Jackson v. State (4th District Court of Appeals- Broward County, Jan. 11, 20120)

Defendant appealed his conviction for trafficking in cocaine in an amount over 200 grams.  At his trial, a police officer testified that he first came in contact with Defendant when he arrived at his residence to execute a search warrant. During the search, a substance that appeared to be powder cocaine was discovered. A canine was called to the scene and alerted to several locations throughout the residence.  A crime lab technician testified that she tested two items recovered from Defendant's residence. Item one consisted of eight baggies containing a powdery substance. The chemist tested a random sample of the powder and concluded that the powder was cocaine. The eight baggies had a combined weight of 182.7 grams. The chemist also tested two baggies containing cocaine rocks. Bag one weighed 22.9 grams and bag two weighed 6.6 grams. On cross-examination, the chemist testified that she tested only one of the eight baggies containing the powdery substance. She indicated that she could not confirm that the other seven bags contained cocaine.

The Court held that the State failed to meet its burden under Ross, where only one of eight baggies was tested. See also Safford v. State,708 So.2d 676, 677 (Fla. 2d DCA 1998) (in reliance on Ross, reversing conviction for trafficking in cocaine of an amount exceeding twenty-eight grams, where State failed to test forty separately-packaged foils of cocaine powder). We also note that the circumstantial evidence of weight presented by the State was similarly insufficient to meet its burden.

Accordingly, Defendant's conviction was reversed with directions that the conviction for trafficking in cocaine in an amount of 200 grams or more, but less than 400 grams, be reduced to the lesser offense of trafficking in cocaine in an amount of twenty-eight grams or more, but less than 200 grams, and that his sentence be modified accordingly.

State v. McCullough (2nd District Court of Appeals, Dec. 30th, 2011).

The Defendant was arrested during a “warrant round-up.” The arresting officer executed the warrant after she pulled into her private driveway. She had already exited her vehicle and locked her door when the officer approached her. The officer then arrested her under the outstanding warrant.  After the officer placed McCullough in his car, he again approached her vehicle and confirmed that it was locked. No evidence was presented that the officer could see any contraband or evidence of any crime inside the car. The officer then went to the door of the home and instructed McCullough's son to give him the keys. After McCullough's son complied with this instruction, the officer returned to the vehicle, unlocked it using McCullough's key, and conducted a search inclusive of McCullough's purse that was inside the car. The search revealed cash, marijuana, and cocaineinside McCullough's purse.

The Court applied the ruling in Gant which says that “[p]olice may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” 129 S.Ct. at 1723. Because it is undisputed that McCullough was secured in handcuffs in the arresting officer's patrol car when her car was searched, this case concerns only the second prong of Gant'sholding. Accordingly, the search can withstand constitutional scrutiny only if it was reasonable to believe McCullough's vehicle contained evidence of the offense underlying her arrest.

The warrant for her arrest was issued four to five months prior to her arrest, and the record is devoid of any evidence whatsoever suggesting that the sale of cocaineshe allegedly committed months before her arrest was still taking place or that the car was involved in that sale. Further, from his lawful standpoint outside the vehicle, the officer observed no contraband, weapons, or any other evidence which would support a reasonable belief that evidence from an offense committed at least four months prior—at an unknown location—would exist inside McCullough's vehicle at the time of her arrest.

Therefore, the Court said the evidence should be suppressed and threw out the case.

Mesa v. State (Fourth District Court of Appeals,St. Lucie County, Dec. 21st 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.

State v. Holland (4th District Court of Appeals, December 14th, 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.   

Cordero-Artigas v. State (Second District Court of Appeals, Dec. 9th, 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.

Rozzo v. State (Fourth District Court of Appeals, Dec. 7th, 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.

Gore v. State (4th District Court of Appeals, November 16th, 2011)

Facts: Police had reason to believe that Defendant was committing the crime of withholding information from a physician and gathering large amounts of prescription.  This is commonly known as doctor shopping.  The Police then went to various pharmacies, pulled patient's profiles and, from those patients' profiles, they find out who the prescribing doctors are. The Police then go to the prescribing doctors, and speaks with them without any subpoena or search warrant being issued. The conversations include whether or not Defendant had disclosed previous prescriptions to the doctor. The officer also pulled and reviewed various patient documents.  The Defense filed a Motion to Suppress all medical records, which the Trial Court Denied.

On appeal the 4th District Court of Appeals concluded that the police may secure pharmacy records of Chapter 893 controlled substances pursuant to a criminal investigation, but not pharmacy records of all prescriptions. There is some expectation of privacy in pharmacy records. The police may obtain the permitted records without obtaining a warrant or a subpoena. Doctors' names appear on all prescription records; hence, the police may secure doctors' names on Chapter 893 pharmacy prescription records, as well, without a warrant or a subpoena.

