Case Law Update- Current FL Statute DUI/Felony

Williams v. State (May 13th, 2020); License Plate frames DO NOT obscure tag to justify traffic stop

Robert Norvell — Tue, 02 Jun 2020 12:50:33 +0000

The police can legally justify stopping a vehicle if there is any objective violation of a Florida Traffic law. There is a Florida Statute, section 316.605 that says that a license plate shall not be obscured and must be visible and legible at all time 100 feet from the rear or front. Police some times have no real reason to pull over a vehicle so they use this statute to pull over vehicles who have a license plate frame. They justified this as legal because the frame covered "MyFlorida.com" or "Sunshine State" and thus was obscured. The courts have now rejected this saying it is absurd. These collateral things on a license plate are not unique and are so small as to not be visible from 100 feet anyway. So, this game is done. However, it still applies if the unique numbers/letters are not visible. There is a case where a trailor hitch was in front of a tag and the court said the stop was ok. In fact, anyone towing anything would probable have an obscured tag. So, please do not have anything in your vehicle you wouldnt want the police to find if you are towing something or have anything other than a plate frame covering your tag. Williams v. State, 4th DCA Opinion May 13th, 2020. No. 4D19-1578.

Ok to search Car in driveway of House because of language in Search Warrant of home(4th DCA August 7th 2019)

Robert Norvell — Fri, 09 Aug 2019 14:38:50 +0000

Price v. State, 4th DCA, August 7th, 2019. This was an appeal from a Motion to Suppress of a large quantity of marijuana that was denied by the trial court. The car was parked at the end of a long drive and the police had a search warrant for the "residence, curtilage, outbuildings and conveyances." The appeals court specifically did not challenge the courts finding that the vehicle was within the curtilege because it was satisfied that the warrant said "conveyances," which is generally taken to mean vehicles. Had the warrant not had this specific languge they may not have agreed with the lower court. They had this to say about the application of this case to others:

We acknowledge that in Dunn v. State, 292 So. 2d 435, 435-36 (Fla. 4th DCA 1974), we reversed the denial of a motion to suppress where a vehicle parked in a driveway was searched during the execution of a search warrant for a residence and curtilage. In Dunn, we said: “In the case at hand, there was no such evidence to connect the vehicle in question with the premises and we believe some such evidence necessary in order to authorize the search of a vehicle parked even within ‘the curtilage.’” Id. at 436. However, we distinguish the instant case from Dunn on the basis that unlike this case, the search warrant in Dunn authorized the search of “certain premises And [sic] the curtilage,” but said nothing about vehicles or other structures. Id. Similar to Dunn, the First District in Miller v. State, 516 So. 2d 1118 (Fla. 1st DCA 1987), reversed the denial of a motion to suppress the search of a vehicle after determining there was “no evidentiary connection between the residence authorized to be searched and appellants’ vehicle.” Id. at 1119. We again distinguish this case from Miller because in Miller, the warrant authorized “the search of the ‘premises and curtilage thereof’ for marijuana” and the warrant said nothing about vehicles or other structures.

Hastings v. State (Fla. 9th Circuit Court, 2015)

Robert Norvell — Wed, 16 Mar 2016 15:39:00 +0000

The defendant was convicted of speeding, and the trial court suspended his license for 120 days, followed by a six-month restriction limited to a business-purposes-only license. He was also ordered to pay a fine and court costs. He filed a motion for rehearing and arrest of judgment, arguing that the license suspension was an illegal penalty. The trial court denied the motion, but the circuit court, in its appellate capacity, agreed with the defendant and reversed, noting that violations of section 316.189, Florida Statutes, "must be cited as a moving violation, punishable as provided in chapter 318," and that chapter 318 does not include license suspension as a penalty for violating section 316.189(2).

