Articles Posted in Search and Seizure

Florida Statute 316.2953 provides the law on window tinting and what is legal in the State of Florida.  It states that “a person shall not operate any motor vehicle on any road on which vehicle the side wings and side windows on either side forward of or adjacent to the operator’s seat are composed of, covered by, or treated with any sunscreening material or other product or covering which has the effect of making the window nontransparent or which would alter the window’s color, increase its reflectivity, or reduce its light transmittance.”  The statute provides that “a sunscreening material is authorized for such windows if, when applied to and tested on the glass of such windows on the specific motor vehicle, the material has a total solar reflectance of visible light of not more than 25 percent as measured on the nonfilm side and a light transmittance of at least 28 percent in the visible light range.”  What happens if a police officer sees your window tint and pulls you over, resulting in DUI arrest?

window tint duiIn State v. Coley, 157 So.3d 542 (Fla. 4thDCA 2015), Gary Coley was stopped by police for an illegal window tint.  He was charged with possession of cocaine and cannabis and he moved to suppress any and all contraband seized, and statements made, arguing that there was not probable cause for the stop.  The police officer testified that he had issued many citations for illegal tints of side windows during the hearing.  He stated that in his experience, the tint is illegal where the driver of the vehicle cannot be seen.  The officer correctly stated that per statutory regulation, a tint measurement of less than 28 % is illegal.  The officer indicated that he stopped Coley because he could not see the driver of the vehicle through the tint of its side windows, thereby giving him probable cause to conduct the traffic stop.  The defense argued that the traffic stop was illegal due to the officer’s mistake of law because the law does not state that if a driver cannot be seen through it, then the tint is illegal.  The trial court granted the motion to suppress.

The Fourth District Court of Appeals held that a traffic stop is permissible under the Fourth Amendment where an officer has probable cause to believe that a traffic infraction occurred.  The court provided: “As we have previously recognized, the probable cause standarddoes not demand any showing that such belief be correct or more likely true than false. A ‘practical, nontechnical’ probability … is all that is required…. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.  State v. Neumann, 567 So.2d 950, 952 (Fla. 4th DCA 1990) (citations omitted) (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)).”

A recent United States Supreme Court case, Byrd v. U.S., No. 16-1371 (2018) discussed the parameters of expectation of privacy under the Fourth Amendment of the U.S. Constitution. There was a circuit split about whether an unlisted driver of a rental car has a reasonable expectation of privacy in the rental vehicle.  The question certified was does a driver have a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is not listed as an authorized driver on the rental agreement?

rental carIn the case, Latasha Reed rented a car in New Jersey while petitioner Terrence Byrd waited outside the rental facility.  Reed listed no other drivers on her rental agreement and the agreement warned that permitting an unauthorized driver would violate the agreement.  Reed gave the keys to Byrd upon leaving the building and he stored his personal belongings in the trunk and left by himself to drive to Pennsylvania.

Byrd was stopped in Pennsylvania for a traffic infraction whereupon the police learned it was a rental car and he was not the authorized driver.  Byrd had prior drug and weapons convictions.  The police searched the car, stating they did not actually need his consent because he was not listed on the rental agreement.  They found 49 bricks of heroin in the trunk and body armor and the evidence was turned over to federal authorities.  Byrd was charged with federal drug and other crimes.  The District Court denied a motion to suppress the evidence as the fruit of an unlawful search, and the Third Circuit affirmed because Byrd was not listed on the rental agreement and he lacked a reasonable expectation of privacy in the car.

F.S. § 893.13 provides that a person may not sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.  The penalties can be a felony or misdemeanor depending on the type and quantity of controlled substance you possess, among other things such as selling on a school, church, or nursing home grounds.

drugsF.S. § 893.03 lists the controlled substances and how they are classified under Florida law.

  • Schedule I:  Drugs that have a high potential for abuse and have not currently accepted medical use.  Some examples include Heroin, LSD, Peyote, PCP, and MDA.

