Will the Supreme Court’s recent cell phone search decision really protect cell phone users from improper police searches? The good news is that the Supreme Court threw out the red hearing of officer safety which law enforcement often use as an excuse in warrantless searches.
In the vast majority of cases a cell phone can not jeopardize officer safety. Yet cowardly courts would buy into the facetious arguments of prosecutors. Chief Justice Roberts noted the distinction between checking a cell phone to be certain there’s not a dangerous razor blade hidden within as opposed to roaming thru the contents of a phone to randomly find unlawful acts.
|Justice Roberts’ cell phone is safe
Further, Roberts noted that the potential for destroying incriminating evidence by remote wiping of the phone was unlikely and something that the officers could stop by simply taking out the phone battery or by slipping the phone in an aluminum case. For too many years judges have given law enforcement officers the benefit of the doubt in new technology even when logic, if not common sense, was strained.
Although the decision requires a search warrant to search the phone of a defendant for cell phone evidence Robert’s left some leeway in a “now or never” situation and even then a worst case scenario would merely be that the evidence might not be useable to gain a conviction at trial. Roberts further noted that the cell phone of today are much more than phones with the capacity to show much more of a person’s life, frame of mind, political standing and common interests.
In Florida the law has been settled for some time and at least one Tampa Bay, Florida judge had the courage to no longer allow officers to search based on a lie under oath. Last year the Florida Supreme Court made a similar decision to restrict warrantless cell phone searches when it threw out evidence gleaned from a cell phone in a robbery case. It’s good that the United States Supreme Court has now settled the issue of personal privacy rights in favor of citizens as a decision for law enforcement would have reduced the privacy of every American.
The Largo Police Department grudgingly apologized for breaking into a home that officers falsely believed was occupied by vagrants. The officers busted down the front door and confronted the law abiding occupants with weapons to investigate the heinous crime of a possible trespassing charge.
|Damn, forgot the Search Warrant again!
It’s very lucky for everyone involved that on one was shot, because the manner in which the officers gained entry was closer to a home invasion than to what one would expect from qualified police officers. Under Florida’s stand your ground law those within the house would clearly have a right to defend themselves from what they believed to be a home invasion. If there had been a shooting, how would the police have explained their obvious disregard of the law and sheer laziness in not first securing a search warrant on the house?
Also, since anyone in Florida can resist an unlawful arrest in Florida as long as no force or violence is used, there would be incentive on the part of the police officers to find a reason or excuse to be there by looking for any unlawful acts. That’s why properly prepared search warrants actually help the police by solidifying the reason they need to go into a home and delineating before a judge or magistrate the evidence of unlawful misconduct the police possess.
Despite an apology to the men living in the home, the Police Department made it clear that it believed it did not really need a search warrant under the circumstances because of the exigent circumstances exception for search warrants. The fact is that investigation of a possible trespass with no other information nor suspicion of wrong doing nor immediate necessity for officer or citizen safety is legally insufficient. If the the leaders of the Largo Police Department don’t understand criminal law, how can the investigating officers be expected to carry out their obligations under the law?
But the police do know what the law entails, they just don’t want the aggravation that comes with respecting search warrant requirements. The truth is that in Tampa Bay, Florida many police departments have made a mockery of the fourth amendment search warrant requirements by using inappropriate tactics such as secret videos, while other officers have committed crimes without being prosecuted. If the police officers knew they should have obtained a search warrant then they were committing at least a trespass and possibly a burglary.
The Largo Police Department routinely and habitually violates the rights of it’s citizens. Those in a leadership position should be punished or new leaders found who will obey our constitution even if they don’t believe in it.
What should you do if you have reason to believe you’re being investigated for committing a crime? In Tampa Bay, Florida law enforcement officers often have many open files under consideration at any one time. How do officers determine which cases to investigate first? Criminal cases are investigated based on the severity of the crime, the nature of the crime and the time when the alleged crime occurred.
Crimes involving violence such as domestic battery, aggravated battery, aggravated assault or murder are likely to result in an immediate investigation, whereas crimes involving dishonesty such as grand theft, petty theft or fraud are likely to be investigated more leisurely. The nature of the crime and the apparent threat to the well being of the community dictate the speed of most investigations.
Clearly it’s within the very nature of some alleged crimes to attract a law enforcement investigation even as the alleged crime takes place. This is true of any crime that occurs in front of an officer such as, fleeing and eluding, DUI or driving while license suspended or revoked.
