Jackson v. State (4th District Court of Appeals- Broward County, Jan. 11, 20120)
January 11, 2012
Robert Norvell | Comments Off |
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January 11, 2012
December 30, 2011
December 21, 2011 This case dealt with the legality of a search warrant. In general, when presented with an application for a search warrant, a magistrate's duty is simply to make a practical, common-sense decision, whether, given all the circumstances set forth within the four corners of the affidavit before him, there is a fair probability that evidence of a crime will be found in a particular place.
In this case, the affidavit did not provide probable cause for the issuance of a warrant to search defendant's residence for drug evidence, even though the affidavit related that defendant loaned his truck to a person who had a marijuanagrow house, that the person often visited defendant and used the truck to further the person's criminal enterprise, that a humming noise was heard from within defendant's residence, and, inter alia, that defendant's residence had sensor lights at its corners.
The affidavit lacked particulars about the visits and use of the truck, facts discovered during police investigation had innocent explanations, and nothing in the affidavit indicated that defendant's residence had the characteristics of the person's grow house.
Therefore, the Appeals Courts through out the convictions for the manufacture of marijuana, conspiracy to traffic in marijuana and possession of cocaine, alprazolam, amphetamine, hydrocodone, and oxycodone. These drugs were found in the house after the search warrant was executed.
December 14, 2011 The Defendant was initially stopped by a Broward County Deputy for suspicion of DUI. Another Deputy was called to the scene to do the DUI investigation. The second Deputy requested the driver to submit to Field Sobriety Exercises (FSTs). The interaction was video taped. Before trial, the State announced that it did not intend to call the second Deputy as a witness. The Defense made a Motion to Suppress all of that Deputies involvement in the investigation. This included the entire contents of the videotape. The Defense argued that the State's decision not to call the second Deputy would violate the Confrontation Clause under the Sixth Amendment to the United States Constitution.
Unfortunately, the Court disagreed. First, they said his refusal to submit to sobriety testing is admissible regardless as "this issue has been resolved by the Legislature's enactment of the implied consent law under section 316.1932(1)(a) which provides in pertinent part that “[t]he refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.” § 316.1932(1)(a)1.a., Fla. Stat. (2010); see also State v. Kline,764 So.2d 716, 717 (Fla. 5th DCA 2000).
Next, the Supreme Court has held that the admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial, (2) the declarant is unavailable, and (3) the defendant lacked a prior opportunity for cross-examination of the declarant. The Court then said that the directives by the Deputy on the videotape during the sobriety exercises, both verbal and non-verbal, are not hearsay because they were not offered for the truth of the matter asserted. Instead, they were offered to give meaning to Holland's otherwise ambiguous acts. Therefore, the video tape comes in over the objections of the Defense.
This decision, if adopted in practice by our Circuit's State Attorney's office, could impact the fairness of many current DUI cases. Essentially, it allows the prosecutor to push play on a DUI video to prove their case.
December 9, 2011 There was only circumstantial evidence of defendant's involvement in the operation of a marijuana grow house. This including his fingerprints on two pieces of paper found at the house containing instructions for fertilizing marijuana. The Court found that this was insufficient to support defendant's convictions for manufacture of a controlled substance and possession of drug paraphernalia. The State did not introduce any evidence which conflicted with defendant's explanation that the papers were on top of an air conditioner box he helped deliver to the house and that he slipped them in the box without reading them because he thought they might be warranty documents.
In general to support a conviction, it is not sufficient that the facts just create a strong probability of guilt. They must be inconsistent with innocence. Therefore, a motion for judgment of acquittal should be granted in a circumstantial evidence case if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt. Thus, if the State does not offer evidence which is inconsistent with the defendant's hypothesis, the State's evidence would be as a matter of law insufficient to warrant a conviction.
