Articles Posted in Search and Seizure

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In Florida, one exception to a search warrant requirement is consent to search from the owner of the property or someone in possession of the property who appears to have authority to give consent.  Police can generally walk up to any person, vehicle or residence and ask to search without a warrant and without probable cause. If that property owner agrees, the police are free to search.  However, there are limitations, and people should always understand they have a constitutional right to refuse any police request to search one’s property.

In this case, police officers drove to the defendant’s property in a rural area south of Jacksonville, Florida. They went through an open fence and ignored the “No trespassing” signs.  They knocked on the front door, but no one answered.  The officers then got back into their vehicle and kept driving on the property to a barn where they found marijuana. They ultimately arrested the property owner for various marijuana charges.

The criminal defense attorney filed a motion to suppress all of the marijuana evidence because the police did not have a right to come onto their property and search it.  At the hearing, the police officers testified they previously had permission to enter the property. It was determined during the hearing that the permission was given three years earlier by the previous property owner.

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In DUI cases, the police generally observe a driver break some traffic law and then initiate a traffic stop. If the police officer claims to observe evidence that the driver is drunk or otherwise impaired, that officer will start a DUI investigation.  However, the police officer in Florida does not have unlimited time to establish probable cause to make a DUI arrest. If there is an unnecessary and lengthy delay during this DUI investigation, further evidence of impairment can be suppressed.

In a DUI case just south of Jacksonville, Florida, a police officer stopped the defendant for failing to maintain his lane. The officer approached the defendant and determined that there was evidence that he was impaired from alcohol. For some reason, the first officer did not continue with any DUI investigation and called other officers to the scene. The next police officer to arrive did not have a video camera in his car so another officer was called.  Twenty-five minutes after the initial stop, the officer who conducted the DUI investigation arrived to investigate the DUI. Three minutes later, he started his DUI investigation. Nothing was done during that time to advance the DUI investigation. The defendant was kept in his vehicle at the scene waiting for 28 minutes. After the DUI investigation was completed, the defendant was arrested for DUI.

The criminal defense lawyer filed a motion to suppress all of the evidence of the DUI investigation because the defendant was kept at the scene for an unreasonable period of time without evidence that he had committed a crime. That evidence did not come until at least 28 minutes after the initial traffic stop. The court agreed and suppressed the evidence.  There is no bright line rule in Florida which says how long the police can keep a DUI suspect at the scene. It depends on the circumstances of the case- for instance, the reason for the delay, how much evidence the police have of DUI at each stage of the process and the length of the delay.  However, in this case, there did not appear to be a legitimate reason for the delay to start the DUI investigation so 28 minutes was considered too long of a detention. If the detention is unreasonably lengthy, it is unlawful, and if it is unlawful, evidence obtained during that detention is not admissible.

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People ship drugs to other parts of the country.  They do it using the US Postal Service and Federal Express and UPS and any other delivery service. They do it by shipping to a location where nobody lives expecting someone on the other end to pick it up as soon as the package arrives. Other times, they ship it to a known address but address the package to a fake name so the person who receives it can claim ignorance if the police find out. And there are other methods people use to send illegal drugs to other people. The police catch many of these packages.  Many of these packages have similar appearances and methods of shipment.  Law enforcement also use drug dogs at the shipping facilities to smell packages (particularly those from states where marijuana is now legal). When they find a package that contains illegal drugs, they will attempt a controlled delivery which often consists of a police officer pretending to be a deliveryman and delivering the package to the listed address.  Once a person at the address accepts the package, police will come in and make arrests.

In a recent case near Jacksonville, Florida, the police discovered a suspicious package at UPS and decided to investigate. They learned that it was addressed to a fake person. They got a search warrant to open the package and found marijuana inside. One of the police officers disguised himself as a UPS driver and attempted to deliver the package, but no one answered the door. Later, the police knocked on the door to try and interview the resident.  As they did so, an individual drove up to the residence. The police detained that individual and asked him questions to see if he was involved with the marijuana package. The police brought a drug dog to the scene and had the dog walk around the person’s vehicle. After alerting to that vehicle, the police searched it and found marijuana and other drugs inside.

The criminal defense lawyer filed a motion to suppress the evidence of the drugs found in the vehicle because the police did not have a legal basis to detain and keep the defendant at the scene. While the defendant did ultimately consent to a search of his car, it was after the detention which the criminal defense attorney argued was illegal. Consent is not voluntary if it is the result of an illegal detention.