Yet no matter what the time frame is for an investigation to be initiated, the same general rules apply as to how to deal with any police investigation of alleged misconduct. Here are five basic rules in dealing with a crime investigation.
- If an officer asks questions about a crime that give the impression you’re being investigated for that crime, then the general rule is to not answer. You’re not going to simply be able to talk your way out of suspicion.
- Further, always tell the investigator that you want to speak to your lawyer before you’ll agree to talk. While waiting for the lawyer you’ll have time to collect your thoughts, to plan what you may want to say in the future when the lawyer arrives and to be certain that whatever you may decide to say is what you mean to say. But before speaking to officers, talk to your lawyer, then make an informed decision as to whether you really want to risk cooperating by obeying police commands or requests.
- Do not agree to any kind of search of your home, office, car or bags unless the investigating officer has a signed search warrant. Often officers will give you the false impression that you may be allowed to go free even if contraband or criminal evidence is found. But it’s important to remember that officers never have an obligation to be honest as to whether an arrest will be made and that most officer’s who fail to make an arrest when evidence is seized may be disciplined. Once consent is given to a search, the investigator will use that consent to search for unlawful conduct so never give police consent to search in Florida.
- Remember that Detectives are looking for clues to an alleged crime not a new best friend. It’s always beneficial to be as friendly, polite, respectful and as nonthreatening as possible, though there’s little to be gained by trying to be charming or well liked. Don’t be seduced into believing a Detective likes you enough to help you.
- It’s well known in the criminal justice system that the greatest risk to officer safety comes not during investigations of murders, robberies or burglaries, but from the simple investigations involving domestic battery cases when good people may be seen at their worst. The one thing you can control during this process is yourself. After the law enforcement officer meets you he’ll later note your demeanor in his written report make certain that your interactions with the officer are consistent with what you want to be written about you in the report.
If you believe that you’re under investigation for any crime, give me a call and I’ll do my best to help you make the best possible decisions for your future so that you can go on living and stop worrying.
If a law enforcement officer deliberately gives false evidence under oath the officer should not only be disciplined within the force, but lose his job. Shouldn’t that officer also face appropriate criminal charges?
|Officer Pinocchio smells Marijuana
Yet in Florida it’s very rare to find prosecutors willing to charge police officers with perjury. The problem often originates in the first incident reports created by officers after arrests are made.
Prosecutors see that officers make many factual errors from the very beginning of each case. After all, no one is perfect. Nor could one reasonably expect an exact rendition of facts.
Yet Clearwater criminal defense attorneys often find that the initial incident reports are replete with factual errors that place those arrested by officers at a disadvantage while helping police make easy arrests. Too often police are willing to break or bend the law based on their mere suspicions of wrongdoing. And officers know that most folks whom they arrest do not have the means to fight the criminal system in a quest for justice.
Police first learn to bend the truth to become effective law enforcement officers. In fact, while I was a prosecutor it was clear that officers were routinely taught that there was no need to be truthful to defendants during investigations. Further, officers are told that if they find evidence of crime they should exploit the discovery by searching for further evidence.
Here in Tampa Bay, Florida officers are taught that if they smell marijuana they can search a vehicle or even someone’s home without a search warrant. Naturally every officer too lazy to get a proper warrant somehow smells marijuana even when it’s not at the crime scene. No wonder the typical officers’ nose is so very long, as for centuries they’ve been bred for smelling efficiency mixed with the wooden bearing of Pinocchio.
I had a client who was charged with trafficking in methamphetamine because the arresting officer searched the vehicle without a warrant after smelling marijuana. But miracle of miracles there was no marijuana in the car at all only a hell of a lot of methamphetamine. Was the Tampa officer lying? Here’s his explanation:
The car was clearly being used for trafficking drugs. The distinct odor of marijuana I smelled came from the trunk area of the vehicle. It’s clear that the trunk area must have been where the marijuana had been stored.
The Defendant obviously had just made a delivery of the marijuana probably only minutes before I made the stop of the vehicle for a bad tag.
With a little prodding he’d have happily divined the quantity in each bag, the grade of marijuana and it’s unique hallucinogenic affects.
In another case which the state attorney’s office no filed and dismissed, officers keen sense of smell helped them gain entry into a home where sure enough after turning the house inside and out they found that marijuana – one lone unlit joint in the bedroom far from the front door. Because the officers never lied under oath about the marijuana they were neither disciplined nor were they charged with perjury. The officers should also be disciplined.
