Articles Posted in Search and Seizure

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We wrote a blog post several months ago about a case where a police officer in Florida stopped a driver because some of the unnecessary letters on the license plate were obscured. In other words, the letters and numbers that make up the unique information on a license plate that identified the vehicle and owner were perfectly visible. However, in Florida, there is often other wording on the license plate. It might say “Sunshine State” or provide the website “MyFlorida.com” on the plate. Obviously, these words/letters are irrelevant to the purpose and requirement of a license plate. In the prior case, the driver had a border around his license plate that obscured some of this other wording, and the police officer pulled the driver over as a result and arrested him for an unrelated crime. The criminal defense lawyer filed a motion to suppress claiming the stop was illegal, and kind of ridiculous, but the defendant lost because the Florida statute said none of the wording can be concealed on a license plate.

It looks like there has been a new case on the matter. This is an important issue because a lot of people have license plates where some of the letters are concealed. Many people have license plate frames that are advertisements or display their favorite sports teams. These often conceal part of the license plate in Florida. This may give the police free reign to pull the driver over, which often gives the police reign to search the vehicle. Remember, if the police want to search your vehicle, that is probably what they are going to do regardless of whether they are permitted to do so under the Fourth Amendment.

This new case occurred south of Jacksonville, Florida. A police officer stopped a driver who had a border around his license plate that was an advertisement for the place where he purchased the vehicle. It partially obscured the words “Sunshine State”. The important letters and numbers of the license plate were perfectly visible. The police officer found cocaine in the vehicle and arrested the driver for possession of cocaine. The criminal defense attorney moved to suppress the evidence of the cocaine arguing that the stop was invalid. The question comes down to whether these license plate frames or borders are illegal and a basis for the police to make a traffic stop when they conceal superfluous wording on the license plate.

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In Florida, many criminal arrests begin as traffic stops.  Most DUI’s begin this way along with other, more serious charges. As a result, a criminal defense lawyer should always look at the initial stop and how it occurred to see if there might be a search and seizure issue that could be the basis of a motion to suppress.  Police can normally stop a driver for violating a traffic law such as speeding or running a red light. However, it is not uncommon for the police to stop a driver for more vague traffic infractions like the failure to maintain the lane, particularly in driving under the influence of alcohol or drugs (DUI) cases.

In a recent case near Jacksonville, Florida, the defendant was pulled over for failure to maintain her lane on two occasions. The police officer ultimately searched the vehicle and found marijuana inside. The defendant was arrested for possession of marijuana. The criminal defense attorney filed a motion to suppress the evidence of the marijuana based on the argument that the police officer did not have a legal basis to pull the defendant over.

The court agreed with the criminal defense lawyer. At the motion to suppress hearing, the police officer testified that the defendant did not impact any other vehicles, pedestrians or anyone else when she veered out of her lane two times. The relevant Florida statute says that when a roadway has been divided into two or more marked lanes, the driver should drive entirely within a single lane as nearly as practicable and shall not move from that lane unless it is clear such movement can be made safely. The courts in Florida do not find that a driver has violated this statute unless there was evidence that the driver or any other person was endangered. Therefore, if a driver crosses over a solid white or yellow line periodically but no other driver or person was impacted, it would not likely be a violation that would warrant a traffic stop. The police must establish some sort of safety concern caused by the driver crossing the solid line.

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In Florida, the criminal laws are created by the state legislature. They are laws that prohibit certain conduct, and a violation of those laws can result in an arrest and jail time. Police are allowed to search a person after an arrest for a state crime. If the police find other or additional evidence of criminal activity during that search incident to an arrest, they can likely use that evidence against the defendant to support the arrest and/or add additional criminal charges. Cities in Florida can also enact laws that address certain conduct.  These laws can also come with penalties that include relatively short periods of time in jail.  For instance, fighting and loitering  are municipal ordinances in Jacksonville, and a violation of either ordinance can result in some jail time.

However, the same search and seizure rules do not apply to municipal ordinances as for state and federal crimes. In a recent case south of Jacksonville, Florida, police found the suspect in a city park after it closed at 11:00 p.m. The police officer arrested the suspect for being in the park after hours. This was not a state crime but a municipal ordinance violation. After the arrest, as they always do, the police officer searched the suspect. The police officer found a concealed handgun, cocaine and marijuana. The suspect was then charged with felony and misdemeanor crimes based on the evidence found after the municipal ordinance arrest.

The criminal defense lawyer filed a motion to suppress all of the evidence based on the search incident to a municipal ordinance arrest. The court noted that the police are not allowed to go through a full custodial arrest and search for a violation of a municipal ordinance, like they can for actual criminal law violations. They can “arrest” or detain a suspect for a brief period of time in order to write a ticket or issue a notice to appear in court at a later date. However, the suspect is not taken to jail. As a result, the police are not permitted to conduct a search incident to an arrest in these cases. Therefore, the search of the defendant was unreasonable, and the charges related to the gun, marijuana and cocaine were thrown out.

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In Florida and elsewhere, people have a constitutional right to privacy, and this protection is greatest in one’s home. As a result, the police generally cannot search a person’s residence without consent from someone with authorization or a valid search warrant. If the police do get a valid search warrant signed by a judge, that does not give them free rein to search anything and everything belonging to the suspect. The search is limited to what is reasonable and the area identified in the search warrant.

In a recent drug possession case south of Jacksonville, Florida, the police obtained evidence that the defendant had illegal drugs in his home. The police went to a judge and obtained a search warrant for the residence. The address of the residence was listed on the search warrant, and it was described as a single story residence. The search warrant authorized the police to search the residence, the curtilage of the residence (the area surrounding the home), any vehicles on the premises and any people at the premises. That is fairly common for search warrants. When the police arrived to the property, the saw an RV on the property and searched it. They found illegal drugs inside.

The criminal defense lawyer filed a motion to suppress the evidence found in the RV arguing that police did not have authority to search the RV based on a search warrant of the permanent residence that did not mention the RV. The state pointed out that a search warrant of a residence and its curtilage often allows police to search enclosed areas around the house, such as a shed or a vehicle on the property. However, search warrants are limited to the place described in the search warrant. Police officers are not authorized to search separate dwelling units on the property that are not listed in the search warrant. So, the question becomes whether the RV is apparently being used as a separate dwelling. The court looked at where it was located, who owned it, whether it was affixed to the ground, whether there was a utility hookup, whether it was occupied and other factors. If it was reasonable to believe the RV was being used as a separate residence, the police could not search it since it was not mentioned in the search warrant. However, if it appeared reasonable to believe the RV was being used as a vehicle and was on the property mentioned in the search warrant, then the police probably would have been authorized to search it. In this case, the evidence indicated the RV was a residence so the search was unlawful, and the evidence found in the RV was suppressed.

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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.