Busted on Video | Photographer Arrested

Citizen Journalist

Drug Bust on Video

Tampa Drug Defense Attorney Michael P Maddux has recently reviewed a case where there was a Drug Bust on Video. The citizen photographer was arrested. Criminal Defense issues will be was there a Search Warrant, Probable Cause, or Consent to Search? The video mentions a "warrant", but the police office claims consent to search the vehicle.

Civil Rights issue will be can the police arrest a citizen reporter recording police actions on a city street? What do you think?

Documentary | Copwatch: These Streets are Watching

Methamphetamine Case Tossed - Open Door and the Community Caretaker Function

Warrantless entry
Medical Emergency
Community Caretaker

What Happens When Police Make a Warrantless Entry of a Home for Medical Emergency?

Treasure Island, Florida has become a hotbed of the methamphetamine world. So while on patrol, a cop saw an open door with mail on the floor near the mail slot. The decision was made to enter the home and make sure everyone was alright. Of course, while there, why not search the house and find some meth. Court says adios to this one. 

Given Central Florida's temperate weather in November, an open door at 8:00 in the morning, without more, cannot justify a warrantless entry based on a feared medical emergency or the community caretaker function.  

What happens when police make a warrantless entry of a motor vehicle?

Attorneys Note: Traffic cops use the community caretaker function to justify DUI arrests of drivers that are found sleeping in a parked car. In Florida, this is known as a DUI Actual Physical Control. You can see how a Florida Court addresses the seizure of a sleeping motorist.  Sometimes the opening of a door of a sleeping driver is handled the same way the court handled this Treasure Island case where the charges are thrown out after a Fourth Amendment motion to suppress is granted.

Complete Text of Methamphetamine, Warrantless Entry, Medical Emergency, Community Caretaker Opinion

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

Case No. 2D14-5582

STATE OF FLORIDA,

Appellant,

v.        

JOHN FULTZ

Appellee.

                       

Opinion filed January 22, 2016.                 

Appeal from the Circuit Court for Pinellas County; Chris Helinger, Judge.                   

Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellant.                   

J. Andrew Crawford of J. Andrew Crawford, P.A., St. Petersburg, for Appellee.

SLEET, Judge.

The State appeals the order granting John Fultz's motion to suppress evidence in his criminal prosecution for possession with intent to sell, manufacture, or deliver methamphetamine. In this case, we are called on to determine whether the exigent circumstances exception to the warrant requirement for a feared medical emergency or performance of a community caretaking function justified the warrantless entry and search of Fultz's home.  Because the police had no objectively reasonable basis to believe that there was an emergency inside Fultz's residence to justify a warrantless search, we affirm.

Officer Lovelace, a patrol officer for the Treasure Island Police Department, was in the area of Fultz's townhouse at around 7:45 a.m. on November 26, 2013, where she had just completed a "house check" on a nearby home.¹ Officer Lovelace testified that she had been previously contacted by a citizen who had been keeping traffic logs for Fultz's townhouse due to "suspicious foot traffic." Two weeks prior to the search at issue, Officer Hansell, a St. Petersburg police officer who lived in the area, told Officer Lovelace that he suspected there was drug activity at the townhouse. Further raising her suspicions, when Officer Lovelace reported for her shift roll call that morning, Patrol Sergeant DeShay informed her of unconfirmed information he received from an informant regarding a possible meth lab in the garage of the townhouse.

After conducting the requested house check, Officer Lovelace decided to drive by Fultz's townhouse, which she suspected contained a meth lab. As she was passing by, she noticed that the front door to the townhouse was open, a light was on upstairs, some mail was on the floor under the mail slot, the garage door was closed, and a car was parked in the driveway. Officer Lovelace testified that based on her suspicion of drug activity, she called for backup about a minute after observing the open door.

¹Officer Lovelace testified that the residents of the home were out of town and had requested that Treasure Island police check in on their home, a service that Officer Lovelace routinely provides as a part of her patrol.

Sergeant DeShay and Officer Smallen arrived on the scene ten minutes later.  Before proceeding any further, DeShay contacted Detective Taylor in the Treasure Island police drug division and informed him of the situation, but Taylor declined to join them at the scene.  Notwithstanding, based on the open door, mail, and unconfirmed reports of drug activity, the three officers decided to enter the home to conduct a "welfare check" on the residents.  Sergeant DeShay testified that he knocked on the open door, announced "police," and then entered the residence. He immediately opened the door leading into the garage and discovered signs of an active meth lab. The trial court ultimately suppressed this evidence, and this appeal ensued.

