West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

          In the case of New Jersey v. T.L.O., the United States Supreme Court stated that "[u]nder ordinary circumstances, a search of a student by a school or other school official [is permitted] when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school."  However, in the case of A.H. v. State of Florida, the Fifth District Court of Appeal stated that the prosecution is still "required to elicit specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant the intrusion."  If the prosecution cannot present such facts, then the evidence should be suppressed.

          In the case of A.H., a physical education teacher named Matthew Koff was selling a uniform to a student whose initials were "A.H."  (Initials rather than names are used in appellate cases when reference is made to a minor.)  According to Koff, A.H.'s speech was slurred, and Koff could not understand A.H. so he asked him to repeat his name several times and even to spell it.  Feeling that something was not right, Koff voiced his concerns to the assistant principal who immediately took A.H. to an empty office along with a police officer.  The assistant principal asked A.H. to empty his pockets.  When A.H. produced his wallet, the assistant principal opened it and found what turned out to be marijuana.

         The Fifth District Court of Appeal ruled that this search was illegal and that the marijuana should therefore be suppressed because Koff had merely a "gut feeling" that something was wrong while the assistant principal and police officer had no problem understanding A.H.

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         You have probably seen police roadblocks when you were out driving your car, and you may have even been stopped at one, but did you know that before the police are allowed to actually set up a roadblock they are first required to prepare written guidelines so that the officers conducting the roadblock do not violate motorists' rights by, for example, stopping motorists because of their race or ethnicity?

          In the case of State of Florida v. Jones, the Florida Supreme Court stated that "[w]ritten guidelines should cover in detail the procedures which field officers are to follow at the roadblock.  Ideally, these guidelines should set out with reasonable specificity procedures regarding the selection of vehicles, detention techniques, duty assignments, and the disposition of vehicles."  According to the United States Supreme Court decision in Brown v. Texas, when the police stop someone and that stop "is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits."

          Seven years after the Jones case was decided, the case of Campbell v. State of Florida arose.  In the Campbell case, the Jacksonville Florida Sheriff's Office set up a roadblock to check for traffic violations.  The only written instructions for implementing the roadblock stated merely, "Stop motorists on Mandarin Rd. for a traffic safety check.  Have a motorcycle [with] radar on each end of check to monitor speed."  In addition to the written instructions, the officer in charge of the roadblock gave oral instructions to the officers who actually stopped the motorists.  One of the oral instructions was to stop every car passing through the roadblock.

         Things did not, however, go exactly according to plan.  Several times during the five-hour roadblock, traffic backed up which created a safety concern.  In response, the officers on scene used their discretion on different occasions to simply waive some cars through the roadblock while continuing to stop and check others.

          One of the motorists who was stopped was a man named Phillip Campbell.  When the police discovered that Campbell had a suspended driver's license, he was arrested and taken to the county jail where the police found cocaine and marijuana in one of his socks.  Campbell's lawyer later filed a motion to suppress requesting that the judge suppress the narcotics found in his sock because the roadblock violated the Fourth and Fourteenth Amendments to the United States Constitution as well as the Jones decision.

          Campbell's case eventually reached the Florida Supreme Court, and that Court ended up siding with Campbell finding that "the limited police directives used here do not limit police discretion and fall short of the discretion-limiting written set of uniform guidelines specifically required by us in [the Jones case]."  The High Court continued on to say that "[i]n this country, the police are not vested with the general authority to set up 'routine' roadblocks at any time or place.  Rather, law enforcement was placed on notice by our holding in Jones that the stopping and detaining of a citizen is a serious matter that requires particularized advance planning and direction and strict compliance thereafter."

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          Earlier this year, the U.S. Supreme Court decided the case of Herring v. United States in which the issue presented was whether evidence found during a search incident to arrest must be excluded in a later prosecution when that evidence was seized by the police in violation of the Fourth Amendment to the U.S. Constitution.

