What happens when a suspect throws drugs away and the cops find them?

Fourth Amendment Search

What happens when a suspect throws down drugs and the cops later find them?

Where drug crime defendants / suspects throw  drugs under their vehicles while being removed from the vehicle after a valid traffic stop, a court can rule that the suspect has "voluntarily abandoned" the drugs. A Florida Court has just ruled there was reasonable suspicion to justify a pat down where there was a traffic stop, the target appeared nervous, could not answer some of the officer's questions, had made a sudden U-turn into an oncoming traffic lane,  and then parked facing the wrong direction just prior to the stop. The cop testified that the suspect had a pen clenched in his hand and the officer to believed it could be used as a weapon.

Florida Court Tosses Drugs Found in Purse

'faint odor' of marijuana
but found no marijuana

"the officer lacked reasonable suspicion of criminal activity and 

probable cause to seize the evidence."

Drug Crime Cop Gone Wild

One of Polk county's finest, a deputy sheriff under the notorious Sheriff Grady Judd pulled over a car for a traffic violation. The Court said there was “initially a stop due to the traffic violation, once the officer determined not to cite the driver and asked the driver for consent to search the vehicle, the encounter became consensual” 

Read and Download the Florida Drug Search of a Purse Opinion Here.

The cop takes the passenger's purse and searches it. The appeals court found, as a matter of fact, the officer had searched the defendant’s purse. The wayward officer had removed a pill box from the vehicle. The cop did not know what kind of pills he had found during his soon-to-be illegal search. He had to search on the internet. I kid you not - Drugs.com . As a drug crime defense attorney, the offensive tactics that some Florida state law enforcement use to obtain criminal charges to justify seizure of both drugs and then cash, vehicles, and real estate are disturbing.

"The officer testified to a 'faint odor' of marijuana but found no marijuana"

By the way here is another case where they was an allegation of an "odor of marijuana." Shockingly, there was no weed found in the car. It turns out the pills were Ritalin (methylphenidate) and Tramadol. Nevertheless, the Fourth Amendment violation continued when the officer wandered to his patrol car with the pill box. At that point the Second District Court of Appeal found “the encounter again became an investigatory detention . . . .” The court ruled that the search of the pill box in the passenger's purse “requires reasonable suspicion that an individual has committed or is about to commit a crime . . . .” For the search to have been legal the officer must have “a well-founded, articulable suspicion of criminal activity” (quoting Smith v.State, 95 So. 3d 966, 968). 

Excerpts from the Drug Seizure Opinion

"The officer testified that although he knew the purse belonged to Gay [ name of the passenger ]and not the driver, he did not seek consent from Gay to search the purse."

"The officer testified to a 'faint odor' of marijuana but found no marijuana in either the purse or pill box. And the mere observation of pills in an aftermarket container is equally consistent with noncriminal activity as with criminal activity."

"investigatory detention and seizure of the pills and pill box was unauthorized"

"[T]he deputy’s actions constituted a show of authority that would lead a reasonable person to conclude he or she was not free to end the encounter and leave. . . . [N]either the illegal nature of the possession of the pills nor the type of pills was known to the officer at the time he removed them from the vehicle. Nothing about the pills or pill box gave him a reasonable suspicion that the defendant had committed, was committing, or was about to commit a crime. Nor did he know that any of the pills were controlled substances at the time he seized them. . . . The investigatory detention and seizure of the pills and pill box was unauthorized; the officer lacked reasonable suspicion of criminal activity and probable cause to seize the evidence. [The defendant’s] motion to suppress should have been granted."

Source: Gay v. State, 138 So. 3d 1106 (Fla. 2d DCA 2014)

Drug Crimes Defense Expert

Can Color of Vehicle Be Probable Cause In Traffic Stop?

Probable Cause Traffic Stop Vehicle Color

A Florida Drug case just answered two questions: 1) Can the Color of a Vehicle be the Probable Cause for a Traffic Stop? 2) Can cops invent creative reasons to pull you over?

Traffic Stop Facts

The case began when the cops were looking for a reason to pull a vehicle over and the driver was not doing anything wrong to justify a legitimate traffic stop to issue a traffic citation or a warning. The cop used his computer system to pull the DHSMV (Department of Highway Safety and Motor Vehicles) records on the vehicle he was following. The record was valid, the registration was valid, the driver and the vehicle were lawfully in operation. One field on the vehicle record described the color of the vehicle. The color of the targeted vehicle did not match. vehicle was stopped, odor of cannabis / marijuana, large quantity of drugs found, driver is arrested and goes to prison.

Can the Color of a Vehicle be the Probable Cause for a Traffic Stop?

Florida Supreme Court says the DHSMV record does not need to match the vehicle color. People are free to paint cars whenever they wish. There is no requirement that car owners report the new color of their vehicle to the state. Conviction overturned.

Can cops invent creative reasons to pull you over?

Florida Supreme Court says police cannot use otherwise innocent conduct to invent reasons for traffic stops. Courts can punish police who engage in such hunting. The punishment will at least be the evidence they have illegally obtained will be suppressed under the Exclusionary Rule. Under the rule, courts will not let police engage in misconduct and then convict and imprison citizens.