A warrantless search of a home is "per se unreasonable under the Fourth Amendment . . . and Article I, section 12, of the Florida Constitution, subject to a few specifically established and well-delineated exceptions." State v. Boyd, 615 So. 2d 786, 788 (Fla. 2d DCA 1993) (quoting Cross v. State, 469 So. 2d 226, 227 (Fla. 2d DCA1985)); see also Seibert v. State, 923 So. 2d 460, 468 (Fla. 2006). Exigent circumstances are one such exception that may justify a warrantless search, but the police must have an objectively reasonable basis to support their actions. Vanslyke v. State, 936 So. 2d 1218, 1221-22 (Fla. 2d DCA 2006) (citing Brigham City v. Stuart, 547

U.S. 398, 403 (2006)); see also Boyd, 615 So. 2d at 789 ("[T]o allow a warrantless entry into a person's home in an emergency situation, there must be objectively reasonable circumstances that convey to the police officer an articulable, reasonable belief that an emergency exists.").

The exigent circumstances exception is not a shortcut by which police may circumvent the requirement of a search warrant.  These exceptions are based on a police officer's ability to articulate objective facts which make the procuring of a warrant impractical. See Davis v. State, 834 So. 2d 322, 327 (Fla. 5th DCA 2003) ("The sine qua non of the exigent circumstances exception is 'a compelling need for official action and no time to secure a warrant.' " (quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978))). "[I]f time to get a warrant exists, the enforcement agency must use that time to obtain the warrant."  Herring v. State, 168 So. 3d 240, 244 (Fla. 1st DCA 2015), review dismissed, 173 So. 3d 966 (Fla. 2015) (alteration in original) (quoting Hornblower v. State, 351 So. 2d 716, 718 (Fla. 1977)).

In this case, the State contends that the police were justified in entering Fultz's townhouse because they reasonably believed that the open door and scattered mail portended an emergency. Specifically, the State argues that two particular types of exigencies justified the police action in this case: the community caretaker exception and the feared medical emergency exception.

The community caretaker exception arises from the duty of police officers to "ensure the safety and welfare of the citizenry at large." Ortiz v. State, 24 So. 3d 596, 600 (Fla. 5th DCA 2009) (quoting 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 5.4(c), at 201-02 (4th ed. 2004)).  It is clear from our review of the record that the officers involved in this case were motivated by a desire to serve and protect the Treasure Island community. And this court has held that "the operation of a methamphetamine lab is inherently dangerous, presents an immediate threat to public safety, and is well within the scope of the exigent circumstance exception." Barth v. State, 955 So. 2d 1115, 1118 (Fla. 2d DCA 2006). However, police community caretaker functions are "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Cady v. Dombrowski, 413 U.S. 433, 441 (1973).  And to justify entry under this exigency, the police must have a reasonable belief that a meth lab is being operated within a residence "based on their experience, facts developed during investigation, and observance of [the suspect's] activities."  Barth, 955 So. 2d at 1118. 

In this case, the officers who entered Fultz's home did not have any special training related to meth labs, had not conducted any investigation into the reports of possible drug activity in the home, and had not made any observations of the residents or their activities that morning. Prior to the warrantless entry, police had not conducted any surveillance or controlled drug buys, made contact with Fultz, or initiated any other investigation into the potential criminal activity or habits of Fultz.  Accordingly, we agree with the trial court's conclusion that the police did not have a reasonable belief that could justify a warrantless entry under the community caretaker exception to the warrant requirement.

The feared medical emergency exception "permits police to enter and investigate private premises to preserve life . . . or render first aid, provided they do not enter with an accompanying intent either to arrest or search." Riggs v. State, 918 So. 2d 274, 280 (Fla. 2005) (alteration in original) (quoting Hornblower, 351 So. 2d at 718). This exigency recognizes that when there is a threat to safety and no time to secure a warrant, "the need to protect life and to prevent serious bodily injury provides justification for an otherwise invalid entry."  Vanslyke, 936 So. 2d at 1222 (quoting Riggs, 918 So. 2d at 279)).  However, the police must have an objectively reasonable fear that a medical emergency is occurring inside the residence.  See Riggs, 918 So. 2d at 281. 

                       The officers testified that the open door and the mail in the foyer coupled with their suspicions of an active meth lab led them to believe that someone inside had overdosed or was otherwise in need of immediate medical attention. The cases relied on by the State are distinguishable from the facts of this case because in each the officers' belief that there was an immediate need for their entry into the residence to address a medical emergency was based on more than just an open door, mail, and unconfirmed and uninvestigated reports of drug activity. See, e.g., State v. Shillingford, 136 So. 3d 1242, 1244 (Fla. 5th DCA 2014) (holding that exigent circumstances existed when officers summoned to investigate a domestic battery "arrived and observed [a] blood trail leading to [the defendant's] apartment[] and heard moaning coming from within the apartment"); Davis, 834 So. 2d 322 (holding that warrantless entry was lawful when a neighbor, who called police about a possible burglary, reported an open front door and the resident's dog was wandering outside and police observed signs of forced entry). In this case, the officers were not summoned to the residence for concerns regarding the residence or its occupants, did not see any blood or evidence of possible criminal activity, did not hear anything within the residence that would lead the officers to reasonably conclude that someone in the residence was in distress, and observed no signs of forced entry. The officers conducted no investigation into the unconfirmed reports of a meth lab on the premises and witnessed nothing consistent with the presence of a meth lab. There was nothing that could have led the officers to form an objectively reasonable belief that there was an ongoing medical emergency in the residence that required their immediate assistance.

