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

          I previously wrote an article on this website entitled "U.S. Supreme Court Modifies Search-Incident-to-Arrest Exception to Warrant Requirement" in which I discussed the case of Arizona v. Gant.  In that article, I stated that:

          "[The Gant decision held] 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 Supreme 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."

          I concluded the article by stating that "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."

          We are now starting to see how Florida courts are, in fact, interpreting the Gant decision.  For example, in the recent case of State v. K.S., the Second District Court of Appeal held that because the circumstances surrounding K.S.'s arrest did not justify a search of his car incident to a lawful arrest, the lower court was correct in granting K.S.'s motion to suppress a gun that was seized by the police during their search of his car.  (The Court used K.S.'s initials rather than his name because K.S. was a minor when this incident occurred.)

          The legally-relevant facts as stated in the K.S. opinion are as follows:

           "[A]t approximately 8:48 p.m., [a police officer] observed K.S. driving a car without headlights turned on.  K.S. pulled up to a red light at an intersection, waited five to ten seconds, and then ran through the red light. The officer followed K.S. down an alley where K.S. pulled into a driveway behind a house. Once K.S. stopped the car, the officer activated his lights and directed his spotlight towards the vehicle. K.S. opened and closed the driver's side door, reversed the car towards the officer, and then accelerated away from the officer. K.S. drove into a yard at the end of the alley where he stopped the car. The officer pulled up behind the car, directed his spotlight through the car's back window, and exited his vehicle. He observed K.S. reaching towards the dashboard on the passenger side and ordered K.S. to show his hands and step out of the car. K.S. exited the car, and backup officers arrived. The officer handcuffed K.S., arrested him for fleeing and eluding, and found no weapons on him. The officer then took K.S.'s car keys and used the keys to unlock and open the glove box inside K.S.'s car, where he found a semiautomatic firearm."

          K.S. then filed a motion to suppress the firearm that was found.  At the hearing on that motion, K.S. testified that he did not consent to a search of his car. Relying on Arizona v. Gant, the trial judge granted K.S.'s motion.

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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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          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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          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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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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