Case Excerpts

"To warrant an investigatory stop, the law requires not just a mere suspicion of criminal activity, but a reasonable, well-founded one. Popple, 626 So. 2d at 186 (“[A]n investigatory stop requires a well-founded, articulable suspicion of criminal activity.”). In Terry, the stop was found appropriate because the officer “had observed [three men] go [t]hrough a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation.” Terry, 392 ."

"[T]he sole basis here for the investigatory stop is an observation of one completely noncriminal factor, not several incidents of innocent activity combining under a totality of the circumstances to arouse a reasonable suspicion—as was the case in Terry. "

"The discrepancy between the vehicle registration and the color the deputy observed does present an ambiguous situation, and the Supreme Court has recognized that an officer can detain an individual to resolve an ambiguity regarding suspicious yet lawful or innocent conduct. Wardlow, 528 U.S. at 125. However, the suspicion still must be a reasonable one. Popple, 626 So. 2d at 186 (“Mere suspicion is not enough to support a stop.”). In this case, there simply are not enough facts to demonstrate reasonableness." 

"[It] is not against the law in Florida to change the color of your vehicle without notifying the DHSMV."

"The intrusion involved in the instant case is similar to that described in Prouse, especially considering that anyone who chooses to paint his or her vehicle a different color could be pulled over by law enforcement every time he or she drives it."

"We are satisfied that the exclusionary rule will have an appropriate deterrent effect in this case and that none of the exceptions to the rule apply. "

Here is a Copy of the Vehicle Color Probable Cause for Traffic Stop Case.

Trafficking Prescription Drugs - Evidence Tossed

Trafficking Prescription Drugs

Criminal Defense Attorney / Lawyer notes a recent court decision involving  trafficking and possession of drugs and a Fla. R. Crim. P. 3.190(g), motion  to suppress the narcotics seized and charges made under Florida Statutes 893.13. The prescription drug bottle with a unreadable label was the subject of a Search and seizure. The drugs were found in a Vehicle. The drug cops saw the defendant park his car in high-crime area. The suspect got out of his car, cash in hand; handed cash to a guy who walked out of officers' sight. Suspect  returned with a large prescription bottle, handed bottle to defendant; who drove away.

Prescription Drugs and Probable Cause to Search 

Court ruled that detectives lacked probable cause to arrest defendant and then search his vehicle. Why? Because the officers had all accouterments of office and employed their car's emergency equipment, stopped the defendant's vehicle, yanked him from vehicle, and put defendant on the sidewalk, then searched the car with a drug dog. Motion to suppress was granted. Here are a few Case Excerpts: 

Facts of the Case: 

On Nov. 15, 2010, Darrian Washington, a detective with the Miami-Dade Police Department, was observing a small apartment complex on 80th Street west of 7th Avenue. (Darrian Washington's Dep. 6.) Defendant Lopez drove up and parked his car approximately ten to 15 yards from where Det. Washington was standing. (Darrian Washington's Dep. 6.) When Mr. Lopez got out of his car, he appeared to Det. Washington to be holding cash in one of his hands. (Darrian Washington's Dep. 7, 8.) Another man -- described only as “a black male,” (Darrian Washington's Dep. 8) -- spoke briefly with Mr. Lopez, after which Det. Washington saw Mr. Lopez hand the cash he had been holding to the other man. (Darrian Washington's Dep. 8.)

 The black male then walked out of Det. Washington's line of sight, (Darrian Washington's Dep. 9), but soon returned carrying what Det. Washington described as a “large prescription bottle” (Darrian Washington's Dep. 9, 10), the label of which had been defaced. (Darrian Washington's Dep. 11.) Mr. Lopez took the bottle, then got in his car and drove away. Det. Washington contacted two colleagues, Detectives Benitez and Kinney, (Darrian Washington's Dep. 12), and instructed them to apprehend Mr. Lopez. (Darrian Washington's Dep. 13.)

Det. Benitez recalls that, upon instructions from Det. Washington, he “activat[ed] the emergency equipment” of the “unmarked police vehicle” of which he was the driver and Det. Kinney the passenger, and pulled over Mr. Lopez. (Jason Benitez's Dep. 6.) At that time, the two detectives “were wearing a modified please (sic; police) uniform TNT, which we had our body armor with POLICE and our badges on the outside, red and blue lights on the siren.” (Jason Benitez's Dep. 7.) Although Det. Benitez did not see Mr. Lopez commit any crimes or traffic infractions, he did “see the defendant tugging at the headrest,” (Jason Benitez's Dep. 7), which was a source of “concern” to the detective “for weapons.” (Jason Benitez's Dep. 8.) Fortunately, this concern proved unfounded; the detective “didn't see any weapons.” (Jason Benitez's Dep. 8, 9.) Mr. Lopez was taken out of his car and placed in custody “on the ground on the sidewalk.” (Jason Benitez's Dep. 9-10.) The detectives then radioed for the assistance of a canine officer, Detective Menoud. (Jason Benitez's Dep. 11.) In due course -- the time is not stated in the deposition transcripts -- Det. Menoud arrived, accompanied by his dog Shasta. (Jason Benitez's Dep. 12.) Shasta, with the assistance of his human colleagues, conducted the search of Mr. Lopez's car that resulted in the seizure of the contraband at issue here. (Jason Benitez's Dep. 12.)