 

We agree with the trial court that the Treasure Island Police Department's expressed policy of entering a home when they observe an open door and the residents fail to answer their hail is constitutionally troubling. There are many reasons that a citizen could leave a door to their home open; an open front door alone is not enough to support a reasonable belief that an exigency exists and cannot justify a warrantless entry into a residence.  See, e.g., Kyer v. Commonwealth, 612 S.E.2d 213, 217 (Va. Ct. App. 2005) (holding that an open door on an August night absent some other reason for concern could not support a reasonable belief that would justify entry under the exigent circumstances doctrine); State v. Christenson, 45 P.3d 511, 513 (Or. Ct. App. 2002) ("[A]n open door on a summer morning is not, in and of itself, a circumstance that could give rise to a reasonable belief that entry is necessary to prevent harm to persons or property. It is simply too common an event to create a concern of harm in the absence of other signs of trouble."). Given Central Florida's temperate weather in November, an open door at 8:00 in the morning, without more, cannot justify a warrantless entry based on a feared medical emergency or the community caretaker function.  As explained in Hornblower, the police may not "approach a dwelling, armed only with their own subjective suspicion that illegal activity was afoot, and wait for some . . . justification to break down the door and burst into the dwelling."  351 So. 2d at 718.

Accordingly, we affirm the order granting the motion to suppress.

Affirmed.  

WALLACE and KHOUZAM, JJ., Concur. 

Get a Search Warrant for Grow Room says Florida Supreme Court

Get a Search
Warrant for
Grow
Room

The Florida Supreme Court just decided a case where a bail bondsman entered a home, then searched behind a locked door. Inside the room, which we will call a "grow room", they found a growing operation. The one-room operation was cultivating - call it: cannabis, hemp, sinsemilla; pot, dope, grass, weed, Mary Jane, bud, bhang, kef, ganja, locoweed, reefer, doob, or spliff. The not-so-friendly bail bondsman backed off and then called the cops. The cops arrived and allegedly got consent to search. The appeals court initially ruled that the consent was coerced by the show of force from the police. 

"application of the inevitable discovery doctrine was improper 

and hold that the trial court should have 

suppressed the evidence obtained from the illegal search."

However, that court erroneously ruled that it was inevitable that the police would discover the grow room. The distinction in the case was that the police made no effort to get a search warrant. Therefore, the discovery of the grow room was not inevitable. The case was thrown out. The complete text of the opinion can be found at this link. We have included the most important excerpts from the case below.

"The state did not establish that the police officer or 

any detective had made any efforts to obtain a search warrant"

Q & A | Excerpts from the Court Opinion

What Happens when a Bail Bondsman Opened a Grow Room Door and then Called the Cops?

The facts of this case were presented below: Several bail bondsmen were attempting to locate one of their clients. The client, who had been charged with marijuana cultivation in a different house, had listed the address of Mr. Rodriguez’s home on his application for the bond. When the bondsmen knocked on the front door of that home, Mr. Rodriguez answered. He told the bondsmen that he did not know their client and that he was alone in the home. The bondsmen requested permission to search the home to be certain their client was not hiding there, and Mr. Rodriguez consented.

Is the  Odor of Cannabis a Lawful Basis to search a Home?

The bondsmen noticed a smell of marijuana in the home. Encountering a locked bedroom door, the bondsmen asked Mr. Rodriguez to open it so they could confirm that their client was not hiding there. Mr. Rodriguez unlocked the door and told the bondsmen that he was growing marijuana in the room. At that point, one of the bondsmen in the group moved outside and called the police to report what the bondsmen had observed. 

whether you call it: cannabis, hemp, sinsemilla, pot, dope, 

grass, weed, Mary Jane, bud, bhang, kef, 

ganja, locoweed, reefer, doob, or spliff.

About thirty minutes later, a uniformed officer arrived at the home. The officer testified that Mr. Rodriguez invited him to enter. The officer saw the grow room, called the narcotics squad, and placed Mr. Rodriguez in handcuffs in the back of the officer’s squad car while they waited for the narcotics detectives to arrive. The bondsmen remained at that location throughout, and spoke to the lead detective when the narcotics unit arrived. 

