Jacksonville Criminal Lawyer Blog

Most people in Florida understand that they have a strong privacy right in their homes. As a result, police are generally not allowed to come in and search a person's home without a search warrant or consent. However, does this strong protection against unreasonable searches and seizures extend to the workplace in Florida?

In a recent case near Jacksonville, Florida the defendant was charged with kidnapping, armed sexual battery, robbery and other charges. After the incident, the victim identified the defendant in a photo lineup. As part of their investigation, the police went to the defendant's place of work, which was a hotel where he was a manager and shared an office and a desk with another employee. Without the defendant's knowledge, the police asked the defendant's employer if they could search his office desk. The defendant's manager gave the police consent to search his desk, and they found the victim's cell phone in one of the drawers.

The defendant's criminal defense attorney filed a motion to suppress the evidence of the victim's cell phone claiming that the police did not have a right to search the defendant's desk without a search warrant or consent from the defendant. He also claimed that the general manager did not have the right to give the police consent to search his desk.

The question was whether the defendant had a legitimate expectation of privacy in his desk. If so, the police could not search it without a search warrant or consent from the defendant. The court found that the search was valid. The court decided that because the defendant shared an office and the desk with another employee, he did not have a reasonable expectation of privacy in the office or the desk. Also, other employees of the hotel had full access to the office and the desk. As a result, the general manager's consent to search the office and desk was sufficient for a legal search.

This does not mean that the police can go to any workplace and search offices and desks without a search warrant if they have the employer's permission. If a person has an office that is locked and/or a desk that is locked and not freely accessible by others, than the police would likely need a search warrant or consent from the defendant to search that office and desk.

In Florida, police often bring a drug dog to a traffic stop if they think there are drugs in the vehicle. The police are allowed to bring a drug dog to the scene of a traffic stop if they have reasonable suspicion to believe there are drugs in the vehicle and there is a brief wait for the drug dog to arrive or if the police officer is writing the driver a ticket for a traffic violation and the drug dog is brought to the scene within the normal time it takes to write the ticket. The justification is that it is not a significant violation of one's privacy rights to allow a dog to smell around the outside of a vehicle. As a result, the courts in Florida are more lenient with drug dog sniffs and allow police to do them in more situations than if the police are opening doors or looking in and searching personal property.

In a recent case involving marijuana trafficking and electricity theft, the Florida police tried to extend this authority to the front door of a residence. In this case, the police went onto the property of the defendant and had the drug dog sniff the front door area without a search warrant or probable cause to believe marijuana or other drugs were inside. The drug dog alerted to the odor of marijuana, and a trafficking amount of marijuana was found in the vehicle.

The Florida Supreme Court found the search illegal. While the police did not enter the home, as in the drug dog cases involving vehicles, a person's home gets greater protection than a person's vehicle on the public roads. As a result, police are not allowed to go onto a person's property with a drug dog and sniff the outside of the home without a search warrant. This was considered to be an unwarranted invasion of a person's strong Fourth Amendment right to be free from unreasonable searches and seizures in his/her home or on his/her residential property.

However, the issue may not be finally resolved. The prosecutor's office in Florida has asked the United States Supreme Court to review this issue, and if they do, their word will be the final word on whether police can go take a drug dog on a person's property and sniff the outside of the home without a search warrant.

In order for police in Florida to search a person's home, they either need a search warrant, exigent circumstances or consent to search. Focusing on the latter issue, consent to search is normally given by the person who owns the home or is listed on the lease as the tenant. However, the police can also request consent to search a home from someone who does not own the residence and is not on the lease if it appears that the person has unrestricted access to the premises. This can include a roommate or someone temporarily staying at the residence. And, according to a recent case near Jacksonville, Florida in which a person was convicted of possession of a firearm by a convicted felon, a wife separated from her husband can also give police consent to search her husband's home.

