A Second Example of When a Police Encounter in Florida Requires Evidence of Criminal Activity

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.

The criminal defense lawyer filed a motion to suppress evidence of the gun arguing that the police unlawfully seized the driver and the gun.  The court agreed.  When the police stopped the driver, this was considered a seizure as he was not free to leave.  In order for this to be a lawful seizure, the police must have had some evidence of criminal activity.  Arguably, the state could contend that he had marijuana in his apartment based on the testimony of the officers that they smelled it, but the proper procedure for this would be to try and get a search warrant for the apartment.  There was no evidence that there was any evidence of criminal activity in the vehicle or on the driver at the time he was stopped.  Therefore, the police did not have a legal basis to stop him.  As a result, any search of the vehicle and seizure of the gun in the vehicle was illegal, and the evidence of the gun was inadmissible.  The carrying a concealed firearm charge was dismissed.

Contact Information