What is Consent to Search under Florida Law?

The lead detective testified that Mr. Rodriguez signed a form consenting to a search of the home. Mr. Rodriguez testified that he only signed the consent forms because the narcotics detectives had guns and most were also wearing masks. After their search confirmed the presence of a “grow room” containing six-foot marijuana plants, lights, and 36 pounds of marijuana, the detectives arrested Mr. Rodriguez. 

The defense filed a motion to suppress. At the hearing on that motion, the circuit court heard testimony from the lead bondsman, the police officer who first responded to the call from the bondsmen, the lead narcotics unit detective, and Mr. Rodriguez. The state did not establish that the police officer or any detective had made any efforts to obtain a search warrant before law enforcement entered the home or Mr. Rodriguez was arrested. The lead detective did, however, testify that he would have sought a warrant if Mr. Rodriguez had not consented to the search. 

What Happens When Consent to Search is Coerced?

The court denied the motion to suppress, although the court found that Mr. Rodriguez’s consent to entry by the police and detectives, and his signature on the consent form, were coerced. The court concluded that the inevitable discovery doctrine applied because probable cause had been established before law enforcement requested consent, and: Soon as the bail bondsman calls and says, Listen I’m looking at a hydroponics lab to me that’s a trigger. If they had not gotten consent they would have gone and gotten a warrant. 

Following the denial of the motion to suppress, Mr. Rodriguez entered a guilty plea and reserved the right to appeal the suppression issue. He was adjudicated guilty and sentenced, and [then appealed to the Third District Court of Appeal].

Get a Search Warrant 

for Grow House in Florida

From the totality of the evidence, we find that the application of the inevitable discovery doctrine was improper and hold that the trial court should have suppressed the evidence obtained from the illegal search.

What is the Inevitable Discovery Rule?

Thus, the rule first requires a “reasonable probability” that the evidence would have been discovered despite the improper police procedure. United States v. Brookins, 614 F.2d 1037, 1042 (5th Cir. 1980). Second, the State cannot argue that some later or future investigation would have inevitably led to the discovery of the evidence; rather, the investigation must be ongoing and the State must show that the facts known by the police at the moment of the unconstitutional procedure would have led to the evidence notwithstanding the police misconduct. See Fitzpatrick, 900 So. 2d at 514; Moody, 842 So. 2d at 759.

The question before this Court is whether the inevitable discovery rule requires the prosecution to demonstrate that the police were in the process of obtaining a warrant prior to the misconduct or whether the prosecution need only establish that a warrant could have been obtained with the information available prior to the misconduct. We conclude that permitting warrantless searches without - 14 - the prosecution demonstrating that the police were in pursuit of a warrant is not a proper application of the inevitable discovery rule. The rule cannot function to apply simply when police could have obtained a search warrant if they had taken the opportunity to pursue one, but can only apply if they actually were in pursuit of one. Within the inevitable discovery exception to the exclusionary rule there is no room for probable cause to obviate the requirement to pursue a search warrant, for this would eliminate the role of the magistrate and replace judicial reasoning with the current sense impression of police officers.

Is a Search Warrant Required for a room in a House?

Further, this case involves the sanctity of the home—a bedrock of the Fourth Amendment and an area where a person should enjoy the highest reasonable expectation of privacy. The constitutional guarantee to freedom from warrantless searches is not an inconvenience to be dismissed in favor of claims for police and prosecutorial efficiency. While it is true that here the police were already in possession of the information leading to the evidence before the misconduct, they failed to pursue a legal means to attain this evidence. The police attempted to gain consent from Rodriguez to enter his home, but his consent was found to be coerced and invalid. With no valid consent, and no pursuit of a search warrant, there are no legal means present that would have led to the evidence. In this way, the discovery was not inevitable notwithstanding the police misconduct, and the rule cannot be applied.

What is the Exclusionary Rule?

Because the exclusionary rule works to deter police misconduct by ensuring that the prosecution is not in a better position as a result of the misconduct, the rule cannot be expanded to allow application where there is only probable cause and no pursuit of a warrant. If the prosecution were allowed to benefit in this way, police misconduct would be encouraged instead of deterred, and the rationale behind the exclusionary rule would be eviscerated. Where the prosecution has made no showing that a search warrant was being actively pursued prior to the occurrence of the illegal conduct, application of the inevitable discovery rule would effectively nullify the requirement of a search warrant under the Fourth Amendment. In sum, prosecutors may not be permitted to benefit from the violation of constitutional rights. We cannot apply the inevitable discovery rule in every case where the police had probable cause to obtain a warrant but simply failed to get one. Accordingly, the officers’ failure to seek a search warrant precludes the application of the inevitable discovery doctrine in this case.