In this case, the defendant had been living with his wife, but due to some alleged abuse, she had moved out of the residence. A few days later, she called the police to report the domestic violence. After she reported the domestic violence, she also told police that the defendant was a convicted felon and had a firearm in his home. She then gave the police consent to search the home although she was not staying there at the time. The police went to the home, searched it and found a firearm inside. The defendant was arrested for possession of a firearm by a convicted felon.

The criminal defense lawyer filed a motion to suppress the evidence of the firearm based on the argument that the police did not have authority to enter and search the home. The court denied the motion. Any person who has joint access or common authority over the residence can give police consent to search the residence. In this case, although the wife left the home, there was no evidence that her access to the home had been restricted in any way. Because she apparently still had joint access to the home, the judge ruled that she was permitted to give the police consent to search and look for the firearm.

In Florida, in order for the police to stop a person and investigate him/her for a crime that is not a DUI, the police need "reasonable suspicion" that the person is involved in criminal activity. When the information comes from an ordinary citizen reporting the suspicious behavior to the police, the police must observe the suspect and confirm through their own observations conduct that is consistent with the tip and consistent with criminal activity. In other words, if a person calls police and says the guy in the blue shirt and black pants on the corner of Main Street and 1st Street is selling drugs, the police cannot stop him to investigate just because they see a guy wearing a blue shirt and black pants on that exact corner. The police also have to verify conduct consistent with criminal activity. For instance, this might include an observation that he was making quick, hand to hand transactions with people ion the street.

However, Florida courts state a lesser standard for stopping someone to investigate for a DUI crime. In a recent case about a DUI arrest near Jacksonville, Florida, the police stopped the driver based on tips from two citizens that the driver was drunk. Upon seeing the driver, they stopped him to investigate him for DUI without observing any evidence that the driver was in fact drunk. They ultimately arrested him for DUI. The court upheld the stop and stated that in DUI cases, the police only need a "founded suspicion" that the driver is intoxicated and impaired. The court acknowledged there is a somewhat relaxed standard for DUI stops because of the valid safety concerns with DUI cases (as opposed to other crimes that present valid safety concerns).

In Florida, there are multiple levels of police encounters, and with each one, there may be certain legal requirements on the part of the police officer to justify the police officer's actions. The first level encounter is a brief, consensual encounter where a police officer is not required to have any evidence that the suspect is involved in criminal activity. In these encounters, because the police officer does not have any evidence of criminal activity and is just casually requesting information, the suspect is free to refuse the police officer's requests and leave the scene. However, if the encounter becomes more serious and a reasonable person would not believe he/she was free to ignore the police officer and leave, it becomes more than a casual, consensual encounter.

In a second level encounter, the police can briefly detain a suspect to see if the suspect is involved in any criminal activity and/or possibly armed and a threat to the officer's safety. As stated, this encounter must be quick and cannot be too intrusive. In order to justify such an encounter, the police officer must know of specific facts giving the officer reasonable suspicion that criminal activity is occurring or the person is armed and dangerous. If that reasonable suspicion is not quickly confirmed, the encounter must end.

The third level encounter involves a long, intrusive detention by the police officer or an outright arrest. In order to justify this kind of detention, the police officer must have probable cause to believe the suspect was involved in criminal activity or an actual arrest warrant.

In which level does a check of a person's name and date of birth for outstanding arrest warrants belong? In a recent criminal case south of Jacksonville, Florida, a police officer responded to a call of illegal drug activity and observed the defendant standing next to a building. Without activating the emergency lights or drawing his weapon, the police officer approached the defendant and asked him for his name and date of birth. The defendant gave the information, the police officer ran it in his computer and learned that the defendant had an outstanding arrest warrant. The police officer arrested the defendant and found him in possession of marijuana bags. The defendant was charged with possession with intent to sell marijuana.

The criminal defense lawyer filed a motion to suppress the marijuana claiming that the police officer did not have reasonable suspicion that the defendant was involved in criminal activity when the officer asked him for his name and date of birth. The state agreed but alleged that this was a first level, consensual encounter and no reasonable suspicion was needed.

