Jacksonville Criminal Lawyer Blog

When is an encounter with a police officer considered consensual and when is it considered an illegal detention under Florida law? The answer could be the difference between incriminating evidence being used against a defendant charged with a crime like possession of drugs or possession of a firearm by a convicted felon and having crucial evidence like drugs or a gun being thrown out of court.

The general rule in Florida is that the police may request identification, typically a driver's license, from a person and briefly hold onto that identification for a reasonable period of time, perhaps long enough to check the person for outstanding warrants. This is considered a consensual encounter with police. However, depending on the circumstances, if the police officer holds onto a person's license or other identification for longer than necessary for the warrants check or if the police officer shows other signs of authority, the encounter may turn into an illegal detention. If the encounter with police turns into an investigatory detention and there is no reasonable suspicion of criminal activity to support the detention, the detention may likely be considered illegal and any evidence obtained as a result should be thrown out.

Factors that support the argument that an encounter with the police has shifted from consensual to an investigatory detention are:

- holding onto a person's driver's license or other ID longer than necessary to check for warrants or learn basic identification information
- the presence of multiple police officers involved in the encounter
- commands by the police officer(s) to stand a certain way or move to a certain area
- other questions or commands by the police officer(s) that would lead a person to believe he/she is not free to leave
- the demeanor of the police officer(s)
- the length of the encounter
- other actions by the police officer(s) like the use of sirens, showing their badges, pulling out their guns, taser or other weapons and other exhibitions of force or authority

The bottom line is whether a reasonable person in an encounter with police feels like he/she is free to leave and terminate the encounter. One obvious way to make this determination is to ask the officer(s) if you can leave. Some people may be reluctant to do this for fear of angering the officer or raising suspicions. Of course, if the officer still has your driver's license or identification card, you do not want to leave without that. Consequently, if the officer keeps your license for an unreasonably long period of time, the encounter may no longer be considered consensual. Of course, if you ask for your license back when the officer is finished with a brief warrants check, refusal to return it would likely give a person reason to believe that he/she cannot yet leave.

There are many factors to be considered in determining whether a police encounter was consensual or an illegal detention. If incriminating evidence was obtained as a result of the encounter, the answer to that question may be the difference between a conviction or criminal charges being dismissed. Ultimately, the question may be decided by the criminal judge at a motion to dismiss evidence hearing.

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Posted In: Search and Seizure

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Consider a Jacksonville, Duval County, Florida search warrant scenario where Jacksonville Sheriff's Office Officer A goes to a judge and presents evidence to establish that there is probable cause to search a house for the presence of marijuana, cocaine or other illegal drugs. The search warrant directs Officer A to perform the search. After the judge signs the search warrant, Officer A calls a fellow officer to tell him the search warrant has been signed. The other police officers at the residence start the search while Officer A is en route. Marijuana is found at the residence by one of the other police officers. Is this a valid search of the residence? Probably not according to a recent case out of south Florida.

It is likely that the police officers' search of the residence for marijuana will be found to be improper because of how it was executed. If the search warrant directs the affiant (the police officer testifying to the judge regarding probable cause to issue the search warrant) to perform the search, that police officer must be present when the search is undertaken. If he or she is not present, any evidence found during the search, such as drugs or guns, may be thrown out of court.

A criminal defense lawyer should determine if any police officer(s) was directed to perform the search in the warrant and if that officer(s) was in fact present for the search. Of course, other police officers can assist any police officer named in the search warrant as the search is performed. Additionally, other police officers are permitted to secure the premises to prepare for the search, and this does not have to be done in the presence of the police officer named in the search warrant.

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Posted In: Search and Seizure

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Criminal defense lawyers often file what are called Motions to Suppress to try and keep out evidence that the prosecution is attempting to use against a defendant in a criminal case when the criminal defense attorney believes the police were not justified in stopping the defendant and/or seizing the evidence. The Fourth Amendment protects people from unreasonable searches and seizures and can be used to prevent the prosecution from using evidence against a defendant in a criminal case if the court finds that a search or seizure was unlawful.

A recent criminal case out of Jacksonville, (Duval County) Florida does a good job of explaining the difference among the three categories of encounters with police. The first level of police encounter is a consensual encounter that involves minimal police contact and where the other person is free to comply with police or leave the encounter at any time. The second level of police encounter is often referred to as an investigatory stop where a police officer can detain a person temporarily if the police officer has a reasonable suspicion that the person has committed, is committing or is about to commit a crime. The police officer must be able to point to specific facts that are the basis for this reasonable suspicion of criminal activity. The third level of police encounter is an actual arrest where the person is detained and removed from the scene. This level of police encounter requires the higher standard of probable cause that a person has committed, is committing or is about to commit a crime.

