Articles Posted in Search & Seizure

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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Can a government drone use it’s “x-ray” vision to take a peek inside of your home, and then use that information to obtain a search warrant of your home? Can a spy satellite zoom in on your backyard, and use that information to have swarms of police invade your home at 4 a.m.? Or, can the police bring a drug sniffing dog up to your front door and use the dog’s “alert” for the presence of weed as a basis to have a judge issue a search warrant? This random porch sniff was really happening in the State of Florida. Believe it or not, drug sniffing dogs were brought up to numerous porches, and the dog alerts were used against the homeowner. Is that legal? Well, this scenario played out in real life, through many court rooms in Florida, all the way up to the United States Supreme Court.

The case is Jardines v. State, 73 So. 3d 34 (Fla. 2011). Miami police received an unverified tip that Jardines was running a marijuana grow house in his home (is there any other type of grow house, other than marijuana?). Based upon this tip, the police staked out the joint for a while, watching who was coming to and from the home. Typically, the government doesn’t bust a grow house instantly, they want to see who the players are–what they look like, what kind of cars they drive. They’ll even follow these folks to other locations to possibly find more grow houses.

binoculars-2-.jpgAt some point, an officer decided to call in a drug detection K-9 to sniff Jardines front door. Sure enough, this dog alerted to the base of the front door. Now, I have a sneaky suspicion this dog alerts at every location these officers are staking out for grow house purposes, but how we’ll ever know whether or not this dog alert is legit is a discussion for another day (they did find plants inside, so…). For purposes of this analysis, we’ll just agree that the drug dog did, in fact, alert to the base of the front door. And, this alert from the dog was used to obtain a search warrant for the home. And, no surprise here, a search of the home located marijuana plants. Jardines was charged with possession of marijuana, cultivation of marijuana, and the laundry list of other crimes that come with running a grow house.
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parking lot.jpgYes, it seems as though nothing is beyond Big Brother’s power. Carry a cell phone around, and your movements can be tracked. Your conversations monitored. Your texts and emails and banking stuff–all done from your phone–can be tracked. To make matters worse, Apple recently applied for a patent on a product that permits Big Brother (or, anyone else who buys this technology) to shut off the audio/video portions of your phone at will. Say, for example, that the police don’t want bystanders to record what they’re doing, this product allows them to disable your phone’s audio/video capabilities (hold on to those old digital cameras, you might need them someday). Sure, Hollywood would like this sort of technology in movie theaters, to keep the blockbuster releases out of the hands of black market dvd merchants. Concert promoters may like this technology as well. But, don’t be surprised if our government and local law enforcement use it to prevent another Rodney King video from surfacing. I’m just saying….

Anyway, the topic for today is, how much police power extends onto private property? Really, that depends upon what the police are investigating. Unfortunately, it doesn’t take much for the government these days to break down your front door with a search warrant, should your I.P. address be shown to have downloaded child porn. The modern day version of the Salem Witch Trials is, basically, child porn prosecutions. Also, the police may knock on your front door in order to investigate a crime. Nothing wrong with that. But, can they pull you over for a broken headlight, if you’re driving on the private property of your condo/apartment complex? Let’s explore this potential limitation on government intrusions, via the case of Nemeth v. State, 14 Fla. L. Weekly Supp. 334b.
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pit bull.jpgYou know, police work can be real easy–in a police state. I’m sure that the police in China, North Korea, or even Cuba don’t have to jump through the hoops that police in free societies must jump through. So, it’s also fair to say that we Americans probably have some of the best police officers in the world, given how hard they must work to satisfy the demands of a free people. That is, so long as our judges keep them in line.

That being said, if you want to search somebody’s home, this is one of the toughest things a government official can ask of another government official. Our judges must scrutinize these “affidavits” in support of home search warrants. I personally know several judges that are so demanding of law enforcement regarding this important issue, that they claim the police rarely ask them to sign warrants anymore! But put yourself in the shoes of a neutral judge. He or she is an elected official, and part of that job requires that they sign warrants to search homes, should the warrant contain enough evidence of a crime to permit such. And, that’s the question we’re going to delve into today–just how much evidence, written down on a few pieces of paper, is enough to permit the government to search your wife’s drawer of undergarments? Yes, they’re searching that drawer first, trust me.

