallets. The criminal defense attorney argued that the police officer had no basis for searching the vehicle because the defendant was already secured in the police car and there were no specific facts indicating that there was any evidence of a crime in the vehicle.

The Florida court disagreed. This is understandable because there is an argument that where a police officer sees a woman's wallet on the driver's seat of a vehicle of a male with two outstanding warrants for theft, the officer has reasonable suspicion that the wallet is stolen giving him the right to check the wallet. Had the court justified the search on this basis, there would be no cause for concern. The problem, as we see it, is that the court went far beyond that line of reasoning. The court held that any time a person is arrested in his/her vehicle for a crime that might yield physical evidence, presumably such as theft, drug-related crimes and many others not identified by this court, the police officer can search the vehicle, and any containers in the vehicle, for evidence regardless of whether the person has access to the vehicle.

We see several problems with this rationale. One, how does one define a crime that "might yield physical evidence"? This phrase could be interpreted to include many crimes where the likelihood of finding physical evidence in that vehicle is minimal. Second, and by no means last, in many cases people are pulled over and arrested on warrants that are years old. If a person is arrested on a 3 year old theft warrant, is the remote chance that there will be physical evidence in that vehicle at the point of arrest a sufficient basis to outweigh a person's Constitutional right to be free from unreasonable searches and seizures? We think not.

In any case, this is a recent Florida decision from a district south of Jacksonville. We suspect this scenario will come up again and there will be a fight over whether such a search is truly Constitutional.

In Florida, the police are not authorized under the Constitution to stop a person based merely on a tip that the person has a concealed weapon. Consider a criminal case that was decided recently where a person sees the defendant in a restaurant flashing his gun by lifting his shirt and showing the gun in his waistband. That person finds a police officer and tells him that the suspect is flashing a gun in public. The suspect was not, however, pulling the gun out, waiving it or threatening anyone. The police officer then proceeds to stop the suspect, seize his gun and arrest him for carrying a concealed weapon without a permit.

Is this a valid arrest in Florida? No. The key to understanding why this was an improper stop and an improper arrest is the law that a person is allowed to carry a concealed gun or other weapon with a permit. Because of that law, the mere fact that a person has a gun in public does not mean he/she is committing a crime. Therefore, when an informant or police officer sees someone with a handgun in public, that is not evidence of a crime, assuming that person is not waiving the gun around or threatening anyone with it. Because there was no evidence of a crime, the police officer was not justified in stopping and arresting the suspect. If the police officer somehow knew before the stop that the suspect did not have a permit for the concealed gun or saw the suspect threatening someone with a gun, that would be evidence of a crime and a valid basis for a stop. However, mere possession of a concealed weapon is not evidence of a crime. It is not up to the suspect to prove he/she has a permit for the concealed weapon once he/she's been stopped, it is up to the police to establish specific facts indicating a crime is taking place before he/she stops the suspect.

Most people understand that the Florida Constitution and the U.S. Constitution protect us from unreasonable searches and seizures. That means the police and other law enforcement agencies in Florida cannot search our homes, vehicles, etc. and seize our property without consent, a search warrant or emergent circumstances. However, the law is different regarding controlled substance records at pharmacies.

Florida law says that pharmacies are required to maintain drug records for at least two years. Pharmacies are also required by Florida law to make those controlled substance records available to law enforcement officers without the need for a search warrant, subpoena or other court order. Additionally, the police can obtain controlled substance records from pharmacies without notice to the patient from either law enforcement or the pharmacy. In other words, police in Florida are permitted to go to your pharmacy and obtain your controlled substance prescription records without a warrant and without you knowing about it.

This primarily comes up in two types of cases. Obtaining prescription drugs, such as Vicodin, Percocet and Oxycontin, by fraud is becoming more prevalent these days as we have pointed out on this blog in the past. Doctor shopping, where a patient may go to several doctors to get the same or similar prescriptions, is also fairly common. When the police investigate such crimes, they may go to the pharmacy for a suspect's records. Florida law allows them to obtain such information more easily than other evidence in other types of crimes.