December 7, 2011 Warrantless entry and protective sweep of home violated the Fourth Amendment. The defendant was arrested outside his home. The officers observed no open door to home and no illegal activity within. There was no objectively reasonable basis to suspect on the officer's part that occupants of house (the defendant's parents) were aware that defendant had been arrested outside the home, or that occupants of the house posed safety threat or were actively trying trying to destroy evidence.
The father's consent to search, which was obtained after his son was taken into custody outside home and officers performed protective sweep of the home, did not dissipate taint of illegal sweep; only about 20 minutes elapsed between initial sweep and time when written consent form was signed, consent to search was nothing more than acquiescence to show of authority after officers had ordered parents out of house to conduct protective sweep, and mere fact that written consent form advised father of right to refuse search was insufficie
Fears for officer safety based on generalizations about drug cases, rather than on any specific risk presented by the facts of defendant's case, do not qualify as exigent circumstances, as would justify warrantless entry into home.nt to dissipate taint of illegal sweep. to destroy evidence.
The Court suppressed the five oxycodone pills found near the defendant.
November 16, 2011
November 2, 2011 The Fourth District Court of Appeals found that evidence that the defendant possessed nearly 50 cocaine rocks and no drug paraphernalia at time of arrest, combined with officer's opinion testimony that the rocks were for sale to others, was insufficient to establish the intent to sell element of possession of cocaine with intent to sell within 1,000 feet of a park, where cocaine rocks were not individually packaged, there was no evidence that the defendant was carrying any money, and officer did not observe the defendant attempting to sell the cocaine to anyone (Florida Statute 893.13(1)(c)).
This decision was based upon the cases which say that the quantity or packaging of drugs in a defendant's possession may indicate an intent to sell. Valentin v. State, 974 So.2d 629, 630 (Fla. 4th DCA 2008). In considering what type of circumstantial evidence is necessary to prove a defendant's intent to sell, a court may consider quantity and value to be sufficient when the quantity is substantial. Glenn v. State, 824 So.2d 1046, 1049 (Fla. 4th DCA 2002). But in cases where small amounts of narcotics are found, “courts generally require other proof of suspicious circumstances, drug paraphernalia available, or other evidence which circumstantially would indicate an intent to sell.” McCullough v. State, 541 So.2d 720, 721 (Fla. 4th DCA 1989).
October 21, 2011
August 10, 2011 Fact that defendant appeared excruciatingly nervous and fidgety and could not produce a driver's license, proof of insurance, or car registration, and appeared to be looking out the window for an avenue of escape, along with fact that officer did not feel comfortable returning to his vehicle to run identification or mug shot system identification of the defendant, either singularly or cumulatively, were insufficient to justify a weapons pat-down following traffic stop when there was no additional articulable suspicion that defendant was armed with a dangerous weapon.
May 18, 2011 Facts: The officer saw a car stopped in an intersection at around midnight. The car's lights were on. The officer stopped and approached, observing that the car's engine was not running. As he walked by the passenger side he heard a voice say either “I'm not driving” or “I wasn't driving.” The voice came from the driver's side, and the officer then observed the Defendant sitting in the driver's seat. The keys were not in the ignition. The officer testified that he looked over to the driver's side and saw the car keys in the Defendant's right hand. He did not know if the keys were in her hand the whole time or if they came from somewhere else. The driver was arrested for DUI. However, the circuit court dismissed the case after determining that the State could not prove that Fitzgerald was in actual physical control of a vehicle at the time of the alleged offense.
The lower Court believed, as do many, that the element of "actual physical control" in a DUI requires that the keys be in the ignition. Not so fast says the 2nd Disctrict: "the legislature defined the crime to include not only driving but also actual physical control to enable the drunken driver to be apprehended before he strikes.” Furthermore, an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. The danger is less than where an intoxicated person is actually driving the vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with regard to the vehicle, still there is a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away. He therefore had “actual physical control” of the vehicle within the meaning of the statute.