In certain circumstances, the answer may be yes.  In Aguilar v. State, 43 Fla.L.Weekly D179a (3rd DCA 2018), Juan Aguilar appeals a conviction for DUI crimes DUI Manslaughter, DUI with person or property damage, and DUI causing serious bodily injury, along with two counts of DUI, the lesser included offense.  These charges arose out of a three car accident that occurred at around 3:00 a.m. one evening.  Aguilar lost control of his car and struck one person who died, two who suffered serious bodily injuries, and one who suffered minor injuries.  A state trooper observed Aguilar was “somewhat unresponsive, incoherent” and had “blood shot watery eyes,” “slurred speech,” and “had odor of alcohol” coming from his person and car.blood test

The state trooper indicated that because there were “significant indicators” that Aguilar was displaying an “alcohol related impairment,” he came to the trauma center where Aguilar was taken to get a “blood draw.”  He indicated that he made no effort to get a warrant to obtain the blood because of “time restraints.”  He indicated that he again smelled an odor of alcohol and noticed his face was “flushed” and his eyes were “bloodshot and watery.”  The blood sample taken, without consent or a warrant, showed a blood alcohol level of 0.112.  Aguilar filed a motion to suppress the blood test results due to a lack of probable cause and lack of warrant.  The State introduced evidence that it would have taken at least four hours to obtain a warrant and that “because of the natural metabolization of alcohol in the bloodstream, there were time constraints creating exigent circumstances to justify an exception to the warrant requirement.”  The trial court denied the motion to suppress.

The U.S. Supreme Court has addressed the exigency exception to blood testing in DUI cases several times.  It held that an exception to the Fourth Amendment for searches conducted outside the approval of a judge applies when “the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.”  The U.S. Supreme Court has held that natural dissipation of alcohol in the bloodstream was not a per se exigency, but one factor to consider in the totality of the circumstances test.

What many people fail to realize is that all citizens of the United States have a Fourth Amendment right against illegal searches created by the U.S. Constitution, and any evidence that comes from an illegal search may be suppressed at trial. Florida’s constitution in Article I, Section 12, creates state law that mimics and reiterates the U.S. constitution.  Evidence can only be suppressed if it is obtained from an illegal search of a person or a person’s property.

So what is an illegal search?

handcuff-1425387-300x114The Fourth Amendment of the U.S. Constitution limits the power of police to make arrests, to search people and their property, and to seize objects and contraband. This amendment forms the cornerstone of search and seizure law.

“License and registration, please.”  If you have ever been pulled over by police, you have probably heard this phrase.  In recent years, Americans have grown more and more suspicious of police officers. With all that we see and hear on the news and in social media, arguably, there is cause for alarm in some cases.  In my practice as a Jacksonville Criminal Lawyer, I get questions regarding encounters with police regularly. Criminal defense lawyers can’t always give the definite answers that people are looking for, however. Much of what we can and cannot do under Florida law is based on the particular details of a situation.   There are certain rights that all Jacksonville criminal attorneys will tell you that can or should expect to be a given.

license and registration checkWith the popularity of smartphones with video recording capabilities, many people are taking it upon themselves to record officers. I recently watched a video online that showed a man pulled over at a DUI checkpoint. The driver refused to give the police officer his license and registration. The driver asked the police officer to explain what probable cause there was to ask for the driver’s license and registration.   The officer even threatened to have the man arrested for interference, but the driver didn’t fold. Instead he asked that a supervisor be called out to the scene. Once the supervising officer arrived, he leaned forward a little into the driver’s window and stated that there was no smell of an alcoholic beverage and told the driver he was free to go. The original officer who had demanded the driver’s license and registration and repeatedly said the U.S. Supreme Court and upheld DUI checkpoints looked very confused.

The likely reason that the supervising officer let the driver go about his business is that the United States Supreme Court in the case of Delaware v. Prouse back in 1979 held that it is improper for police, without “articulable and reasonable suspicion” to detain drives simply to check their licenses and registration.  The U.S. Constitution’s provision against unreasonable search and seizure provides a shield against this type of police conduct. Florida’s Constitution also protects against unreasonable searches and seizures. For more information or help with a case, contact the Law Office of David M. Goldman, PPLC today. Initial consultations are free.

Search and seizure issues are normally at the top of the list in any criminal case where physical evidence is recovered from a defendant.  Florida law, like federal law, provides protection for citizens against illegal search and seizure. This protection stems from the Florida Constitution and the United States Constitution. At its essence, it is centered on idea that the government needs a good reason to intrude on a citizen’s expectation of privacy.   In criminal law, evidence that is gathered in violation of state or federal search and seizure law can be suppressed.  A good criminal defense lawyer will always immediately begin this analysis whenever hearing the facts of a new criminal case for the first time.

search and seizureRecently, in the case of Cole v. State of Florida, the Third District Court of Appeals (3rd DCA) reviewed a case involving an alleged violation of search and seizure law. Cole was charged with tampering with evidence, trafficking in cocaine, and possession of drug paraphernalia after he was pulled over by a police officer. The traffic stop had been initiated due to a faded temporary tag placed on the car Cole was driving. The defense filed a motion to suppress the evidence that it believed was the result of an illegal search. During the traffic stop, Cole acted nervous, clinched his fists, and held a pen tightly in his hand. He was also sweating and stuttering. The stopping officer believe that the pen could potentially be used and a weapon. She ordered Cole from the car to do a pat down. Florida law allows an officer to conduct a pat down when there is a reasonable suspicion that a person who is being temporarily detained may be armed with a weapon.   The court ruled that the pat down was reasonable under the circumstances.

