Jacksonville Criminal Defense Lawyer Blog

In a recent case, Rozzo v. State of Florida, the 4th District Court heard an appeal from the Circuit Court for the 17th Judicial Circuit in Broward County. The issue presented before the court was whether the consent given by the homeowners after and unlawful warrantless entry and protective sweep of the home was valid and therefore the defendant's motion to suppress should be denied.

The issue arose after the trial court denied the defendant's motion to suppress the evidence discovered inside the house following his arrest. In this case, the defendant sold drugs to an undercover officer on the street by his house. The officers arrested the defendant on the street. The officers then moved to the house, owned by the defendant's parents. The officers proceeded to order the parents to stay outside during the "protective sweep." Then the officers got a signed Consent form to search the house. The search revealed other drug related items in the defendant's bedroom.

The U.S. Constitution, 4th Amendment has established a high reasonable expectation of privacy regarding one's home. Furthermore, Florida Courts have established absent consent or exigent circumstances, police may not enter a home without a warrant. Additionally, Florida Courts have only permitted a "protective sweep" if the officers have reasonable, articulable suspicion to protect the safety of the officers or to prevent the destruction of evidence.

In this case, the defendant was arrested outside the home and the officers had no suspicion that evidence was being destroyed or officer safety. This fact was even testified to by one officer who stated the protective sweep was "routine and of generalized concern." Therefore the trial court erred in denying the defendant's motion to suppress. Since the protective sweep was illegal, the subsequent consent to search the home given by the father was tainted. Therefore, the evidence seized during the illegal search was fruit from the poisonous tree and therefore inadmissible.

This is just one of many legal nuances that a Jacksonville Criminal Defense Lawyer can investigate and potentially advance in your criminal case. If you have been charged with a criminal offence or have criminal charges pending against you, contact a Jacksonville Criminal Defense Lawyer to discuss your case and to determine what the best course of action for moving forward.

As a Jacksonville Criminal Defense Lawyer I scour the local, national, and world news to stay informed on current Criminal legal issues. Just recently a news article by Foxnews.com sparked my interest. The article titled "Cocaine Bust Lands Curvy Model in Italian Jail," was a colorfully written article.

The article states a Spanish model attempted to smuggle Cocaine into Italy via prosthetic breasts and buttocks. The model's plan was to distract the TSA by wearing tight-fitting clothes and her attractiveness would take suspicion away from the real task at hand. However, her "extra-large bosom and derriere" caught the attention of TSA and they investigated. After failing to provide sufficient answers to their questions, they conducted a strip search. The search revealed the model was attempting to smuggle 5.5 pounds of cocaine.

Currently the charges are pending and dependent upon Italian and international law, the charges could be quite severe. This article intrigued my legal mind because it shows the diminished expectation of privacy one holds while traveling through airports. At airports all the authorities need is reasonable suspicion before they can investigate. In contrast, inside one's own home the expectation of privacy is very high. Police are required to have a warrant before entering your home, absent exigent circumstances.

Even with this diminished REP, you still have rights! If the authorities violate these rights, the evidence collected against could be inadmissible in court or the charges could be dropped all together. A Jacksonville Criminal Defense Lawyer can review your case and determine if the authorities have violated your rights and take the appropriate action to rectify the situation. Criminal drug possession and trafficking charges carry serious penalties and jail time. It is in your best interest if you have Jacksonville Criminal charges pending against you to contact a Jacksonville Criminal Defense Lawyer to discuss your case and determine the best course of action moving forward.

The Florida Supreme Court has ruled on the standards and training required for automobile searches using drug detection dogs (Harris v. Florida, 36 Fla. L Weekly S163a (2011). This case has been applied by another Florida appellate court. In Sarasota County, the Florida Second District Court of Appeals addressed the drug detection dog's reliability standards in Wiggs v. Florida, 36 Fla. L. Weekly D1688a (Fla. 2nd DCA 2011). In Wiggs, the drug detection dog, Zuul, gave a positive indication at criminal defendant Wiggs' vehicle during a Florida traffic stop. The police officer searched the vehicle and found cocaine.

Wiggs challenged the Florida K9 search on the basis that "Zuul's alert to the exterior of Wiggs' vehicle provided probable cause to support a warrantless search of the vehicle's interior." Although Zuul went through over 400 hours of training and did quite well, Zuul was not so effective in the field. He only had a 29% accuracy rate. Zuul had many false positives, including several instances of identifying drugs in areas where drugs had once been but no longer were.