          The pertinent facts in Herring are that in July of 2004 a police officer in Coffee County Alabama learned that an individual named Bennie Dean Herring had driven to the Coffee County Sheriff's Department in order to retrieve an item located in his truck which had been previously impounded by that same department.  Because the officer knew that Herring had a criminal past, he asked the county's warrants clerk to check on whether Herring had any outstanding warrants for his arrest in Coffee County.  When the clerk found none, the officer asked her to check on whether Herring had any outstanding warrants in neighboring Dale County.  Upon being told that Herring did indeed have an open warrant in that county, the officer arrested and searched Herring.  When he did so, the officer found drugs and a gun on Herring's person.  However, within ten to fifteen minutes of Herring's arrest, the officer was told that the warrant he had arrested Herring for had actually been recalled five months earlier.  In spite of that, Herring was indicted in a United States District Court in Alabama for illegally possessing the gun and drugs.

          Herring's lawyer filed a motion to suppress the gun and drugs on the ground that Herring's arrest was illegal because the warrant he had been arrested for had been recalled five months prior to his arrest.  Although the prosecutor agreed that Herring's arrest violated the Fourth Amendment, he still maintained that he should be allowed to present the seized evidence to the jury at Herring's trial because the arresting officer reasonably believed that there was an outstanding arrest warrant in effect when he arrested Herring.

          The case ultimately made its way to the U.S. Supreme Court where the Court was asked to decide whether the prosecution could present the gun and drugs as evidence at Herring's trial.  By a vote of 5 to 4, the United States Supreme Court ruled that the gun and drugs could be presented as evidence at Herring's trial because the error regarding the recalled warrant was "the result of isolated negligence attenuated from the arrest."  In other words, because the officer who arrested Herring made an honest mistake regarding the recalled warrant, the Fourth Amendment does not require that the gun and drugs be excluded at Herring's trial.

         In dissent, Justice Ginsburg, joined by three other justices, stated that "the most serious impact of the [majority opinion] will be on innocent persons wrongfully arrested based on erroneous information carelessly maintained in a computer database."  She continued on by saying that "[n]egligent recordkeeping errors by law enforcement threaten individual liberty, are susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively through other means."

          Finally, Justice Ginsburg perceptively observed that "by restricting suppression to bookkeeping errors that are deliberate or reckless, the majority [opinion] leaves Herring, and others like him, with no remedy for violations of their constitutional rights."  In other words, when the police violate the law but the violation is not deliberate or reckless, there is nothing that a person can do who suffers as a result of that violation.

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          The United States Supreme Court has repeatedly stated that searches conducted by the police without first obtaining a search warrant are unlawful unless those searches fall within certain recognized exceptions to the warrant requirement contained in the Fourth Amendment to the U.S. Constitution.  One of those exceptions permits police officers to conduct warrantless searches during or immediately after a lawful arrest.  (This is commonly referred to as the "search-incident-to-arrest" exception.)

          In the 1981 case of New York v. Belton, the U.S. Supreme Court analyzed the search-incident-to-arrest exception in the context of a police search of a car.  The High Court concluded that when a police officer lawfully arrests the occupant of a vehicle, he may--right then and there--search the passenger compartment of the vehicle as well as any containers found in the passenger compartment.  The reasons why she may do so are twofold:

         1.  To remove any weapons contained in the car that the arrested person might try to obtain in order to hurt the officer with; and

          2.  To prevent the arrested person from concealing or destroying evidence (such as drugs) contained in the car.

          But what if the arrested person has been handcuffed and placed in the backseat of a patrol car?  He certainly cannot get back into his car and retrieve a gun or drugs.  In that case, why should the police be allowed to search the passenger compartment of his car and any containers found therein?  This question has been raised many times since Belton was decided almost thirty years ago, but courts have, by and large, routinely allowed the police to conduct such searches notwithstanding this very plausible argument.

          However, all that changed in the very recent case of Arizona v. Gant.  In that particular case, Rodney Gant was arrested for driving with a suspended driver's license, handcuffed, and locked in the back of a patrol car.  The police then searched his car and found some cocaine in the pocket of a jacket located on the backseat.

          On appeal, Gant argued that the Belton case did not authorize the search of his car because:

          1.  He posed no threat to the officers after he was handcuffed and placed in the backseat of a locked patrol car; and

          2.  He was arrested for a traffic crime for which no evidence could be found in his vehicle.

          The United States Supreme Court agreed with Mr. Gant holding that the police are authorized to search a vehicle incident to a recent occupant's arrest only when the arrested person is unsecured and within reaching distance of the passenger compartment at the time of the search. 

