Articles Posted in Search and Seizure

Seeing the flashing lights and hearing the siren of a police car behind you while on the road is always scary.  In the best cases, these traffic stops are very brief and only involve a short conversation.  In other instances, though, the stop may become much more serious, and the officer may at some point tell the driver they want to search the vehicle.  If you find yourself in this situation, it is critical that you know what to do and that you understand how to protect your rights.  Your Jacksonville criminal defense lawyer can assist you with any illegal search and seizure that you may be subjected to.

Vehicle Searches Under the Fourth Amendment

             The Fourth Amendment protects all American citizens from unlawful search and seizures.  Before law enforcement searches any property, they must obtain a search warrant to do so.  That protection applies to vehicles as well, but drivers may have fewer rights when an officer wants to search their vehicle.  The law recognizes that drivers could easily leave the scene if the police officer had to obtain a warrant before searching the vehicle.  As such, police officers must only have probable cause to search a vehicle during a traffic stop, and they do not need to obtain a warrant.

Police frequently conduct searches of individuals based on a reasonable suspicion.  A brief investigative detention based on a reasonable suspicion is called a “Terry Stop”.

What is Reasonable Suspicion?

Reasonable suspicion is a term that is used to refer to a police officer’s reasonably justifiable suspicion that a person had committed a crime or was in the process of committing one, or was about to commit one.  Where the officer believes that a crime may have been committed or is about to be committed, he or she may make a temporary detention of the suspect and may proceed to pat them down.

What is Mens Rea? 

Mens Rea is the mental element of an individual’s intent to commit a crime.  It can also be expressed as the knowledge that a particular act would result in a crime being committed.

Why is Mens Rea significant if I have been accused of a crime?

The United States Supreme Court handed down a decision that has been historic in a case entitled the Miranda v. Arizona, in 1966Essentially, four cases made it to the United States Supreme Court with similar issues.  All cases involved interrogation by police in a closed room where the putative Defendant was cut off from the outside world.  In three of these cases, the Defendant signed statements that were admitted at trial and one of the cases involved oral statements admitted at trial.  Following the Miranda Case, whenever a person is taken into detention, that individual must be advised of their Fifth Amendment right against making any self-incriminating statements.  When the police question someone in custody, they must advise:

  1. You have the right to remain silent.
  2. Anything that you say can and will be used against you.

When Should You File a Post Conviction Relief Motion in Florida?

A motion for post conviction relief is a motion that is filed after an individual is convicted of a crime where the court is being asked to relieve a person from their conviction.  The following grounds may be used as the reason for filing:

  1. The sentence imposed was illegal or violates the Florida or United States Constitution.

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.

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