Articles Posted in Search and Seizure

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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.

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In Florida, many criminal cases involving drugs and guns result from traffic stops.  A police officer will conduct a traffic stop and become suspicious or allegedly discover evidence of illegal activity and search the vehicle.  A search of the vehicle can be based on consent, which the driver or occupant never has to give.  Or, sometimes the police officer will call a drug K-9 to the scene that alerts to the odor of narcotics.  These searches can be questionable if the police officer keeps the vehicle and driver at the traffic stop for an unreasonable period of time while waiting for the drug dog.  There are other methods the police use to search vehicles after a traffic stop, but requesting consent is a common one.

Not every traffic stop involves a vehicle.  People in Florida need to be aware that the traffic laws apply to people on bicycles as well.  The police can stop a bicycle for running a stop sign or a red light just like a vehicle.  However, the initial stop of the vehicle, or bicycle, must be legally valid in order for any search or arrest thereafter to be valid.

In a recent possession of crack cocaine case south of Jacksonville, Florida, the suspect was riding his bike against traffic.  Florida law says a bike must ride with traffic, just like a car must.  Of course, people ride their bikes against traffic all of the time and the police ignore it, but in this case, they stopped the rider.  While issuing the rider a citation, the police officer asked him if he had any drugs or guns in his possession.  The rider admitted to having crack cocaine.  The police officer searched him, found the cocaine and arrested him for possession of crack cocaine.

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The prior post discussed the difference between a consensual encounter with the police in Florida and something more involved.  The police in Florida are free to engage people in consensual encounters to ask questions or make observations, and people are free to refuse to answer questions or otherwise cooperate.  Once an encounter becomes more like a seizure, i.e. a situation where the person does not feel like he/she can freely leave, the police must be able to point to specific facts indicating there is evidence of criminal activity to continue.

A recent firearms case near Jacksonville, Florida provides another good example of what the law allows regarding searches and seizures in Florida.  In this case, the police approached an apartment responding to a noise complaint.  They knocked on the door, the suspect opened it and then quickly closed it.  It is important for people to understand that they have the right to do this.  No one has to answer the door if the police are knocking without a warrant.  If a person opens the door and decides he/she does not want to speak with the police or does not want to speak with police any longer, that person can end the conversation.  As long as there is no evidence of a crime or a warrant, the police cannot enter the home.  Of course, in reality, the police may not be satisfied with that response, but at least on paper, it is permitted.

In this case, the police claimed they could smell an odor of marijuana coming from the apartment when the occupant briefly opened the door.  While the police were deciding what to do next, the occupant left the apartment and drove away in a vehicle.  The police officers followed him and ultimately conducted a traffic stop to ask him why he slammed the door and to see if he had any marijuana in his vehicle.  As they were talking to the driver, the police officers saw a handgun partially concealed in the vehicle.  They arrested the driver for carrying a concealed firearm.

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The Fourth Amendment and the Florida constitution provide that people have a right to be free from unreasonable searches and seizures conducted by the state.  There are thousands of court cases that interpret what exactly this means in the context of the different police encounters.  As a general rule, the police in Florida are allowed to go up to anyone and ask questions, even if the police suspect that person committed a crime and are trying to acquire incriminating information.  Of course, that person is free to refuse to answer those questions.  The police can walk up to a person’s front door (as long as access is not protected by a gate or other privacy barrier) or knock on a driver’s window to ask questions.  If the subject chooses to engage the police and answer, the constitutional search and seizure provisions do not apply.

However, if the encounter develops into what is considered a seizure, the police need to establish reasonable suspicion of criminal activity or probable cause or possibly have a search warrant depending on the circumstances.  For instance, consider an example where a police officer sees a car stopped somewhere suspicious with the driver inside the vehicle.  The officer might suspect something improper or just wonder if the driver is having trouble of some kind.  Often, the police officer will suspect that the driver is driving under the influence of alcohol or drugs (DUI).  That police officer can approach the vehicle, look into the window and investigate further.  The police officer can ask the driver to roll down the window so they can talk.  If the driver agrees or voluntarily exits the vehicle, this is considered a lawful and consensual encounter.

What often takes this scenario to the next level is if the driver does not respond for whatever reason or refuses to answer the police officer.  Normally, the police officer will then order the driver to turn off the vehicle or roll down the window or step out of the vehicle.  The police officer might park his/her vehicle behind the other vehicle preventing it from leaving.  The key to whether an encounter escalates into something requiring evidence of criminal activity is whether the subject reasonably feels like he/she is free to disregard the officer and leave.  In reality, when a police officer asks or tells anyone to do anything and that person refuses or ignores the officer, the officer is almost never going to let it go.  However, under the law, there are certain situations which qualify and certain that do not.  The examples I listed earlier in this paragraph are generally examples of commands that change the encounter to a seizure and require at least reasonable suspicion of criminal activity.  If the police officer looks into the vehicle, asks questions and the driver ignores the police officer, the officer cannot command the driver to exit the vehicle without a legal basis.  At this stage, the police officer must be able to point to some facts suggesting a crime is being committed, which would be difficult to do in the DUI context if the window is up.