Source: http://www.floridasupremecourt.org/decisions/2015/sc14-160.pdf

Florida Growhouse Conviction Overturned

Florida Growhouse
Conviction Overturned

Florida Grow House Defense Attorney Lawyer just recieved a report from a colleague about a ruling in a federal growhouse case, United States V. Robert Joseph Valerio, No. 12–12235 (June 20, 2013). The Appeal was from the United States District Court for the Southern District of Florida. The trial court was Reversed and the conviction was Vacated. The encounter with aggressive Broward County drug cops occurred nearly one week after last observing him do anything suspicious during a previous failed search warrant involving drug cops and dogs. 

See: Florida Grow House, Florida Grow House Defense Attorney, Florida Growhouse, Grow House, Growhouse, Terry, search warrant 

Our friend wrote:

"Appellant Robert Joseph Valerio appealed the district court's denial of his motion to suppress evidence that led to his arrest for growing marijuana. The central issue presented in the appeal was whether Terry v. Ohio authorized law enforcement officers to effectuate an investigative seizure of Mr. Valerio nearly one week after last observing him do anything suspicious.  The Eleventh Circuit held that because the constitutional authority to make a Terry stop is dependent upon the exigencies associated with on-the-spot observations of the officer on the beat, the officers' seizure here was not authorized by the Fourth Amendment."

"Mr. Valerio became the target of an investigation of the Drug Enforcement Administration (DEA) on July 27, 2011, after he visited Green Touch Hydroponics, a retail store selling hydroponic gardening equipment. Special Agent David Lee Hibbs of the DEA was conducting surveillance at Green Touch under the view that people who purchased hydroponic equipment were likely to be involved in growing marijuana. While conducting surveillance, Agent Hibbs saw a black Chevrolet truck enter the parking lot in the back of the store. He noticed that the truck had no license plate and that it backed into a parking space, which he surmised was an attempt to conceal the truck's missing license plate. Agent Hibbs watched the driver, later confirmed to be Mr. Valerio, walk into the store and return about fifteen to twenty minutes later with a white plastic shopping bag."

"Agent Hibbs followed Mr. Valerio as he drove out of the parking lot and noted that Mr. Valerio kept looking at his rearview mirror, which Agent Hibbs interpreted as nervousness at the prospect of being followed by law enforcement. Eventually, Mr. Valerio pulled over to the side of the road and walked towards the rear of the vehicle holding what appeared to Agent Hibbs to be a license plate. As Agent Hibbs was traveling past Mr. Valerio's truck, he could not see what Mr. Valerio did with the object in his hands."

"Agent Hibbs next encountered Mr. Valerio approximately two weeks later on August 17, when he was again conducting surveillance at Green Touch. He observed Mr. Valerio drive the same black truck into the parking lot without a license plate, back into a spot, and enter the store. Mr. Valerio left the store after about twenty minutes and drove away but shortly thereafter stopped at a 7–11 parking lot. Another investigating agent observed that the truck had a license plate affixed to it when it left the 7–11 parking lot. The DEA agents followed Mr. Valerio to a warehouse in Deerfield Beach, which the agents thought was suitable for a marijuana grow operation. Once there, the agents saw Mr. Valerio park near bay 15 of the warehouse and walk toward the warehouse building but did not see where he went or witness anything else of note."

"The next night, August 18, DEA agents conducted surveillance of the area around bay 15 of the warehouse and observed lights emanating from a door in the area of bay 15, though they could not be sure which specific door. Nearly a week later on August 24, the Broward County Sheriff's Office brought a K–9 to the warehouse to sniff for drugs. The K–9 sniffed all of the doors on the side of the warehouse where bay 15 was located but only alerted to bay 14. Based on this information, investigating agents obtained a search warrant for bay 14, which they served that same day. Rather than corroborating their previous suspicions of Mr. Valerio, their search failed to uncover any new evidence that Mr. Valerio was running a marijuana grow operation out of one of the bays. They discovered that both bay 14 and the adjoining bay 13 were owned by Jeremy Staska, who operated a recording studio there.  Mr. Staska told the investigating officers that bands regularly recorded in the studio until late at night, which explained the lights coming from underneath the bay door on the night of August 18. He also estimated that a third of the bands that used his studio smoked marijuana while recording. When shown a picture of Mr. Valerio, Mr. Staska told the officers that Mr. Valerio was friends with a mechanic who worked at the warehouse and that it was possible that he rented a bay on the other side of the warehouse."

