Marijuana Search - Protective Safety Sweep

Marijuana Search
Protective Safety Sweep

Tampa Florida Criminal Defense Lawyer notes a recent Search and seizure case involving a Residence and a Search Warrant. The Second District Court ruled that the protective sweep of the possession of marijuana defendant's residence was improper. The court noted no basis for concern that drug evidence might be destroyed before a search warrant could be obtained.

Marijuana Search - Safety Sweep

The appeals court also found no facts to support a reasonable belief that there was a person in the residence who could pose a danger to law enforcement. The observation of narcotics by officers during an improper protective sweep cannot be a valid basis for issuance of search warrant, even so, since the officers smelled marijuana when the suspect opened front door after officers had lawfully approached residence and knocked on front door,  probable cause for issuance of warrant was found.

When the court finds that police unlawfully obtained some of evidence contained in an affidavit or application for a search warrant, the trial court must then determine if there was probable cause to support issuance of warrant based on any independent and lawfully obtained evidence. The trial court committed error in granting the  motion to suppress because probable cause for issuance of warrant was established without considering evidence obtained in improper protective sweep.

Case Excerpts:

"[T]he sweep of the house was improper based on the concern that evidence may be destroyed because there were no facts supporting an objectively reasonable basis for the belief that someone inside the house could destroy evidence while the warrant was being obtained. See United States v. Rivera, 825 F.2d 152, 156 (7th Cir. 1987) ("In determining whether the agents reasonably feared imminent destruction of the evidence, the appropriate inquiry is whether the facts, as they appeared at the moment of entry, would lead a reasonable, experienced agent to believe that evidence might be destroyed before a warrant could be secured.")."

"[T]here was no evidence that the house was occupied, the trial court correctly found that the protective sweep of the house for officer safety was improper as there were no specific and articulable facts supporting a reasonable belief that there was an individual in the house who could pose a danger to law enforcement. See Maryland v. Buie, 494 U.S. 325, 337 (1990) ("The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.")."

"Where a court finds that police unlawfully obtained some of the evidence contained in the application for the 

search warrant, the court must then determine if there is probable cause to support the issuance of the warrant based on any independent and lawfully obtained evidence. Id. “[T]he court must excise the invalid allegations from the affidavit and determine whether sufficient valid allegations remain to support a finding of probable cause.” State v. Hood, 68 So. 3d 392, 395 (Fla. 2d DCA 2011)."

Source: STATE OF FLORIDA, v. IDALIA ROMAN Case No. 2D11-769 (Fla 2d DCA Nov. 7 2012).

Marijuana Thrown Out - Overhead Emergency Lights | Seizure

Florida Marijuana Defense Lawyer / Attorney 

Florida Marijuana Defense Attorney just reviewed another case where the cops claim they smell an odor of Cannabis / Marijuana under Florida State Chapter 893. The court threw the case out where the cop activated his emergency lights to investigate a legally parked car. During the investigation of the scofflaw, the cop smelled marijuana. Court ruled that activation of lights constituted a seizure without cause. Excerpts below. Full marijuana defense attorney's copy of opinion is here.

"At the suppression hearing, a deputy of the Broward County Sheriff’s Office testified that he was on duty in the early morning hours of April 11, 2010. At around 2:30 a.m., the deputy was driving on a residential street when he noticed an occupied SUV parked in front of a vacant open field. The SUV was legally parked, and its interior lights, headlights, andtail lights were all turned off."

Florida Marijuana Defense Lawyer Case Excerpts:

"The deputy saw one individual in the vehicle, seated in the driver’s seat. The deputy testified that he became suspicious once he saw that the vehicle had no lights on. The deputy pulled in front of the SUV and parked “almost catty corner” to where the SUV was parked. Although the deputy did not recall exactly how his police vehicle was positioned, he denied that he blocked in the SUV. The deputy activated his overhead emergency lights."

"The Florida Supreme Court has described three levels of police-citizen encounters: 1) a consensual encounter involving minimal contact during which the citizen is free to leave; 2) an investigatory stop or detention which requires a well-founded suspicion of criminal activity; and 3) an arrest supported by probable cause that a crime has been committed, or is being committed. Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). “During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.”"

"In this case, the question is whether appellant was seized before the officer approached his vehicle and smelled the marijuana. Activation of emergency police lights is one factor to be considered in a totality-of-thecircumstances analysis of whether a seizure has occurred. G.M., 19 So. 3d at 974. Likewise, use of a spotlight or flashlight is another factor to be considered in evaluating whether a person would reasonably believe he was free to leave, but the use of a spotlight, without more, does not transform a consensual encounter into an investigatory stop. See State v. Goodwin, 36 So. 3d 925, 927 (Fla. 4th DCA 2010) (holding that the officer’s mere use of her spotlight and flashlight did not transform the consensual encounter into an investigatory stop)."

"Under the totality of the circumstances, where, as here, appellant was legally parked on a residential street and did not give any indication that he might be in need of police assistance, no reasonable person would have felt free to drive away after an officer activated his emergency lights and used a spotlight to illuminate the person’s parked vehicle. See G.M., 19 So. 3d at 980 (“Moreover, it would b e both dangerous and irresponsible for this Court to advise Florida citizens that they should feel free to simply ignore the officers, walk away, and refuse to interact with these officers under such circumstances.”)."

"Because the deputy seized appellant before detecting the odor of marijuana, and because the seizure was not founded upon reasonable suspicion, we reverse the denial of the motion to suppress and remand with directions for the trial court to vacate appellant’s convictions in this case. Reversed and Remanded."

Search and Seizure? Call Casey at 813-222-2220

Source: No. 4D10-4790 April 25, 2012

Marijuana Cannabis Defense Attorney