The Appeals Court also said that the trial court erred by denying Defendant's motion to suppress his medical records and physician's statements, which police obtained without a subpoena or Defendant's authorization. Medical records and physician's statements are protected by the statutory physician-patient privilege, and therefore, the State was required to get either a subpoena with court approval or prior notice to and authorization from Defendant. See §§ 456.057(6) & (7)(a), Fla. Stat.

Therefore, all the records were suppressed.

Harris v. State (4th District Court of Appeals, November 2nd 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).

State v. Price (2nd District Court of Appeals, October 21st, 2011).

Normally we think that an Off-duty police officer, outside his jurisdiction, could not pull someone over they suspected of DUI (being under the influence of alcohol or drugs) and arrest them.

However, the Courts in Florida say that an Off-duty officer could properly make a citizen's stop of defendant's car using the patrol car's lights and he could properly detain defendant while wearing his police uniform, as neither of these actions violated the “color of office” doctrine. 

The "Color of Office" prevents law enforcement officials from using the powers of their office to observe unlawful activity or gain access to evidence not available to private citizen; this doctrine is not applicable because the activity observed by officer, namely defendant's driving, could be observed by any private citizen driving on the interstate, and officer observed that defendant's car made wide turn, drifting off to the left of the white line, that defendant's car sped up to approximately eighty miles an hour when it got on interstate, but it then began to slow down, speed up, and slow down again, and that defendant's car drifted between lanes.

This case is similar to Edwards v. State,462 So.2d 581, 582 (Fla. 4th DCA 1985), in which the Fourth District noted that “at common law, a private citizen may arrest a person who in the citizen's presence commits a felony or breach of the peace, or a felony having occurred, the citizen believes this person committed it.” In Edwards, the court held that the appellant's conduct amounted to a breach of the peace where he was driving his pickup truck in a dangerous fashion. Id.In that case, an off-duty officer followed the appellant for about five miles and observed his truck cross the center line three to seven times, which caused approaching drivers to run onto the berm, and also observed the appellant's truck come close to hitting a bridge abutment. Id. The officer approached the appellant after the stop and detained him. Id. The Edwards court held that the stop of the appellant's car was lawful and the court noted that the off-duty officer's identification of himself as such and his offer to show the appellant his badge did not amount to acting under color of office. Id.

State v. Herron (3rd District Court of Appeals, 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.

State v. Fitzgerald (2nd District Court of Appeals, May 18th, 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.   

Dillon-Watson v. State (4th Disctrict Court of Appeals, May 18th, 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.

Smallwood v. State (1st District Court of Appeals, April 29th, 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.

Jardines v. State (Supreme Court of Florida, 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. 

Rogers v. State (4th District Court of Appeals, April 6th, 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.    

Moncrieffe v. State (4th District Court of Appeals, 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.

State v. Cannon (4th District Court of Appeals, March 2nd, 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.

Kilburn v. State (1st District Court of Appeals February 22nd 2011)

On September 26, 2009, a Santa Rosa County deputy sheriff observed Kilburn's pick-up truck weaving and crossing the centerline of the road several times over the course of approximately two and one-half miles. The deputy suspected that the truck's driver was under the influence, so he activated his lights to initiate a traffic stop. The truck did not immediately stop and, when it did, it almost hit a garbage can sitting near the road. Kilburn was arrested for driving under the influence (DUI), and the state charged the offense as a felony based upon Kilburn's three prior DUI convictions.

Kilburn's truck had to be towed after his arrest because it was located in an unsafe location on the side of a busy road, and as part of the impoundment process, the deputy conducted an “inventory search” of the truck. The deputy testified that Sheriff's Office policy required an inventory search to be done whenever a vehicle is towed, but that there were no standardized criteria or procedures for conducting such a search. During the search, the deputy found marijuana(less than 20 grams) and pills that turned out to be alprazolam and hydrocodone.  Kilburn was charged with possessionof these drugs in addition to the felony DUI charge.

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. 

Frost v. State (4th District Court of Appeals, January 26th, 2011)

A deputy stopped the Defendant's car for running a stop sign. The deputy asked if he could search the car.  When the Defendant said no the deputy called for a dog unit.  While writing the traffic citation, a Detective arrived at the scene with his dog.  The dog was walked around the car for to perform an exterior sniff. Rex, the dog, alerted at the driver's seat.   The Defendant was then removed from his car and a search turned up powder and crack cocainein an Altoids can found between the driver's seat and center console. A bag with marijuana was found in the same area.

The Fourth District was faced with two lines of cases.  It rejected one line of decisions that required the State to prove both proper training AND reliability of a drug dog to form probable cause.  Instead, "the state can make a prima facie showing of probable case based on a narcotic dog's alert by demonstrating that the dog has been properly trained and certified. If the defendant wishes to challenge the reliability of the dog, he can do so by using the performance records of the dog, or other evidence, such as expert testimony. Whether probable cause has been established will then be resolved by the trial court."

Notes: Now, once the State has shown proper training and certification of a dog the burden shifts to the Defendant to show a lack of reliability.   

Hill v. State (1st District Court of Appeals January 24th, 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.