The invasion of one’s personal space is beyond comprehension in cases of home search warrants (second only to a body cavity search, I presume). Let’s face it, the police always show up to serve their warrant late at night, when everybody is home sleeping, and many folks are not wearing much in the way of clothing. No, citizens are not permitted to get dressed during a search warrant, nothing in the law permits such, unless the police allow it. Now, in my over twenty years of experience, I have noticed that old, hairly, ugly men are entitled to put some pants on. But if you’re a young hot female, you must simply sit there wearing next to nothing while half the police force trample through your home–with half of the problem being the embarrassment of a dozen strange men staring at you in your undergarments–the other half of the problem being that it is simply too cold to be dressed as such without snuggling under some covers. Hey, don’t kill the messenger here, I’m just reporting what’s going down out there. But, a blanket for a shivering half dressed woman would be nice, right? Oh no, the blanket might have a gun or drugs hidden inside, so the police cannot take a chance on her grabbing a blanket and shooting up the place Angela Jolie style (ever see Mr. & Mrs. Smith? Mrs. Smith had weapons everywhere in that house. That movie is a police academy training video of what to look out for when entering a nice suburban home, and how violent an attractive suburban mommy can be…I’m just saying). Anyway, that’s the side of home search warrants that you won’t see addressed by the appeals court. Now, let’s get back to understanding how in the heck the government is able to enter someone’s home legally.
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car paint.jpgDon’t we have enough laws already? Aren’t there, already, enough reasons to stop a citizen legally driving down the road, minding their own business? Apparently not.

You’ve probably heard all the crime rate statistics, so you know that Florida is a hot bed for traffic stops, and drug charges–the two go hand in hand. Basically, people keep drugs in their cars. They then get pulled over with these drugs in the car. It’s just that simple. Its safe to say that the vast majority of all drug possession charges come from a search of someone’s vehicle after a traffic stop.

So if traffic stops lead to vehicle searches, and these searches lead to drug arrests, let’s review some common traffic stop scenarios. The most common (bogus) reason for a traffic stop is failing to stop at a stop sign. Yep. Rolling thru a stop sign is a favorite of drug enforcement units who have no desire to enforce traffic laws, but merely have a quota of drug arrests to meet in order to justify their employment. And, another favorite reason for a stop is illegal window tint. Of course, we criminal defense attorneys have our ways of demonstrating to judges the fabricated nature of such stops, but that’s a discussion for another day. Today, let’s talk about those instances in which the police are mistaken as to the traffic laws.

There’s a long list of drug possession convictions which have been overturned due to illegal traffic stops. The illegality of a traffic stop comes in many forms, and sometimes its simply due to an officer’s mistaken ideas of law. For example, one driver was pulled over for not having a center rearview mirror in his car. News Flash: the absence of a center review mirror does not constitute a reason to stop a vehicle. Why, you ask? Because center rearview mirrors are not required under Florida law. In such stops, all drugs found after the stop will be suppressed. See Leslie v. State, 108 So.3d 722 (Fla. 5th DCA 2013). By the way, one rearview mirror is required, but it may be located on either side of the vehicle, so long as it permits the driver to see 200 feet behind the car (don’t need two mirrors, just one). The stop in the Leslie case is what is commonly referred to as a “mistake of law”. And, under no circumstances can an officer’s mistake of law justify a traffic stop.
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search lights.jpgIt seems like the government can search just about anything these days, as long as they can find a judge to sign a search warrant. But, the police may also search a citizen’s belongings without a warrant, under certain conditions. Today, we’re going briefly discuss one exception to the Fourth Amendment’s warrant requirement, searches incident to arrest.

It makes sense that the police should be able to search a person before he is placed into to county jail. After all, they don’t want folks bringing guns or drugs into the jail. But what is not so obvious is, how far can a search go once the person is arrested and we know they’re on their way to jail? May they search your entire car? May they search your cell phone? Let’s find out.