As Cole was getting out of the car for the pat down, he threw something underneath the car. It was later discovered to be cocaine. During the pat down, something was felt in Cole’s sock, and the officer removed the item. It turned out to be cocaine, as well. The appellate court found that it was wrong for the officer to pull the bulge from Cole’s sock, but found that it would have been discovered anyway after Cole was arrested for the drugs that were thrown underneath the car. This is referred to as the “inevitable discovery” doctrine. The court said that it did not matter that the wrongful search by the officer came before the drugs under the car had been discovered. The appellate court held that the trial court was correct in denying Cole’s motion to suppress.

In general, a warrantless search at a person’s home will be considered unreasonable, unless one of five exceptions to the warrant requirement is met.  Evidence gained as a result of illegal searches can be suppressed by the trial court in a case.  Grounds for the issuance of a search warrant are governed by Florida Statute 933.02.   At the Law Office of David M. Goldman, PLLC, we have experienced criminal lawyers that can help if you or a loved one may have had your rights violated in a criminal case.  You can find answers to questions you may have by exploring our blogs on searches and seizures.  Initial consultations are free.  Call us today at (904) 685-1200 to schedule a consultation with an experienced Jacksonville criminal defense lawyer. 

EvidenceRecently, the First District Court Appeal reversed and remanded the case of the State of Florida vs. Smith back to the trial court for further proceedings. The issue in the Smith case was whether the trial court was correct in suppressing evidence after a warrantless search. In my experience as a Jacksonville criminal lawyer, the issue of suppression evidence is one that clients are interested in pursuing, however, the circumstances that lead to evidence being suppressed won’t always be present in each case.  What are often viewed as illegal searches by average people are not looked at the same by Florida law. Continue reading

A Tennessee power company’s investigation into a neighborhood’s power shortage issues led to a large drug bust in the Tennessee countryside. Beneath the average looking countryside home was a million dollar “pot cave”. Marijuana was being grown in buckets, with an elaborate water and light system in place to maintain the plants, according to secretsofthefed.com. (Read the story here.) A secret entrance through the garage led to a cave that went back 50 yards into the hills the house was built against. The entrance was protected by a steel door, which was operated by a hydraulic motor.

The men that were running the marijuana operation had spliced into power lines, and stole an estimated $61,000 worth of electricity. In, Florida, this drug bust would have led to Grand Theft and Trafficking in Cannabis charges, among other things. Florida law calls for minimum sentences that apply in Trafficking cases, with three years being the lowest minimum that applies and fifteen years as the highest minimum. The maximum sentence allowable under Florida law is 30 years in Florida State Prison. Mandatory fines range from $25,000 to $200,000.

With these kinds of punishments as possibilities, finding the best criminal defense attorney available is a must. If you or a loved one have been arrested for a criminal offense in the Jacksonville area, experienced criminal defense lawyers are available for a free consultation at the Law Office of David M. Goldman. Call us today at (904) 685-1200.

Remaining silent is a right that should be exercised more often by people suspected of committing crimes, but unfortunately, people’s desire to explain themselves and tactics used by police oftentimes overcome a person’s better judgement. The best time to contact a Jacksonville criminal defense attorney is before you’ve talked to the police. In an ideal situation, you should speak with a criminal defense lawyer even before you’re ever arrested.

The U.S. Constitution and the Florida Constitution, both, protect a person’s right against self-incrimination, meaning that a person can’t be forced to testify against himself or herself. In essence, a person cannot be forced to confess wrongdoing. These provisions are the source of the “Miranda” warnings that you often hear recited to suspects in crime dramas, such as “Law and Order”. The most prominent and important part of the warning is that the suspect has the right to remain silent; remaining silent is a great idea! For you protection, other than basic information like your name, etc, the only thing you should communicate with police about is your desire to have an attorney present.

Clients often think that there is no harm in speaking with an officer or a detective if the client has nothing to hide or hasn’t done anything wrong. The truth is that officers and detectives are searching for any information that can be used to solve the alleged crime, and a confession is the grand prize, even if you don’t realize you’ve confessed.
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