A seizure occurs when a reasonable person in the defendant’s position would not feel free to terminate the encounter.

Recently I reviewed a case where the cop told a suspect that if he moved, he would be shot. He was not handcuffed or arrested at that point. Was this a seizure? YES The term “seizure” is an important concept in criminal defense. A person can be “seized” before he is actually restrained by physical force at the moment when, given all the circumstances, a reasonable person would believe he is not free to leave. Michigan v. Chesternut, 486 U.S. 567, 573 (1988). As the Supreme Court reaffirmed in Florida v. Bostick,, the test for determining whether a Terry stop has taken place “is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” 501 U.S. at 436.

Under Florida law the question of a seizure turns on “whether, taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’” Bostick at 437. The court stressed in Chesternut that there is a need for a seizure test which “calls for consistent application from one police encounter to the next” and permits police “to determine in advance whether the conduct contemplated will implicate the Fourth Amendment.” Chesternut at 574.

“Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.” Florida v. Royer, 460 U.S. 491, 497; 523, n. 3 (REHNQUIST, J., dissenting).

Cell Phone Searches

Tampa Criminal Defense Attorney / Lawyer continues to follow recent developments in the search of cellular telephones / cell phones. One Florida court has just ruled in a 33 page opinion that pictures in a cell phone obtained from a suspect who had been arrested were inadmissible at trial since they had been seized during a warrantless search.

The court ruled:

“We are equally concerned that giving officers unbridled discretion to rummage through at will the entire contents of one’s cell phone, even where there is no basis for believing evidence of the crime of arrest will be found on the phone, creates a serious and recurring threat to the privacy of countless individuals. Were we free to do so, we would find, given the advancement of technology with regards to cell phones and other similar portable electronic devices, officers may only search cell phones incident to arrest if it is reasonable to believe evidence relevant to the crime of arrest might be found on the phone. Here, there was no evidence the officer had such a reasonable belief.”

“Modern cell phones can contain as much memory as a personal computer and could conceivably contain the entirety of one’s personal photograph collection, home videos, music library, and reading library, as well as calendars, medical information, banking records, instant messaging, text messages, voicemail, call logs, and GPS history. Cell phones are also capable of accessing the internet and are, therefore, capable of accessing information beyond what is stored on the phone’s physical memory. For example, cell phones may also contain web browsing history, emails from work and personal accounts, and applications for accessing Facebook and other social networking sites. Essentially, cell phones can make the entirety of one’s personal life available for perusing by an officer every time someone is arrested for any offense.”

“However, we express great concern in permitting the officer to search appellant’s cell phone here where there was no indication the officer had reason to believe the cell phone contained evidence.”

The complete Cell Phone Search opinion is posted here for Free.

Cell Phone Search | Evidence Suppressed

Criminal Defense Attorney / Lawyer notes a recent Cell Phone Search ruling on a Motion to Suppress Evidence, filed pursuant to Rule 3.190(h), Florida Rules of Criminal Procedure. Search and seizure law can apply to cell phones. Lately cops have been searching the phones and calling them a Search incident to arrest. Sometimes cops claim they need to search a phone for the safety of the officer. One court just ruled that a cell phone seized incident to defendant’s arrest posed no risk to officer safety. The scope of a search has been limited, since a cellular telephone is not a container that could hold weapon. Sometimes police justify a search claiming that evidence will be destroyed. A court just ruled that once a phone was seized, there was no longer risk that defendant could destroy evidence in phone. The court concluded that a warrantless search of contents of cell phone was unlawful and a Motion to Suppress was granted.

Cell Phone Search Questions? Call Me Toll Free (813) 222-2220.

Defense alleged an unlawful search of the Defendant’s cellular telephone including: texts, pictures, the call history, and/or observations made by Officer. Testimony showed cop “found the Defendant’s cell phone while searching his person at the scene, but then later examined the cell phone further at the police station while the Defendant was still being processed. Officer Clark testified that he found text messages regarding the sale of cocaine while he was looking through the Defendant’s phone.”