The Court then said that in this case the Defendant was sitting in the driver's seat, and she readily produced the car keys. There was no evidence that she needed to search for the keys or that she retrieved them from the passenger, and the car was stopped in an intersection with its lights on.
Discussion: According to this Court, public policy justifies relaxing the element of "actual physical control" to now included if the defendant "could have at any time started the automobile and driven away." The Court seems to acknowledge this is a big step but attempts to limit its application based upon the specificly outlined facts presented.
May 18, 2011 Facts: A Sheriff's deputy was dispatched after an anonymous call regarding a female selling drugs to her ex-boyfriend seated in a gold Maxima presently in a Wal–Mart parking lot. The deputy found a gold Maxima in the lot with a female in the driver's seat and approached the vehicle. The Defendant was seated in the car with her ex-husband. The deputy, asked what they were doing. The Defendant told him that she and her ex-husband were exchanging their child, because the parking lot was a neutral spot. There was a child in a car seat in the back. The deputy then told them about the anonymous tip, and the couple laughed. The deputy called for backup and told them, “I'd like to see your ID's and I'll just take a quick look at your vehicles and if everything checks out okay, you guys will be good to go.” Both of them provided the officer with identification. He went to the teletype and checked their backgrounds. It took between five and ten minutes to get the teletype results. When he finished, the deputy told them that “you guys came back [with no warrants].” He then said, “Let me just take a quick look at your vehicles, and then if you guys are good, you'll be on your way.” They said, “Okay, yeah, go ahead.” The deputy found drugs in a clear bag under the driver's front seat where the Defedant was seated, and she was charged with possession. The deputy testified that he believed he was performing an investigative stop when he approached the vehicle. Because the tipster's description matched Dillon–Watson, she would not have been free to leave. If Dillon–Watson had attempted to leave the scene, he would have issued a BOLO for her. And while he could not state how Dillon–Watson expressed assent to search her vehicle, he maintained that he had consent.
The state admitted at the hearing on the motion to suppress that it could not justify an investigatory stop based upon the anonymous tip. It argued, however, that the stop constituted a consensual encounter, and Dillon–Watson consented to the search of her vehicle. The defense maintained that the stop was investigatory, and Dillon–Watson did not voluntarily consent to the search. The trial court denied the motion to suppress and the Defendant appealed.
Holding: First, the Court discussed what a "consensual encounter" is: it involves “minimal police contact.” A citizen may either voluntarily comply with a police officer's requests or choose to ignore them. The citizen is free to leave. On the other hand, a person is seized in the constitutional sense when, based upon all the circumstances, a reasonable person would not feel free to leave.
In this case the totality of the circumstances show that the “consent” to search the vehicle was not voluntary, if there was consent at all. First, the deputy indentified the defendant as a possible criminal suspect. Then, the deputy continually placed additional requests and demands on the defendant after each previous request came up negative. Thus, the Court held that the search of the vehicle was not based upon a voluntary consent, and that the search violated the appellant's Fourth Amendment rights. The case was reverse and remand with directions to vacate the Defendant's convictions and discharge her.
April 29, 2011 Facts: The Defendant was arrested for armed robbery while in actual possession of a firearm and possession of a firearm by a convicted felon. When he was arrested the officers seized his cellphone. On the phone were several photos of the Defendant holding large amounts of cash, there was a gun, and jewelry. The photographs were admitted into evidence at trial. The robbery victim identified appellant in the cell phone photographs and testified the money in the photographs was folded and secured in the same way as the money taken during the robbery. He further testified the pictures depicted a gun that was silver and black, as was the gun used during the robbery.
The Defendant sought to exclude the use of those photographs. The State argued the photographs were legally obtained at the time of appellant's arrest, asserting searches incident to lawful arrest were constitutionally permissible and reasonable in order to disarm an arrestee and to preserve evidence on the arrestee's person. The Defendant argued the search of the phone was invalid and he had a reasonable expectation of privacy in the information stored on his phone, and the only case law supporting the search of a cell phone as a valid search incident to arrest involved drug-related offenses because phones are often used as an instrumentality in such crimes.