Ruling of the Case:

Although the Hodari D. test is cast in the disjunctive, in the case at bar both prongs were met. Two officers, bearing all the accouterments of office and employing their car's emergency equipment, pulled Mr. Lopez over. He was then removed from his own car and, according to the testimony of one of the detectives, placed on the ground on the sidewalk. He was obliged to remain there while his car was searched by hands and paws. Whether measured by the “submission to authority” component or the “actual physical force” component, the conduct visited upon Mr. Lopez satisfies the predicate for arrest. the contraband at issue here. (Jason Benitez's Dep. 12.) 

It is a principle too well-settled to require citation to authority that such an arrest -- conducted, as this one was, in the absence of warrant -- must be justified by nothing less than probable cause. The classic and oft-cited definition provides that “[p]robable cause exists where ‘the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed.” Brinegar v. United States, 338 U.S. 160, 175-6 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). In the taxonomy of standards of proof, probable cause is lower than proof beyond a reasonable doubt, see Locke v. United States, 11 U.S. 339 (1813) (Marshall, C. J.), but higher than mere articulable reasonable suspicion, see Terry v. Ohio, 392 U.S. 1 (1968). Only if Mr. Lopez's arrest was justified by probable cause are its fruits admissible at trial. 

Although the presence or absence of probable cause turns chiefly on the conduct of the person to be arrested, other factors may also be relevant. Typically -- it is tempting to say invariably -- police officers will testify that the conduct in which they saw the arrestee engage occurred in a “high crime area” or “known drug area.” That was the case here; Detective Washington was asked if he knew the contents of the bottle he saw come into Mr. Lopez's hands. “No, sir,” he responded -- and then hastened to volunteer, “Based on my training and experience I was in a known drug area.” (Det. Darrian Washington's 10.) 

The topos of the “high crime area” in present-day police testimony is, in at least one sense, perfectly understandable. No self-respecting policeman can be expected to begin his testimony by remarking that, “I was patrolling in a crime-free area” or “Our squad was detailed to set up surveillance in an area where no crimes had been reported.” Sending the greatest number of police officers to the areas with the greatest number of serious crimes is precisely what we want our police departments to be doing. But when every officer testifies in every case that his search or seizure was justified, at least in part, because it took place in a “high crime area,” then every search or seizure is justified, at least in part. In Orwell's Animal Farm, all pigs were equal but some were more equal than others; so, too, if all areas in which policework is done are “high crime areas,” then some of those areas must be “higher crime” -- and therefore some “lower crime” -- than others. Comparatives and superlatives lose their force when applied to anything and everything. And the use of a particular locution in every, or nearly every, case in which policemen testify detracts from the force and probative value of that locution in any given case. See, e.g., United States v. Marshall, 488 F.2d 1169, 1171 n. 1 (9th Cir. 1973).

Det. Washington's observations gave rise to that “articulable reasonable suspicion” that justify the police in conducting an investigatory stop. See § 901.151, Fla. Stat. (codifying and modifying the doctrine ofTerry v. Ohio, 392 U.S. 1 (1968)). This Terry doctrine is as fully applicable to the drivers of cars as it is to pedestrians. See Michigan v. Long, 463 U.S. 1032 (1981); State v. Dilyerd, 467 So.2d 301 (Fla. 1985). The officers in the case at bar were entitled to stop Mr. Lopez's car and make further inquiries; indeed they would have been recreant in their duty had they failed to do so. Their authority was limited to “temporarily detain[ing] [Mr. Lopez] for the purpose of ascertaining [his] identity . . . and the circumstances surrounding [his] presence abroad which led the officer[s] to believe that [he] had committed, was committing, or was about to commit a criminal offense.” § 901.151(2), Fla. Stat. If, during the course of that investigatory stop, the officers had observed contraband in plain view, they would have been entitled to seize it. If, during the course of that investigatory stop, the officers had solicited and obtained Mr. Lopez's consent to search his car, or his person, they would have been entitled to do so. If, during the course of that investigatory stop, the officers had developed probable cause, then -- and only then -- would they have been entitled to make an arrest. § 901.151(4), Fla. Stat. Where, as here, there was no contraband in plain view, there was no consent to search, and there was no probable cause, the seizure of Mr. Lopez's person and the search of his car were unsupportable as a matter of law. The fruits of such a search must be suppressed.

Conclusion of the Case:

The evidence was suppressed by the Judge.

Trafficking Prescription Drugs Defense Attorney Call 813-222-2220

Source: 19 Fla. L. Weekly Supp. 934a Online Reference: FLWSUPP 1911LOPE