The court ruled in favor of the state and found that this was a first level encounter, and a police officer is allowed to ask for a person's name and date of birth without any evidence the person is involved in criminal activity. The court also necessarily found that the defendant was free to refuse the officer and leave.

In the real world, we know that when the police are investigating drug complaints and ask the defendant for his name and date of birth and the defendant refuses and walks away, the police officer is not going to leave it at that. But in the legal world, if the police officer makes a case that he was simply asking for the suspect's name and date of birth and would have taken no for an answer, a court may likely find the police officer can do this without any indication the person had done anything wrong.

The FBI is using more aggressive means to get personal emails and information about internet usage. In the past, the FBI was permitted to use administrative subpoenas that were not initially presented to a judge for review. These administrative subpoenas, or national security letters, were sent to internet service providers at the discretion of the FBI asking internet service providers to disclose information about personal emails and what websites the targets of the subpoenas had visited. Upon receiving the national security letters, the internet providers were obligated to refrain from alerting its customers that the FBI was requesting the information and the internet service provider was providing the information.

More recently, perhaps due to backlash from the secret disclosure of this private information, the internet service providers were limiting the information they would provide to the FBI in response to these national security letters. As a result, the FBI has shifted its strategy and asked the courts for orders, called business records requests, that require the internet service providers to release the extensive private information previously obtained by the national security letters. According to a recent article, in the first few months of this year, more than 80% of the business record requests made by the FBI were for internet records, and the FBI made more than four times as many business record requests in 2010 compared to the prior year.

As criminal defense lawyers in Jacksonville and the North Florida area, a very common scenario that we see a lot occurs when police are patrolling what they call high crime areas and a suspect runs when he/she sees police in the area. A common question results from this scenario. When the police are in a high crime area and see someone running from them but there is no evidence of a specific crime occurring, what can the police do? This issue has been addressed by courts in Florida and all over the country. Years ago, the United States Supreme Court decided that when a person is unprovoked and runs from the police in a high crime area, the police have a right to chase the person and briefly detain him/her to investigate further, i.e. to quickly determine if the person ran because he/she was involved in criminal activity.

However, the police can not do more than that without specific evidence of criminal activity or specific evidence that the person is armed and a possible threat to the police officer's safety. If a person runs upon seeing police, the police officer chases and catches him/her and then searches the suspect for drugs and/or weapons, that is an illegal search. The chase and the brief detention are legal, but the search would be illegal without specific evidence that the person was committing a crime or armed. Running from the police in a high crime area allows the police to chase and stop the suspect but, without more evidence, it does not allow the police officer to pat down or search the suspect. If the police do conduct a pat down or search under those circumstances and find illegal drugs or guns, that evidence should be thrown out of court.

Police officers are allowed to search a person for drugs, guns or other evidence of criminal activity in limited circumstances. One of the most common bases for searching a person is consent. The police can almost always approach a person and ask for consent to search him/her. Additionally, everyone who is arrested for a crime will be searched by the police. The primary legal justification for this search incident to an arrest is to make sure the suspect does not have any weapons on him/her to ensure the police officer's safety when he/she takes the suspect into custody.

However, the arrest has to be valid for the search incident to the arrest to be legal. The police cannot search a person for illegal drugs, guns or other criminal evidence if there is no legal basis to arrest the person in the first place. For example, if a person commits a traffic violation, the police officer can give that person a traffic ticket, but the police officer is not allowed to search the person based on the traffic violation. The police officer can ask to search the person and/or his/her vehicle during the traffic stop, but the person has a right to refuse the police request to search. Likewise, if a person is in violation of some other ordinance for which jail time is not a potential penalty, the police cannot search a person based on a violation of that ordinance.

In a recent criminal case south of Jacksonville, Florida, police officers saw the defendant in a city park after dark. The city had passed an ordinance prohibiting people from being in the city park after dark due to drug activity in the park. The police officer approached the individual and told him about the ordinance. The police officer then arrested the defendant for violating that ordinance. Incident to the arrest, the police officer search him and found marijuana and drug paraphernalia in his pocket. The defendant was then arrested for possession of marijuana (cannabis) and possession of drug paraphernalia.