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When can a police officer stop and search you?  This is a question often asked to criminal defense lawyers, but can rarely be answered with any degree of specificity.  Why?  Because whether a police officer has illegally stopped and searched you is a mixed question of fact and law.  Rarely, are two cases exactly the same factually.  So, it is up to the trial judge to listen to the testimony and evidence at a suppression hearing, to determine which facts he or she believes to be true and whether under those facts, the officer acted within the law based on prior case law.  Recently, in a rare reversal, the Eleventh Circuit Court of Appeal reversed a Federal District Judge’s denial of a motion to suppress.  Here’s why?


The stop and seizure of Patrick Heard


Officers received a 911 call stating that there were gunshots in the woods behind an apartment complex.  Patrick Heard was walking his dog at the apartment complex when two police officers arrived and approached him approximately 15 – 29 minutes after the 911 call.  The officers asked Patrick if he had heard gunshots.  Patrick told the officers that he had heard gunshots coming from the woods.  The officers asked Patrick for his identification, which he readily provided.  The address on his license didn’t match the address to the apartment complex so the officers asked him if he was staying with someone in the apartment complex.  Patrick answered that his mother lived at the apartment complex and pointed up towards an apartment, but didn’t provide the apartment number.  According to the officers, Patrick was swaying.  The officers asked Patrick if they could search him and he stated, “I didn’t do anything wrong.”  An officer told Patrick to raise his hands so they could pat him down.  The officers found a firearm on Patrick and arrested him because he was a convicted felon in possession of a firearm.

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A motion to suppress is an important arrow in the quiver of any criminal defense attorney.  It is a weapon to defend the true meaning of the Fourth Amendment to the Constitution of the United States.  It is a powerful tool that protects all Americans from unreasonable searches and seizures by law enforcement officers.  Anytime a law enforcement officer detains you, searches you or your property, or seizes you or your property, there is a question whether that detention, search and/or seizure was lawful and reasonable.  Your criminal lawyer would file a motion to suppress and the burden would be on the State to prove the police action was lawful and reasonable.


Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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In Florida, the police can stop a driver if that officer observes the driver commit a traffic violation.  This is a detention under search and seizure law, but it is justified based on the fact that the driver apparently committed a traffic violation.  Many DUI cases start this way in Florida.  However, if the violation is merely a traffic violation, the police officer can generally only keep the driver for the purpose and only as long as it takes to write a traffic ticket.  If the police officer keeps the driver for an extended period of time without specific evidence of criminal activity, it is likely a violation of search and seizure law.

Another detention occurs when the police officer asks a driver or other occupant of the vehicle to exit the vehicle.  A criminal defense lawyer would argue that pulling a person out of a vehicle during a routine stop is an illegal detention.  If so, that criminal defense attorney could have any evidence seized thereafter suppressed due to the illegal seizure.

In a recent gun case just south of Jacksonville, Florida, the defendant was stopped for having an illegally tinted window.  The police officer ordered the defendant out of the vehicle while they had a drug dog sniff the vehicle.  When he opened the door to exit the vehicle, the police saw that he had a handgun under his seat.  Since the defendant was a convicted felon, he was arrested for possession of a firearm by a convicted felon.

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In Florida, the police are generally not allowed to enter a person’s home to search or investigate a crime without permission from the homeowner or a valid search warrant.  In some cases, the police cannot even go onto your property to search or investigate if the property is properly fenced and it is clear people are not welcome on the property.  The right to privacy in one’s home is one of the strongest constitutional protections.

However, for homes that are not adequately fenced in, the police are normally allowed to go up to anyone’s door, knock and ask questions.  As long as it appears that the general public would be allowed to go up to a door and knock, the police can too.  The residents can refuse to answer the door or they can refuse to answer any questions if they do open the door, but the police are welcome to try and knock and see if they can get someone to talk or even let them in.  If the residents do not cooperate, the police are not allowed to take the encounter any further, at least according to the law.  In practice, the police do not like to take no for an answer and may act accordingly.