In Harris v. Florida, 36 Fla. L. Weekly S163 (Fla. Apr. 21, 2011), the rule established by the Florida Supreme Court states "when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person." The Florida Supreme Court adopted a "totality of the circumstances approach" that places the burden of producing evidence to establish the dog's reliability on the state." In this case, Zuul's detection rate was too low for the court to consider "probable cause." Therefore, the cocaine in this case should have been suppressed.

If you have been arrested in Northeast Florida (Jacksonville and the surrounding counties) and have been subject to an automobile search, contact a Jacksonville Criminal Attorney.

In Jacksonville, police often use trained drug detection dogs to detect illegal drugs in vehicles. Usually, the canine (K9) walks around the vehicle and signals if it senses the illegal substance. Then, the Jacksonville Sheriff's Office will search the vehicle. When a Jacksonville drug detection dog search is conducted, police officers must comply with certain procedures and standards.

Jacksonville Florida is in the First District. In April of 2011, the Florida Supreme Court addressed a First District Court case regarding K9 searches (See Harris v. Florida, 36 Fla. L. Weekly S163a). The Florida Supreme Court stated:

"The issue of when a dog's alert provides probable cause for a search hinges on the dog's reliability as a detector of illegal substances within the vehicle. We hold that the State may establish probable cause by demonstrating that the officer had a reasonable basis for believing the dog to be reliable based on the totality of the circumstances. Because a dog cannot be cross-examined like a police officer on the scene whose observations often provide the basis for probable cause to search a vehicle, the State must introduce evidence concerning the dog's reliability. In this case, we specifically address the question of what evidence the State must introduce in order to establish the reasonableness of the officer's belief -- in other words, what evidence must be introduced in order for the trial court to adequately undertake an objective evaluation of the officer's belief in the dog's reliability as a predicate for determining probable cause."

The Florida Supreme Court held that:

"the fact that a drug-detection dog has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate the reliability of the dog. To demonstrate that an officer has a reasonable basis for believing that an alert by a drug-detection dog is sufficiently reliable to provide probable cause to search, the State must present evidence of the dog's training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog's reliability. The trial court must then assess the reliability of the dog's alert as a basis for probable cause to search the vehicle based on a totality of the circumstances."

Recently, this issue came before another Florida Appellate Court in Wiggs v. Florida, 36 Fla. L. Weekly D1688a (Fla. 2nd DCA 2011).

A Florida man was charged and convicted of felon in possession of a firearm. In Powell v. Florida, this Florida Criminal Defendant was arrested in the apartment in which the gun was found and taken to the police station where Florida police officers questioned him. Police officers testified that Powell stated that the gun was his.

The United States Supreme Court held that:

"Criminal suspects have a right to have their lawyer present during police questioning, and the police are required to inform suspects of that right as part of their "Miranda warning." In this case, police officers told a suspect that he had "the right to talk to a lawyer before answering [any] questions" and "[y]ou have the right to use any of these rights at any time you want during this interview." The Court held that even though this warning did not specifically mention the right to have a lawyer present during questioning (as opposed to the right to talk to the lawyer before questioning), the warning nonetheless was constitutional because it conveyed to the suspect that he had the right to have an attorney present."

Simply because the Court weakened the required reading of Miranda warnings does not weaken your right to an attorney in Jacksonville, Florida. Remember, if you are arrested or are facing questioning from a law enforcement official, you may invoke your Fifth Amendment right to remain silent and request a Jacksonville Florida Defense Attorney before speaking with the police.

If you are arrested in Jacksonville, Florida, you have certain rights provided by the United States Constitution. The Supreme Court held, in Miranda v. Arizona, that police must inform persons in custody that they have the right to remain silent, anything that they can be used against them, they have the right to the presence of an attorney, and an attorney will be provided if they cannot afford one. These are known as Miranda Warnings.

If police do not comply with Miranda warnings when arresting a person in Jacksonville, Florida, a Jacksonville Criminal Attorney may be able to suppress (throw out) any statements made by the Jacksonville Criminal Defendant. However, there are exceptions to this rule which can be found in other Supreme Court rulings, such as Florida v. Powell, 130 S.Ct. 1195 (2010).

In J.D.B. v. North Carolina, 131 S.Ct. 2394 (2011), a uniformed officer questioned a 12-year-old boy at school about a string of local burglaries. The officer told the boy he was free to leave, but also told him that a court could order juvenile detention. The school's assistant principal told the boy to "do the right thing." Eventually, he confessed to the burglaries. At trial, the boy's lawyer argued that the confession was essentially coerced due to the boy's age and the circumstances surrounding the questioning. The state courts in Florida held that the boy was not in detention, because he was free to leave. Therefore, Miranda warnings were not required.

