Friday
Oct212011

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.
Wednesday
Aug102011

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.

Wednesday
May182011

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.   

Wednesday
May182011

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.

Friday
Apr292011

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.

Thursday
Apr142011

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. 

Wednesday
Apr062011

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.    

Wednesday
Mar162011

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.

Wednesday
Mar022011

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.

 

Tuesday
Feb222011

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. 

Wednesday
Jan262011

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.   

Monday
Jan242011

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. 

Wednesday
Dec292010

A.B.S. v. State (Second District Court of Appeals, December 29th, 2010).

The Defendant, a juvenile, was taken into custody as a possible runaway in need of services pursuant to section 984.13, Florida Statutes (2009). The officer who took the child into custody stated that, at a minimum, he was going to take them home. Before the officer placed the child inside his police cruiser, he handcuffed and searched them as was his practice. During the search, the officer retrieved a set of keys from the right, front pocket of the child's pants. The keychain had an aluminum screw-top container on it that the officer stated was of the type commonly used to store illegal drugs. The officer shook the container, and it rattled in a way that made the officer suspect there were pills inside. The officer then opened the container and discovered a controlled substance. The officer acknowledged that he did not conduct a pat down before reaching into the child's pocket.

 

The Court held: "the officer did not have a legal basis to search the child's person before transporting him in his cruiser. See L.C. v. State,23 So.3d 1215, 1218 (Fla. 3d DCA 2009). Circumstances that allow a juvenile to be taken into custody under section 984.13 are not crimes; therefore, the search incident to arrest exception to the warrant requirement does not apply. Id.  Further, the officer had no indication that the child was in possession of either a weapon or contraband when he searched the child.  He admitted that he searched solely because it was his policy to search people before transporting them in his cruiser. As the Third District noted in L.C., “Although we appreciate the concern of officer safety, we are aware of no case that stands for the proposition officers can search an individual without having performed a pat-down simply because the individual is being placed in a police vehicle.” Id. at 1219. Because the search was conducted without a legal basis, the trial court erred in denying the motion to suppress."

Wednesday
Dec222010

Gentles v. State (4th District Court of Appeals, December 22nd, 2010).

The officer was patrolling a Mall, when he encountered the defendant in the parking lot at 4:15 a.m. The mall was closed and, as usual, there were no other vehicles in the parking lot. He saw that the defendant was asleep on the driver's side of his car and the engine was running. The officer said that he approached the vehicle to make contact with the defendant and make certain that he was not injured or sick. He explained that he was concerned because it was an unusual hour for a car to be in the parking lot and the defendant appeared to be asleep in the running car.  The officer could not recall whether the window was up or down or what he did to awaken the defendant; after failing to respond initially, the defendant woke up and the officer made contact with him. The first thing the officer did was order the defendant to turn off his car. The defendant complied. The officer said he ordered the defendant to turn off the car for his safety and for the defendant's safety. He explained that he did not want the defendant to drive off, or if he was injured or sick, to get scared and throw the car into gear and accidentally drive into whatever was in front of him. The officer did not testify about any specific facts which made him believe that the defendant posed a danger to the officer.  The officer later arrested the driver for Felony Driving with a Suspended License.

The Defense filed a Motion to Suppress on the grounds that the officer's instruction to turn off the engine was an unreasonable seizure and that the officer's actions constituted a “show of authority.”  This "show of authority" turned a consensual encounter into an unlawful detention that was not based on reasonable suspicion of criminal activity.

The Appeals court agreed: "We conclude that ordering a citizen to shut off the car engine...alone constitutes a seizure.  No evidence was presented in this case showing a specific concern for officer safety. Here, there were no furtive movements, nervous reactions, or any circumstances to warrant a belief that the officer's safety was in danger, and no facts showing that the order to shut down the engine was reasonably necessary to protect the officer's safety.  The record is devoid of facts showing that the officer's instruction to shut off the car was reasonably based on concerns for the defendant's safety or was necessary to determine if he needed any aid or assistance. Officer Horn testified that he issued the order immediately after approaching the vehicle and awakening the defendant. The order to shut off the car was given after the defendant was awakened and before the officer had developed any facts indicating whether the defendant was in difficulty or distress. The officer conceded that he did not have a reasonable belief that the defendant was suffering from an illness or intoxication. Further, he did not furnish any facts or circumstances which suggested that the defendant was disoriented and might drive forward and strike something in a startled stupor. Officer Horn testified about only a generalized, rather than a specific, concern about potential danger from the running motor."