In any case, if homeowners or other residents do not want the public or the police to be able to just walk up to their doors, knock and try to get information, they need to make it clear that their property is not open to the general public.  Fences and gates work well to do this.  Signs can as well, but the sign needs to be clear.  There was a case in Jacksonville, Florida where a person growing marijuana in his house had a “No Solicitors” sign on his door.  He had no gate or fence and no other signs.  The police walked up to his front door, knocked, smelled marijuana when the door was opened and subsequently obtained a search warrant.  The homeowner was arrested for growing marijuana.

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The War on Drugs may be the most counter-productive, fiscally wasteful policy in the history of humankind.  Yet, it forges ahead, as it does little to effect any change other than to redirect taxpayer money away from beneficial programs and increase the size of government.  With regard to marijuana, it is difficult to understand why any police officer would support the War on Drugs.  Any encounter with a “suspect” has inherent risks to a police officer.  Why would any officer want to risk his/her well-being to determine whether or not someone has a plant, or the flower from a plant?

On the other hand, marijuana cases are easy.  A police officer smells the distinctive odor of cannabis, searches a person or a vehicle, finds the marijuana and makes an arrest.  No thought, no investigative skills, no legwork required.  And it counts as an arrest like any other for statistical purposes.  It is so much easier and quicker than tracking down reluctant witnesses in a shooting or figuring out where the money went in a fraud case.

A recent case out of Colorado will make it a little more difficult for the police to make the easy, simple marijuana arrests that do nothing to benefit the public despite political claims that more arrests translate to a safer community.  Many marijuana arrests are the result of a trained K-9 walking around a vehicle after a traffic stop and alerting to the odor of marijuana or some other illegal drug which then gives the police officer probable cause to search the vehicle.  If the police officer finds illegal drugs in the vehicle, the officer will likely arrest one or more of the occupants in the vehicle.  The entire case can be wrapped up in a matter of minutes.

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Pursuant to both the United States and the Florida Constitutions, people have a right to privacy in their homes.  This means that the police normally cannot come into a person’s home and search for drugs or other evidence of criminal activity without a valid search warrant or consent from someone who lives there.  This right to privacy protection applies to homeowners, people who rent apartments and other residents.  It also applies to less traditional residences like rooming houses.

In a recent possession of cocaine case near Jacksonville, Florida, the defendant was staying at a rooming house along with many other people.  The defendant had a room there and a key to the room.  He kept his belongings there.  The police showed up to the area while responding to an unrelated call.  The defendant had a pill bottle that he placed under the rooming house when he saw the police.  The police officer became suspicious, walked onto the property, reached under the house and pulled out the pill bottle.  He opened it and found cocaine inside.  The defendant was arrested for possession of cocaine.

The criminal defense lawyer filed a motion to suppress the evidence of the pill bottle and the cocaine.  He argued that the police officer did not have a search warrant or consent to come onto the property and take a pill bottle that was under the house.  The issue became whether the defendant had a reasonable expectation of privacy in a rooming house in which he was staying.  If he did, a police officer cannot come onto the property and take a pill bottle from underneath it that belonged to the defendant.

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In Florida, where marijuana remains illegal for now, the odor of marijuana is a fairly common basis that police use to further investigate or search a suspect.  It is also a basis that is often used to conduct a DUI investigation and make DUI arrests.  The odor of marijuana obviously gives police officers reason to believe that marijuana is present.  Under some circumstances, the police can use that information to search items or people.  However, it is not a blanket excuse to conduct a search or “pat down” in every situation.

In a possession of marijuana case near Jacksonville, Florida, the police received a tip that certain individuals were involved in drug activity at a warehouse.  The police responded and saw several individuals at the warehouse.  The police officer indicated he smelled a strong odor of marijuana coming from the group.  However, the police officer did not see any marijuana and did not see anyone smoking anything.  Based on the odor of marijuana, the police officer asked one of the individuals to come forward.  The suspect approached the police officer.  This led to a pat down of the suspect and ultimately a search during which the police officer found marijuana.  The suspect was arrested for possession of marijuana.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana arguing that the police officer illegally searched the defendant.  The appellate court agreed.  A general odor of marijuana coming from a group of people was not sufficient evidence to pat down one of the individuals or search him.  The police officer could have investigated with questions or requests for consent to search but was not yet legally authorized to pat down or search anyone without more specific evidence as to who was actually smoking the marijuana or had marijuana in his possession, if anyone.  Because the police officer went straight to a pat down and then a search without trying to get more specific evidence to identify the source of the odor, the marijuana evidence was suppressed and the possession of marijuana charge was later dismissed.