"After failing to find any evidence that Mr. Valerio was involved in a marijuana grow operation from the search of bays 13 and 14 and the K–9's failure to alert to the presence of drugs in bay 15, Broward County Sherriff's Office Detective Scott Ambrose directed DEA Special Agent Joseph Ahearn and Detective Joseph Lopez to go to Mr. Valerio's home to attempt a voluntary citizen encounter, in hopes of obtaining useful evidence based on Mr. Valerio's cooperation. The agents drove to Mr. Valerio's home but did not knock on his door and ask to speak with him, as instructed. Instead, they waited across the street until he emerged from his house and entered his truck, which was parked in his driveway. At that point, the officers blocked his exit from the driveway with their vehicle and Agent Ahearn got out of his vehicle and approached Mr. Valerio, with his gun drawn and pointed in the direction of Mr. Valerio, ordering him in a loud voice to get out of his truck. Agent Ahearn was dressed in street clothes but had on a bulletproof vest, with a black placard reading Police over his clothes. When Mr. Valerio stepped out of his truck, Agent Ahearn holstered his gun and immediately conducted a full-body pat-down search of Mr. Valerio's person and escorted him to the front of his truck. Detective Lopez then asked Mr. Valerio if he operated any warehouses in the area. Mr. Valerio initially stated that he did not. But following further questioning, Mr. Valerio admitted to growing marijuana inside bays 15 and 16 at the Deerfield Beach warehouse."

"On appeal, the Eleventh Circuit noted that the government had conceded that this was not a voluntary encounter and that the parties had agreed that, at minimum, the officers' encounter with Mr. Valerio in his driveway constituted a seizure subject to Fourth Amendment scrutiny.  The question, then, was whether the officers' stop-and-frisk of Mr. Valerio, one week after they had last observed him engage in any suspicious activity, was constitutional under the Fourth Amendment principles articulated in Terry."

"The Court stated that the investigative stop contemplated by Terry – a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot–  is not a policing tool that can be constitutionally deployed in any context in which law enforcement has reasonable suspicion that an individual is involved in criminal activity. Rather, it may be used only within the rubric of police conduct addressed in Terry, for which the timing and circumstances surrounding the investigative stop matter. Terry stops, the Court held, are thus limited to situations where officers are required to take swift action predicated upon the on-the-spot observations of the officer on the beat."

"The Court found that the timing of and circumstances surrounding the officers' seizure of Mr. Valerio in this case placed it well outside of the Terry exception to the probable cause requirement. The stop here was not responsive to the development of suspicion within a dynamic or urgent law enforcement environment., the Court found.  Rather, the officers went to Mr. Valerio's home nearly a week after they had last observed him do anything. Given this delay and the complete absence of any contemporaneous observations of Mr. Valerio that would necessitate swift law enforcement action, the Court stated that the underlying purposes behind Terry 's exception to the probable cause requirement were in no way present when the officers seized Mr. Valerio. The Court wrote that the opportunity to Terry stop a suspect, a law enforcement power justified by and limited to the exigent circumstances of the moment, cannot be put in the bank and saved for use on a rainy day, long after any claimed exigency has expired. Thus, the seizure of Mr. Valerio did not qualify for the Terry exception to the Fourth Amendment's probable cause rule. Instead, the passage of time between Mr. Valerio's suspicious activity and the officers' seizure of him made it entirely practicable for law enforcement officers to proceed with their investigation in a manner consistent with the default requirements of the Fourth Amendment, which only allow for a seizure upon a warrant or probable cause accompanied by well-defined exigent circumstances. Moreover, no exigency emerged from the simple observation that Mr. Valerio had exited his house and entered his truck. The Court concluded that as the government did not contend that its officers had probable cause that Mr. Valerio was involved in criminal activity at the time they seized him, the seizure of Mr. Valerio was unconstitutional under the circumstances discussed above."

"The Court also noted that by failing to make the argument below that the evidence was obtained through voluntary consent and that the taint of the Fourth Amendment violation has been sufficiently purged, the government had waived any such argument before the court of appeals."

Source: http://www.ca11.uscourts.gov/opinions/ops/201212235.pdf

See: Florida Grow House, Florida Grow House Defense Attorney, Florida Growhouse, Grow House, Growhouse, Terry, search warrant 

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).

Search Warrant | Video | Knock and Announce Shooting

Knock Announce Resident Killed

Florida Drug Defense Attorney has obtained video of a military-style entry into a home by drug / narcotics cops. A resident was shot and killed seconds after the Search Warrant entry. In Florida, we have discussed the knock and announce rule. You can read more here.

As we previously noted, the "Exclusionary Rule will be applied to violations of Florida's statutory knock-and-announce rule, according to an appellate court. The court found that a police officer violated Florida's knock-and-announce arrest statute where officer knocked and announced his presence, but failed to announce his purpose before entering motel room and arresting defendant. The court held that it was error to deny the defense motion to suppress evidence seized from motel room and statements made by defendant regarding that evidence."

