Search and Seizure

Initial Search of Defendant Was Lawful, But No Do-Overs

Published on: December 22, 2016 | by Lasnetski Gihon Law

This unlawful search took place in a Florida school south of Jacksonville, Florida. In this case, students at the Florida school reported to school officials that some other students were playing with a taser on school grounds. The school security officer spoke to some kids who indicated that the suspect was the one with the taser, however the suspect had gone home for the day. The next day, the principal and security officer had the suspect come into the principal’s office, and they searched her purse. They did not find the taser and let her leave for class. Later that day, they brought the suspect back into the principal’s office, searched her purse and found a taser. She was arrested for possession of a weapon on school property, which is a felony.

The criminal defense lawyer filed a motion to suppress the evidence of the taser arguing that the principal and security officer did not have a legal basis to conduct the second search after the first search did not result in any incriminating evidence. The rules for searching students and their property are a little different in schools. Students and their property can be searched at a school if there is reasonable suspicion that the student is involved in criminal activity or evidence of a crime will be found. A search of a student at school is considered reasonable as long as the search is reasonable in scope. At schools, the more serious the threat, the more leeway the school or a police officer will have in conducting a more extensive search.

In this case, because students indicated the suspect had a weapon on school property, the court ruled that the first search of the student was reasonable. However, since the first search was unsuccessful, the school could not conduct a second search of the same property later without new information that evidence of a crime was present. In other words, the school and/or the police only get one shot at a search based on reasonable suspicion, and if they do not find anything, they cannot go back for a second search later without some new evidence that justifies it. A second search of property that initially yielded no results is a search based on mere suspicion which does not meet the appropriate search and seizure standard. For the second search to be justified, the state would have had to present testimony of new evidence that was uncovered after the first unsuccessful search. The weapon charge was thrown out.

Police in Florida Can Knock on Your Door Without a Warrant, but Their Access is Limited

Published on: December 16, 2016 | by Lasnetski Gihon Law

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.)

The State Can Compel a Defendant to Provide the Cell Phone Password With a Search Warrant in Florida

Published on: December 13, 2016 | by Lasnetski Gihon Law

In our last post, we discussed when the police can search the contents of a cell phone belonging to a suspect. We referenced a case where the police illegally searched a password protected cell phone that had been abandoned by the defendant. Since it involved an abandoned cell phone, that was a strong statement that the police are not generally going to be able to search a password protected cell phone without a search warrant or specific consent from the owner of that cell phone. Given that cell phones these days often contain a wealth of information that can be used by the state to incriminate a defendant, it is important for people to protect their cell phones and make sure they understand the Constitution affords them a right to privacy in the information contained in that cell phone.

This post refers to another case near Jacksonville, Florida that looked at this issue of when the state can access the information in a defendant’s cell phone. In this case, the defendant was arrested for using the camera on his cell phone to violate the privacy of women in public. He was arrested for video voyeurism. After he was arrested, the state requested consent to search his cell phone to look for pictures and videos of the victims. The defendant refused. The police appropriately applied for a search warrant for the cell phone. Through their investigation and interview with the defendant, they obtained sufficient information about the cell phone to adequately identify it for a search warrant application. It is unlikely that a judge would grant a search warrant application for a generic cell phone belonging to the defendant that the police knew nothing about and did not have in their possession. Because the police had information about the specific cell phone allegedly used in the crime, the search warrant was granted.

The police located the cell phone, but it was protected by a password and the defendant would not provide it, as was his right. The state then filed a motion to compel the defendant to provide the pass code for the cell phone. The criminal defense lawyer argued that a defendant has a constitutional right against self incrimination, therefore the defendant could remain silent about all aspects of the case, including his cell phone pass code that could lead to the discovery of incriminating evidence.

Police in Florida Cannot Access Information in an Abandoned Cell Phone Without a Search Warrant

Published on: December 9, 2016 | by Lasnetski Gihon Law

In Florida and elsewhere, the general rule for searches and seizures is that the police cannot search a person’s property without a search warrant or specific consent from a person with the proper authority to give such consent. There are exceptions to that rule depending on the circumstances, but the general rule applies in most situations. This has been the law for a long period of time. However, there are new situations, and new technologies, that require a unique interpretation of search and seizure law. Cell phones are not exactly new, but they have created circumstances where the courts cannot necessarily rely on prior cases alone and need to interpret the Constitution to determine if searches and seizures are lawful. Additionally, the storage capacities and capabilities of cell phones are always improving so new search and seizure scenarios are common.

We have discussed cases where the police have made arrests and then sought to search a person’s cell phone without a warrant. These days, cell phones can contain all sorts of information that can incriminate a defendant, such as photographs, text messages, call records, internet searches, and a plethora of other data. These items can be critical in many different types of criminal cases.

The question remains: when can the police access the data contained in a suspect’s cell phone? In a case near Jacksonville, Florida, the police stopped a vehicle after running the tag and finding that the vehicle had been reported stolen. The suspect fled the vehicle on foot. The police officer did not catch the suspect, but he did find a cell phone that was left in the vehicle. The cell phone was protected with a password, but someone at the police department was later able to access the data in the phone. No search warrant was obtained to do this. Once inside the cell phone, the police were able to identify the suspect and his contact information. He was located and arrested for burglary of a conveyance.

The War on Drugs Sometimes Causes Police Officers to Forget About the Constitution

Published on: November 4, 2016 | by Lasnetski Gihon Law

Police officers like marijuana arrests because they are easy- they don’t require much work, they don’t require much thought, and they don’t require much, if any, investigation. This is one of many reasons why dealing with the war on drugs that primarily serves to waste money and increase the size of government is so difficult Despite the government’s desire to continue the war on drugs, it is not an excuse to disregard the Constitution and the right to be free from unreasonable searches and seizures.