It’s not enough when cases that originate based on a lie are no filed and dismissed. What can be done to correct poor police conduct? What is the best remedy that would require reliable, honest police investigations?
Here’s a solution that would bring justice to the criminal system. Every officer who writes a report must not only sign the report, but sign a sworn affidavit that everything in the report is accurate, honest and fair to the best of his knowledge.
Law enforcement officers who are found to have violated the affidavit would be disciplined, fired and then charged with perjury. The threat of perjury charges based not only on sworn testimony under oath during jury trials, but also on investigations themselves as defined in police reports would go a long way toward solving the problem of dishonest law enforcement officers. The role of officers would be redefined as having the foremost duty of always abiding by the law.
Your favorite Clearwater criminal defense attorney is often asked whether one must obey on officer’s commands. In fact the first few minutes of any initial encounter you have with an officer may be the most important factor in determining whether you’re arrested. If you are not going to co-operate nor obey an officer’s commands, then it’s especially important that you remain calm, reasonable and courteous.
Here is a summary of how to deal with an officer’s requests or commands for information and the various factors that may come into play in determining how you should handle the situation.
|Florida Highway Patrol
The first consideration is how and where the confrontation with the police originates.
An officer knocking at your home door who has no reasonable suspicion that a crime has been committed has much less leeway to compel you to act than one who has reason to believe you are armed, dangerous and just left the scene of a murder.
While at home every American has a high expectation to privacy rights. This means if an officer attempts to compel a home owner to allow a search for evidence, he must have a search warrant or an arrest warrant or have an appropriate legal exception to not have the proper warrant.
One need never give consent to search if the officer does not have a search warrant. Yet in Florida courts may allow officers who claim to have suspicion that a crime has or is being committed by for example, smelling marijuana at the door of a home, to search without a warrant and to make arrests of the occupants without an arrest warrant.
If an officer initiates an arrest without an arrest warrant, must one obey the officer and allow the arrest? In Florida one can resist an illegal arrest only if no force or violence is used. In practice what this means is that one may tell the officer why one should not be arrested, but if force is used the officer may file a felony charge of resisting arrest with violence or battery on a law enforcement officer.
Many citizen and officer confrontations occur while a citizen is away from home. For example, when an officer stops a driver for an infraction such as speeding or improper lane change, then the officer has a right to demand a drivers license and proof of insurance. If there’s an indication of drugs, drinking, impairment or DUI, then the officer will investigate, but the driver need not obey the officer’s commands to take field sobriety test, HGN tests nor to give a breath sample.
If there was a car accident or a suspected DUI manslaughter then the officer has the further right under Florida law to conduct an accident investigation. Every Florida driver under the law has an obligation to provide sufficient information for the completion of that investigation. At the end of the accident investigation then the officer will conduct a criminal investigation, if necessary, at which time the driver need not co-operate.
If you are confronting an officer’s request or command, remember that your primary goal is not to be arrested. Treat the officer how you’d want to be treated. By being calm, courteous and reasonable your expectation will be that a good officer will be courteous, reasonable and fair to you in return; if he’s not immediately ask for a Tampa Bay criminal lawyer who will ensure that your rights are protected.
Within his cell phone was a crucial piece of evidence against a robbery suspect – a photo of the very gun with stacks of the actual money from the bank robbery. The Trial Judge allowed the photo into evidence, the Defendant was convicted and sentenced to fifty years. At issue on appeal was this question: is a search warrant required for cell phone evidence.
The Florida Supreme Court just handed down an important decision on privacy rights that requires law enforcement officers to obtain a timely search warrant for cell phone evidence such as photographs. The case involved an armed robbery for which the Defendant was convicted and sentenced to fifty years.
The Court determined that it was permissible for Florida officers to obtain the phone itself as evidence, but that if officers want any material from the phone, then good cause must be shown. Further, the Court noted that modern cell phones contain a wealth of information which must be kept private to protect citizen’s rights. Here are excerpts from the case Smallwood v. Florida:
In our view, allowing law enforcement to search an arrestee’s cell phone without a warrant is akin to providing law enforcement with a key to assess the home of the arrestee…
We refuse to authorize government intrusion into the most private and personal details of an arrestee’s life without a search warrant simply because the cellular phone device which stores that information is small enough to be carried on one’s person.
The Court’s decision is correct in noting that allowing police access to cell phone information just because the cell phone is easily carried is absurd and that the wealth of information found there should be protected. Clearly law enforcement will still have the ability to gain access to cell phone records and to obtain search warrants for any incriminating information on any cell phone once a Judge is shown why officers believe incriminating evidence exists there.