The criminal defense lawyer moved to suppress the evidence of the marijuana and drug paraphernalia arguing that the arrest for the city ordinance was illegal so the resulting search was also illegal. The judge agreed. Because the city ordinance could not result in jail time as a possible penalty, the police officer did not have a right to arrest and search the defendant. All the police officer could do was detain the defendant for the purpose of writing him a ticket.

The police officer also tried to justify the search by claiming the defendant put his hands in his pocket and the police officer was concerned he might have a weapon and be at risk. However, there was no objective evidence that the suspect was armed, so a search for officer safety was not justified. The evidence of the marijuana and drug paraphernalia was thrown out, and the possession of marijuana charge was dropped.

Every person has a strong Constitutional right to be free from unlawful searches and seizures. This privacy right is strongest in one's residence. The police can only search a person's residence in limited situations, the most common of which are with a valid search warrant and when the person who lives at the residence gives the police consent to search the residence.

When a police officer knocks on a person's door and asks for consent to search, the resident has every right to refuse the search. As criminal defense lawyers in the Jacksonville, Florida area, we continue to be amazed at how often people let police officers go through their homes based on a simple request to search, particularly when the resident has drugs in the house. In any case, people should understand the strong Constitutional privacy right they have in their homes which allows them to refuse a police request to search the home.

On the consent issue, it is not just the owner of the residence who is authorized to give the police consent to search the home. Any person, such as another resident, a roommate or a tenant, who has common authority over the residence is authorized to allow the police to enter and search the resident. Common authority usually involves a person who has joint access to the premises. If the owner of a home has a friend staying at the home for some period of time and that friend has free access to the home, that temporary resident may have authority to allow the police to come in and search the premises. If it reasonably appears to the police officer from the circumstances that the person has joint access to the premises, that person can legally consent to a search of the premises by police even if the homeowner is no around at the time.

In a criminal case just south of Jacksonville, Florida the suspect was driving in his vehicle and playing his music in a loud manner when he was pulled over by the police for a noise violation. The police officer checked the driver's license and learned that it was suspended. When the police officer searched the car subsequent to the arrest, he found a large quantity of cocaine and marijuana in the car. The suspect was then arrested for trafficking in 28 grams of more of cocaine and possession of marijuana.

The criminal defense lawyer for the suspect filed a motion to suppress the cocaine alleging that the search was illegal because the police officer did not have authority to pull the driver over for the noise violation. If the initial stop of the suspect was illegal, then the subsequent arrest of the suspect for driving with a suspended license and search incident to that arrest would be illegal. In that case, the evidence of the cocaine seized after the illegal search would be thrown out.

The criminal defense attorney argued that a person has a First Amendment right to play music loudly and the noise violation was unconstitutional. The Florida noise statute basically says that a person operating a vehicle on the roads cannot play music that can be heard at least 25 feet away from the vehicle. The court agreed that the noise statute was unconstitutional because amplified music is protected under the First Amendment and the noise statute unnecessarily allowed certain types of noise beyond 25 feet while prohibiting others.

So, the criminal defense lawyer was able to successfully argue that the noise statute, which was the basis for the original stop, was an unconstitutional law. However, the court still did not invalidate the search and the evidence of the cocaine and marijuana. The court found that while the police officer's stop of the suspect for the noise violation was an illegal stop, the police officer made the traffic stop in good faith because he had no way of knowing the noise statute was unconstitutional. Even where a search and seizure of a person is illegal because it is based on an illegal statute or another invalid reason, evidence from the illegal search and seizure can still be used in court against the suspect if the police officer conducted the search and seizure in good faith. This is known as the good faith exception, and some courts use it to allow evidence to come in against a defendant even where the criminal defense attorney successfully argues the search and seizure were illegal.