Holding: There was nothing in particular about the crime for which appellant was arrested nor any information about this case which would have led the officer reasonably to believe the cell phone contained evidence related to the crime for which appellant was being arrested. However, the Court said is must follow the the United States Supreme Court precedent in the area of search and seizure. The Supreme Court's decision of United States v. Robinson, 414 U.S. 218, 234 (1973), said that containers found upon a person incident to arrest may be searched without “additional justification.” The Court acknowledged the unique qualities of a cell phone which, like a computer, may contain a large amount of sensitive personal information. Based upon this they certify this as a question of great public importance and have requested the Florida Supreme Court to answer this question:
DOES THE HOLDING IN UNITED STATES V. ROBINSON, 414 U.S. 218 (1973), ALLOW A POLICE OFFICER TO SEARCH THROUGH PHOTOGRAPHS CONTAINED WITHIN A CELL PHONE WHICH IS ON AN ARRESTEE'S PERSON AT THE TIME OF A VALID ARREST, NOTWITHSTANDING THAT THERE IS NO REASONABLE BELIEF THAT THE CELL PHONE CONTAINS EVIDENCE OF ANY CRIME?
We shall see what the Florida Supreme Court says in answer to this important question.
April 14, 2011 The Miami-Dade Police Department received an anonymous tip that a house was being used as a "grow-house" for marijuana. Based upon this, the police performed surveillance on residence but found nothing unusual other than an AC unit running. Nonetheless, a drug detection dog was summoned. The dog was walked, on a leash, up to the front door. The dog alerted the police to the presence of drugs. A detective then went up to the front door and smelled marijuana. From this information the officer prepared an affidavit which was presented to a Judge who then issued a search warrant for the home. When police executed the search warrant they found marijuana plants being cultivated inside the home.
The Court said that "the Fourth Amendment draws “a firm line at the entrance to the house.” That line must be not only firm but also bright—which requires clear specification of those methods of surveillance that require a warrant." The fact that this was a residence/home created a huge distinction from other cases involving drug-detection dogs. Typically there are three types of cases involving a drug detection dog: luggage (a dog “sniff test” does not implicate Fourth Amendment rights when employed in the following settings: (i) when conducted on luggage that has been seized at an airport based on reasonable suspicion of unlawful activity, where the luggage has been separated from its owner and the “sniff test” is conducted in a public place), a vehicle stopped at a checkpoint, and a vehicle stopped at a traffic stop. Courts have allowed the use of drug dogs based upon the limited intrusiveness of the alert and essentially the lower protection given when out in public.
They concluded that using a drug dog on a residence was the equivalent to the use of thermal imaging cameras which the US Supreme Court has prohibited and discussed that holding to the facts presented. Finally, they stated "given the special status accorded a citizen's home in Anglo–American jurisprudence, we hold that the warrantless “sniff test” that was conducted at the front door of the residence in the present case was an unreasonable government intrusion into the sanctity of the home and violated the Fourth Amendment."
Notes: Excellent discussion of drug dog detection law. Also, an important case on the sanctity of the home and the limitations of police intrusion permitted.
April 6, 2011 FACTS: A neighbor called 911 about women and men arguing at a residence. Officers responded to the residence. One heard male and female voices yelling from within the premises. The officer knocked on the door and saw a woman quickly peek outside from the window. After no one answered the door, the officer heard a male voice cursing and ordering someone not to open the door. At this point, the officer was worried about the safety of the woman, since he did not hear her voice. The officer opened the door, which happened to be unlocked. The officers entered the residence, fearing that someone was being held hostage. Immediately upon entering the residence, the officers saw marijuana in plain view on the dining room table.
