Articles Posted in Drug Crimes

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

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

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

While we certainly agree that having less government in our lives is a good thing, not every government agency shares our sentiments. Specifically, as it relates to the war on drugs, “small government conservative” politicians and law enforcement continue to expend limited resources and money to detain and arrest people far marijuana crimes. We are happy to see states come to their senses and legalize marijuana, but those legalization efforts have come with unfortunate ramifications for people from those states, even people who do not use the Cannabis plant.

Some police departments near legal marijuana states like Colorado are taking it upon themselves to conduct pretextual traffic stops based on the fact that the vehicle has a license plate from a state where marijuana is legal. For instance, when police officers or highway patrol see a vehicle on the highway driving a few miles per hour over the speed limit, they conduct a traffic stop for speeding if the vehicle has a license plate from a legal marijuana state. They might pull a Washington state driver over for changing lanes without using a blinker when they would never make such a traffic stop for someone else. This is referred to as license plate profiling.

One Colorado driver was not happy with this particular form of government excess and sued the Kansas Highway Patrol. The driver was pulled over because he had a temporary tag from Colorado that was allegedly difficult to read. There was nothing illegal about that, and the Kansas police gave him a warning. Thereafter, the Kansas police asked the driver if they could search his vehicle. He refused, but the police called a drug dog to the scene. The drug dog went around the vehicle, but no illegal drugs were found. The driver sued the Kansas Highway Patrol for violating his constitutional rights based on the illegal search and seizure.

In Florida and elsewhere, people have privacy rights in their vehicles. This means that the police generally cannot search a person’s vehicle for drugs or other evidence of criminal activity without consent from the owner or a search warrant. There are some exceptions to this general rule, but the police cannot just go into a person’s vehicle and search it in almost any situation.

Vehicles are more advanced now, and rather than having the traditional key that is placed into the lock to open a vehicle like a regular door, many cars come with key fobs that can open a vehicle by pressing a button. Additionally, many key fobs have a button that can be pressed that will cause the vehicle to honk so the owner can find it in a crowded parking lot.

In a possession of cocaine case south of Jacksonville, Florida, the defendant was arrested for a public disturbance. The police officer searched the defendant after the arrest. Police officers are allowed to search people immediately after an arrest to make sure a person going to jail does not have any weapons or anything else that would be a threat to the police officer or anyone else. When the police officer searched the defendant, he found a key fob. The police officer pressed a button on the key fob, and the defendant’s vehicle’s alarm went off. The officer went to the vehicle and saw a bag of cocaine on the seat. The officer was able to see the cocaine in the vehicle by looking through the window. The bag of cocaine was ultimately seized, and the defendant was arrested for possession of cocaine.

For any type of drug possession case, there are two ways the state can prove the crime in Florida. The easiest way is with an actual possession case. Actual possession is what it sounds like. If a person is holding the drugs or has drugs in his/her pocket or is actually possessing the drugs in any other way, that is an actual possession case that is likely easy to prove. However, even if a person does not have actual possession of the drugs, the state can still prove a drug possession case. The other form of possession is called constructive possession. This can be proven when the state establishes that the defendant knew of the drugs and had some ability to control the drugs. For instance, I have constructive possession of the sunglasses in my car even though they are nowhere near me. I know they are there, I have the keys to the car and I am the only one who drives my car.

Constructive possession cases get difficult for the state when there are multiple people who have access to the drugs. For instance, in a possession of Methamphetamine case near Jacksonville, Florida, police responded to a suspicious person call at a hotel. They went to one of the rooms and knocked on the door. A man and a woman were inside. The police got consent to search the room and found Methamphetamine in a pocket of a jacket in the room. It was not clear if the jacket belonged to the man, the woman or someone else. There was also a syringe presumably used to shoot the drugs in the room. The police asked the woman if her DNA would show up on the syringe, and she said yes. She was arrested for possession of Methamphetamine and possession of drug paraphernalia.

This case was ultimately thrown out. The state could not prove that the woman had knowledge and control over the Methamphetamine to the exclusion of the other guy in the room or anyone else who could have been in the room before the police arrived. The state lacked evidence that the jacket belonged to the woman. It could have belonged to the man or someone else. The state did not get any statements tying the woman to the Methamphetamine or the jacket. There was no other meaningful evidence connecting the woman to the Methamphetamine or the jacket that was sufficient to prove possession. In other words, the state did not have enough evidence to prove that any one person possessed the drugs as opposed to any other person. In these situations, constructive possession cases fail. If the police had obtained a statement from the woman or a witness or fingerprints or something indicating the jacket belonged to the woman, they would have had a stronger case. However, if multiple people have access to the drugs and the evidence does not specifically point to one of those people, the constructive possession case will likely fail.

Many drug cases in Florida are the result of police suspecting that a suspect has drugs and requesting that the defendant consent to a search of his/her vehicle, home, person or other belongings. People always have the right to refuse a police officer’s request to search, but people often allow the police to search anyway. When a person gives the police consent to search, as long as it is not under duress or after some search and seizure violation, that eliminates the need for the police to get a search warrant, have probable cause or rely on one of the few exceptions to the search warrant requirement. However, when a person gives the police consent to search, it is not a blank check for the police to search wherever they want and for whatever they want. A search by consent is limited to the area to which the consent applies and the nature of the item for which the police are looking.

As an example, in a possession of cocaine case south of Jacksonville, Florida, the police were investigating a robbery during which an I-phone was stolen. They tracked the I-phone to an apartment complex and started knocking on doors and requesting permission to come inside and search for it. The defendant in this case gave the police consent to search his apartment for the I-phone. The police went into the apartment and found the I-phone on a table. After that, they continued searching the apartment and found cocaine in a drawer. The defendant was arrested for possession of cocaine.

The criminal defense lawyer filed a motion to suppress the evidence of the cocaine arguing that the search conducted after the I-phone was located was illegal. The consent to search was limited to a search for the I-phone. Once the I-phone was located, the consent to search terminated. Therefore, without further evidence or additional consent, the police had no lawful basis to continue searching inside the apartment.