In a recent possession of marijuana case near Jacksonville, Florida, the suspect was riding his bicycle at night without proper lighting. There was no evidence of any criminal activity, but riding a bike without proper lighting is a traffic violation. Based on this lighting malfeasance, two police officers saw fit to stop their vehicle and detain the suspect. The officers asked the suspect for his ID, and he opened his bookbag to retrieve it. The suspect tried to shield the officers from seeing into the bookbag when he obtained his ID but did not act suspiciously. Based on this, the officers handcuffed the suspect and seized the bookbag. The officer then claimed to smell marijuana, searched the bookbag and found small bags of marijuana inside. The suspect was arrested for possession of marijuana.

The criminal defense lawyer filed a motion to suppress the marijuana evidence. The police do have a right to stop someone for committing a traffic violation, even one as minor as this one. However, they can only stop the person for the purpose of writing a ticket for the violation. They cannot detain the person for any longer period of time or seize the person by handcuffing him unless there is specific evidence of criminal activity. In this case, there was none. The suspect complied with the officer and obtained his identification from his bag. If the suspect did so in a way the officer did not like, that is not a specific indicator of criminal activity. If the police officer claimed he searched the bag because it could have had a weapon or drugs without specific evidence, then any police officer could search anyone with a bag, a car, pockets, etc and claim a suspect could have something illegal in a place the officer cannot see. That is not how the Constitution works.

Florida Man Arrested for Firearm and Marijuana Charges After Firefighter Spots Illegal Items in his Garage

Published on: October 21, 2016 | by Lasnetski Gihon Law

In Florida, a person enjoys special protection from illegal searches and seizures in his/her home or other residence. At a minimum, this means that police officers and other agents of the state cannot just come into a person’s residence looking for evidence of criminal activity without a search warrant or valid consent from someone who is authorized to provide consent. However, there are exceptions to this rule that would allow a police officer or other state agent to come into a person’s home. If they find illegal items such as guns or drugs once they are legally inside the residence, a criminal investigation can initiate.

In a recent case south of Jacksonville, Florida, firefighters and police officers responded to a fire in the suspect’s residence. Police and firefighters are permitted to enter someone’s home without consent or a search warrant to deal with an emergency health or hazard issue like a fire. Of course, they must do so only for the purpose of assisting with the emergency and not for the purpose of looking for evidence of a crime. However, if they see evidence of a crime while in one’s home for other purposes, they are not required to ignore it. In this case, the firefighters entered and exited the house through the garage. While doing so, they saw drug paraphernalia on a table in plain view in the garage. After seeing the drug paraphernalia, the firefighters went back inside to make sure there was no additional fire threat and saw marijuana in a closet. They informed the police who detained the defendant. The police officers requested consent to search the house from the defendant. When the police searched the house, they found more marijuana, guns and drug paraphernalia. The defendant was arrested for possession of a firearm by a convicted felon and possession of marijuana with the intent to distribute.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana, guns and drug paraphernalia arguing that the police did not have a legal basis (a search warrant or valid consent before the defendant was detained) to search the house. The court found that the search and seizure related to the marijuana and drug paraphernalia were legitimate. The firefighters had a legal basis to be inside the house putting out the fire, and they saw the marijuana and drug paraphernalia in plain view while legally in the house. They had a right to inform the police about those items. On the other hand, the guns and items found after the defendant was detained and the police searched the house were suppressed. At that point, the police were obligated to get a search warrant to search the house for additional evidence. They never attempted to do so. As a result, the defendant could be charged with possession of marijuana with intent to distribute and possession of drug paraphernalia, but the state could not go forward with any charges related to the guns due to the illegal search.

Florida Police Officer Improperly Arrests Suspect for Giving False Name

Published on: October 14, 2016 | by Lasnetski Gihon Law

A recent encounter between a suspect and a police officer near Jacksonville, Florida illustrates that police do not have free reign to question suspects and detain them based on mere suspicions or the fact that they do not like a person’s answers. In light of recent police shootings and some people’s automatic defense of police regardless of the facts or the relevant law, it seems as if some people believe that it is the obligation of citizens to comply with police no matter how unlawful the police conduct might be.

In a recent cocaine possession case, a police officer observed the suspect standing next to a car in the middle of the road. When the police officer approached, the car fled but the suspect remained on foot. The police officer asked the suspect his name, and he gave a name that the police officer later determined was a false name. Once the police officer ran the name and checked with another individual nearby who knew the suspect, he determined that the name was false. He arrested the suspect at that time. After the arrest, the police officer searched the suspect and found that he was in possession of cocaine. After arresting the suspect for possession of cocaine, he got the suspect’s true name and learned that he had a separate felony warrant outstanding.

The criminal defense lawyer filed a motion to suppress the evidence of the cocaine based on the fact that the defendant was illegally detained and illegally arrested. The appellate court agreed. The defendant was not breaking the law when the police officer approached him. The police officer is permitted to ask questions of anyone, but when the defendant gave a false name, that was not against the law either. Giving a false name can be a misdemeanor crime in Florida, but only if the defendant was lawfully detained or arrested at the time. At the time the defendant gave the false name, the police officer did not have any legal reason to detain or arrest him. Therefore, giving a false name at that time was not a crime under Florida law.

Federal Court Says Police Cannot Stop Vehicle with License Plate From a Marijuana State

Published on: August 25, 2016 | by Lasnetski Gihon Law

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.

Florida Court Finds That Police Pressing Key Fob is Not an Illegal Search

Published on: August 22, 2016 | by Lasnetski Gihon Law

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.

Police in Florida Could Not Prove Constructive Possession of Drugs Found in Hotel Room

Published on: August 19, 2016 | by Lasnetski Gihon Law

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.