Another officer arrived at the residence and conducted a “protective sweep” of the rest of the residence at that point. Appellant and the other two individuals at the residence were either seated at the table or handcuffed on the ground. When the officer conducting the sweep attempted to enter appellant's bedroom, he discovered the room was locked. Appellant said she always kept her bedroom door locked, and when asked by the officer, she stated she did not have the key. The officer believed appellant's answer was “fishy,” and due his concern that someone was in the room, the officer “jimmied” the lock with a knife. After entering appellant's bedroom, the officer saw cocaine in an open dresser drawer, as well as plastic bags and other drug paraphernalia in plain view. At the hearing, the officer admitted that the bedroom was beyond the reach of appellant or the two other occupants of the residence, and the officers never asked appellant or the other occupants if anybody else was in the residence before jimmying the door.
COURT'S REASONING: As to the initial issue of whether the police officers had the authority to open the unlocked door to the house and seize the marijuana on the table in plain view, we find that the trial court correctly denied appellant's motion to suppress the marijuana. However, once the officers entered the premises and secured its occupants, the question remains whether the officers had the authority to enter appellant's locked bedroom. As a general rule, incident to arrest, police officers may as a “precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” However, to justify a “protective sweep” beyond those stated parameters, “there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Buie, 494 U.S. at 334. The “protective sweep” should be only a “cursory inspection of those spaces where a person may be found” and may last only as long as “necessary to dispel the reasonable suspicion of danger.”
HOLDING: In the present case, like in Runge, no evidence indicated the need for such an intrusion or justified such a search. Further, the police intrusion went beyond merely searching the bedroom after securing the residents of the premises. Here the officer had to jimmy the lock to appellant's bedroom in order to gain entrance. Forcible entry into appellant's bedroom is impermissible by any standard. In the present case, there are no facts on the record that would justify such a search, and as such, the trial court erred in not granting appellant's motion to suppress.
NOTES: The right to be secure in your residence is a fundamental right guaranteed by the US Constitution.
March 16, 2011 Municipal police officer lacked authority to take defendant into custody outside the territorial limits of his jurisdiction, and thus defendant could not be convicted of escape arising out of his escape from officer's custody, even if officer had probable cause to arrest defendant; officer had no warrant for defendant's arrest, officer was not in fresh pursuit of defendant, and officer was acting under color of office, rather than as a private citizen, when he took defendant into custody from a different municipality's police department.
Generally, an officer of a county or municipality has no official power to arrest an offender outside the boundaries of the officer's county or municipality.” Porter v. State,765 So.2d 76, 78 (Fla. 4th DCA 2000) (citing Huebner v. State,731 So.2d 40, 44 (Fla. 4th DCA 1999)). Exceptions to this rule apply when an officer is acting as a private citizen or is in fresh pursuit. See Phoenix v. State,455 So.2d 1024, 1025 (Fla.1984) (explaining that law enforcement officials outside their jurisdiction “should not be any less capable ... of making a felony arrest than a private citizen,” nor have a greater power; however, law enforcement officials may not make citizen's arrests under color of their office); § 901.25, Fla. Stat. (2005) (mandating that an arresting officer may arrest someone outside the officer's jurisdiction if in fresh pursuit).
NOTES: This is just a recent discussion of the legal jurisdictional limits placed on police. Nothing really new but a good summation.
March 2, 2011 Police misconduct was sufficiently egregious so as to violate defendant's due process rights and to warrant dismissal of possession charge; as depicted in video, defendant was heard saying “give me some love,” and while undercover agent believed that defendant was asking for cocaine, defendant did not make that specific request, and officers could just have easily offered defendant money or food, but, instead, they chose to offer him crack cocaine, an illegal, highly addictive drug, and defendant was then permitted to leave with the substance, and police did not arrest him for another three weeks.