In Florida, a common scenario in drug cases occurs when the police pulls a driver over and suspects the driver has illegal drugs in his/her vehicle. The piolice officer may ask for consent to search the vehicle for drugs, or the police officer may bring a drug dog, or K9, to the scene to sniff the area around the vehicle for the odior of illegal drugs such as marijuana, cocaine, heroin and methaphetamine. The drug dog is presumably trained and certified to detect to the odor of illegal drugs and indicate a particular signal to the police officer handler who recognizes the signal as an indication that there is an odor of illegal drugs coming from the vehicle. In some jurisdictions, when the drug dog alerts, this is sufficient problable case to justify a search of the vejhicle by the police.

However, in Florida, the state has the burden of proof that a search of one's vejhicle for illegal drugs is based on probable cause, and merely presenting evidence that a trained drug dog alerted to an odor of illegal drugs does not meet this burden. The state must prove that the drug dog, and the police officer handler, were sufficiently trained and certified to detect the odor of illegal drugs. However, this is the beginning of the analysis, not the end. The state must provide details of the drug dog's training and the drug dog's performance during training. The state must also present evidence of how often the drug dog gave false alerts in training and in the field after training. The court should also look at instances where the drug dog alerted to a residual odor of illegal drugs, i.e. where drugs were not found in the vehicle but evidence sugests they were previously in the vehicle.

In some cases, the courts have been satisfied with a drug dog's reliability to detect an odor of illegal drugs as long as the state has shown the drug dog had the proper training and credentials. However, Florida law requires a much more detailed huistory of the training, success and failure of a drug dog's ability to actually detect the presence of illegal drugs.

for example, in a recent cocaine and marijuana case south of Jacksonville, Florida, the evidence of the cocaine and marijuana, and the possession of marijuana and cocaine charges, were thrown out because the trained and certified drug dog had a success rate of just over 25% in detecting the presence of actual illegal drugs in the field in almost thirty attempts.

In Florida, police officers are not allowed to seize a person without a reasonable belief based on specific facts that the person is engaging, or is about to engage, in criminal activity. If police officers do seize or detain a person without the required reasonable suspicion, any evidence found on the person, such as illegal drugs or guns, will be inadmissible and thrown out of court. This seizure does not necessarily require a physical detention or even a command directed at the person. If the action of the police officers indicate a show of authority without direct commands or a physical seizure, it can still be considered a "seizure" under the search and seizure laws in Florida.

For instance, in a recent marijuana case south of Jacksonville, Florida, the defendant was sitting on the steps of an apartment complex. Several police cars drove up and six police officers approached the area where the defendant was sitting with bullet proof vests and guns drawn. The police officers were there to raid one of the apartments. They had no knowledge the defendant was involved in criminal activity. None of the police officers touched the defendant or even addressed him specifically. When he saw the police officers approaching him, the defendant threw down a few bags of marijuana. He was then arrested, and the police officers found more marijuana in his pocket. He was charged with felony possession of marijuana.

His criminal defense lawyer filed a motion to suppress the evidence of the marijuana arguing that the defendant was seized when the officers approached him without any reasonable suspicion since the defendant was merely sitting on the steps. The court agreed to throw out the evidence of the marijuana. In determining whether police action constitutes a seizure, the court must determine whether a reasonable person would feel like he/she was free to leave the area under the circumstances. If the court determined that a reasonable person would not feel free to leave given the actions of the police, this constitutes a seizure that is illegal unless the police officers can show specific evidence of the defendant's criminal activity. The court found that when several police officers approached the defendant in full uniform with guns drawn, the defendant did not reasonably feel like he could leave. This was a seizure under Florida law without legal justification so the evidence of the marijuana found during the illegal seizure was inadmissible.