Knock and Announce Violation? Call Me at 813-222-2220

Curtilage | No Search Warrant | Evidence Tossed

Drug Defense Attorney on Search

Criminal Defense Attorney reports a Search and seizure occurring after an illegal entry into a residential back yard has been invalidated by an appeals court. The area surroundind a home is known as the “Curtilage.” Sometimes cops claim Exigent circumstances justify a warrantless entry. In this case, the trial court had denied a motion to suppress evidence obtained during a warrantless search of a home.

Cops responded to an anonymous tip that there were 3 black males One reportedly had a handgun, was in front of home, next to a white sports utility vehicle. Additionally a tipster said there were possibly narcotics on the hood. The court noted the police did not have authority to enter the backyard of the home to investigate.

When officers arrived, they observed an SUV present in front of home, but there was no one matching description from tip and there was no indication that a crime had been, was being, or would be committed. Since entry into the backyard was improper, the judges ruled that evidence obtained as result of an illegal entry should be suppressed. The ruling tossing out the drugs seized was issued even though cops later observed drugs in the house through a broken window. After seeing the contraband the cops had conducted an illegal sweep of the home.

Case Excerpts:

“Warrantless searches are per se unreasonable and subject to only a few exceptions. Bryan relied on Coolidge v. New Hampshire to support his position that there must be an exigent circumstance that made a warrantless search “imperative.” 403 U.S. 443, 455 (1971). Exigent circumstances have been defined as “‘the sort of emergency or dangerous situation . . . that would justify a warrantless entry into a home for the purpose of either arrest or search.’” Riggs v. State, 918 So. 2d 274, 278 (Fla. 2005). To rise to this level, the emergency must be so that it “‘makes a warrantless search imperative to the safety of the police and of the community.’” Id. Safety is threatened when a need exists “‘to protect life and to prevent serious bodily injury.’” Id. at 279.”

"Here, officers entered the curtilage of the home to investigate acting solely on an anonymous tip, only corroborated the tip to the extent that a white SUV was in front of the home, and had no indication from viewing the scene that a crime had been, was being, or would be committed. The officers were concerned that a gun and drugs were seen on the hood of the SUV, and there were children playing in the neighborhood, but when the officers arrived at the scene there did not appear to be anyone insight that may have a gun. The circumstances did not present a situation of exigent circumstances justifying intrusion into the curtilage of the house despite the fact that the SUV was parked in front. Because a warrantless search is unlawful when no exception applies and because the State did not prove through testimony or evidence that some reasonable belief of exigency existed, a warrant should have been obtained before police entry into Bryan’s backyard."

Source: 36 Fla. L. Weekly D1256a

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Search Warrant | Tampa Criminal Defense

Car in Driveway

Tampa Criminal Defense Attorney / Lawyer has just studied a new case where there was a search of a vehicle located within the curtilage of a residence that was the target of a search warrant.  The curtilage of a residence is most deserving of protection from searches without a warrant of beyond the scope of a Search warrant. The "vehicle  was partially overlapping a portion of the driveway to the residence." There were a firearm and drugs located within  the vehicle.  The appeals court ruled  the vehicle was not within the curtilage of the residence and reversed the drug conviction.

The complete Opinion Search Warrant for car parked in the yard is here for free.

"The term “curtilage” in the Fourth Amendment context describes the area around a home that is “intimately tied to the home itself.”  United States v. Dunn, 480 U.S. 294, 301 (1987). “[T]he extent of the  curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.”   Id.  at 300.  Clearly, the legal  boundaries of a given piece of property do not necessarily define its curtilage for Fourth Amendment purposes."

"To determine the scope of the curtilage to a particular residence, we must consider the four factors identified in Dunn.  Wilson v. State, 952 So. 2d 564, 568-69 (Fla. 5th DCA 2007)."

Four Factors to Define Scope of Warrant:

Proximity of the area claimed to be curtilage to the home;

Area is included within an enclosure surrounding the home;

Nature of the uses to which the area is put; 

Steps taken by the resident to protect the area from observation by people passing by.

Is there a Search Warrant is your case? Call Me Toll Free 1-877-793-9290.

Drug Dogs | Florida Tosses Search

Drug Dog Sniff Snuffed

Drug Charge Defense Attorney notes that Drug Dog Sniffs can be both a Search and an illegal seizure. The Florida Supreme Court just ruled on a Dog sniff at a residence. The case involved a Sniff test by a drug detection dog conducted at the front door of a private residence. The court ruled this is a search under the Fourth Amendment. Law enforcement must have probable cause rather than reasonable suspicion like courts have ruled in non-residential (car) cases.

