Often times a police officer will ask someone who they have stopped to issue a traffic citation to if the officer can search their car. It surprises me sometimes how often a person consents to allowing the officer to search when the officer has no grounds to do so and when the person has drugs or something illegal in their car!

Generally the only time an officer can search a person’s car without consent is if they have probable cause to believe that the car contains drugs or contraband or if an individual in the car is arrested and the car is searched “incident to that arrest.” I think most of the time people who consent to their car being searched knowing that there are drugs or contraband in the car do so because they believe if they didn’t consent the officer will search it anyway. This is not true. In the situation where the officer can search pursuant to probable cause, there must be some indication that drugs or contraband are in the car, e.g. they smell marijuana or drugs or contraband is in plain or open view. “Plain view” means that the drugs or contraband must be visible from the position the officer is in outside of the vehicle.

So what do you do if an officer asks you for consent to search your car? The best thing to do is to politely refuse. You may want to say something like this, “Officer, I know you are only doing your job, but a friend of mine who is a lawyer told me that I don’t have to give consent and I don’t really want to be inconvenienced by staying here while you search through my car, so I respectfully decline,” or, more simply, “No sir, I don’t give consent. Now may I be on my way?” The officer may be disgruntled or upset about not allowing him to search your car but so be it. The officer, if he or she is finished writing you a citation cannot legally keep you at the scene of the stop any longer. It is better to be on your way than to be held up by an officer going on a fishing expedition inside your vehicle and probably calling a canine unit to perform a dog sniff on the interior or your car as well. Although you may not have any drugs or contraband in your car and you don’t think anyone who has been a passenger ever has had drugs if the prior owner used drugs or if a passenger unbeknownst to you has had drugs in their possession, something could be found or a drug sniffing dog could alert.

Often times, upon stopping a motor vehicle, police will claim they smell marijuana leading to a search that yields not only marijuana but other controlled substances. If the officers claim they smell marijuana, under current case law, law enforcement has a right to search the individuals in the car as well as the interior of the car. The leading original case that gives law enforcement this right is State v. Betz, 815 So. 2d 627 (Fla. 2002), a Florida Supreme Court case.

We’ve handled countless cases in which a vehicle was stopped and the law enforcement officer claims to have smelled marijuana. However, in some scenarios, when the officer searches the vehicle and people or person within the car, no marijuana is found yet the search yields other types of controlled substances, often resulting in a felony arrest.

The facts must be thoroughly analyzed by an attorney experienced in search and seizure law. This scenario may come down to credibility of the officer or officers compared to the individual or persons within the car. Issues to consider are “How many officers were at the scene when the marijuana was allegedly smelled?” “Did more than one officer smell the marijuana?” Were there other people in the car that are credible individuals that could testify unequivocally that marijuana was not being smoked or that a person could not smell fresh marijuana itself that was seized? Would such an individual be willing to testify in court at a motion to suppress hearing or trial? What kind of criminal arrest or conviction history do witnesses have? Does the officer claiming he or she smelled marijuana have issues within his or her personnel or human resource file which are available through a public records request in Florida? Or, in some circumstances, the question may be, “If the officer claims he smelled marijuana, why there was no marijuana found in the car?!”

Florida judges have a special authority vested upon them to “withhold adjudication” in a criminal matter pursuant to Fla. Stat. §948.01. This means that the person who enters a plea of “no contest” or guilty plea to a felony charge may, depending on the nature of the felony, not be considered a “convicted felon” under current Florida law. To be offered or receive a withholding of adjudication a citizen generally will not have a much of a preexisting criminal history or has not been convicted of a felony in his or her past. The individual who receives a withholding of adjudication will not lose his or her voting rights and, again, under current Florida law, will not lose their right to possess a firearm in Florida once they have successfully completed probation.

gun.jpg

However, a more complex and precarious situation exists in our federal court system for Florida citizens who have received a withholding of adjudication for a felony. Under currently existing federal law, a person currently may be prosecuted under 18 USC §922(g), possession of a firearm by a convicted felon, in federal court even if they have received a withholding of adjudication for a Florida felony. The United States Court of Appeals for the Eleventh Circuit (11th Circuit) is the federal court with appellate jurisdiction over all of the federal district courts in Florida, Alabama and Georgia. Pensacola is within the Northern Federal District Court of Florida.
Continue reading