In Florida, when a person purchases a vehicle, he/she must register it with the state and purchase a license tag. When applying for a license tag, the person must provide his/her information as well as a description of the vehicle that remains in the state database. This includes the make, model and year of the vehicle as well as the color. Drivers are required to attach the tag to the registered vehicle when driving the vehicle. The police use the tag to access the state database and properly identify the vehicle and the owner. If the police officer runs a tag and finds the tag was registered to a Ford but is now attached to a Honda, the police officer can pull over the driver to investigate whether the vehicle and/or the license tag was stolen or the license tag was improperly transferred to another vehicle..

Are the police allowed to pull over a vehicle after running the tag and finding a less significant difference between the vehicle observed and the information in the state database? In a recent criminal case near Jacksonville, Florida, the police officer ran a license tag and everything matched except the state database indicated the vehicle was light blue when the vehicle was actually black. Based on this discrepancy, the police officer pulled the driver over to see if the car or the license tag was stolen or the tag had been transferred to a different vehicle. The driver provided a driver's license and registration that matched the vehicle. The driver indicated that he had recently painted the vehicle but did not inform the DMV. The police officer then asked for consent to search his vehicle, and the driver agreed. The police officer found marijuana and illegal pills in the vehicle, and the driver was arrested for possession of marijuana and possession of pills without a prescription.

The criminal defense lawyer challenged the legality of the stop. If the stop was not valid, the consent the driver gave the police officer to search his car would also be invalid, and the evidence of the drugs would be thrown out. The stop would only be valid if the police officer had reasonable suspicion to believe the driver was violating a traffic law or crime. The criminal defense attorney noted that a vehicle owner is not required to notify the state when he/she changes the color of a vehicle.

The court noted that improperly transferring a license plate is a second degree misdemeanor in Florida. The court found that the discrepancy with the color of the car gave the police officer sufficient reasonable suspicion to believe this crime may have occurred. Therefore, the traffic stop was valid, and the consent to search the vehicle was valid as well.

Normally in Florida, the police cannot search a person or his/her vehicle, home or other belongings without probable cause and a search warrant or consent to search. Students in school do not enjoy those same protections from searches and seizures by police or school officials.

In a recent gun case in Jacksonville, Florida, a school received an anonymous tip that a student at the school had carried a gun on school grounds three months earlier. When school officials learned of the anonymous tip, the school resource officer and security guard took the student to the security office where he was searched. A gun was found on the student. The student was charged with carrying a gun on school grounds.

Outside of the school context, this search would never be legal. First, an anonymous tip that is not corroborated by specific observations is not sufficient to search someone without permission. Additionally, a tip that someone was carrying a gun three months earlier would be considered stale and, even if reliable, would not be sufficient probable cause to search someone three months after the alleged criminal conduct occurred.

However, the Florida courts recognize that the school context is different. Rather than using the normal probable cause standard for searches, the courts will uphold a search by school officials if it is determined to be reasonable. Because of the great potential for danger to children at schools, along with the well-publicized shooting incidents we have seen, the judges give school officials a lot of leeway when determining whether a search was reasonable under the circumstances.

In Florida, the state can prove possession in one of two ways. The most obvious involves actual possession. For instance, marijuana found in a person's hand or pocket would constitute actual possession of marijuana. However, even when a person is not in actual possession of drugs, the state can still prove possession of the drugs under certain circumstances. This other situation involves constructive possession of drugs. For instance, if the police search a person's house and find a bag of cocaine on that person's dresser right next to his bed, along with other items belonging to him in room belonging to him where he is the only occupant of the room at the time, that may be sufficient to prove a case of constructive possession of cocaine.

In order to prove constructive possession of drugs, the state needs to prove that the suspect knew the drugs were present and had some sort control over the drugs. For instance, if you go to a party with hundreds of people, you are standing in the kitchen by yourself next to the closed refrigerator and the police come and find a bag of marijuana in that refrigerator, they cannot convict you of possession of marijuana without proof that you knew the marijuana was in the refrigerator and you had some sort of control over it, i.e. you put it there or used some of it. You may have been the closest to the marijuana, but that is just one potentially relevant factor. Without evidence that you knew the marijuana was present and had some significant connection to it, that marijuana cannot be attributed to you in a criminal case.