Cell Phone Court Ruling

Court ruled, “When an officer arrests someone who has a cell phone in their possession, here may very well be reason to suspect that the phone contains valuable information, particularly in drug-related arrests. The call logs and address books could help link a defendant to a particular drug transaction and could provide the identities of other persons involved in the illegal activity; however, these are exactly the types of situations where probable cause could be used to obtain a warrant. The reality is that most information stored on a cell phone will remain there long enough for a warrant to be secured and that numbers “lost” from recent call lists are readily obtainable from the service provider. Cell phones are outside the ambit of the search incident to arrest exception‘s reach because of their capacity for storing vast quantities of intimately personal data. If courts continue to allow the unfettered exploration of this personal data, then courts are permitting the government to execute an unwarranted search of the cell phone user’s life and habits. This intrusion cannot reasonably be justified by the rationales of officer safety and evidence preservation; therefore, a simple seizure of the cell phone must suffice until a warrant can be procured.”

The Court’s Ruling on the Cell Phone Search is Here.

Cell Phone Search Questions? Call Me Toll Free (813) 222-2220.

Gun and Drugs Were Thrown out After an Illegal Pat Down / Search

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.

Fourth Amendment Right to Be Free From Unreasonable Searches and Seizures

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.”

Weapons Found in Car Suppressed

“movements towards the glove box did not justify a search based on officer safety”

Florida Defense Attorney just received news of a Automobile Search and Seizure case where the defendant fled from police. The vehicle came to rest. The cop watched the defendant reaching towards the dashboard on the passenger side. Police ordered the defendant to show his hands and step out of the car.

The suspect was handcuffed the cops found no weapons on him. Other officers took custody of the defendant. The defendant was separated from his car, in handcuffs, under the supervision of backup officers. The traffic stop cop then seized defendant’s car keys, unlocked the glove box, and found a firearm. The Second District Court ruled that the defendant’s furtive movements towards the glove box did not justify a search based on officer safety. The court held that the law enforcement officer (LEO) could not have reasonably believed that he would find evidence of the defendant s fleeing and eluding in the glove box. Under Arizona v. Gant, the firearm must be suppressed. The case is attached and the firearm statute is below.

Automobile Searched? Tell me about it Toll Free (813) 222-2220.

790.23 Felons and delinquents; possession of firearms, ammunition, or electric weapons or devices unlawful.

(1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been:

(a) Convicted of a felony in the courts of this state;

(b) Found, in the courts of this state, to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age;

(c) Convicted of or found to have committed a crime against the United States which is designated as a felony;

(d) Found to have committed a delinquent act in another state, territory, or country that would be a felony if committed by an adult and which was punishable by imprisonment for a term exceeding 1 year and such person is under 24 years of age; or

(e) Found guilty of an offense that is a felony in another state, territory, or country and which was punishable by imprisonment for a term exceeding 1 year.

Source: 35 Fla. L. Weekly D533b (Fla. 2d DCA March 5, 2010) Special Thanks to Rocky Brancato, Associate Attorney Office of the Public Defender 

Court Tossed the Evidence Seized in the Car

“The cop said he saw “furtive movements” near the glove box.”

For this Tampa Criminal Defense Attorney, Search and seizure of a vehicle glove box has been the subject of a recent research project. Vehicles are frequently searched Incident to arrest. One court ruled that Police could not reasonably believe there would be evidence relevant to crime of fleeing and eluding found in a vehicle’s glove compartment. The cop said he saw “furtive movements” near the glove box. The cops claimed officer safety concerns. The court found  at time of the vehicle search, the defendant was handcuffed, not near the car, and in the custody of backup officers. The trial court tossed the evidence seized in the car and the appeals court agreed.

Search and Seizure Questions? Ask me (813) 222-2220 .