Articles Posted in Search and Seizure

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.

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.”

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.”

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 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 a Jacksonville Criminal Defense Lawyer).

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.

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, 334 (1990)). 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.

Contact Information