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

         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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          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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