Articles Posted in Search and Seizure

Like anyone doing their job, law enforcement officers should be treated with kindness and courtesy. They put their lives on the line every day in the name of public safety. The role police officers play in our society deserves a high degree of respect.

However federal and state law enforcement officers, which include Pensacola Police Officers, Escambia Sheriff’s Deputies, and other law enforcement officials operate under certain limitations enshrined in the U.S. Constitution’s 4th amendment protections, other federal and state laws and court cases interpreting those laws of how they can search your person and your property — and that includes your car!

Fourth Amendment Protections Applies to Your Car

traffic stop
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?!”

On June 3, 2013, the United States Supreme Court in Maryland v. King has ruled criminal suspects can be subjected to a police DNA test after arrest but before trial and conviction. The Supreme Court used a privacy-versus-public-safety policy rationale that potentially could have wide-reaching implications.

The issue in this ruling was whether taking genetic samples from someone held without a warrant in criminal custody for “a serious offense” is an unconstitutional “search.”

It is routine in Florida that after someone has enerered a plea in a felony case, the person’s DNA is taken by a buccal swab (q-tip inside the mouth) regardless of whether the person is adjudicated guilty.

The First District Court of Appeals, which includes Pensacola, Escambia, Santa Rosa, Okaloosa and Walton Counties, issued a favorable opinion upholding the Fourth Amendment rights of a homeowner against unreasonable searches and seizures this last week. In Powell v. State, 38 Fla. L. Weekly D1140a (Fla. 1st DCA 2013) the issue was whether police officers entering Powell’s property and peering into a window of his mobile home late at night after receiving an anonymous tip an hour earlier that marijuana plants were inside was a search that violated the Fourth Amendment.

The appellate court held that the officers’ intrusion into the curtilage of the mobile home, on a part of the property on which they had no legal right to be, and peering through a window a hand’s length away at a sharp angle into an otherwise private part of the home, constituted a search in violation of the Fourth Amendment under both the expectation of privacy test and the intrusion test.

Either way, this entry into the protected private space of the home was an improper attempt to verify an anonymous tip. The court reversed the convictions, which were based entirely on evidence obtained due to the unlawful search. The First DCA reversed the trial court’s denial of the motion to suppress and it is likely that ultimately all evidence in Mr. Powell’s case will be suppressed and the case will have to be dismissed by the prosecutor’s office.