Search and Seizure Law

Link to partial transcript of police officer on how they AVOID the 4th Amendment by using a Stingray device

UPDATE:  With the recently amended Florida Constitution, approved by nearly 3/4 of Florida voters, please consult an attorney right away, as there are now new defenses to pending Marijuana charges that could positively affect your case.  The police legality to search and seize evidence in your case should be reviewed.  Our office is happy to do a free consultation to discuss these issues.

Search And Seizure Law: The Fourth Amendment

In this day and age of the internet, Facebook, cell phones with cameras, and more, it seems that our privacy protections are being constantly eroded. Not only have Florida appellate decisions but also Federal and US Supreme Court decisions have made it difficult for ordinary citizens to enjoy a reasonable expectation of privacy. I am constantly posting videos on my Facebook page from people who not only know how to exercise their rights but do so at the risk of their own arrest, despite the illegality of an officer making an arrest in many cases.I have been fighting for clients similar to these and others not only to protect my clients from the abuses of government power, but also to help people avoid the stigma of an arrest that should have never proceeded in the first place.

Recent examples of Fourth Amendment police abuse come from both the 1st and 5th District Courts of Appeal in Florida. See State v. Glasco and Smallwood v. State. They ruled that the police have the right to search your cell phone records incident to an arrest. Fortunately, the U.S. Supreme Court, in Riley v. California, 134 S.Ct. 2473 (2014) weighed in on this issue and did clarify that the police DO need a warrant to search your phone. Unfortunately, the police CAN use your phone's GPS data against you that they obtain from your cell phone carrier without a warrant, as the 11th Federal Circuit (which covers Florida, Alabama, and Georgia) said in the case of U.S. v. Quartavious Davis decided in May, 2015. That said, there are precautions you should always take to protect yourself from police abuse. With today’s smartphones, your supposedly “private” conversations via text, Facebook, SMS, MMS, emails, and presumably even newer technology that doesn’t exist yet, could be available but only if you consent (which I advise you NEVER should do). In light of this invasion of our privacy, I have recommended to my clients to always use a locking keyboard or install apps that erase information from your phone, which are also useful if it is stolen. Federal courts have interpreted these actions by you to mean that you would like to keep that private and thus require a warrant. Since you can’t be required to incriminate yourself, do not give up any codes or blocks to your cell phones. Even if you own a newer car, it has a "black box" which some had interpreted as being available to obtain by authorities without a warrant. However, a temporary victory was scored in the Florida appeals court in South Florida. In Worsham v. State, the Court ruled that the police need a warrant to get to that information contained in a car's black box, which record speed, braking, steering, among other things. There is a reasonable expectation of privacy, and thus covered by the Fourth Amendment, to this personal information in your vehicle. In other words, the police MUST get a warrant to retrieve this information even from an impounded vehicle. So while the 4th Amendment is being chipped away, with knowledge, you can avoid some of that invasion.

Since drug law is so intertwined with 4th Amendment law, it is important to know how Florida is different from 48 of the 50 states on how it recently ruled the State’s drug laws are constitutional. Despite Florida’s statute not requiring that one have knowledge of the presence or nature of an illegal drug, the Florida Supreme Court has now ruled that it is OK to convict somebody even though they didn’t know about the drugs. While the law does allow for an affirmative defense, it is against our American way of life to have a defendant be required to Disprove a crime he is accused of. That means, if Grandma goes to pick up a package for her grandson and it contains a trafficking amount of illegal drugs, for example, then Grandma can face up to life in prison despite not knowing of their existence. Even being at a friend’s house where they have drugs stashed near you, could cause you to be charged, despite the fact you were unaware of its presence. In fact, police conduct has gotten so bad in some cases, that a Court had to admonish a Pinellas County police agency for seizing kids playing in the yard as being considered suspicious behavior.  Clearly, all of this is too far, but time will tell if the US Supreme Court gets involved. Having an attorney that knows the law and can apply the law to each individual case in order to achieve the best outcome, is important for any sort of drug possession case.

Drug possession in the 21st century is less about harder drugs like heroin and cocaine but the more recent focus has been on pills. While certainly abuse of prescribed drugs is a problem, it shouldn’t mean that police can invade the doctor-patient privilege. Yet, the police power to get pharmaceutical records has done just that. However, in the zeal to prosecute those charged with controlled substance offenses, innocent people often get caught up in these prosecutions against “pill mills” and “doctor shopping.” To make matters worse, in Federal court, oxycodone pills are punished 6.7 times more harshly than heroin, and 13 times more harshly than morphine. My office has been able to get many clients alternatives to prosecution such as drug court (which is not for everybody) and even dismissals due to police misconduct. In Pinellas county alone, many marijuana manufacturing cases, a.k.a. “grow house” cases, have been thrown out due to the way officers have investigated these cases and despite abundant evidence, cases had to be thrown out because the police did not respect the Fourth Amendment.

Do not let the police trample your Constitutional rights. Remember to never consent to any search, no matter how intimidating the police can be. Do not give any statements to the police. Most importantly, ask for an attorney whenever it appears that the police are abusing their powers. Feel free to contact my office in Tampa or St. Petersburg to discuss the best way to defend a case involving possession and your rights under the 4th Amendment to the U.S. Constitution.