          However, the Court also concluded that the police are authorized to conduct such a search when it is reasonable to believe that evidence relevant to the crime for which the occupant has been arrested might be found in the vehicle.  For example, if a recent occupant of a car is arrested for possessing cocaine found in one of his pants' pockets, it would probably be reasonable for the police to believe that additional narcotics or narcotics-related equipment might also be found in his car.  In that case, the police would probably be justified in searching the passenger compartment and any containers located inside of that compartment.

          It will be interesting to see how the ruling in Gant affects the day-to-day decisions of police officers now that they no longer have the authority to automatically search someone's car when they arrest a recent occupant.  Will some officers intentionally not handcuff such persons immediately upon arrest so that the officers can later argue (in court) that they were authorized to search the person's car in order to prevent that individual from grabbing a gun or destroying drugs?  Are the police authorized to search a recent occupant's car if he is arrested for, say, being an illegal alien?  Only time and the inevitable litigation that follows important Supreme Court opinions such as Gant will tell.

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          Wayne R. Lafave, a noted criminal-law scholar, has said that "there is no dispute that [police searches based upon consent] affect tens of thousands, if not hundreds of thousands, of people every year."  That being the case, it is not surprising that the United States Supreme Court has, over the years, addressed the lawfulness of particular searches by the police that were based upon consent.  Several of those opinions dealt in particular with searches of homes.

          The High Court has consistently said that our homes are entitled to special constitutional protection because they are the center of our private lives.  For example, in the case of Miller v. United States, the Court stated that "[f]rom earliest days, the common law drastically limited the authority of law officers to break the door of a house to effect an arrest.  Such action invades the precious interest of privacy summed up in the ancient adage that a man's house is his castle." 

          However, it is not necessary for the police to break down the door of someone's home if they have the consent of one of the residents to enter and search that person's home.  But are the police allowed to do that if one of the occupants of the home says they can while another occupant who is physically present says that the police cannot?  That was the question that the U.S. Supreme Court addressed in the case of Georgia v. Randolph.

         What occurred in the Randolph case is that Janet Randolph called the police after having a dispute with her husband, Scott Randolph, which ended up with Scott taking their son to a neighbor's house.  When the police arrived, Janet told them that Scott abused drugs and that there was evidence of that inside her home.   One of the officers then asked Scott for permission to search his house which he flatly refused.  Janet, however, did consent to such a search which ultimately resulted in Scott being indicted for possession of cocaine.

          The case eventually made its way to the U.S. Supreme Court where Scott argued that the police violated the Fourth Amendment to the Constitution when they initially entered his home without a search warrant.  The Supreme Court agreed with Scott and ruled that the evidence obtained by the police had to be suppressed because "there is no common understanding that one co-tenant generally has a right or authority to prevail over the express wishes of another."

          Although the Supreme Court ruled that the police did not have a right to enter Scott's home without a warrant, it suggested that its ruling might have been different had the police needed to enter the home in order to physically protect Janet from Scott or to prevent Scott from destroying evidence of drug use.  The result would also have been different had Scott not been physically present to object; in that case, Janet's consent would have prevailed, and the resulting search would have been upheld by the Court.

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          In many cases in which the police want to search someone's car or home, they try to obtain the owner's verbal or written consent so that they do not have to get a search warrant from a judge or otherwise be concerned about the lawfulness of conducting a search.  But if the lawfulness of a particular search does become an issue later on when the case goes to court, the prosecutor may have to prove that the person's consent was given freely and voluntarily.  She may also have to prove that even if consent was originally given freely and voluntarily, it was not later withdrawn by the accused individual's words or actions or by the words or actions of the police.  If the prosecutor cannot prove those things, then the judge hearing the case may rule that some or all of the incriminating evidence that the police acquired is inadmissible at trial.  When that happens, a prosecutor is sometimes forced to drop the case because she does not have enough evidence to obtain a conviction.

