Florida Criminal Law Blog

The Florida First District Court of Appeals on Tuesday, December 21, 2010 gave us some insight as to their interpretation of the Transportation Security Administration's (TSA) authority to search our luggage at airports in Florida. (Higerd v. State, 1st District. Case No. 1D09-4028. December 21, 2010). The First District Court of Appeals reviews trial court decisions from Pensacola, including, but not limited to, Escambia, Santa Rosa, Okaloosa and Walton counties. This is a case of "first impression" in Florida meaning that the issue in this case had not been decided by any appellate court in Florida including the Florida Supreme Court. Unlike many issues that arise in the search and seizure context under the Fourth Amendment even the United States Supreme Court has not directly ruled on reasonableness of domestic airport checkpoint searches. See United States v. Fofana, 620 F. Supp. 2d 857, 861-62 n.2 (S.D. Ohio 2009).

Mr. Higerd had checked a suitcase which contained an expanding type folder that contained ten photographs of alleged child pornography at Pensacola Regional Airport. After he had checked his luggage at the ticket counter, he passed through the personal security checkpoints with his carry-ons, including his laptop, and walked to the gate where his flight was departing. Unbeknownst to him, TSA, in accordance with federal TSA policy and procedure, preselects a random number of checked bags they must search for firearms or explosives. (There are several other issues analyzed in this case that are too detailed to include in this brief article).

Mr. Higerd's bag was the next randomly selected bag and as a TSA officer was required to thumb through the contents of the accordion-type file folder found in Appellant's bag under TSA protocol. She testified she was merely running the swab through the papers in the folder when she came upon ten photos depicting child pornography. She immediately stopped the search and contacted a supervisor. “The mere fact that a screening procedure ultimately reveals contraband other than weapons or explosives does not render it unreasonable, post facto.” United States v. Marquez, 410 F.3d 612, 617 (9th Cir. 2005)."

Unlike the officers in Fofana and McCarty, the TSA officer's testimony here did not hint that she was intentionally looking for evidence of criminal behavior" the First District Court of Appeals stated. A TSA agent can NOT randomly go looking for evidence of criminal behavior; however, while looking for evidence of explosives or firearms in good faith, if they should see evidence of a crime they seize it and subsequently arrest the owner of the bad that contained the contraband. (In good faith means that they are not merely looking for evidence of crime; their search authority is limited to looking for explosives and firearms).

Continue reading "Search and Seizure at Airports - Pensacola, Florida, National" »

On December 14, 2010, in United States v. Warshak, the Sixth Circuit U.S. Court of Appeals held that government agents violated the defendant’s Fourth Amendment rights when they seized his stored emails without a warrant, pursuant to an outdated law, the Stored Communications Act of 1986 (SCA). “An Internet subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial Internet Service Provider,” the court said.

Warshak is an interesting appellate opinion stemming from a multi-defendant trial in the Southern District Court of Ohio federal district court. The case involved multiple defendants who had varied interests in the company that sold the widely advertised product Enzyte, an herbal supplement first marketed by
Berkeley Premium Nutraceauticals alleging to increase the size of a man's erection. The company changed it's advertising approach in 2009 to represent the product as a as a "male enhancement" that assists in erectile dysfunction. The defendants were charged with 112 counts including conspiracy to commit mail fraud, wire fraud and money laundering. The jury found that the government's evidence presented proved that representations made by the company were based upon fictitious doctors and bogus studies. According to the opinion, the company profited over $500 million dollars.

The import of the case is that the federal appellate court found that we have, in almost all cases, a Fourth Amendment protection against seizures and searches of our emails because we have a reasonable expectation of privacy in emails even though they are transmitted to the intended recipient through internet service providers. (We generally do not have a reasonable expectation of privacy and 4th amendment protection to communications made when a third party is present). The court equated emails to regular U.S. mail in that both forms of communication are handled or stored by entities other than the individual to whom our communication is directed. Just like our communications through the U.S. Mail, the government does not have the authority to order the U.S. Postal service to open our mail without probable cause or without obtaining a search warrant. In Warshak the government ordered the Internet Service Provider to store all of Warshak's emails. Then, at some point, they obtained 27,000 emails from the ISP and found very incriminating information contained in some of his personal emails.