In the recent case, the Jacksonville Sheriff's Office (JSO) officers were called to investigate a burglary of a vehicle. When the Jacksonville Sheriff's Office officers arrived, one of them heard a possible witness say the suspect was a white male who ran into the woods. No other description was given. The Jacksonville Sheriff's Office officers searched the woods and found a CD player that may have been taken in the burglary and then some distance away found the defendant lying on the ground. The defendant was handcuffed, placed in a patrol car and driven back to the scene of the crime where he was identified by a witness.

Clearly, this encounter was a third level encounter since the defendant was handcuffed and moved from the location where the JSO officers found him. The court found that the officers had a reasonable suspicion to briefly detain the defendant and investigate the burglary further, but with only a vague, general description of the suspect, the JSO officers did not have probable cause to execute a full arrest of the suspect. As a result of the finding that the arrest was not legal, the subsequent identification of the defendant was thrown out and could not be used against the defendant in court.

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Posted In: Drug Crimes , Search and Seizure

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DUI (driving under the influence) arrests in Jacksonville, Duval County, Florida often start when a police officer pulls a driver over for some traffic violation. However, the failure of a driver to wear his or her seat belt cannot be the reason for pulling a driver over. Of course, a police officer can give a driver a ticket for not wearing a seat belt after pulling the driver over for another reason such as speeding or another moving traffic violation, but a police officer is not allowed to pull a driver over just because that driver is not wearing a seat belt.

In the most recent Florida legislative session, a proposed law that would make the failure to wear a seat belt a primary offense (in other words, a traffic violation that would permit a police officer to pull a driver over on that basis alone) did not pass. Of course, injury accident statistics overwhelmingly support the conclusion that wearing a seat belt is a good idea, and failing to wear a seat belt can still subject a driver to a fine. However, as of now, it is not a legal basis for pulling a driver over.

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Posted In: Search and Seizure , Traffic Infractions

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A recent Florida criminal case involving the search of a student in whose wallet marijuana was found illustrates the standard for properly searching a student for drugs at school. According to the Florida appellate court, the search of the student was found to be in violation of the Fourth Amendment to the Constitution because the teacher did not have reasonable suspicion to believe that the student was in possession of the marijuana or other drugs.

The Fourth Amendment to the Constitution protects people from unreasonable searches and seizures. In schools, the standard for searching a student is more liberal, i.e. a teacher or school official can search a student if he or she has a "reasonable suspicion" that the student is in possession of marijuana, cocaine or any other illegal drug. That reasonable suspicion cannot just be a hunch or intuition. A search of the student for illegal drugs must be based upon specific and articulable facts that reasonably warrant the search. In other words, the teacher or school official must be able to point to actual facts and logical inferences that reasonably led him or her to believe that the student was in possession of illegal drugs before the student was searched.

In this recent Florida criminal case, a student walked into a classroom where he did not belong. The teacher asked the unauthorized student to leave and escorted him out of the classroom. When the teacher walked back into the classroom, she smelled an odor of marijuana for the first time. She then took the student to the principal's office where his wallet was searched. A bag of marijuana was found inside.

The Florida appellate court found that there was not a sufficient legal basis to search the student for marijuana. While the teacher did smell marijuana, she could not articulate any facts that reasonably led her to believe that the smell of marijuana was coming from that student, as opposed to another student or other sources. As a result, the search of the student was held to be illegal, and the marijuana could not be used against the student in court. Of course, the student was still subject to punishment from the school for having marijuana in school, but he was not subject to prosecution for the drug crime of possession of marijuana because the teacher's search did not meet the reasonable suspicion standard.

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Posted In: Drug Crimes , Search and Seizure

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In a recent Jacksonville, (Duval County) Florida criminal case, a conviction for possession of cocaine was thrown out because the court found that the police officer's stop of the defendant's vehicle was illegal in violation of the Fourth Amendment.

In this Jacksonville, Florida criminal case, a police officer stopped the defendant for driving a car with a cracked windshield. The police officer justified his stop on the idea that he could stop a vehicle with an obvious equipment malfunction. The police officer then searched the car and found cocaine inside. However, the appellate court found that the police officer did not have the right to stop the defendant's car just because the car had a cracked windshield. Because the stop of the defendant's car was not legal, the cocaine that was found in the car could not be used as evidence against the defendant in court and the conviction for possession of cocaine was thrown out.

The criminal defense lawyer successfully argued that while there is a law that requires each car to have a windshield, there is no law that deals with cracked windshields. The law does not authorize the police to stop any vehicle that has any equipment malfunction. If it did, the police could stop vehicles for dents, broken antennas and other minor malfunctions. The court noted that the law does not contemplate such broad reasons to stop a vehicle.

So can a police officer pull a car over for an equipment malfunction, like a cracked windshield? Sometimes. There is a law that prohibits a driver from operating a vehicle that is in such an unsafe condition that it is a danger to any person or property. Therefore, an officer can pull a car over if he or she observes a vehicle with equipment, or in a condition, that is unsafe. An example might be a windshield that is cracked or broken to the extent that it is difficult for the driver to see through it.

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Posted In: Drug Crimes , Search and Seizure

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