Case Law Update- Current FL Statute DUI/Felony

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

Robert Norvell — Wed, 11 Jan 2012 15:42:00 +0000

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).

Robert Norvell — Fri, 30 Dec 2011 15:52:00 +0000

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)

Robert Norvell — Wed, 21 Dec 2011 13:16:00 +0000

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).

Robert Norvell — Wed, 14 Dec 2011 13:10:00 +0000

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).

Robert Norvell — Fri, 09 Dec 2011 20:39:00 +0000

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).

Robert Norvell — Wed, 07 Dec 2011 20:29:00 +0000

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)

Robert Norvell — Wed, 16 Nov 2011 13:33:00 +0000

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).

Robert Norvell — Wed, 02 Nov 2011 12:47:00 +0000

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).

Robert Norvell — Fri, 21 Oct 2011 12:57:00 +0000

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)

Robert Norvell — Wed, 10 Aug 2011 15:21:00 +0000

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.