February 22, 2011
A warrantless search is per se unreasonable under the Fourth Amendment subject to a few well-defined exceptions. The state has the burden to prove that an exception to the warrant requirement applies. Here, the state relied on the exception that allows law enforcement to conduct an inventory search of an impounded vehicle. In order for this exception to apply, the inventory search must be “conducted according to standardized criteria.” The requirement for standardized criteria serves to limit police discretion in determining the scope of the search and ensures that the police will not abuse the exception and use the inventory search as a subterfuge for a criminal investigatory search.
The trial court did not make any findings regarding the existence of, or the deputy's compliance with, standardized criteria in conducting the inventory searchof Kilburn's truck. Although the deputy testified that it was standard Sheriff's Office policy to conduct an inventory search whenever a vehicle was towed, he also testified that there were no standardized criteria for performing such a search. Additionally, the state did not present any evidence that it was standard Sheriff's Office policy to open closed containers found during the search, such as the pill bottle in Kilburn's truck where the drugs were found. Accordingly, under these circumstances, the trial court erred in denying Kilburn's motion to suppress the drugs found in his truck.
Notes: It used to be that following an arrest the police always performed an "inventory search." And during this "inventory search, anything found was fair game and within the scope of the officer's search of the vehicle. The Courts have more reciently been willing to restrain this type of search recognizing it as an intrusion that exceeds the need or justification offered by the State.
January 26, 2011
January 24, 2011 An officer was traveling through Midway, Florida, an area which had recently been the site of several burglaries and reports of suspicious activities. However, no burglaries or suspicious activities were reported on the night in question. The officer testified that, while driving, he observed the Defendant standing in front of a parked car in the vacant parking lot of a closed Pure Gas Station at 1:15 a.m. The Defendant “looked right at me went to his driver's door, got in and took off....” The officer made a U-turn to investigate when the appellant entered his car and departed from the lot. He followed the Defendant's car for “about a mile and a half” while running a tag check. He did not notice anything unusual about the vehicle or about the way in which the appellant was driving it. However, the officer testified that he decided to stop appellant because the Pure Gas Station had been closed over two hours before he observed the appellant's car parked in the lot, because the Pure Station was located in a high crime area, and because appellant entered his car and departed from the Pure Station upon making eye contact with him. After stopping the car, a nearby canine unit arrived and obtained a positive alert. The subsequent search of the car disclosed marijuanaand a loaded firearm. The trial court held that, given the totality of the matters testified to by Sergeant Bringmans, a reasonable suspicion existed to stop the appellant's vehicle. The Defendant appealed and the Circuit Court held the stop was illegal.
First, the State justified the stop by arguing that the actions of the Defendant amounted to "Headlong flight." Headlong flight has been held to be the consummate act of evasion. And, while not necessarily indicative of wrongdoing, Headlong flight in a high crime area may provide an officer with a reasonable suspicion to investigate further. F.E.A. v. State,804 So.2d 528, 529 (Fla. 1st DCA 2002). This is often called the Rule of Wardlow.
However, reasonable suspicion of criminal activity is not established simply because a defendant leaves the scene when an officer nears. See F.E.A. Further, when a party leaves the scene in a car, a party's intent is not always clear. See Cunningham v. State,884 So.2d 1121, 1123-24 (Fla. 2d DCA 2004). As explained in Paff v. State,884 So.2d 271, 273 (Fla. 2d DCA 2004), a “car that obeys all traffic regulations when leaving a location when a police car arrives would seem to be the motor vehicle equivalent of a person who simply walks away from an officer on foot. Such a person does not invoke the rule of Wardlow.”
Under these facts, the stop cannot be deemed lawful under Wardlow and its progeny. See Hewlett v. State,599 So.2d 757 (Fla. 2d DCA 1992)(holding stop of vehicle was unlawful where three men, who were aside a vehicle parked next to property of a known drug dealer but who were personally unknown to police, jumped into the vehicle and drove away at a lawful rate of speed as an officer approached)
Notes: Interesting discussion of the Rule of Wardlow and it's application.