Notes:  In my experience, this is not an unusual scenario and in fact I've had several cases very similar.  The officer invariably tries to justify his contact by saying magic words like: "I felt concerned for my safety" or "I was worried he might be sick or injured."  This Court is telling the lower Trial courts to be skeptical really look at what is going on in the case.  Don't just close the book once the officer says those "magic words."  They have to do more.  They have to have a REAL basis or concern.  This case will be very useful here in Palm Beach County Courts.

Wednesday
Dec152010

State v. Watana (4th District Court of Appeals December 15th, 2010)

Around 3:00 a.m. on the morning in question, Fort Lauderdale Police stopped defendant for “careless driving:” the defendant's vehicle was traveling between 90 and 100 miles per hour over the 17th Street bridge, crossed all lanes of traffic, and did not pull over immediately, but proceeded a short distance and parked behind a closed business.  When the officer went up to the car, the driver was acting very suspicious. 

The officer did not cite defendant for careless driving as he had originally intended,FN1 but asked defendant to step out of his vehicle.  The officer claimed he then asked for permission to search defendant's person, and that defendant complied, never resisting or withdrawing his consent. When asked whether he had reason to believe defendant had any weapons, the officer said, “I just had a heightened suspicion.” The officer put his hand inside of defendant's right front pocket and pulled out a small baggy containing cocaine residue. Defendant moved to suppress the cocaine, alleging in part that it was obtained during an unlawful detention and that he did not consent to the officer's request to search, but rather, acquiesced to his authority.

At the hearing the officer testified that, when he asked defendant to step out of his vehicle, and then for permission to search his person, that defendant complied with all of the officer's requests. He did not resist or withdraw his consent. Defendant testified, however, that the officer never asked for permission to search him, that “he just started searching” defendant. According to defendant, “[i]t was not really a consent. It was get out of your vehicle, come to the back, turn around.”

The Fourth District Court of Appeals found that these facts support the trial court's finding that defendant did not give his consent, as the trial court was free to reject the officer's testimony.  Moreover, the finding that any consent given was a submission to authority and not voluntary, is also supported by competent substantial evidence. Defendant testified that he was told by the uniformed officer, who had not yet written him a traffic ticket, to get out of his vehicle, come to the back, and to turn around. Then the officer “just started searching” defendant. The officer had asked for and retained defendant's license and registration. As defendant argues, “there is nothing in this record to indicate to [him] that a search of his person was [any]thing other than one more ordinary step in the ticket writing process.”  Therefore, for the foregoing reasons, "we affirm the trial court's order granting defendant's motion to suppress."

Notes: there are many ways to attack an alleged "consensual encounter" between a citizen and an officer.  This case is a good example of why a Defense attorney's good cross examination of a officer in the lower court's hearing is so important to establish a record for the appeal. 

Wednesday
Nov032010

M.L. v. State (3rd District Court of Appeals, November 3rd 2010)

Officer did not have probable cause to believe that multi-colored pipe partially protruding from juvenile's bag was contraband, and thus pipe was not subject to seizure under plain view doctrine; the pipe could have been a tobacco pipe or other lawful object, officer did not observe any suspicious activity or behavior prior to seizing the pipe, there was no evidence that juvenile was at a location known for drug activity, officer was not at the location due to a tip regarding drug activity but rather to retrieve a missing juvenile, there was no evidence juvenile appeared under the influence of marijuana, and there was no evidence officer saw marijuana residue in the pipe.

Wednesday
Oct132010

Faith v. State(1st District Court of Appeals, October 13th, 2010).

While conducting a traffic stop of a car in which appellant was a passenger, an officer asked appellant for identification. Appellant provided a false birth date and a name other than her current one. The investigating officer then arrested appellant for obstruction by disguise, under section 843.03, Florida Statutes (2009), and placed her in a patrol vehicle. A subsequent search of her purse revealed methadone pills in her possession. After being handcuffed, appellant resisted. These new law violations served as the grounds for a violation of probation. Appellant pled no contest to the charges, reserving the right to appeal the denial of the motion to suppress.
At the suppression hearing, the court correctly concluded that appellant's arrest for obstruction by disguise was illegal because she was neither under arrest nor subject to a lawful detention when she gave the false name and birth date to the officer. See § 901.36(1), Fla. Stat. (2009) (stating “[i]t is unlawful for a person who has been arrested or lawfully detained by a law enforcement officer to give a false name, or otherwise falsely identify ... herself in any way, to the law enforcement officer....”); Dubois v. State, 932 So.2d 298 (Fla. 2nd DCA 2006). The court dismissed this charge.
Without making any supporting factual findings, the trial court concluded that the post-arrest search and what it revealed were legal, and denied the motion to suppress. Asserting that the suppression hearing was “problematic,” the State seeks a remand to the lower tribunal to allow the prosecution to clarify the evidence or to present additional evidence demonstrating why the post-arrest evidence should not be suppressed. Respectfully, we know of no authority, nor does the State offer any, that would entitle the prosecution, under these circumstances, to a second chance to present evidence opposing the motion to suppress. For these reasons, we REVERSE the convictions
Friday
Oct082010