Without this decision officers could check any cell phone incident to any crime purposefully looking for evidence of any other crime. For example, in a theft case officers would be free to happily look for pictures of drugs or other illegal activity.
Already our privacy rights are under siege. Federal Courts have found that emails over 180 days old do not require a search warrant because they are deemed abandoned. And Tampa Bay, Florida officers routinely invade homes without search warrants simply by stating that they smell marijuana.
Clearwater criminal defense lawyers hope other pending privacy cases involving cell phone evidence before other courts such as the United States Supreme Court will benefit from the analysis of this case by the Florida Supreme Court which properly balanced privacy rights with the need of law enforcement agents to gather evidence of crime.
With spring breakers in town it might come as no surprise that a Clearwater criminal defense lawyer was recently asked about the penalties for possession of a small amount of marijuana in Florida. Drug laws in Florida are surprisingly harsher than in many other states, which unfortunately can ruin much more than just a Tampa Bay, Florida vacation for those who come for sunshine, adventure and fun.
|Marijuana or Absinthe?
In Florida if an officer pulls over a car for a traffic infraction such as speeding, the officer must have permission to search the car unless he has a search warrant. But if nosey officers smell marijuana, then they are allowed to search a vehicle or even your home for drugs. Which doesn’t quite explain how officers smelled a strong odor of marijuana in one of my pending cases, but somehow in searching the car found no pot, but pills and methamphetamine.
The explanation the officers used in the police report was that surely vast amounts of marijuana must have been in the car recently. Officers who lie under oath about smelling marijuana should be fired from Tampa Bay police departments then investigated for perjury.
Here are details of punishment for marijuana possession in Florida:
Possession of 20 grams or less is a misdemeanor punishable by a maximum sentence of a year imprisonment with maximum fine of $1,000.
Possession of more than 20 grams is a felony punishable with a maximum sentence of 5 years imprisonment and a maximum fine of $5,000.
On top of this a first time marijuana possession in Florida also leads to a two year driver’s license revocation even if the incident did not involve use of a vehicle, which is oddly more than the Florida punishment for a first time DUI of a one year Driver’s License suspension with the likelihood of be given a hardship license.
Florida has very harsh penalties for possession or sale of enough marijuana to trigger trafficking in marijuana with minimum mandatory sentences as can viewed in Florida’s Drug Statutes.
If you or someone you care about has been arrested for sale or possession of drugs such as marijuana in Tampa Bay, Florida you need an effective Clearwater drug defense attorney who will find the best solutions for you.
Your favorite Clearwater Criminal Defense Lawyer is often asked about the grim consequences of a nosey law enforcement officer who claims he smells marijuana as he stands at the door of your home. Can the officer conduct a search of your home without first obtaining a search warrant? And if drugs are found should the Court grant a Motion to Suppress?
| Van Gogh, Pot Pipe, 1887
First, it’s important to note that at least one recent case, Kentucky v. King, from the United States Supreme Court makes a mockery of the fourth amendment protection of requiring a Search Warrant with an affidavit based on probable cause that describes with precision the place to be searched as well as what is expected to be found at that place and why it’s expected to be found there.
In the case smell of marijuana combined with an officer’s belief based on noises heard at the home that evidence was likely being destroyed was enough to trigger the exigent circumstances exception.
Justice Ginsburg’s dissent noted:
“How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and …forcibly enter?” Because the amendment’s “core requirement” is clear – officers must have probable cause with a search warrant before they break into a home.
Officers have been shown to haven many incentives to lie just to make an arrest. Unfortunately the Pinellas County Sheriff’s Department in Tampa Bay, Florida has recently been found to have lied even when trying to obtain information for search warrants and lied to gain entry into homes, so it’s even that much easier just to lie about smelling marijuana and hearing noises consistent with destruction of evidence to enter a home.
A recent Florida Case in the 2nd DCA, State vs. Roman, overturned a trial court which granted a Motion to Suppress evidence, but in that case that case there was much more evidence consistent with marijuana than just smell.
A pending case, Florida vs, Jardines, now before the U.S. Supreme Court was appealed from a Florida Supreme Court case dealing with a drug dog alert based on a whiff of marijuana. The Florida Supreme Court in that case found that Officer’s acting on the marijuana smell was a substantial government intrusion of the sanctity of a Florida home.
