We live in an absolutely huge universe. I don’t want to get too Carl Sagan on you, but let’s face it, the more we know about the universe—the bigger it gets.
We’ve known for a while that our universe is full of stars. And these stars form galaxies. There are billions and billions of galaxies that each contain billions and billions of stars.
Add to that a boat load of planets orbiting all those stars. That’s right, we’ve now discovered planets everywhere.
The funny thing about all of this is that Earth is the only place we know of where atoms are observing atoms. Amazing, right? All this stuff in the universe, but only one place where the “stuff” is observing the other “stuff.” (If we had all the time in the world, I would launch into a short quantum physics discussion, in particular, how “conscious observation” effects physics. Or, we could discuss Fermi’s Paradox. Now, my web people tell me I’ve got to get to a legal discussion eventually–but they don’t really read what I write–so let’s dig deeper with the knowledge that my web people aren’t reading this. Anyway, the physicist Ernico Fermi was at a science conference where the white coats were giddy over their predictions as to just how much extraterrestrial life must be out there besides us—given how big the universe is. He was the Debbie Downer of that physics conference, posing the simple question: “Where is everybody?”)
Observation is a funny thing. Even when it comes to criminal law, observation is just as important as it is in science. The police cannot just go off to search a home based upon a hunch, they have to observe some bad stuff and report it to a judge who may then issue a warrant. If you’ve seen as many criminal cases as I have in my 25 years of defending, one thing is for certain:
The police are watching.
Well, let me be more specific. If drugs are being mailed to your address—it doesn’t matter where they’re from, or who they’re addressed to—the police are watching.
How do I know this? Well, much like a lung doctor that has treated many smokers, I have handled many cases involving drugs in the mail. Much like smoking, this isn’t an instant death. Many prison bound folks have received numerous drug shipments in the mail before packing their bags for prison. But, it doesn’t have to end like this.
Let’s take a look at how to beat a real life “drugs in the mail” case.
In the case of Johns v. State, several pounds of drugs were sent to a real address, but sent to a fictitious name in Polk County, via UPS. 2018 Fla. App. LEXIS 5001 (Fla. 2d DCA 2018). Yes, this package was probably first alerted because of the fictious name—so I’m not sure why people keep doing this—but it should come as no surprise that the police intercepted this package before it was delivered. There are these things called computers. Yea, they’ve been around for a while. And, it may come as a surprise to some folks, but these computers can read an address label. Not to dump too much information on you, but these computers can tell whether or not the package recipient or the sender are real people. Shocking, I know. Anyway, if one of the two names/addresses on a package are fake—the chances that the package is going to be searched increase expedentially.
The police obtained a warrant to search the package sent to a fictitious person. To no one’s surprise, drugs were found.
So, the police played dress up. One of the detectives wore his very best UPS delivery uniform and drove up to deliver the package in a borrowed UPS truck.
No one was home to take the delivery, so the officer/UPS actor took the package back to his borrowed UPS truck and drove off.
As we mentioned before, the police are watching.
Once the police noticed the suspicious package, they began watching the destination address—a little duplex. And even when they tried to deliver the package, there were multiple officers hiding out watching the whole thing.
Later that day, the police decide to knock on the door and speak to the occupants. A Mr. Whitaker answered the door, and allowed the police inside. Mr. Whitaker even permitted the officers to search his place, yet they found nothing.
This is an important point, let’s not let this teaching moment pass by. If someone is mailing drugs to your address, this sort of thing attracts police attention (duh). The fact that Mr. Whitaker didn’t have any sort of contraband in his home is a good thing, I’m just saying. I’ve seen this go the other way far too often.
Anyway, as the detectives were leaving, a few other folks rode up into Mr. Whitaker’s driveway. One of these folks was Mr. Johns. They had seen Mr. Johns earlier in their survaillance, but this time he was driving a different car. Suspicious, right? Who drives a different car on the same day? He must be a drug dealer….
Mr. Johns was patted down, and the police asked to search his car. He refused. As is often the case on a refusal, the officer then called a K-9 on his radio, conveniently loud enough so that Mr. Johns could hear what was going to happen next. Mr. Johns then agreed to a search as he couldn’t bear to wait for the K-9 to arrive.
Mr. Johns then asked a pretty smart question: “Am I under arrest?” The officer said “No.”
So, Mr. Johns got back in his car, started it up, and tried to leave the driveway.
The officer freaked out, openning Mr. Johns’ door and asking “What are you doing? . . . You’re being detained.”
Hum. A nice play on words, right?
The police felt like they had plenty of evidence that demonstrated Mr. Johns was waiting for this package of drugs. Here’s what they had:
1. Mr. Johns had arrived at a home that under police surveillance;
2. He had arrived with another friend who was seen at the duplex earlier and he had a Popeye The Sailorman pot-smoking hair design (can’t make this stuff up folks), and this friend’s actions earlier in the day seemed to be of a person awaiting a drug delivery;
3. “Mr. Johns had no known reason to arrive at the duplex in a ‘recently switched out car’, which the testifying detectives indicated was a ‘known drug dealer counter surveillance measure” id. at 8 and:
4. “That working in tandem in twos was ‘not unusual for drug dealers that are surveilling a drop drop location.” Id.
Johns’ defense attorney filed a Motion to Suppress and lost. This appeal followed. The question on appeal was pretty simple: did the police have any reason to stop Mr. Johns? As a side bar here, this issue comes up in many many many drug trafficking via mail cases. You’ve got to examine closely whether or not the police had enough information to pull the stunts that they pulled.
The appellate court said something like, you mean to tell me that “the only connections the circuit court could draw between the package of marijuana that precipitated this investigation and Mr. johns at the time he was detained were his arrival at a duplex where marijuana was to be delivered and the prior actions of a person Mr. johns accompanied.”? Id at 10. But this just isn’t enough to stop a citizen for an investigation, and the court reiterated the well settled principle that “one’s mere presence in a place of potential crimimnal activity does not, by itself, furnish reasonable suspicion to justify an investigatory stop.” Id at 11.
So, what did the police need in order to stop Mr. Johns and question him as they did? The law says that “in order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. A mere hunch is not enough to support a stop.” Id at 12, citing Popple v. State, 626 So. 2d 185, 186 (Fla. 1993).
The appeals court concluded that Mr. Johns’ stop was illegal, and as such, his consent to search his car was also illegal. Accordingly, every conviction was thrown out. And now you know another way to beat a package case.