However, the Supreme Court ruled that the child's age is relevant. As Justice Sonia Sotomayor pointed out, children are required by law to go to school and are often subject to discipline for disobedience. Students are therefore much more likely to believe that they are obligated to answer police questions. Therefore, Miranda warnings are required in order to inform students that they do not have to answer police questions and can contact an attorney.

If you or your child has been subject to police questioning, you should contact a Jacksonville Defense Attorney to discuss the case.

As a Jacksonville Juvenile Criminal Defense Lawyer, I have represented juveniles that were questioned by police officers in their schools. Recently, in a 5-4 ruling, the United States Supreme Court addressed this issue. For the first time, the Court ruled that children questioned by police in school must be given Miranda rights before questioning. The Supreme Court released its decision in In J.D.B. v. North Carolina, 131 S.Ct. 2394 (2011), on June 16, 2011 (See United State Supreme Court Rules that Juvenile Criminal Defendant's Constitutional Rights Were Violated by Jacksonville Juvenile Lawyer, Cynthia Veintemillas).

Recently, the Florida Fourth District Court of Appeals ruled on a protective-sweep search of a Florida residence in a Florida Possession of Cocaine, Marijuana, and Paraphernalia case. The Florida Court held that the search of a bedroom was unlawful which occurred during an arrest of a woman, Mary Rogers, in her residence.

In Rogers v. State, the police went to the defendant's house, because a neighbor heard yelling and fighting. Police officers also heard the dispute and knocked on the door. A woman peaked through the window and police heard a man yelling not to open the door. The front door was unlocked, so the police entered, because they were concerned about the safety of the woman.

In the dining room, the officers saw pot in plain view. Upon doing a protective sweep, the cops realized the bedroom door was locked. The defendant, Mary Rogers, refused to open the door. By this time, Ms. Rogers and the other occupants of two other people were either handcuffed or seated at the dining room table. Thereafter, the police jimmied the lock and saw cocaine in an open dresser drawer, along with drug paraphernalia.

At the Motion to Suppress hearing, officers admitted that the bedroom was beyond the reach of the occupants of the residence, and they never asked the people in the house if there was anybody else in the residence before prying open the door. The State Attorney failed to present any evidence that indicated a need for the search of the locked bedroom. Therefore, the marijuana that police discovered in the dining room was lawfully admitted, because police discovered it in a location in which they were permitted. However, the cocaine and paraphernalia discovered in the bedroom should have been suppressed, because police were not permitted to enter the bedroom.

In general, Jacksonville police officers cannot search a house without a warrant. However, there are exceptions to the rule. On exception to the Jacksonville Florida requirement that a warrant is need for a search is the "protective sweep."
When police officers make an arrest in a house, they "may as a 'precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.'" Rogers v. State, 36 Fla. L. Weekly D725b (Fla. 4th DCA 2011)(citing Maryland v. Buie, 494 U.S. 325, 3341990)). This is known as a protective sweep and cannot go any further than necessary to protect the officers from harm. For a protective sweep to go further, "there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Buie, 494 U.S. at 334

When the Jacksonville Sheriff's Office conducts a search of a house using the protective sweep exception, it must follow the law as set forth in Florida cases such as Rogers v. State.

The Florida Fifth District Court of Appeals heard a Florida DUI appeal and ruled that the stop of the driver was valid. In State v. Gentry, 36 Fla. L. Weekly D534a (Fla. 5th DCA March 10, 2011), the trial court granted the Florida DUI defendant's motion to suppress evidence that was seized during a Florida DUI traffic stop.

The police officers saw the car stopped at 4:00 a.m. at a four-way stop for 20 minutes. The driver, Gentry, had his head down. When an officer tried to approach the vehicle, Gentry tried to drive off. Officers followed him and pulled him over. They held him the back of the patrol car when they determined that he did not have a valid license. Police officers searched the car, found drugs, and confirmed that the car was stolen.

The Florida appellate court ruled that an officer is justified in stopping a vehicle to determine the reason for the vehicle's unusual operation. If an officer observes a vehicle operating in an unusual manner, there may be justification for a stop even when there is no violation of vehicular regulations and no citation is issued. The officer may be determining if the driver is ill, tired, or driving under the influence. In this Florida DUI case, the Florida court held that the officer's suspicion that Gentry was impaired or ill was reasonable and justified the stop. Since the car was stolen, Gentry did not possess standing to challenge the search of the vehicle (Read Search of a Stolen Car in Jacksonville Vehicle Theft Cases).

