4th DCA Cites the Wisdom of Arsenio Hall

marijuana_plants.jpgRemember Arsenio Hall? Of course you do! Don’t deny it. Arsenio had this saying, “Things that make you go Hmmm!”. C+C Music Factory also had a hit song by that same name. So, why would a Fourth District Court of Appeals here in Florida cite this bit of wisdom from Arsenio & C+C Music Factory? I’ll tell you why.

I know you’ve heard this before, but I’ve been defending criminal cases here in Orlando for 18+ years. After reading one bogus police report after another, Arsenio’s words ring true. It’s that gut reaction telling your brain “I know this cop’s story is bogus, but how can I get the judge to recognize the bogosity?” The appellate judge in Hernandez v. State (Fla. 4th DCA, January 2012, No. 4D10-4186) had this same reaction when he encountered a bogus “consent” to search story given by law enforcment. Hernandez was found guilty of Trafficking in Cannabis, Cultivation of Cannabis, and Possession of Drug Paraphernalia. The trial court denied his motion to suppress. Basically, his home was searched by a bunch of cops that didn’t have enough evidence to get a search warrant, so they “claimed” Hernandez consented to the search of his home. Hernandez’ home was a grow house, obviously containing numerous marijuana plants.

The odd thing about this so-called “consent” is that the cops admitted that Hernandez told them “No” twice. Both times, Hernandez told the cops to “get a warrant.” Then, if the cops are to be believed, Hernandez caved in and invited them in to find his indoor weed growing wonderland. Here’s a brief part of Judge May’s response, enjoy:

“But one must wonder why, after twice telling the police to get a warrant, the defendant would invite law enforcement on his property, put the dog away, and kick down his own door to allow law enforcement to have a good look at his indoor marijuana grow room–providing sufficient probable cause for a search warrant. As Arsenio Hall used to say, “Things that make you go Hmmm!”.” [emphasis in original]

So there you have it. To my knowledge, this is the first appeals court reference to Arsenio Hall. Despite the court’s recognition of cop’s b.s. consent story, the court’s hands were tied–the appeals court is required to follow the factual ‘consent’ decision of the lower court that believed the cops. That’s unfortunate, because we all know what really happen. From a legal standpoint, the appellate court emphasized the fact that no testimony was presented by the defense at the lower court’s suppression hearing which would contradict the cop’s ‘consent to search’ story. That’s a lesson for we Orlando criminal defense attorneys–give the trial court testimony regarding consent (or lack thereof).