Articles Posted in Search & Seizure

I realize that none of you are pigs.  That being said, let’s review a common scenario that will come as a shock toiphone-passcode-169x300 my wholesome readership.  Imagine an attractive woman is shopping in Isle Five–the feminine hygiene isle–and she finds herself surrounded by men looking at the same products.  Are these men purchasing awkward products for their lady at home, or checking her out?

Real life example number 2: A friend of mine worked for a major hardware store (their logo is orange, you figure it out).  Roughly 85% of the male employee’s walkie-talkie chatter involves notifying other employees of “yoga pants in Isle 12”, or “short shorts in Isle 22”.  I’m just saying.

“The beautiful people” are not the only targets of creepy gawking shoppers.  Sometimes, even the not-so-attractive folks attract a crowd.  To confirm this, visit a website called “The People of Walmart” (www.peopleofwalmart.com).  Be Warned: you cannot “un-see” some of these images.  Suffice it to say that folks shopping late night at Walmart fail to pull up their pants, or bend over while wearing club skirts too short to permit any sort of bending.  You’ve heard stories that start with “You won’t believe what I saw at Walmart last night”– those stories are real. Continue Reading

Oh the times, they are a changin’.cannabis plant

Every time I walk into the Orange County Courthouse, I see some guy asking me to sign a petition to “put medical marijuana on Florida’s Ballot”.  Somehow, whenever I’m dressed in my work uniform (suit, tie, and briefcase, don’t forget the briefcase), the petition signing hawks leave me alone.  It may be that too many “suits” turn out to be jerks, so they just don’t bother.  I understand that, and agree.  But, if I had the time, I would chat up the “medical marijuana sign holder” and tell him that medical marijuana is perfectly legal in the State of Florida.  It has been for almost a year now.

Most people don’t realize this.  Medical marijuana is legal in Florida.  I’ll keep saying it until everyone takes down the signs asking that we make it legal.  It’s legal.  Governor Rick Scott signed the law back in 2014, and it took effect on January 1, 2015.  The law is found in Florida Statute 381.986, entitled “Compassionate use of low-THC cannabis”.

Now, the question for today may sound like another episode of Inside Baseball, and for that, I’m slightly sorry.  It is the effect this law has on probable cause that should concern we citizens.  Law enforcement may not search your person, home, or vehicle without a warrant so long as they have “probable cause”.  Nine times out of ten, probable cause involves some officer telling his buddy “You smell weed?  Yea, I smell weed too, let’s search this place”.  Five times out of ten, this odor is detected after a citizen denies the officer permission to search.   Up until January 1, 2015, probable cause based upon the smell of weed made a bit of sense, as marijuana was illegal in any form up until that point.   Continue Reading

ky home.jpgAccountability is an important part of the relationship between our government and its citizens. Sure, we citizens can’t know everything, and that’s why a small percentage of our budget is known as the “Black Budget”. Black budgets are fine, so long as they represent some covert operations overseas trying to capture the terrorists de jour. But, there are also times when the government shows up at your front door. In cases like this, you would expect some accountability.

Hopefully, you’ve never had your house ransacked by 15 storm troopers at 3:30 a.m. I haven’t either, but I’ve seen pictures, and these homes are left a wreck (home search warrants are often conducted while you are sleeping, FYI). This sort of invasion of privacy can leave quite a scar. Imagine waking up to lots of guns and men with deep football coach voices barking out orders to remain still. A search warrant requires the home occupants to sit there in their undies (or less) while 12+ armed men proceed to stare at your significant other’s revealing sleepwear. No, you can’t put clothes on, as any search for clothing may just be an attempt to destroy evidence or find a gun. As you might expect from a male dominated endeavor like a home search, somehow overweight men are permitted to put on some clothes, but the ladies are required to simply hang out in their revealing nighties–while a dozen men take turns gawking. I’m just saying.