          The lawfulness of a search following consent was at issue in the recent case of Johnson v. State of Florida.  In that particular case, Mr. Johnson was charged with possessing illegal drugs that were found on his person while being searched by a police officer by the side of the road.  After being arrested, Johnson filed a motion to suppress that incriminating evidence arguing that although his consent may have originally been given freely and voluntarily, that consent was later invalidated or effectively withdrawn when the police themselves engaged in unlawful conduct.

          Florida's First District Court of Appeal agreed with Mr. Johnson and in doing so found the following facts to be of particular significance:

•  The police officer who searched Johnson first asked him and the driver if there was anything illegal in the car and then asked if they would consent to a search of their persons;
• Both Johnson and the driver consented to being searched, but before he was searched, Johnson opened his car door in order to get out;
• When he did that, the officer told him "to sit tight";
• By then, two other officers had arrived and were standing behind car in which Johnson was a passenger;
• After searching the driver, one of the officers told Johnson to get out of the car so that he could search him;
• That officer found a small bag of cocaine in Johnson's front coat pocket and marijuana in his sock.

         The appellate court ruled that although Johnson's consent was originally given freely and voluntarily, it was effectively withdrawn by the police themselves when he was ordered to "sit tight" because the officer who gave that order had no lawful basis for detaining him at that particular point in time.  As the Johnson Court aptly noted, "it seems logical that an illegal detention would taint everything which follows it, including the continuing validity of consent given prior to the illegal detention."

          Johnson's case is significant because of the court's well-reasoned conclusion that his consent was invalidated not by his own words or actions but rather by the unlawful action of the police in ordering him to remain in the car when there was no legal justification for their doing so.

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          If you think that the police cannot search your trash simply because you put it into your garbage can and place it in front of your home to be picked up by trash collectors, think again!  In the case of California v. Greenwood, the United States Supreme Court ruled that the police are allowed to search your trash without a warrant if you leave your garbage for collection outside the curtilage of your home.

          In the Greenwood case, the police twice obtained garbage bags left on the curb in front of Mr. Greenwood's home after receiving information that Greenwood might be involved in the trafficking of narcotics.  When the police found items indicating narcotics use inside the garbage bags, they obtained a warrant to search Greenwood's home where they found narcotics and then arrested Greenwood on felony narcotics charges.

          In deciding against Mr. Greenwood, the U.S. Supreme Court ruled that since Greenwood voluntarily left his trash in an area particularly suited for public inspection (that is, by the side of the road), his claimed expectation of privacy in the trash that he threw away was not objectively reasonable.  The High Court said that it is common knowledge that plastic garbage bags left on a public street are readily accessible to snoops, scavengers, children, and animals as well as any other member of the public.  Moreover, Greenwood placed his trash at the curb in front of his home for the express purpose of giving it to the trash collector who might himself have sorted through it or permitted others, such as the police, to do so.  According to the Supreme Court, the police cannot reasonably be expected to turn their eyes from evidence of criminal activity that can be observed by any other member of the public.

         However, in one case that involved the search of a Florida resident's trash, Raulerson v. State of Florida, the Fourth District Court of Appeal ruled that the evidence that the police presented to a judge did not provide that judge with the probable cause that the judge needed in order to issue a valid search warrant.

          In the Raulerson case, the police received an anonymous complaint that the people living at Ms. Raulerson's address were involved in illegal drug activity.  Based on this tip, the police went to Raulerson's home and took six bags of trash that were located by the curb in front of her home.  After searching through each of the bags, the police found such things as two cannabis cigarette butts as well as other pieces of suspected cannabis.  Based on this evidence, the police obtained a warrant to search Ms. Raulerson's home where they found contraband. 

           The Fourth District Court of Appeal ruled that although the information provided by the police to the judge was relevant insofar as the substance found by the police in their one-time search of Raulerson's trash tested positive for cannabis, it was still the case that the information provided by the police to the judge lacked other sufficient material facts indicating a fair probability that cannabis would be found in Raulerson's home. 

