Tampa Defense Attorney recently studied a court ruling where a gun and drugs were thrown out after an illegal pat down was ruled a warrantless search. In this Tampa court, the trial judge ruled a Pat down search of a defendant was lawful. The Appeals panel ruled otherwise, finding the officers did not have reasonable suspicion that the defendant was armed with a dangerous weapon.
The defendant was walking along highway and did not comply with an officers’ requests to keep his hands out of his pockets. That fact alone was not sufficient to establish reasonable suspicion. The cops saw no weapons and did not notice bulges in the defendant’s clothing to indicate that he was carrying a weapon. Motion to suppress firearm and drugs discovered during pat down should have been granted.
Case Excerpt: “This case presents the issue of two conflicting interests: the Fourth Amendment
right to be free from unreasonable searches and seizures
and the ongoing concern for officer safety in an increasingly dangerous profession. But even though the facts of this case reveal an alarming result of the pat-down—a gun—we are not permitted to be distracted by the fruit of the search. Instead, our focus must be on the justification for the search. See D.B.P. v. State, 31 So. 3d 883, 887 (Fla. 5th DCA 2010) (“The success of the search . . . is not now and never has been the test to be applied.”)”
. . .
“For a weapons pat-down search to be valid, an officer must identify objective facts indicating that the person detained is armed and dangerous. See Howell v. State, 725 So. 2d 429, 431 (Fla. 2d DCA 1999). But here, the only justification provided by the officers was the fact that Dawson refused to comply with their requests to keep his hands out of his pockets. That fact—standing alone—was insufficient to establish reasonable suspicion. The comment made by one officer that he believed Dawson “could have contraband or a weapon” was simply unsupported by any identifiable objective facts to lead him to that conclusion. Because “routine patdown searches based on general concern for officer safety are not constitutionally permitted,” McNeil v. State, 995 So. 2d 525, 526 (Fla. 2d DCA 2008), the officers lacked reasonable suspicion to conduct a pat-down search of Dawson and the trial court erred by denying the suppression motion.”
The Complete Pat Down Opinion is available for download here.
Source: 36 Fla. L. Weekly D804a
Tampa Federal Criminal Defense Expert
notes that the former president of a mortgage company
was sentenced to five years and three months and an officer was sentenced to three years and four months in federal prison for their roles in a $79 million Mortgage Fraud Ponzi Scheme
. . In addition to restitution, they signed a forfeiture of assets agreement for another $79 million.
A lawyer may be the feds next target. Both defendants had their sentences reduced for the cooperation they have given the government. One defendant allowed federal agents to record telephone calls. The other defendant “wore a wire during a meeting with a Philadelphia lawyer so investigators could gather information about the lawyer being an accessory after the fact” according to published reports in the Tampa Tribune.
The banks lost $68.5 million and the government lost about $9.5 million between 1999 and 2001. United States District Judge, James Whittemore called the crime “a fraud of mammoth proportions.”
Source: October 26, 2009 Tampa Tribune
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