Department of Highway Safety and Motor Vehicles v. Berne(5th District Court of Appeals, October 8th, 2010

Whether or not the Petitioner's breath was tested on an approved device is at the heart of the instant case. Despite the Petitioner's best efforts, the hearing officer failed to consider the discrepancies and problems presented in the Intoxilyzer approval studies performed in April and May of 2002. Competent substantial evidence existed to demonstrate that these approval studies did not comply with the requirements of FDLE Rule 11D-8.003 and FDLE Form 34, as argued by the Petitioner and noted by the en banc panel in the Atkins [ State v. Atkins, 16 Fla. L. Weekly Supp. 251a (Fla. Orange Cty. Ct. June 20, 2008) ] case. Without independent scientific evidence demonstrating the reliability of the Intoxilyzer 8000 with software version 8100.26, the hearing officer should have excluded the Petitioner's breath test results.

Wednesday
Sep292010

Kurecka v. State (4th District Court of Appeals, September 29th, 2010) 

Charles Kurecka was involved in an automobile accident on August 24, 2005. Officer Joseph Rubin of the Greenacres Department of Public Safety responded to the scene of the accident and conducted a DUI investigation. After performing field sobriety exercises, Kurecka was arrested for DUIand transported to the Greenacres Public Safety Department.   Defendant was requested by law enforcement to submit to breath testing.  Upon hearing the request, Defendant requested to speak with an attorney. Prior to requesting Defendant to submit to breath testing, law enforcement had not advised Defendant of his Miranda rights. As such, Defendant's desire for counsel was not premised upon law enforcement advice, but his own belief that he needed to speak with an attorney. Law enforcement did not inform Defendant that he did not have a right to speak with counsel prior to deciding to take or refuse breath testing. Because he wanted to speak with counsel first, Defendant refused to submit to breath testing.

The Defense filed a Motion To Suppress the Defendant's refusal based upon the following argument:  A DEFENDANT'S MISTAKEN BELIEF IN THE RIGHT TO COUNSEL PRIOR TO BREATH TESTING, NOT CREATED BY LAW ENFORCEMENT, BUT MADE KNOWN TO LAW ENFORCEMENT, REQUIRED THE SUPPRESSION OF THE REFUSAL TO SUBMIT TO BREATH TESTING IF LAW ENFORCEMENT DOES NOT CORRECT THE DEFENDANT'S MISTAKEN BELIEF?

Ultimately the Appeals court said no to this argument.  However, they did say "we might agree that the confusion doctrine could properly be applied in circumstances where law enforcement created a defendant's confusion about the right to counsel for breath testing."  Based upon this language, if in a DUI case a Defendant is miss-informed by an officer the Court may through out a refusal to take the the breath test.

 

Wednesday
Sep012010

Alleyne v. State(4th District Court of Appeals, September 1st, 2010).

At 9:15 a.m., a number of police cars pulled up to a convenience store. FN2Alleyne started to run away. A police car pulled in front of Alleyne and an officer tasered him. As he stopped, a brown bag flew out of his hand and landed on the police car. Inside the bag were 18 individual plastic Ziploc bags containing marijuana and a rolled up $20 bill. The total weight of all the marijuana was less than 20 grams. The officer found $36 in Alleyne's pocket. The state offered no testimony as to Alleyne's conduct outside of the store before the police arrived.

The Defense at the trial moved the Court to dismiss the case which was denied by the Judge.  The Defendant was convicted of Possession with Intent to Sell within a Thousand Feet of a School(which carries a mandatory Minimum of 3 years in prison).

On appeal the Appellate Court found that the officer's opinion was unsupported by facts that would give it credence; the Defendant did nothing outside the convenience store before the police pulled up which indicated he was selling drugs. Neither the total amount of marijuana nor the amount of cash recovered was inconsistent with personal use. His flight from the police was as consistent with possession of illegal drugs as it was with the intent to sell them.

Therefore, trial court erred when it denied the Defense's motion for judgment of acquittal at the end of the state's case, because the evidence of his intent to sell was circumstantial and the evidence did not exclude his reasonable hypothesis of innocence-that he possessed the marijuana only for personal use.  The Court then reduced the charges to simple Possession of Cocaine.