In a recent criminal case near Jacksonville, Florida, the police pulled a car over for speeding. The police obtained consent to search the car and found a suitcase containing marijuana in the trunk of the vehicle. The police then arrested the driver for trafficking in cannabis/marijuana. There was also a passenger in the vehicle who had the keys to the vehicle prior to the driver.

The trafficking in marijuana case was ultimately thrown out because the state could not prove the driver was in constructive possession of the suitcase containing the marijuana. The police could not get any fingerprints from the suitcase or the marijuana wrapping. Nothing belonging to the driver was found in the suitcase with the marijuana. The driver did not make any statements admitting to possessing, or even knowing about, the marijuana in the trunk. As a result, there was not enough evidence that the driver knew the marijuana was in the suitcase in the trunk or that the driver had sufficient control over that marijuana.

However, one way the police frequently get around this constructive possession problem is to ask the driver, or anyone else in the vehicle, to whom the marijuana or other drugs belong. This question may come with a threat to arrest everyone involved if no one answers or a promise to go easy on anyone who does answer. When asked this question, keep in mind that you have a right to remain silent and one of the most common ways the police and the state get the missing evidence they need to prove drug possession in these kinds of cases is when the suspect, for whatever reason, admits to ownership, or at least knowledge, of the illegal drugs.

In a recent case south of Jacksonville, Florida, the police went well beyond what is permissible under Constitutional search and seizure law and trespassed upon a person's property in order to investigate a complaint relating to growing marijuana. In this case, the police received an anonymous tip that the suspect was growing marijuana at his house. When the police arrived at the house to investigate, they saw that the house was completely surrounded by a tall fence and some bushes. As a result, the police were unable to see the house from public property. Therefore, the police could not observe any criminal activity that would corroborate their anonymous tip or even the house itself.

Generally, the police are not allowed to search a person's home or go through a private gate onto a person's property without a valid search warrant or consent to search the premises. In this case, the anonymous tip without any corroborating evidence was not sufficient to allow the police to get a search warrant. Not to be deterred however, when the suspect opened the gate to leave his property, the police officers slipped inside the gate and blocked the suspect from leaving. The police asked the suspect to sign a consent to search form, and, knowing he had a lot of marijuana plants inside his house, he refused. After some period of time, the suspect did open his door and allow the police inside. Once inside, the police found over 100 marijuana plants and arrested the suspect for cultivation of marijuana.

This was clearly an illegal search. The anonymous tip that was not corroborated by specific observations of the police officers was not enough for the police to obtain a warrant. If the police do not have a search warrant, they are not permitted to go onto a person's private property through a gate clearly meant to keep people out and maintain the homeowner's privacy. That is a trespass. If the police trespass to get on the person's property, the property owner's subsequent consent for the police to search is tainted and likely will not hold up in court.

Keep in mind that the police can walk onto a person's property without a search warrant to knock on the door and ask questions of a homeowner, including a request to search the premises. This is permissible for most houses that are not surrounded by a fence clearly designed to keep people off of the property. However, if a person has set up his/her property so that it is necessary to go through a locked gate to enter the premises, the police are likely going to need a search warrant or consent to go through that gate.

In Florida, the Constitutional protection against illegal searches and seizures by police is strongest when it involves a person's privacy interest in his/her residence. Normally, a police officer cannot search a person's house, apartment or other residence without a valid search warrant or consent to search by a person authorized to give consent to search the home. This protection against illegal searches and seizures also extends to a person's backyard.

In a recent marijuana case south of Jacksonville, Florida, the police received an anonymous tip that three individuals were outside of a particular house standing next to a white SUV with cocaine and guns. The police arrive and saw the SUV and some people in front of the house, but they did not see anyone matching the description in the anonymous tip nor did they see any drugs or guns.

One of the police officers said he heard voices coming from behind the house. The police officers proceeded to walk through the gate and into the backyard to see if anyone there was armed. While in the backyard, the police officers saw marijuana in the house through a window and arrested the defendant who was also in the house with the marijuana.