Anyway, such massive government invasions will leave a citizen asking the simple, age old question “Why?” Believe it or not, under current Florida law you are not entitled to know why. Yes, this is a ridiculous law, and I’m here to expose it.
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lens.jpgSome stories make me wonder what is happening to America. Some stories remind me that our government is out of control. This is one such story. This story makes me sick, and I hope you feel the same way. Let’s delve right in, because you’re not going to believe this.

A 15 year old girl sent her 17 year old boyfriend some sex pics of herself from her iPhone and iPad. The boyfriend reacted in the same way that any 17 year old boy would react–he sent her back a sexy video, involving his aroused penis. I know, this is shocking behavior. This is an outrage! How dare these kids play “spin the bottle” with their iPhones, using technology to produce and exchange such smut. By the way, doesn’t it seem that new technology is rarely used to make the world a better place? Take the internet. What was (is) the internet used for initially? A faster, cheaper way to view porn. What are the new smart phones being used for? A faster, cheaper way to produce said porn.

How did the police get involved? As is often the case, the girl’s mother cracked the weak pass-code on her daughter’s iPhone, and called the police to accuse her boyfriend for the production and distribution of child porn; ignoring, of course, her own daughter’s actions which started this whole thing. And, if I had a dollar for every mom who blames the other kid for her own child behaving badly, I’d be a rich man . And no, the prosecutors did not arrest, and did not charge, the 15 year old girlfriend for initiating this exchange. However, legally speaking, this sounds a like a decent case of entrapment and temporary insanity, as no 17 year old boy could resist his girlfriend’s invitation to exchange such behavior. There are plenty of studies out there on adolescent brains, and I’m pretty sure these studies would support me on this. Let’s face it, no young skull full of mush can resist such an invitation. I’m pretty sure that the old “spin the bottle” game that would get me grounded back in the 80’s has now become a felony sex crime, especially if the kids video tape the event. Naughty behavior among consenting juveniles has extremely serious consequences. Welcome to the new age, to the new age….

Here comes the shocker. After being arrested for possession of child pornography and manufacturing of child pornography–the police forced the 17 year old juvenile boy to expose his penis to them so that they could take pictures of it, in the hopes that these pictures could be used as evidence to prove that said penis matched the penis found on the 15 year old girlfriend’s iPhone video. Yep, our government created child pornography to prove a child pornography case! The irony. I can’t make this stuff up. And, it gets worse.
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witch.jpgHistorically, witch hunts have not been a good thing. Innocent people have suffered extreme temperature conditions. Now, the witch hunt has shifted its focus away from non-traditional religious practices, and into something everybody can agree is perverted–the possession of child pornography.

The current state of the law is scary. Simply viewing child porn is illegal in Florida. Pretty soon, just thinking about viewing child porn will be illegal. Can you think of anything else that is illegal to see?

I understand the logic here–if you cut of the demand (the viewers), the supply of child porn will decrease as well. But that’s not how child porn works. Sure, if you cut down cocaine users, the supply of cocaine will decrease, but that’s economics 101. Child porn is not an economically driven activity–there’s no money changing hands. Let’s face it, the production of child porn is some sort of perversion. So, it doesn’t take a rocket scientist to figure out that the massive prison terms child porn possession cases has not made a dent in its production.

Here’s my concern for today. The government’s quest to find child pornography is diminishing our constitutional rights, by setting the bar so low to issue a home search warrant. The level of proof to enter a suspected grow house, or to enter a home suspected of containing drugs, is far greater than the proof required to enter a home suspected of containing child pornography. The case that will prove this to you is State v. Woldridge, 958 So. 2d 455 (Fla. 2d DCA 2007).

