If a Florida law enforcement officer does not have a search warrant should you consent to a search of your home or car? Clearwater Criminal Defense Lawyers agree that you almost never have an obligation to consent to a search of your home or vehicle unless the officer has a proper search warrant.
But what happens when officers conduct a search without a search warrant anyway? Upon the filing of a motion to suppress all evidence discovered incident to a warrantless search a Judge will hold a suppression hearing to look at the circumstances of the search. The Judge will look to see if you gave consent to the search and for what are known as exigent circumstances.
| Quixotic Motion to Suppress
When you grant consent to search to a law enforcement officer, your permission to search is sufficient for him to conduct the search as long as it’s within the scope of the permission to search which was given. For example, if you give permission to search your car it doesn’t mean you’ve given permission for a search of your home or your business records.
People mistakenly think counterintuively that somehow if permission is given for an officer to conduct a search that the officer will refrain from conducting a search because he will think that permission would only be given if there was nothing to find.
But officers in Florida are taught to look for evidence of crime, that’s what good officer’s do. So an officer who is given permission to search your home, business records, computer hard drive, cell phone, or vehicle will always conduct a search because he has nothing to lose. Some officers have been known to enhance the likelihood of evidence being found with search and seizure throw bags. If an officer should find any evidence of criminal conduct the evidence will not be suppressed by a judge.
As you can imagine it’s a tempting solution for some law enforcement officers to falsely state that there was consent to a search in the police report and falsely testify at the suppression hearing that consent to search was given when it wasn’t. You’ll want a Clearwater Criminal Defense Attorney to demand discovery, file a motion to suppress and establish for the Judge that you, not the officer, are being truthful at the suppression hearing.
The Florida Supreme Court just decided that when there’s a motion to suppress from the Defense concerning the validity of a traffic stop, the State must provide testimony from the actual officer who observed the stop. This is an important case for Defendants in Tampa Bay and Pinellas as the prosecution often tries to circumvent supplying testimony from the arresting officer to avoid a transcript which could be used to rebut erroneous testimony at trial. If you’ve been unlawfully stopped call a Clearwater Criminal Defense Attorney to look at your case.
The case involved Ms. Bowers who was charged with Possession of Drugs as well as DUI. At a hearing in her case the officer giving testimony had no first hand knowledge of the actual stop nor the reasons for the stop.
The Supreme Court held in Michele v. Bowers that although it’s appropriate for an officer to always use information from another officer’s investigation in solving crimes and other police work; an officer can not testify to the eyewitness testimony that another officer not present at a trial or hearing would have given, because it is hearsay.
Before this decision Florida Courts would allow evidence based on what was known as the Fellow Officer Rule – if one officer knows what the other officer observed thru police reports or conversation – then the evidence was admissible even for at a suppression hearing (a hearing conducted by a Clearwater Defense Lawyer in which the Defense attempts to establish that evidence should be suppressed due to officer error or legal requirements).
Here are the Briefs filed in the case from the State of Florida Attorney General and the Brief from the Defense or listen to the oral arguments actually made before the Florida Supreme Court.
Now Officers will be have to spend more time in Pinellas Court and less time painting.
|Honore’ Daumier, The Painter, 1870
Clearwater Criminal Defense Attorneys are often asked, when can it be established that prosecutors have acted in bad faith? You might think threats from the prosecutors would be sufficient. You could think that making those threats real be the filing of additional charges could be enough, but this America and you’d be wrong. And worse this is Tampa Bay, Florida so you’d be doubly wrong.
Here is an example from a recent federal court case where the court clearly found bad faith on the part of prosecutors where a Defendant is prosecuted more harshly because of non-criminal events that occurred after the original indictment was filed against him.
In this case a Defendant was warned that if he filed a motion to suppress there’d be a ‘seismic shift’ in his prosecution. Meaning that all hell would break loose which it did when the government filed a superseding indictment which contained additional charged counts against the Defendant.
Well that’s what the trial court thought. The appeals court made a vastly different decision noting that the Federal District Court denied due process to the prosecutors in not granting them notice nor an opportunity to explain their actions no matter how corrupt the prosecution.
The Drug Enforcement Administration had conducted an undercover investigation of Shaygan after one of his patients died from a lethal combination of prescription and illegal drugs. After Shaygan’s arrest, the government discovered additional evidence of violations of federal law, and Shaygan moved to suppress statements he had made to federal agents who, Shaygan contended, had violated his right to counsel.In response to that motion, Cronin warned Shaygan’s lead counsel of an impending “seismic shift” in the prosecution of Shaygan. Soon afterward, the government filed a superseding indictment with additional charges and supported those charges at trial with the testimony of several witnesses and documentary evidence.
Near the end of trial, the district court allowed a second cross-examination of two witnesses for the government after it came to light that those witnesses had cooperated in a collateral investigation about potential witness tampering by members of the defense team. The district court instructed the jury that the reopening of cross-examination was necessary to address misconduct by the government. In closing argument, Shaygan’s counsel compared that alleged misconduct to the Salem witch trials.
After the jury acquitted Shaygan of all charges, the district court held an inquiry about sanctions under the Hyde Amendment. The district court found that the prosecutors “acted vexatiously and in bad faith in prosecuting Dr. Shaygan for events occurring after the original indictment was filed.” The district court awarded Shaygan attorney’s fees and costs, publicly reprimanded Cronin and Hoffman, and referred those attorneys to disciplinary authorities. On appeal, the United States, Cronin, and Hoffman contended that the district court abused its discretion and committed fundamental errors. The United States argued that the district court erroneously ruled that the superseding indictment was “brought vexatiously, in bad faith, or so utterly without foundation in law or fact as to be frivolous,” and that the district court erroneously concluded that an award of attorney’s fees and costs under the Hyde Amendment could be supported by discrete incidents of bad faith, such as discovery violations, without regard to the overall litigating position of the United States. Cronin and Hoffman argue that the district court violated their right to due process, under the Fifth Amendment, when it denied them notice and an opportunity to be heard before it entered public reprimands of them. The Eleventh Circuit agreed with these arguments, and held that the district court abused its discretion when it imposed sanctions against the United States for a prosecution that was objectively reasonable, and that the district court violated the constitutional right to due process of the two lead prosecutors, Cronin and Hoffman, when it denied them notice of any charges of misconduct and an opportunity to be heard.
The process of Federal Sentencing even when a Defendant pleads with a waiver of appeal for collateral attack of the prosecutor is deemed unethical by the Florida Bar, but for threats by prosecutors to be carried for the mere filing of an evidentiary motion to suppress goes much further. Even if somehow legal, isn’t it unethical conduct? Leaving your Clearwater Criminal Lawyer with this sad insight about our Federal criminal justice system in Florida: even the threat of a ‘seismic shift’ combined with action on that threat by prosecutors leveling additional charges was not sufficient on it’s face to bring the prosecutors to heal nor to establish Bad Faith prosecution.