Historically, the most common search incident to an arrest was the search of a defendant’s car. Basically, if you were arrested for something as simple as driving on a suspended license, the police were permitted to search your entire vehicle after the arrest. Now you may ask yourself, why? Is it physically possible for a person who is handcuffed, sitting in the back of a patrol car, to access their potentially dangerous belongings within their car? Nope. It’s not.
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home florida.jpgHave you read our Constitution? In case you haven’t recently, there’s nothing within it that requires American citizens to open their door when somebody knocks. Opening your door to a stranger is optional. Why people feel compelled to answer the door is beyond me. And to add insult to injury, I’m not sure why folks running illegal grow house operations would be so eager to answer their door either. And since we’re discussing grow houses, a little explanation could be helpful here.

Grow Housesare simply residential homes in which every room is converted for marijuana cultivation. The operation lasts 4 months, and vacant home owners are offered $10-20,000+ dollars for the temporary use of their residence. The residence is left in shambles following the harvest–holes are cut in many walls for irrigation pipes, dirt everywhere. The operation requires extra air conditioners to cool down all the hot grow lights. The energy usage can throw up red flags to the electric company, as energy usage far exceeds normal usage–thus many operators ‘steal’ power by altering power feeds to the home so as to mask their high power consumption, etc.

Our discussion of grow houses centers on the case of State of Florida v. Roman, 103 So.3d 922 (Fla. 2nd DCA 2012). Roman is accused of running a grow house. She was charged with trafficking in cannabis, possession of a prescription drug (alprazolam), possession of drug paraphernalia, and larceny with relation to a utility–just to name a few. You might wonder to yourself, how did the police find all these drugs? A good old fashioned illegal search, and a supposedly legal search warrant. It all started as many grow house cases start, with a tip to law enforcement. Based on this tip, the police began running surveillance on the property. Once the police notice a person showing up to the home, they will (eventually) knock on the front door. No exception here. The police eventually notice Ms. Roman pull up to the home and enter it, so they approach the front door.
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briefs.jpgHome search warrants are no fun. It’s a lose/lose proposition. Here in Orlando, citizens whose homes have been invaded by government officials find that they have hours of cleaning up to do. Dresser drawers are emptied. Tons of strangers not wearing gloves are fondling underwear drawers (must start a load of laundry). Kitchen cabinets in disarray. Seat cushions all over the place. What a creepy invasion of privacy. Even with no drugs found–the damage is done. The problem comes when people are found in a home, in addition to drugs. Who gets charged, and why?

Sometimes, the location of the contraband determines who gets arrested. For example, if drugs are found in a bedroom, the police will look for signs within the bedroom which indicate to whom the room belongs. Much to everyone’s amazement (and in my case, amusement), police officers miraculously find baggies of marijuana or xanax, or hydrocodone ( or whatever) “sandwiched between the Defendant’s passport and several pieces of mail addressed to the Defendant.” These officers seek to leave little doubt as to the ownership of the controlled substances, and if they are to be believed, drug sandwiches are pretty common. The only thing more amazing than the fact that law enforcement continues to write such tall tales is that judges and prosecutors continue to believe them.

So this brings us to the case of the day, Mitchell v. State, 958 So.2d 496 (Fla. 4th DCA 2007). Mitchell was convicted of trafficking in cocaine, and trafficking in marijuana. At trial, he requested a special jury instruction regarding his constructive possession of cocaine, so that the jury would be better informed of the unique laws surrounding their decision. The trial judge would not allow Mitchell to use the special jury instruction, and that’s how the case wound up in the Fourth District Court of Appeal. Remember, there’s two types of possession in Florida–actual and constructive. Actual is simple, it means drugs which are either in your pocket, or within ready reach. Constructive possession happens when multiple people have access to the same drugs, and as such, it requires far more proof. The Mitchell case provides a nice overview of a battle between actual and constructive possession. Here’s what happened:
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