Under Florida Statute 90.803(23) Florida courts may allow a witness other than the child testify as to what type of sexual abuse a child may have told them occurred under certain circumstances. In other words, an alleged sex crime child victim sixteen years of age or less does not have to testify at an accused’s trial as to the specific allegations of abuse. Florida statutes allow that the alleged testimony of the child alleging sexual abuse may be admitted through the testimony of witnesses who claim to have heard the child make statements about being sexually abused. The trial court must hold a hearing to determine if the statement was made under “reliable” circumstances. If the court finds that the child’s out of court statement is reliable the witness may testify if the child testifies or is unavailable. “Unavailable” is defined as a finding by the trial court that the child’s participation in the trial or proceedings would result in substantial likelihood of sever emotional or mental harm. An accused must be notified no later than ten days before trial that the statement that qualifies will be offered at trial. So an accused can learn that his ex-wife who is battling him over child custody may testify as to what the couple’s three year old child allegedly told her. Is that fair?

In Ohio v. Clark, 13-1352 (June 18, 2015), the United State Supreme Court held that the trial court’s admission of out of court statements of a three year old child to his teacher wherein the teacher testified as to what the three year old told the teacher, was not a violation of the accused Sixth Amendment Right to Confrontation or Crawford v. United States. The Supreme Court stated “L. P.’s age, three, further confirms that the statements in question were not testimonial because statements by very young children will rarely, if ever, implicate the Confrontation Clause.” (If you’d like to read the Ohio v. Clark opinion please clink on the link above).

Aggressive litigation by federal defense attorneys concerning over-zealous federal drug-war strategies resulted in federal prosecutors in the Northern District of Illinois, specifically Chicago, dismissing federal conspiracy charges these tactics have generated. The article in the Chicago Tribune on January 29, 2015, written by reporters Annie Sweeney and Jason Meisner, is entitled “Chicago Prosecutors Quietly Drop Charges Tied to Drug Stash House Stings.”

abandoned-house-1413334-m.jpg

The lengthy article states that federal prosecutors in Chicago have dismissed conspiracy drug charges against more than two dozen defendants accused of ripping off drug stash houses as part of controversial undercover stings that have sparked allegations across the country of entrapment and racial profiling.
Continue reading

People need to be aware that, albeit often illegally, they may be arrested by merely asking questions to officers who are arresting someone else. The best thing to do is to observe as much information about the incident as possible from a distance, obtain, without interference, the name of the officer or the number of his or her squad car. police-at-protest-5-106059-m.jpg

Just asking where the officers are taking the person being arrested should not result in your arrest, but unfortunately in Pensacola, Pensacola Beach, etc., people are arrested for doing nothing more than asking these types of questions. Be careful. You can always find out information about your friend or loved one later by calling the Escambia County Jail at 436-9820 ask for booking.

As mentioned, people may be arrested for “disorderly conduct,” “obstruction,” or “resisting arrest without violence” for merely asking questions directed to law enforcement about why the officers may be arresting their friends or loved ones.

In order for a law enforcement officer to arrest someone for disorderly conduct or resisting arrest without violence, which is sometimes referred to as “obstruction of justice,” the officer must be engaged in a lawful duty and must have reasonable suspicion that the person arrested after “asking questions” had committed, was committing, or was in the process of committing a crime.
Florida’s Fourth District Court of Appeal held in Johnson v. Guevara, __ So. 3d __, 40 F.L.W. D257 (3d DCA 1/21/2015):
Continue reading

Law students at Harvard, Columbia and Georgetown Universities can elect to be excused from taking final exams if they feel disturbed by the grand jury decisions relating to the Ferguson and New York City decisions. As I understand it, this means that they would still have to take exams but could do so after receiving counseling and at a later date. I anticipate other law schools to follow suit if the administrations of these top tier law schools are allowing students to opt out and postpone taking finals. I think this acquiescing to law students’ demands is totally out of place. However, I disagree that law students and lawyers should be emotionless in how they approach their cases and careers as lawyers.

cambridge-1444304-m.jpg
Many law professors in the academia elite feel this “opting out” to be totally inappropriate.
Continue reading

In a recent Florida First District Court of Appeals decision evaluating a case from Escambia County Florida, the appellate court found brought home the draconian results of a long standing law that the mere possession of a drug that weighs over a certain threshold amount is considered to be “trafficking” under Florida law without any evidence the possessor of the drug intended to sell or distribute the drug. Florida may be the only state in the nation having laws that define mere possession of a set weight of drug without any evidence of distribution other than the mere possession of the drug is “trafficking.” If anyone is convicted of a possessing a “trafficking” quantity of narcotics results in that person is subject to a “minimum mandatory” Florida state prison sentence.

