Search and Seizure

March 9, 2011

Florida Court Rules that Police Officers Cannot Search Every Vehicle Impounded

In Kilburn v. State, 36 Fla. L. Weekly D394b (Fla. 1st DCA 2011), the Florida First District Court of Appeals ruled that a Florida inventory vehicle search of a vehicle was invalid and declared an unlawful search. The defendant, Kilburn, was arrested for Florida DUI (driving under the influence). The police officer towed Kilburn’s car, because it was in an unsafe location. As part of the process, officers conducted an inventory search, but they did not have any standardized criteria or procedures for such a search. During the search, they found marijuana, alprazolam, and hydrocodone inside of a pill bottle. Kilburn was also charged with possession of these drugs.

The Florida appellate court ruled that while inventory searches are permitted, in order for this warrant exception to apply, “the inventory search must be ‘conducted according to standardized criteria.’ State v. Wells, 539 So. 2d 464, 468 (Fla. 1989)… The requirement for standardized criteria serves to limit police discretion in determining the scope of the search and ensures that the police will not abuse the exception and use the inventory search as a subterfuge for a criminal investigatory search. Id. at 469; see also Rolling v. State, 695 So. 2d 278, 294 (Fla. 1997).”

November 10, 2010

Jacksonville Illegal Search and Seizure in Criminal Drug Cases

by David M. Goldman

In some Jacksonville criminal drug cases, police conduct an illegal search and/or seizure. For instance, a police officer may search a person or a person’s home in a manner that violates the 4th amendment of the Constitution. If a Jacksonville illegal search occurs and police find drugs (or other incriminating evidence), that evidence may be suppressed. If the evidence is suppressed, the State Attorney cannot introduce this evidence at trial.

Recently, the Florida Third District Court of Appeal ruled on the legality of a residential search. In State v. Ojeda (opinion filed Oct. 27, 2010), the defendant, Ojeda, filed a motion to suppress marijuana on the grounds that his consent to search the residence was coerced by an unreasonable display of police force. Seven police officers went to Ojeda’s residence. Some officers went to the door and others spread out around the residence. When Ojeda answered the door, a detective stated that he had been given a tip that pot was being cultivated inside the house. Ojeda invited police into the house and stated post-Miranda that he was willing to cooperate with the investigation. Five officers entered the house, and Ojeda signed a consent-to-search form and led to the discovery of a large amount of marijuana.

The court ruled that, unless there is valid consent or exigent circumstances, the police must obtain a warrant to search private property. Therefore, the motion to suppress was granted. The court reasoned that the unreasonable display of police presence outside the residence would have made a reasonable person believe that he had no choice but to acquiesce. There were no exigent circumstances present, and the police should have taken the time to get a warrant.

July 10, 2010

Jacksonville Florida Arrest: When is a Jacksonville Criminal Defendant “In Custody”

by David M. Goldman

In Jacksonville, Florida, a police officer must have probable cause to arrest a person. However, police can conduct a consensual encounter with an individual without probable cause. Therefore, it is very important to review any kind of police contact to determine if it is a consensual encounter or illegal police detention.

For example, the Florida Supreme Court visited this issue on July 8, 2010. In

Caldwell v. Florida, an officer accused Mr. Caldwell of Florida Burglary. The officer read him his Miranda rights, after which Caldwell asked if he was under arrest. The officer stated that he was not under arrest but the officer needed to ask him some questions. The officer asked Caldwell to ride with him to view the surveillance tape where the burglary took place, and Caldwell agreed. The officer frisked Mr. Cadwell, prior to him entering the car. After arriving at the site of the burglary, but before he saw the tape, Caldwell confessed to the officer.

December 22, 2009

Florida Search and Seizure: Mere Possession of a Weapon is Not Grounds to Search

by David M. Goldman

Unreasonable searches and seizures are unconstitutional. If a police officer violates this prohibition against unlawful searches and seizures, any evidence that was found due to such violation can be suppressed. Therefore, the evidence cannot be introduced at trial.

In Florida, there are three types of police encounters:

a consensual encounter in which a person is free to leave at any time;
a investigatory stop (Terry Stop) in which the person is not free to leave, but the police officer may only pat the subject down and the officer must have a well-founded suspicion of criminal activity; and
an arrest that is supported by probable cause to believe that a crime has occurred (or is being committed).

Recently, the Florida Fourth District Court of Appeals addressed this issue. In Regalado v. State, an anonymous tipster informed police that Mr. Regalado was in possession of a firearm. An officer stopped Mr. Regalado and patted him down. As a result, he founded a gun on Mr. Regalado. Mr. Regalado filed a Motion to Suppress the weapon due to an unlawful search and seizure. The trial denied Mr. Regalado’s motion. The Florida appellate court reversed this decision and granted his motion. The court ruled that:

December 16, 2009

Can You Be Stopped for a Cracked Windshield in Florida?

by David M. Goldman

Is a police officer permitted to stop a driver with a cracked windshield in Florida? It depends. A Florida driver can be stopped problems with a windshield if the windshield violates a provision listed in Florida Statute Section 316.2952 or Section 316.610. A cracked windshield would be covered in Section 316.610. However, a stop is only permissible under this Section if the crack poses a safety hazard. This would make the vehicle unsafe and allows the officer to stop the driver, because he has a particularized and objective basis to believe that the driver is violating the law.

On the other hand, if the windshield does not create a safety hazard, the officer does not have reason to stop the driver. In

Hilton v. State, the Florida Supreme Court ruled that marijuana seized as a result of a stop pursuant to Section 316.610 was obtained illegally. The court held that there was no evidence to establish that the crack in Hilton’s windshield rendered his vehicle unsafe. Thus, there was no evidence to support an objectively reasonable suspicion that the vehicle was unsafe and in violation of the statute.

April 22, 2009

U.S. Supreme Court Limits Vehicle Searches

by David M. Goldman

In the recent United States Supreme Court decision, Arizona v. Gant, the Court limited a police officer’s ability to search a criminal defendant’s vehicle. Prior to this ruling, there was a debate as to whether police officers may search the passenger compartment of a vehicle when an occupant of the vehicle is arrested. This is known as a search incident to arrest, which allows police officers to search a vehicle without a warrant. In Gant, the Supreme Court ruled that law enforcement may conduct a search of a vehicle incident to arrest only in two situations:

At the time of the search, the defendant is within reaching distance of the interior of the vehicle, or
the officers have a reasonable belief that the vehicle contains evidence of the offense for which the defendant is being arrested.

The Gant case is a push in the right direction to protect everyone’s 4th amendment rights as applied to the State of Florida via the 14th amendment. As a Jacksonville Criminal Defense Attorney, I have seen many cases that were dismissed due to unlawful searches and seizures. When a Jacksonville police officer conducts an unlawful search of a defendant’s vehicle, he is violating the defendant’s constitutional rights. The proper remedy is to suppress any evidence that the Jacksonville police officer found in violation of the such rights.

The Gant case will be extremely favorable to any Jacksonville criminal defendant that was subject to a search incident to arrest of his vehicle. For more information about Jacksonville searches and seizures contact a Jacksonville Criminal Defense Lawyer at (904) 685-1200.