Woldridge was charged with possession of child pornography, based upon a search of Woldridge’s home. Naturally, this search began as an Affidavit in Support of a Search Warrant. Typically, law enforcement must produce quite a bit of evidence to a judge (in the form of a sworn affidavit) to get into somebody’s house. The constitution requires probable cause that there will actually be evidence of a crime in a house before violating the sanctity of a citizen’s home. In Woldridge’s case, a judge let the police into his home because the police received a tip that child porn could be found in the home. So the question is, who gave the police this “tip”, and how reliable was this “tip?”
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hummer.jpg Whenever our government seeks to interrupt the movement of citizens, they are typically met with the question “why did you stop me, officer?” Of course, the police are at work and are also human, so they make mistakes at work just like the rest of us. If anyone on Earth needs thick skin, its cops, because their written reports are questioned on a daily basis by defense attorneys like me. The problem is, there are a few bad apples in the bunch who know “what to write” in order to legitimize their illegal activities. After more than twenty years of defending criminal cases, I have seen a few patterns arise, so I’ll give you a true version of facts, and then note how it is written in its final lying format:

TRUTH: “On February 9, 2014, I, Officer X, conducted a traffic stop on the defendant for three reasons: 1. He is black in a white neighborhood, 2. He has dreadlocks, and 3. He’s rolling on 28″ rims, and this particular Chevy looks really bad rolling anything more than 18″ rims.” Sure, we all know that if you’re riding on 28″ rims–I don’t care what the color of your skin is–you’re asking the cops to pull you over. So, as a public service announcement to all those rim fanatics out there, please transport your drugs in a five year old white Honda Accord with no boom in the trunk. An AARP sticker would help, as would a Z88.3 Christian Radio sticker, “Safe for the Little Ears”. In other words, these aren’t the droids you’re looking for….

Because no officer in his right mind would tell the truth as indicated above, below please find these same facts as they would appear on the official police report:

LIE: “On February 9, 2014, I, Officer X, conducted a traffic stop at midnight on the defendant because he was not wearing his seat belt, and his vehicle had illegal tint.” Sure, I wrapped up two common lies into one sentence–the seat belt and the illegal tint. Yes, many cops can detect illegal tint levels at night, and see through these illegal tint levels to notice folks not wearing their seat belts. It happens.
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girl phone.jpgThe following situation has popped up several times in the last month, so let’s talk about it.

FACTS (a): client gets arrested on a drug charge, and the cops want to look at the phone in order to obtain dealer/transaction data (usually in text messages). Client refuses to provide the password (usually a 4 or 5 digit code) to the phone. Client gets arrested and handcuffed. Later, cops offer to permit client to make a phone call to family. Client unlocks phone to make call, cop then grabs phone and searches it now that its unlocked.

FACTS (b): A variation on this fact pattern has been that, once the client is arrested, the cop seizes the phone and figure out it is password locked. So, they offer the handcuffed arrestee an opportunity to make a phone call, only to snatch the phone back once the phone is unlocked. Rude, but true.

sun.jpgNobody likes to be bossed around, but, we all have to put up with bossy people from time to time. When it comes to bossy cops, it is often easier to comply with their bogus commands than to inform them their behavior is illegal. Law enforcement represent that small group of people on Earth that can actually put you in a cage for failing to obey their commands. Today’s case study involves how an officer’s illegal command led to the dismissal of a possession of cocaine case.

In the case of Collins v. State, 115 So.3d 1040 (4th DCA 2013), Collins was hanging outside at an apartment complex littered with “No Trespassing” signs. An anonymous call to the police claimed that juveniles were loitering at the complex, and possibly using drugs. When police arrived, Collins was standing around outside, as many folks do here in sunny Florida. After all, Vitamin D from the sun is good thing, right? Wrong. Standing outside is borderline criminal in some areas, apparently, and this officer thought he had himself a trespassing arrest, but Collins explained to the officer that he was there to visit a friend. The officer then proceeded to knock on the apartment door of Collins’ friend, yet nobody answered (who, after all, answers the door to strangers anyway, much less for the police?).