Case Excerpt: "First, the dog “sniff test” that was conducted in the present case was an intrusive procedure. As explained more fully below, the “sniff test” was a sophisticated undertaking that was the end result of a sustained and coordinated effort by various law enforcement agencies. On the scene, the procedure involved multiple police vehicles, multiple law enforcement personnel, including narcotics detectives and other officers, and an experienced dog handler and trained drug detection dog engaged in a vigorous search effort on the front porch of the residence. Tactical law enforcement personnel from various government agencies, both state and federal, were on the scene for surveillance and backup purposes. The entire on-the-scene government activity—i.e., the preparation for the “sniff test,” the test itself, and the aftermath, which culminated in the full-blown search of Jardines‟ home—lasted for hours. The “sniff test” apparently took place in plain view of the general public."

The complete opinion is free here from Drug2Go.com.

Source: 36 Fla. L. Weekly S147a

Drug Dogs Search and Seizure

Warrantless Home Entry | Case Tossed

Home Searched Without Warrant

Trial court granted defendant's motion to suppress on ground that evidence recovered by police was the fruit of the poisonous tree, an unlawful warrantless entry into a home. Cops were trying to arrest defendant There were no exigent circumstances to excuse the failure to secure a warrant prior to entry of the home.

Source: 35 FLW 2377a.

Drug Case Tossed | GPS Tracking Device | Search Warrant Required

GPS Tracking Needs Warrant

Tampa Drug Charge Defense Attorney, Lawyer W.F. "Casey" Ebsary has obtained an interesting appeals court decision where cops put a GPS Tracking Device on a defendant's car and followed him for weeks. The defendant was busted for Federal cocaine charges. Specifically, "conspiracy to distribute and to possess with intent to distribute five or more kilograms of cocaine and 50 or more grams of cocaine base."  The court summarized the case as involving "Evidence Obtained from GPS Device."

The appeal centered on defense arguments that "his conviction should be overturned because the police violated the Fourth Amendment prohibition of unreasonable searches by tracking his movements 24 hours a day for four weeks with a GPS device they had installed on his Jeep without a valid warrant. We consider first whether that use of the device was a search and then, having concluded it was, consider whether it was reasonable and whether any error was harmless." The court ruled that tracking with GPS was a search. A Search Warrant was required.

The Court further held "the whole of a person‘s movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil. It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person‘s hitherto private routine."

The Government used the GPS data to show a pattern of travels by the defendant. The Court mentioned in a footnote, "This case itself illustrates how the sequence of a person‘s movements may reveal more than the individual movements of which it is composed. Having tracked Jones‘s movements for a month, the Government used the resulting pattern — not just the location of a particular ― stash house or Jones‘s movements on any one trip or even day — as evidence of Jones‘s involvement in the cocaine trafficking business. The pattern the Government would document with the GPS data was central to its presentation of the case . . . ." The court further noted, "The GPS data were essential to the Government‘s case. By combining them with Jones‘s cell-phone records the Government was able to paint a picture of Jones‘s movements that made credible the allegation that he was involved in drug trafficking."

The Court also stated, "A reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain ― 'disconnected and anonymous'." In closing the Court held, "Society recognizes Jones‘s expectation of privacy in his movements over the course of a month as reasonable, and the use of the GPS device to monitor those movements defeated that reasonable expectation." The court concluded its forty-one  page opinion stating the cocaine trafficking defendant's, "conviction is reversed because it was obtained with evidence procured in violation of the Fourth Amendment."

On a side note, California, has made it unlawful for anyone except law enforcement to use a GPS to determine the location or movement of a person. In some jurisdictions, GPS tracking of a person's location without that person's knowledge is a violation of an individual's reasonable expectation of privacy." Some law enforcement agencies use "darts" a miniaturized GPS receiver, radio transmitter, and battery embedded in a sticky compound material. Cops shoot the darts at a vehicle and it sticks to the target tracking begins.

The complete opinion is a free download here.

Tampa Federal Criminal Defense Attorney on Vehicle Search Seizure

Board Certified Tampa Federal Criminal Defense Attorney, W.F. ''Casey'' Ebsary, reports a recent decision where The United States Supreme Court ruled: law enforcement can search passenger compartment of vehicle incident to recent occupant's arrest. But, only if it is reasonable to believe that arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. The court further found that absent these justifications, search and seizure of defendant's vehicle will be unreasonable unless police obtain warrant or show that another exception to warrant requirement exists. A State supreme court had correctly ruled that the case had involved unreasonable search where driver was arrested for driving on suspended license, handcuffed, and locked in patrol car BEFORE officers searched his car and found cocaine in a jacket pocket.

You can download and review the Court's opinion for free.

Source: 21 Fla. L. Weekly Fed. S781a

W.F. ''Casey'' Ebsary, Jr. is available Toll Free to help with these types of allegations. 1-877-793-9290.


Federal Criminal Defense Attorney Tampa Florida on Vehicle Search Seizure