          For example, had the evidence provided by the police to the judge consisted of two separate searches of Raulerson's trash rather than just one, such evidence might have provided the judge with the probable cause needed to issue a valid search warrant.  Or, to take another example, had the evidence provided by the police consisted of the one search of Raulerson's trash along with other evidence such as seeing cars repeatedly drive up to Raulerson's home during all hours of the day and night and then leaving shortly thereafter, such evidence might also have provided the judge with the probable cause needed to issue a valid search warrant.

          Had the facts in Ms. Raulerson's case been just slightly different, her conviction would almost certainly have been affirmed on appeal rather than reversed.

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          Florida statute section 933.09--sometimes called Florida's version of the so-called knock-and-announce rule--states that a police officer "may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute [a] warrant, if after due notice of the officer's authority and purpose he or she is refused admittance to said house or access to anything therein."  But what if the police do not give you "due notice?"   What if they do not first knock on your door and announce their presence before breaking your door down and entering your home with guns drawn?

          Before the United States Supreme Court's decision in Hudson v. Michigan in 2006, the law had been that if the police entered a home with a warrant but without first knocking and announcing their presence any evidence seized by the police following their illegal entry--evidence such as drugs or guns--would be thrown out of court.  The result in many instances was that the case against the owner of the home had to be dropped by the prosecution.

          But then came Hudson.  In that case, the Court correctly observed that the knock-and-announce rule has historically protected such interests as:

          1.  The physical safety of a home's occupants because an unannounced entry by the police may provoke violence from a surprised resident;

          2.  Property interest because the owner of a home would probably open his front door voluntarily if the police first announced their presence rather than allowing the police to break it down; and

          3.  The privacy and dignity of a home that is offended if the police enter it unexpectedly and forcefully.

          But then the Hudson Court fundamentally changed existing law by ruling that judges are not required to throw out incriminating evidence whenever the police violate the knock-and-announce rule.  That is because the police can be deterred from breaking that rule by other means such as civil-rights lawsuits and the increasing professionalism of police forces which includes a new emphasis on internal police discipline.

          Internal police discipline?  All that one has to do in order to see numerous modern-day examples of police officers who lack internal discipline is go to YouTube and type in the query "police brutality."  Perhaps if the members of our Supreme Court had done just that prior to deciding Hudson, the outcome of that particular case would have been far different.

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In the recent case of Virginia v. Moore, the United States Supreme Court ruled that the police did not violate the fourth amendment's prohibition against unreasonable search and seizures when they arrested a man in Virginia based upon probable cause but prohibited by Virginia state law.  The Supreme Court also ruled that the police did not violate the fourth amendment when they searched the arrested man and found cocaine.

The following synopsis of Virginia v. Moore can be found at Williamette Law Online:

"In February 2003 David Moore (Moore) was arrested for driving with a suspended license. Upon a search incident to arrest, police found 16 grams of crack cocaine in his vehicle. Moore filed a pre-trial motion to suppress the evidence discovered during the search, claiming the search violated his Fourth Amendment rights. Under Virginia law, driving without a license is generally not an arrestable offense. Moore argued that because state law only authorized police to issue him a citation, the search of his vehicle was incident to citation, which is not allowed under the Fourth Amendment. The trial court denied Moore’s motion and he was convicted after a bench trial. The Virginia Supreme Court eventually reversed the conviction, adopting Moore’s reasoning that the Fourth Amendment does not permit search incident to a citation. The United States Supreme Court (the Court) reversed, upholding the conviction. The Court determined that the founders' did not intend the Fourth Amendment to incorporate state arrest rules. Balancing the invasion of Moore’s privacy with the promotion of legitimate governmental interests, the Court held Moore’s arrest was constitutionally reasonable because the arresting officer had probable cause."

Florida statute section 901.15 governs when the police may arrest a person without a warrant.  In Florida, it is illegal for the police to physically arrest someone for a misdemeanor crime like trespass or shoplifting unless an officer actually sees the crime occurring.  Prior to Virginia v. Moore being decided, evidence seized as a result of an illegal arrest would have (or at least should have) been suppressed (or thrown out of court) by a judge here in Florida.  However, based upon the Supreme Court's ruling in Virginia v. Moore, it appears that that is no longer true.

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For several years it has  been the law in the United States that if the police illegally seize someone, then any contraband that the police find on that person--such as guns or drugs--cannot be presented at that person's trial.  This is sometimes referred to as the doctrine of the "fruit of the poisonous tree."