Now, what happened before the officer left Collins to knock on the door–that’s what’s important here. The officer told Collins to “stand by” while he verified his “guest status”. The officer further explained, at the Motion to Suppress hearing, that Collins was not free to leave until he returned. Hum.
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surveillance cam.jpgSome would say that technology has made our lives better, and that’s a debate for another day–but one thing we can all agree on is the fact that technology has made it a lot easier for the government to track us. Creepy, invasive technology is no longer the stuff of Mission Impossible and three letter government agencies like the NSA and CIA. To add insult to injury, technologies which invade our privacy have trickled down to local police departments. Which of these snooping technologies constitute a “search”? As you know, anything that constitutes a “search” will require a warrant under the Fourth Amendment. So, think back to your high school American Government class, fourth period (right after lunch, so you were probably very sleepy). The Fourth Amendment to the United States Constitution protects us from unreasonable searches. This begs two questions: (1) what is considered “reasonable” and (2) what is a “search?”

Technically speaking, “a search occurs whenever something not previously in plain view becomes exposed to an investigating officer”. Norris v. State, 993 S.W.2d 918, 925 (Ark. 1999). For example, when police were walking through someone’s house, they slightly moved some stereo equipment so that they could read the serial numbers. The United States Supreme Court found that this slight move constituted a “search”. Arizona v. Hicks, 480 U.S. 321, 324-325 (1987). The only way the police can get away with a search is if they have a search warrant signed by a judge. Otherwise, the police have no right to see “something not previously in plain view”.

Searches are easy to define when it comes to physical places and things. But, what about searches of computers, smartphones, or Wi-Fi networks? Local law enforcement these days are fishing around peer to peer networks in order to make child pornography arrests. May they do this without a search warrant? In order to determine how the Supreme Court will react to these technological developments, we’ll have to review a few old cases.
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guns.jpgSo, we can all agree that America is the Land of the Free, but just how free are we? The NSA, and other three-letter government entities, are monitoring our every move. Ok, I admit that Big Brother is an easy target these days, but to make matters worse, even local law enforcement seems to be watching us with a similar intensity. Downtown Orlando has video cameras everywhere. Some folks would argue that, if the cops follow you long enough, they’ll come up with something. That’s just what happened in the recent case of Pamphile v. State, 110 So. 3d 517 (Fla. 4th DCA 2013).

Pamphile was doing something perfectly legal–shopping at a gun show in West Palm Beach. Nothing wrong with that. But, as you know, certain legal activities draw more law enforcement attention than others. It would make you sick to see how much of your tax payer dollars is spent monitoring perfectly legal activity. In this case, there was a task force of tax payer dollars spent on agents from the Bureau of Alcohol Tobacco and Firearms (ATF), members of the Palm Beach County Sheriff’s Office, and West Palm Beach Police officers. These agents were working undercover at the gun show, and attempting to stop “straw purchases” of guns–a transaction in which a legal gun buyer purchases a gun for someone not permitted to have a gun.

When Pamphile entered the gun show with another individual, they looked at a few things together, and then split up. This caused the undercover agents some concern that they may have a straw purchase on their hands. The agents watched the defendant on and off for two hours. During this time, Pamphile purchased an AK-47, and openly carried it to his vehicle in the parking lot. So, any hopes of getting an arrest for carrying a concealed firearm were shot down at that point. The agents also overheard Pamphile claim he was bringing the gun to New York (it “can” be illegal to transport a weapon from one state to another, but this is a story for another day). Once Pamphile drove off with his friend, the agents had his vehicle stopped about a half a mile down the road. When he went to get his driver’s license, a fraudulent California driver’s license slipped out. Ops.

After tons of taxpayer dollars on this operation, don’t you feel safer knowing that these three government agencies were able to make one felony arrest for unauthorized possession of a driver’s license? But Pamphile lawyered up, and like any good criminal defense lawyer, Pamphile’s attorney filed a motion to suppress, arguing that the cops had no reason to stop him–as they observed nothing illegal. The trial judge disagreed, finding that the agents saw “him commit a violation of the law by carrying a gun openly out in the parking lot.” Id. At 519. The Defendant appealed, and this appellate decision makes for a good discussion of a typical motion to suppress based upon the lack of reasonable suspicion to stop a defendant.
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