Yul Medina v. State (4th DCA, January 6th, 2016)

Robert Norvell — Wed, 06 Jan 2016 16:33:00 +0000

The circuit court revoked the petitioner’s bond and ordered pretrial detention based solely on the pretrial release officer’s affidavit stating only that the petitioner, while on pretrial release, had been charged in a Miami-Dade County case with driving while license suspended. The affidavit did not state any facts establishing probable cause for the new charge. See § 903.0471, Fla. Stat. (2015) ("Notwithstanding s. 907.041, a court may, on its own motion, revoke pretrial release and order pretrial detention if the court finds probable cause to believe that the defendant committed a new crime while on pretrial release.") (emphasis added); Simeus v. Rambosk, 100 So. 3d 2, 4 (Fla. 2d DCA 2011) (the probable cause determination required under section 903.0471 is similar to the probable cause determination necessary to support an arrest warrant or to the probable cause determination made at first appearance; it must be based on an affidavit of a police officer, a sworn complaint, sworn deposition testimony, or other testimony under oath properly recorded).

Because the affidavit did not state any facts establishing probable cause for the new charge, the affidavit was insufficient to revoke pretrial release and order pretrial detention. This is important to know if you are out on a conditional release and pick up any new criminal charge. You should hire an attorney immediately, or let your current attorney know so they can be prepared should the State move to revoke a bond.

Ramirez v. State (7th Judicial Circuit, Volusia County July 31, 2015)

Robert Norvell — Wed, 15 Jul 2015 19:32:00 +0000

Driver was stopped for speeding. During initial contact at the driver's door, the Deputy detected "an odor of alcohol coming from the Defendant." The Deputy also indicated that the driver had difficulties obtaining his driver's license. Based only on these factors, the Deputy ordered the driver to exit his car to conduct a DUI investigation. Field sobriety exercises were then completed and the driver was arrested for DUI. The Defense filed a motion to suppress saying that those two factors alone were not enough to give the deputy "reasonable suspicion" that the driver was under the influence. Thus, the Deputy did not have the authority to order him out of the car. The Court agreed saying that just because an officer believes that a driver has consumed alcohol does not mean he can order them out of the car without "more facts and circumstances showing a probability that a driver is impaired by alcohol or has an unlawful amount in his system." The Deputy made no other observations of impairment, he did not observed the Defendant's eyes, there was no indication of slurred speech or flushed face. there simply was no other evidence to support the deputies suspicion that the driver's normal faculties were impaired.

This case is a County Court case so it would not necessarily binding on our circuit, only persuasive. It could still be very useful as guidance to our Judges when the initial contact between an officer and driver involves very little actual evidence. It is important to evaluate the initial evidence that the officer uses to then initiate further investigation. If the Court agrees that there wasn't enough in the beginning then it may grant a Motion to Suppress.

Gay v. State (2nd District Court of Appeals, May 15th, 2014)

Robert Norvell — Wed, 14 May 2014 17:22:00 +0000

Officer determined not to cite driver during traffic stop for a rolling stop at a stop sign. But he then asked the driver for consent to search the vehicle. The driver agreed which rendered the encounter what is deemed a "consensual encounter." The officer's actions in searching passenger's purse and pill box contained in purse, removing the pill box from the vehicle, and taking box to his patrol car for further investigation resulted in the encounter becoming an investigatory detention, which was not justified by reasonable suspicion of criminal activity. The Court said the officer's actions would have led a reasonable person to conclude she was not free to leave, and nothing about the pills or pill box gave officer reasonable suspicion that passenger or driver had committed, was committing, or was about to commit a crime. The evidence was suppressed as the product of an illegal search.

Ramirez, v. State(1st District Court of Appeals, January 16, 2013).

Robert Norvell — Wed, 16 Jan 2013 20:06:42 +0000

This case explains what is called the "Prescription Defense" in trafficking and possession of prescription medication cases. Specifically, the charge of trafficking may be proven through possession of a certain amount of a controlled substance. BUT, an affirmative prescription defense is ... "available to those who have a valid prescription written directly on their behalf for the pills in their possession." McCoy v. State, 56 So.3d 37, 39 (Fla. 1st DCA 2010) (citations omitted). Section 893.13(6)(a) states:

It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter.

A valid prescription is a complete defense to trafficking and a defendant is entitled to a jury instruction on the defense.” (citing O'Hara v. State, 964 So.2d 839, 847 (Fla. 2d DCA 2007))). Moreover, the prescription defense is not limited to the person holding a valid prescription, but may also be asserted by “any individual authorized by the prescription holder to hold the medications on his or her behalf.” State v. Latona, 75 So.3d 394, 395 (Fla. 5th DCA 2011) (citing McCoy, 56 So.3d at 39).