In Brown v. State, 1D13-2540 (Fla. 1st DCA Sept. 10, 2014), the appellate court decided that because Ms. Brown possessed more than 28 grams of cocaine, the fact that the trial court allowed the narcotics officer to testify about a separate quantity of “white powder like substance” was consistent with cocaine, that the prosecution proved she possessed a separate quantity of lab tested cocaine in excess of 28 grams of cocaine the admission into evidence of testimony about the “white powdery substance consistent was consistent with cocaine,” without any lab testing of that substance, was not relevant to ultimate issue that Ms. Brown possessed the lab tested excess of 28 grams of cocaine; hence, the case should not be reversed.

The mere possession of a threshold quantity of other drugs such as hydrocodone(lortabs), marijuana, Oxycontin, percocet and other controlled substances is considered trafficking and hence requires a minimum mandatory state prison sentence under Florida law. (Different threshold amounts apply to each drug, e.g. 25 pounds or more of marijuana requires a three year minimum mandatory; 28 grams or more of cocaine results in a three year minimum mandatory Florida state prison sentence).

In Florida, as in most states, often times there is a solid white line, otherwise known as a “stop line,” that precedes the cross-walk at an intersection. In a recent case decided by one of Florida’s District Court of Appeals (DCA), the Fifth DCA held that no part of your car may legally extend over the “stop line” or you may be legally cited by law enforcement for a violation Fla. Stat. 316.123(2)(a), a non-moving civil infraction. This statute requires a driver to stop “at” the stop line if one is marked. If no stop line is marked, the driver must stop before entering the crosswalk on the near side of the intersection. If there is neither a stop line nor crosswalk, the driver must stop near the entrance to the intersecting roadway to provide the driver with a view of approaching traffic. Thus, according to the court, the apparent purpose of the statute is to require a vehicle to stop before it is in a position where it could impede or hit pedestrians who might be in a crosswalk, or cross-traffic that could be in an intersection. The court in State v. Daniels, 5D13-2352, 2014 WL 1976269 (Fla. 5th DCA May 16, 2014), defined the word “at” to mean that no part of your car can be past the “stop line.”

There are a couple problems with this interpretation. Many people can’t see how much of the front of their car is over the stop line even if they intend to stop behind the stop line merely because of how their car is designed. The slightest portion of your car extending over the stop line is sufficient for the police to cite you. Also, often times, a driver must proceed past the “stop line” to determine if they can safely make a right turn at the intersection. Can a police officer then legally stop you if you have “creeped out” over the stop line so you can get a view of oncoming traffic in order to make a safe right turn? It seems the answer is yes. If so, leaving so much discretion with law enforcement when to stop a vehicle for such a minor transgression, may result in many people getting stopped if a police officer, after evaluating you and your vehicle, decides to take the time to stop and detain you to issue the traffic infraction. This may very well lead to more arrests for narcotics violations and other criminal traffic offenses, e.g. driving while license suspended, that often stem from mere non-criminal traffic law stops by law enforcement. My hunch is many officers won’t stop most people, but if a driver has a certain profile, the officer will use this statute to initiate contact with the driver.

In Smallwood v. State, 113 So. 3rd 724 (Fla. 2013), the Florida Supreme Court confronted the issue of whether a cell phone could be searched without law enforcement first obtaining a search warrant when the cell phone was seized during an arrest of an individual.

Smallwood had allegedly committed a robbery and the police when arresting Smallwood seized his cell phone. They went through his phone and found incriminating photographs of:

(1) A black and silver handgun with a crucifix draped over it, dated January 28, 2008 (four days after the robbery);