In Jacksonville Grand Theft Auto Cases, police officers will often stop and search the vehicle involved. The law is well-established that "the driver of a stolen automobile [has] no right to challenge the search of the stolen vehicle because he [does] not have a legitimate expectation of privacy in that vehicle." Florida v. Singleton, 595 So. 2d 44, 45 (Fla. 1992) (Read Search of a Stolen Car in Jacksonville Vehicle Theft Cases). However, this does not mean that the driver cannot challenge the search or seizure of his person. In Nelson v. State, 578 So. 2d 694 (Fla. 1991), the Florida Supreme Court ruled that the driver had standing to challenge his stop. The Court "recognized the distinction between the seizure of property in which the defendant did not have a possessory interest and the seizure of a person." Singleton, 595 So. 2d at 45. Therefore, in Jacksonville Grand Theft Auto cases, even if the driver cannot challenge the search of the stolen car, he can attack the initial stop of the car.

If you have been charged with a crime in Jacksonville, Florida or the surrounding areas, it is important to speak with an Jacksonville Criminal Attorney about any stop or search that occurred in your case.

As a Jacksonville Grand Theft Auto Attorney, I have seen a fair share of Jacksonville Grand Theft Auto Cases. In most of the cases that I have handled, the Jacksonville Sheriff's Office attempts to stop the vehicle. Quite often, the suspect runs from the vehicle. When this occurs, the Jacksonville criminal defendant is charged with Jacksonville fleeing and attempting to elude an officer and Jacksonville grand theft auto. Police will usually search the stolen vehicle.

The U.S. Supreme Court has held that in order for the driver of a vehicle to have standing to challenge the search of a vehicle, "he or she must show a proprietary or possessory interest in the area of search or that there are other factors which create an expectation of privacy which society is willing to recognize as reasonable." Rakas v. Illinois, 439 U.S. 128 (1978); Katz v. United States, 389 U.S. 347 (1967). The driver of a stolen car cannot challenge the search of the car. The Florida Supreme Court confirmed this ruling in State v. Singleton, 595 So. 2d 44 (Fla. 1992). Recently, the Florida Fifth District Court of Appeals held in accordance with this law in State v. Gentry, 36 Fla. L. Weekly D534a (Fla. 5th DCA, March 11, 2011).

Read Also, Jacksonville Police Stop and Search Vehicles in Grand Theft Auto Cases.

Note: This article is a continuation of St. John's County Florida Counterfeit Currency Bust and Stop and Search of St. John's County Florida Criminal Defendant's Vehicle by attorney, Cynthia Veintemillas.

When examining a St. John's County Florida Counterfeit Currency Arrest, or any other criminal case that involves the stop and search of a vehicle, a St. John's County Criminal Attorney should evaluate the search and seizure. Did the St. John's County Police Department have probable cause to stop the vehicle? This will be based on the description of the vehicle and the knowledge that they had prior to stopping the vehicle. If so, did the police have grounds to search the vehicle? In order for a police officer to search an person's vehicle, the officer must have a warrant or be entitled to search under an exception to the Florida warrant requirement. The exceptions to the warrant requirement include the following:

1. a search incident to a lawful arrest;
2. the automobile exception;
3. the "plain view" exception;
4. the person gives consent; and
5. the hot pursuit/emergency exception.

Based upon the fact that investigators stated that the driver "allowed" the search, I believe that the St. John's County Police Department will argue that the St. John's County Criminal Defendant driver consented to the search, which made the search valid. However, there are always two sides to every story, and it will be interesting to see if the driver was merely acquiescing to police authority.

St. John's County Police stopped a vehicle in connection with a Counterfeit Currency allegation based on a tip from an employee at the St. Augustine outlet mall (See St. John's County Florida Counterfeit Currency Bust by attorney, Cynthia Veintemillas). As a St. John's County Criminal Attorney, I became suspicious as to whether the police actually stopped the correct vehicle. After all, a Ford Explorer is a popular SUV. However, the media reports state that:

"Investigators said the driver allowed them to search the vehicle, and they found numerous $5 bills, along with a printer and equipment that is used to wash ink from bills, and other counterfeiting equipment. Deputies said they also found several counterfeit $100 bills and property bought with the fake bills."

Since this evidence is very damaging to the defense, a St. John's County Criminal Attorney will examine the case in great detail to see if there are grounds for a motion to suppress the evidence that police found based on an unlawful stop or seizure (See Exceptions to the Florida Warrant Requirement when Searching a Car in St. John's County Florida by attorney, Cynthia Veintemillas).