This is a powerful defense. However, the burden of proving this defense rest solely with the Defendant through his attorney. This is why it is important to have an experienced criminal attorney.

Teamer v. State (1st District Court of Appeals December 21st, 2012.)

Robert Norvell — Fri, 21 Dec 2012 15:54:00 +0000

A Deputy observed a bright green Chevy. The deputy “ran” the license plate tag number through the Department of Highway Safety and Motor Vehicles which came up registered to a blue Chevy. The deputy pulled the vehicle over based only on the color inconsistency. Upon interviewing the occupants, the deputy learned that the vehicle had recently been painted, thus explaining the inconsistency. During the stop, however, the deputy smelled marijuana emanating from the car and conducted a search of appellant, his passenger, and the vehicle. Marijuana and crack cocaine were recovered from the vehicle, and about $1,100 in cash was recovered from appellant. Appellant was charged with trafficking in cocaine (between 28–200 grams), possession of marijuana (less than 20 grams), and possession of drug paraphernalia, scales.

On appeal, the Court held that the mere fact that the color of a vehicle does not match the color indicated on motor vehicle registration records does not establish a reasonable, articulable suspicion of criminal activity to support an investigatory stop of a vehicle. This is particularly true in Florida where there is no legal requirement that a vehicle owner inform the DHSMV of a change in the color of the vehicle.

This Court disagreed with the Aders court(this is the decision that remains law in Palm Beach County) that a color discrepancy alone warrants an investigatory stop and, therefore, certify conflict with the Fourth District's opinion in Aders v. State,67 So.2d 368 (Fla. 4th DCA 2011). The lower court's judgment and sentence were reversed, and the case was remanded to the trial court for appellant to be discharged.

We shall see what happens next. The State can appeal this to the Florida Supreme Court to resolve the conflict between our (the 4th District) and this decision. Stay tuned.

F.Q. v. State (4th District Court of Appeals, October 17th, 2012).

Robert Norvell — Wed, 17 Oct 2012 13:51:00 +0000

Evidence was insufficient to establish juvenile's constructive possession of cannabis, as would support adjudication of juvenile as delinquent for possession of cannabis, in case in which law enforcement officer saw juvenile discard a bag that appeared to contain marijuana, at same time that another juvenile discarded two bags as officer approached both juveniles; State did not offer proof that bag that was admitted into evidence was the same bag that juvenile dropped, and only one of the three discarded bags had been tested for drugs. Although there was evidence that F.Q. was aware of all the baggies thrown, there was no evidence he exercised dominion and control over the baggie admitted into evidence, and that he knew the baggie contained marijuana.

The Court discussed other cases of contructive possession. Isaac v. State, 730 So.2d 757 (Fla. 2d DCA 1999) (holding that judgment of acquittal should have been granted after state rested, as the evidence did not establish constructive possession where it showed only that the defendant and another man were passing a baggie of marijuana back and forth, and one of the men dropped it when they noticed an officer was observing them). Compare with Stevens v. State, 782 So.2d 550 (Fla. 5th DCA 2001) (state proved constructive possession where defendant and other man did not begin passing cigar tube containing crack cocaine back and forth until after they saw deputies, they were both in possession of the cigar tube when it was dropped, and defendant had a large amount of cash on his person when he was arrested, which was organized by denomination, and the deputies testified this was a characteristic of drug dealers).

Hernandez v. State (5th District Court of Appeals, October 5th, 2012).

Robert Norvell — Fri, 05 Oct 2012 13:57:00 +0000

This case shows the limitations and protections when a third party consents to a search of a residence when police have no warrant.

The Court held that the police officers who performed warrantless search of defendant's residence with the consent of his girlfriend, whose apparent authority to consent to the search did not extend to a locked room that she told officers she lacked permission to enter, could not enter the locked room as part of a protective sweep; officers knew they lacked consent to enter the locked room before they entered residence, officers waited over an hour before entering residence without making any effort to obtain a search warrant, and need for a warrantless protective sweep of the locked room could readily have been avoided by procurement of a warrant.

If the police enter a residence without a warrant and claim they entered to do a "protective sweep," this limited type of search must be narrowly confined to a cursory visual inspection of those places in which a person might be hiding.