A Florida trafficking in cocaine case was recently thrown out due to the illegal search by the police officer. In this case, the police officer responded to a domestic battery call where the suspect was possibly armed with a handgun. The police officer saw the suspect near the apartment and called to him. The suspect ran and was caught near a vehicle that supposedly belonged to him. The police officer arrested the suspect and searched him but found nothing. After the suspect was placed in the patrol car, the police officer searched his vehicle and found a trafficking amount of cocaine.

The criminal defense lawyer for the suspect filed a motion to suppress alleging that the search of the defendant's vehicle where the cocaine was found was illegal. The judge agreed and threw out the evidence of the cocaine.

The law has changed on this issue recently. In the past, the police officer could always search a person's vehicle if he/she is arrested near that vehicle, for instance during a traffic stop. However, now, if a person is arrested near his/her vehicle but at the time of the arrest has been secured and is not within arm's reach of that vehicle, the police officer does not have an automatic right to search the vehicle. In other words, if the suspect has no way of getting into his/her vehicle, there is no officer safety issue and the police officer cannot just search it automatically. If the officer has reason to believe that there is evidence of the crime for which the suspect has been arrested in that vehicle, then the officer may have a right to search it. But, the police officer's search is no longer automatic when a person gets arrested at or near his/her vehicle. If the police search the vehicle of someone who has been arrested and secured without specific facts suggesting there is evidence in that vehicle, any evidence of a crime found in the vehicle should be thrown out.

A criminal defense client asked us whether the police can conduct an investigatory stop, whether on foot or in a vehicle, based on an anonymous tip. For instance, let's assume that an unidentified person calls the police and says that person X is out on the street with illegal drugs in his possession or person Y is driving recklessly and may be drunk driving. Can the police in Florida approach either of these "suspects" and stop them to investigate them solely based on the anonymous tip? The answer is no.

Each of us has a Fourth Amendment right to be free from unreasonable searches and seizures by the police. That means the police cannot just stop someone without reasonable suspicion, i.e. specific facts, that a crime is taking place or is about the take place. When the police get a tip from some anonymous person, that by itself is not reliable enough to justify a police stop. The police would have the right to investigate further, but can only stop the "suspect" if the police officer observes certain facts that confirmed the tip him/herself .

For instance, in the case of the person who possessed illegal drugs, if the police officer observed the person making what appeared to be hand to hand drug transactions, that may be a basis to stop the person and investigate further. In the case of the alleged drunk driver, if the police located the vehicle and saw that the driver was swerving or speeding or otherwise driving recklessly, that would be sufficient for a stop and subsequent DUI investigation. However, if the police officer located the vehicle and the driver was driving appropriately, a stop based solely on the anonymous tip would be illegal.

In a recent possession of marijuana case in Florida, the criminal charges against a juvenile were dropped because the juvenile was searched illegally by the police officer. The police officer found the juvenile near a high school during school hours. He approached the juvenile and determined that he was supposed to be in school at the time. A police officer does have a right to detain a juvenile if he has reason to believe that the juvenile is skipping school. The purpose of the detention is to return the juvenile to the school.

In this case, the police officer detained the juvenile, searched her pockets and found marijuana. Normally, a police officer is allowed to search someone who has been arrested to make sure the suspect does not have a weapon and presents no risk to the police officer's safety. However, truancy, i.e. skipping school, is not a crime so this juvenile was not arrested. As a result, the police officer could not use the search incident to arrest basis to search the juvenile. If the officer has a right to detain someone, as he did here, he/she can pat that person down for weapons to ensure officer safety, but the officer chose not to do that and went straight into a search instead.

Alternatively, if the police officer had some reason to believe that the juvenile was in possession of marijuana or other illegal drug, he may have been permitted to search the juvenile. If the officer had patted the juvenile down first and felt something that seemed to be drugs or a weapon, then a search would likely have been authorized. At the hearing on the motion to suppress the marijuana, the police officer testified that he searched the juvenile for officer safety because he was about to place him in his patrol car to take him back to school. But since no arrest was made, this was not a valid basis to search the juvenile under the Fourth Amendment.

In order for a police officer to conduct a valid search of a person, the police officer must establish a legal basis. Since neither of the two possible bases for a valid search applied (search incident to an arrest or specific evidence of illegal drugs), the search was illegal, and the marijuana was thrown out.