However, when the police search a student's property at school, such a search may not be illegal even though the student's behavior does nothing to arouse the officer's suspicion.   Thus, in one Florida case, the court ruled that it was legal for the police to search a student's purse even though they did not suspect her of having done anything illegal. 

In that particular case, the court said that the search of the student was an administrative search which had the purpose of deterring students from bringing drugs and dangerous weapons to school.  This type of search differed from those searches which are intended to penalize individuals who are found with contraband on their persons.  Therefore, the court ruled, it was legal for the police to search the student's purse.

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Just because the police handcuff you does not necessarily mean you're under arrest.  That's what the Florida Supreme Court ruled in a case called Reynolds v. State of Florida.

In Reynolds, the Florida Supreme Court ruled that it is legal for a police officer to handcuff someone if the officer reasonably believes that it is necessary to do so in order to protect the officer's safety or to prevent that person from fleeing.  However, handcuffing a person in this situation does not necessarily mean that the person is under arrest; it may simply mean that the person is being temporarily detained while the officer conducts his investigation.

The Reynolds Court cited to a case from Alaska called Howard v. State of Alaska which held that a person who had been handcuffed and had guns drawn on him by police officers was not under arrest but was simply being detained while the police conducted their investigation.

So the next time a police officer points a gun at you and puts handcuffs on your wrists, just remember--you may not be under arrest.

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If a police officer stops your car for, say, speeding and then smells an odor of marijuana when he walks up to your car window, Florida law states that that officer has probable cause to believe that a violation of Florida's narcotic's laws has occurred.  When that happens, the officer is legally entitled to search the entire car including the truck and everyone inside the car.

Within the last year or two, I have read many police reports in which arresting officers have relied upon the alleged smell of marijuana in order to search vehicles and its passengers.  In fact, it seems that officers are relying upon this reason much more than they have in years past.  Is that because more people are smoking marijuana in their cars than used to be the case, or is it because officers know that it is very difficult, if not impossible, to prove that they did not, in fact, smell marijuana when they say they did?

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Florida law states that the police may break open a door leading into a home if:

1.  The police have a warrant.
2. The police announce who they are and what they want.
3. The occupant of the home refuses to let the police enter his home after the police have waited a reasonable period of time after knocking and announcing their purpose.

There has been a great deal of litigation regarding precisely how long the police must wait after knocking and before breaking down a door to a home.

However, there are 4 exceptions to the rule that the police must wait a reasonable period of time after knocking and before breaking down someone's door.  Those exceptions are:

1. Those inside the home already know that the police are outside, and they know what the police want; or
2. The police reasonably believe that those inside the home are in danger of being physically harmed; or
3. The danger to the police would increase if the police simply waited outside the door; or
4. Those inside the home might try to escape or destroy evidence.

 As you can see, the law regarding when the police may forcibly enter your home is quite complex.  Should the police ever forcibly enter your home, it would be wise to consult with a criminal attorney in order to get his or her opinion regarding the legality of the officers' actions.

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The law throughout the United States is that the police may not detain an individual whom they have stopped for any longer than necessary to accomplish their reason for stopping that person in the first place.

For example, say that the police stop your car because you are driving 10 miles per hour over the posted speed limit.  While the police have a right to stop your car and issue you a citation for speeding, they do not ordinarily have the right to keep you by the side of the road for any longer than it takes to write the citation.

What happens all too often, however, is that the police do keep individuals by the side of the road for longer than it takes to issue a citation based on a mere hunch that the driver may have contraband such as drugs or guns hidden in her car.  When that happens, the police will sometimes radio in to their headquarters and ask that a dog that has been trained to detect drugs be sent to their location in order to see whether the dog alerts to any drugs in or around the vehicle.  If the dog does alert to drugs which are eventually located by the police, the driver of the car will almost always be arrested and taken to jail.

Because the driver was detained for longer than it should have taken to simply issue a citation for speeding, that driver's lawyer would be well advised to consider filing a motion to suppress the evidence that was discovered by the police as a result of this arguably illegal search and seizure.

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