Continue reading "Federal Court Rules Emails Protected Under 4th Amendment " »

In a very recent Florida appellate case, a line was drawn between when a citizen suspected of possession of controlled substance is merely cooperating with law enforcement or if he or she becomes a agent of law enforcement that could result in the suppression of evidence the "agent" of law enforcement obtains from another individual. (This case involves juveniles so initials are used rather than names in accordance with Florida law).

In State v. C.D.M., 35 Fla. Law Weekly D2581, Case No. 2D09-4236, November 24, 2010, an officer had stopped two juveniles in a vehicle for a traffic violation. The officer smelled marijuana and asked the driver, C.C. to step out of the car. The officer told the juvenile driver, C.C., that he could smell the marijuana and things might go better for him if he cooperated and gave the officer any marijuana that might be in the car. C.C. decided to cooperate and went back to the car and asked his juvenile companion, C.D. M. to give him the marijuana, which C.D.M. did. C.C. testified at the motion to suppress hearing that he felt he had no choice but to comply with the officer's request. (If CC was an agent of law enforcement C.D.M.'s consent to provide the marijuana to C.C. would have been found to be a coercive, involuntary consent).

The trial court suppressed the marijuana evidence against C.D.M. holding that C.C. had acted as an "agent" of the police when C.C. went back to the car and obtained the marijuana from C.D.M. and thus C.D.M.'s consent was involuntary.

The Florida appellate court said the trial court was wrong in it's holding. That merely because C.C. said he felt he had no choice but to oblige the officer, he was not acting as an "agent" of the officer because the officer had no idea that C.C. himself was not going to retrieve the marijuana the car nor did the officer think that C.D.M. was holding the marijuana. See Coolidge v. New Hampshire, 403 U.S. 443, 448, (1971)(even if a citizen feels obliged to assist law enforcement, it is not part of the policy underlying the 4th and 14th Amendment to discourage citizens from aiding law enforcement in apprehending criminals).

Both juveniles were ultimately charged with possessing marijuana. The appellate court found that merely because the officer asked CC to obtain the marijuana from the car CC was not acting as an agent of law enforcement and the marijuana charge alleged against C.D.M. was valid.

To read other search and seizure articles please see other articles in this blog or the published article section of the Law Offices of M. James Jenkins, P.A.

This article will briefly touch upon when a law enforcement officer, when placing someone under arrest, either inside their home or close to their home, may do what's called a "protective sweep," a term of art used in criminal law wherein an officer searches the interior of a home for other suspects or dangers. It is during protective sweeps when officers often find contraband or other evidence of an incriminating nature. However, there are only limited circumstances when the so called "protective sweep" can be implemented and, albeit often abused, the "sweep" can only be for very limited purposes.

A protective sweep, aimed at protecting the arresting officer, may be conducted only when the officer "possesses a reasonable belief based on specific articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." Maryland v. Buie, 494 U.S. 325 (1990). The purpose of the sweep when an arrest occurs is to check for possible accomplices, not evidence, and is justified only if necessary to allow officers to carry out the arrest without fear of violence. In Buie, the search/sweep occurred only after the suspect was outside his residence, handcuffed and unarmed. An officer must articulate or explain why he thought there was another person in the house.

If an individual is arrested, for instance, in the yard of his home, and no other evidence exists that there is another potential assailant inside the home, it is likely that if the officers enter the home to do a "protective sweep" and find incriminating evidence or contraband that such seizure is illegal and the evidence should be suppressed.

Continue reading "Florida Residential Search and Seizures" »