This was clearly an illegal search. The anonymous tip gives the police the right to go to the house and investigate the tip but little else. If the police do not observe any activity that verifies the criminal conduct referenced in the anonymous tip (i.e. the drugs and guns), the police are not permitted to search the house, anyone at the house or the backyard without a search warrant or consent. When the police arrived at the house, there was no evidence of criminal activity. As a result, the police were not permitted to go into the house or the backyard. The fact that people may be behind the house in the backyard in an area protected from illegal searches and seizures did not give the police the authority to search the backyard without specific evidence of criminal activity in the backyard and a valid search warrant. The police had neither. As a result, evidence of the marijuana was thrown out of court, and the marijuana charges were dropped.

In Florida, in order for the police to have a right to search a person's house, they normally will need a valid search warrant signed by a judge. Police typically obtain a search warrant for a person's house after conducting surveillance and observing drug related activity at the house or having a confidential informant go to the house to make drug buys. Once the police obtain the search warrant for the house, are they limited to searching inside the house in areas where illegal drugs can be stored or can they search other areas outside, but near, the house?

Many search warrants for someone's house will also include what is called the curtilage of the house. The obvious questions becomes: What is within the curtilage of the home to be searched? Curtilage is not specifically defined in Florida law, and it depends on the nature of the property. However, the general definition of curtilage is the area around the home that is intimately tied to the home. The factors a criminal court would look at to determine if something is within the curtilage of the home are: how close the area searched was to the house, whether the area searched was enclosed near the home, how that particular area is used at the home and what steps, if any, the homeowner took to protect the privacy of the area.

Therefore, one can assume this includes the driveway of the home and a fenced-in backyard. If there is no fence at the house, the curtilage still likely includes the immediate area around the house.

In a recent case south of Jacksonville, Florida, the defendant was arrested on drug and gun charges after police searched his vehicle that was parked outside a friend's house. The police had a search warrant for the residence that included vehicles within the curtilage of the home. The defendant's vehicle was parked on the street just beyond the driveway. The defendant did not live at the residence. The police searched his vehicle and found guns and illegal drugs inside.

The criminal defense lawyer for the defendant filed a motion to suppress the gun and drugs arguing that the police did not have a right to search the car that was parked outside the home, but on the street. The court agreed and threw out the gun and drug charges. Because the defendant's car was parked on the street, as opposed to the driveway or elsewhere on the property, it was not within the curtilage of the home and the search warrant did not authorize the police to search it.

In a recent DUI (driving under the influence of alcohol or drugs) case south of Jacksonville Florida, the defendant was driving on I-95 and failed to stop at an open weigh station. The defendant was driving a large pickup truck, and the police officer believed that the defendant was required to stop his truck at the weigh station. When the defendant did not stop, the police officer pulled him over and told him to drive back to the weigh station. Apparently, according to the police officer, the defendant committed a traffic violation on the drive back to the weigh station so the police officer stopped him. The police officer indicated that he smelled alcohol on the defendant and initiated a DUI investigation. The police officer ultimately arrested the defendant for DUI and searched his vehicle. The police officer found marijuana in the vehicle and arrested the defendant for possession of marijuana in addition to DUI.

The criminal defense lawyer moved to have all of the evidence obtained by the police officer after the stop suppressed based on an illegal stop. This would include all of the police officer's observations related to the DUI, including the field sobriety tests and the breathalyzer results, as well as the evidence of the marijuana in the vehicle. Once the criminal defense lawyer files a motion to suppress the evidence, the state has the burden of proving the stop was valid. In this case, the state could not establish that the defendant was required to stop at the weigh station with his big truck. Therefore, the state could not establish that the police officer had a right to stop the defendant. When the state cannot establish that the traffic stop was legal, the evidence of criminal activity obtained after the stop is typically thrown out. As a result, all evidence of the DUI and possession of marijuana charge was thrown out, and the charges were ultimately dismissed.

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.