Search and Seizure Cases

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STATE, vs. HERRON, 36 Fla. L. Weekly D1731b (Fla. 3d DCA, Aug 10, 2011): State Appeal, Affirmed – Upon a lawful traffic stop, a police officer may order the driver out of his vehicle.  However, such a stop does not, in and of itself, give rise to a valid reason for a weapons pat-down.  Such a pat-down is authorized only where the officer has a reasonable suspicion to believe the suspect is armed with a dangerous weapon.  The Officer’s hunch that “there was something going on,” before the pat-down and the defendant’s nervousness, were insufficient to create the requisite reasonable suspicion that Herron was armed with a dangerous weapon.

STATE, vs. MARTINEZ, 36 Fla. L. Weekly D1918b (Fla. 3d DCA, Aug 31, 2011): State Appeal, Reversed – A vehicle found on the premises is considered included within the scope of a warrant authorizing a search of that premises if the objects of the search might be located in a vehicle. The scope of a lawful search of a fixed premises pursuant to a warrant extends to the entire area in which the object of the search may be found. This includes the authority to search through any containers that would reasonably contain the items specified in the warrant.

STATE, v. HOOD, 36 Fla. L. Weekly D1943a (Fla. 2d DCA, Sep 2, 2011): State Appeal, Reversed – It is axiomatic that evidence resulting from an illegal search cannot be the basis of probable cause supporting a subsequent search warrant. Once it has been established that the police performed an unlawful search, the court must determine whether any independent and lawfully obtained evidence establishes a substantial basis for concluding that probable cause existed to support the issuance of a search warrant. The inclusion of illegally obtained evidence in a supporting affidavit does not automatically invalidate the resulting search warrant. The court must excise the invalid allegations from the affidavit and determine whether sufficient valid allegations remain to support a finding of probable cause. If so, the search warrant is still valid. To establish probable cause, the affidavit must set forth two elements: (1) the commission element — that a particular person has committed a crime — and (2) the nexus element — that evidence relevant to the probable criminality is likely to be located at the place searched. The sufficiency of the affidavit must be determined based on the totality of the circumstances.  One additional factor in determining whether a supporting affidavit is sufficient to establish probable cause is the veracity of the informant. A victim of a crime is presumed to be a trustworthy informant.

TRACEY, v. STATE, 36 Fla. L. Weekly D1961a (Fla. 4th DCA, Sep 7, 2011): Defense Appeal, Affirmed – The government’s tracking of an individual’s location on public roads does not involve a Fourth Amendment violation. The Supreme Court confronted the government’s warrantless installation of a beeper in a can of chloroform that allowed government agents to follow an automobile on public streets and highways. The monitoring of beeper signals did not invade any legitimate expectation of privacy, so that there was neither a search nor a seizure within the contemplation of the Fourth Amendment. The Court found it significant that the monitoring of the beeper revealed no information that could not have been obtained through visual surveillance.

Historical cell site information does not implicate Fourth Amendment protections. Under the current state of the law a person’s location on a public road is not subject to Fourth Amendment protection. Law enforcement can obtain historical cell site location information, by complying with 18 U.S.C. § 2703(c), and its state counterpart, section 934.23, Florida Statutes. To obtain an order for historical cell site location information, law enforcement is required to offer specific and acticulable facts showing that there are reasonable grounds to believe the records of other information sought are relevant and material to an ongoing criminal investigation. There is a disagreement among courts over the standard to be applied when the government requests access to prospective or real time cell site information. The criminal penalties of section 934.21 and the civil remedy provided in section 934.27 are the only remedies authorized for a violation of section 934.23. Application of the exclusionary rule is not an option authorized by the statute.

JOE, v. STATE, 36 Fla. L. Weekly D2041b (Fla. 5th DCA, Sep 16, 2011): Defense Appeal, Affirmed – The issue raised by the Defendant is whether the trial court erred in denying his motion to suppress evidence seized as a result of a search based on a dog sniff alert. The information that must be presented by the State to justify the admission of the fruits of a seizure based on a dog sniff alert was set forth in Harris v. State, 36 Fla. L. Weekly S163 (Fla. April 21, 2011). In the present case the dog’s handler gave extensive testimony about his and the dog’s training, testing and certification. In addition, he testified regarding the dog’s history and search record, including ample information concerning both accurate alerts and false alerts. While the training and field records were not specifically introduced into evidence, they had been provided to the defense, and defense counsel used them frequently to cross examine the handler. While it is made clear by Harris that the better practice would be to admit the records into evidence, we think any such failure to do so here was, at worst, harmless error.

Most citations to case authority have been omitted.  

Eric J Dirga, PA – Orlando Criminal Defense

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