Articles Posted in Search and Seizure

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In a murder case south of Jacksonville, Florida, the police identified a suspect and learned that he had multiple cell phones. They tried to use this cell phone information to determine the location of the defendant at the time of the murder. When people use their cell phones, the phones communicate with a tower.  Cell phone companies record this cell site location information on a mapping program that shows the locations of those towers. If the police are able to obtain this cell site information from cell phone companies, they can determine an approximate location of a person at a certain time based on cell phone usage. In this murder case, the police did obtain this cell phone information from the cell phone provider without a search warrant, and discovered that the suspect was near the site of the murder at the time. With this information and other evidence, the defendant was arrested for murder.

The criminal defense attorney filed a motion to suppress the cell site information because the police did not obtain a search warrant to get it. In 2018, the Supreme Court of the United States addressed this issue and ruled that this historical cell site information is protected by the Fourth Amendment right to privacy. In other words, the police cannot just obtain this information without probable cause and a search warrant. Because they did so, the murder case was reversed.  That opinion noted that cell phone providers maintain this information on all cell phone users. If the police did not need a search warrant to obtain this information, the police would basically be permitted to run location surveillance on just about everyone with a simple request. People increasingly rely on portable electronic devices for work and many other aspects of life. Doing so and the fact that providers of these devices record information about the user does not mean the user relinquishes his/her private data to the government without oversight.

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In Florida, most DUI cases (driving under the influence of alcohol or drugs) cases start after a police officer pulls a driver over for a routine traffic violation. The police officer then approaches the driver, claims to observe signs of intoxication and then conducts a DUI investigation. If the police officer subjectively believes the driver is impaired from alcohol, or just does not like the driver’s responses or level of cooperation, the police officer will likely arrest that driver for DUI.

One traffic violation that gets people pulled over is having a license plate that is fully or partially obscured. Every vehicle in Florida is supposed to have a license plate, and the unique numbers and letters on that license plate are the numbers and letters that identify specific vehicles and their owners. Police officers use these numbers and letters to identify owners to check on suspended licenses, outstanding warrants, stolen vehicles and other information. If a person has a license plate where those numbers and letters are even partially concealed, the police officer may not be able to run the license plate in his/her system. This raises suspicion and is against the traffic laws of Florida. Whether a part of the numbers and letters are concealed or the license tag is faded or covered with some protector that makes it too hard to read, a police officer can pull a driver over for this and initiate a DUI or other criminal investigation if he/she observes evidence of a particular crime. Or, the police officer can just give the driver a traffic ticket for the problematic license plate.

The key information on license plates in Florida is the unique numbers and letters. However, license plates in Florida have other lettering as well. Some have the MyFlorida.com website on there or convey some message if it is a specialty license plate. Some have the name of the county. These numbers and/or letters have no value to a police officer trying to identify registration information on the vehicle. If the letters “ars” on a Jacksonville Jaguars specialty license plate are concealed, that obviously has no relevance to anything the police need to do their jobs and is not suspicious in any way.

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In a case that was recently decided by the United States Supreme Court, the issue was whether the police could go onto a suspect’s property and search a vehicle that was in the driveway under a partially enclosed portion of the house, likely something built to provide shade for the vehicle. In this case, the police were searching for a stolen motorcycle. They believed the motorcycle was located at the house in question. When they arrived, they saw what appeared to be a motorcycle under a tarp in the driveway. The police officer walked onto the property, looked under the tarp and ran the tag of the motorcycle.  After determining the motorcycle was stolen, the owner of the house was arrested.

The criminal defense attorney filed a motion to suppress the evidence of the stolen motorcycle because the police officer did not have a legal basis to search it on the defendant’s driveway.  There are a couple of legal principles involved here.  There is something called the motor vehicle exception in search and seizure law. Normally, if the police want to search the property of a person, the police have to get consent or a search warrant.  However, automobiles are different for two reasons.  One, there is less of a reasonable expectation of privacy in an automobile because they are driven around and parked in public, and people can generally see inside of them through the windows.  Two, automobiles are easier to move from one place to another making it easier to dispose of evidence inside.  As a result, the automobile exception allows a police officer to search an automobile without a search warrant if the police officer has probable cause to believe there is evidence of a crime in the vehicle.

A competing issue in this case is the idea that people have a strong expectation of privacy in their homes and the immediate area surrounding their homes, i.e. the curtilage. The curtilage is generally defined as the immediate area surrounding the home along with a porch and any enclosed areas near the home.  This would also seem to apply to property that is enclosed by a fence that is clearly not open to the general public.  The police may not go into these areas to search without consent or a search warrant.

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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.