Clearly, no law enforcement agency should be able to search a home based only on the smell of marijuana.
So what do police do? They gather more evidence. Here’s an excerpt from an interesting source, Police Chief Magazine, advising Florida officers to focus on training and experience in drug detection in an article titled The Nose Knows:
The ability of an officer to explain and justify the accuracy of his perceptions is important when he or she relies on those perceptions to formulate probable cause. For instance, a Florida court held that a police officer had probable cause to search a vehicle after smelling burnt marijuana, in part because he had 20 years of experience and had smelled marijuana hundreds of times.
One wonders if that officer’s experience and training was advanced by the smelling marijuana in his own home? And in many of these cases there is no burned marijuana smell at all. What about an officer’s actual ability to smell unburned marijuana as in many of the marijuana grow house cases?
Marking his path to legal history, Aldo, Florida’s favorite crusading drug dog, is sniffing for glory at the United States Supreme Court. The Court is reviewing a recent Florida Supreme Court decision which threatened Aldo’s career by finding that drug dog alerts are not a reliable indicator that there are drugs in a vehicle, because Aldo’s handler in testimony failed to show that Aldo’s drug dog alerts were reliable and the alerts are often false.
|Aldo, Weans Himself from Drugs
As the dignified members of the United States Supreme Court deliberate upon Aldo’s fate – one hopes not based on that little mistake made on the Court’s best rug in Chambers – questions arise as to whether recent studies showing the unreliability of drug dog alerts should be brought to heel.
Especially problematic to the fifty law professors specializing in fourth amendment cases who signed a brief against Aldo are false alerts caused when some unsuspecting citizens happen to have chemicals in their vehicles which could confuse poor Aldo. For example, drug dogs habitually give false alerts allowing for warrantless searches by mistaking the odor of aspirin or vinegar for heroin.
Despite high rates of false alerts some states have announced plans to begin vast sweeps thru American neighborhoods and housing complexes with drug sniffing drugs, just as Florida’s Supreme Court warned that if law enforcement wasn’t stopped, they would have drug dogs sniffing our front doors.
I haven’t written a brief on this as those fifty profs did, but should the U.S. Supreme Court ask advice from a Clearwater Criminal Defense Lawyer, my solution is simple, just outlaw aspirin, vinegar and American privacy rights and keep our courageous Florida dogs working.
Even savvy street smart Detectives were surprised when serving the warrant in search of drugs at a Tampa Bay hotel room.
|Norman Rockwell, Tax Time, 1945
Instead of the usual things your favorite Clearwater Criminal Defense Lawyer might expect like mountains of cocaine, methamphetamine and heroin enveloped in clouds of smoke, the Detectives found fifteen people sitting around tables furiously filling out fake tax refund forms.
Rather than tell the officers the complete truth after Miranda was read, “We’re playing a new game called Tax Crosswords…,” apparently the Taxters led the Detectives on a two year odyssey.
Tampa has long been the the epicenter of identity theft and tax refund fraud with Federal and Florida law enforcement doing their best to work as a team despite the stringent secrecy requirements for Federal tax information of citizens making investigations and prosecutions difficult. As reported in this excerpt by Bay News 9 three leaders of the alleged aggravated identity theft and tax fraud conspiracy may have taken as much as half a billion dollars, but even with that much money they never lost sight of their past acquaintances on Facebook nor forgot to apply for their food stamps and Medicaid:which in turn led to multiple grand jury indictments for which have been unsealed.
“She was known as the First Lady,” Maj. Ken Morman said. “That’s what she posted on Facebook.”
Detectives said the three were the kingpins of a ring of people that stole at least a half-billion dollars by filing fake tax returns.
Neighbors said they suspect something wasn’t right at the house.
“We suspected something wasn’t right because of the cameras and nice cars,” said neighbor Dora Hubley.
Twelve other people face charges as well, including one who police said had $23,000 in cash plus benefits cards for food stamps and Medicaid.
Police said it took two years to bring this tax fraud case to a close because of all the bureaucratic red tape. They announced Wednesday that they were forming an investigative alliance with the Internal Revenue Service and the Secret Service to speed these types of cases up in the future.
They better hope a judge doesn’t sentence them to a lifetime of doing taxes, something most of us avoid. If your Conspiracy to Commit Tax Fraud has endangered not only your future freedom but your ability to maintain government subsidies, call Clearwater Criminal Attorney but don’t expect any refunds and please bring plenty of cash.