Every day, potential clients come into my office claiming that their arrests should be thrown out because they were illegally searched. The scenario is almost always the same: the client was walking down the street or driving in his car. He was told to stop for some reason by an officer, patted down, and illegal substances were found in his pocket. The client was then arrested for the substances, which the officer wouldn't have ever known about had he not stopped and frisked the client. Clients are often surprised to find that even though the officer didn't have a warrant, most of the time judges hold those searches to be perfectly legal. Why? Enter the Supreme Court in Terry v. Ohio.
In 1968, the Supreme Court held in Terry v. Ohio that because police officers face a lot of dangerous situations, they are allowed to "stop and frisk" anyone they are reasonably suspicious is committing, about to commit, or has just committed a crime. While it makes sense to give police officers some protection on the streets from purportedly dangerous criminals with weapons, the standard to stop and frisk is extremely low: an officer needs only "more than a mere hunch" that a crime is/has/was occurring.
Police officers can stop and frisk you for almost any reason, and they do - especially in high crime areas and minority communities. When an officer is writing his report, he'll say that he stopped you because you were acting strangely, you were in a high-crime area, it was late at night, you were loitering, you were hiding behind something, or any other number of behaviors deemed "suspicious." He'll say that he frisked you because he was concerned for his own safety, he didn't have backup, you were evasive, you were bigger than him, or any combination necessary to make the frisk (and any evidence found as a result) legal under the eyes of the law. Anything found during the frisk that is illegal gives the officer probable cause to make an arrest. This can turn a walk to your friend's house into a night in a jail and an extensive legal battle to clear your name.
Police encounters can be scary and confusing. Many people do what they are told by an officer, even when they don't have to, simply because they do not know their rights or are too nervous to remember them. Unless you are being detained, either by a show of force or a show of authority, you are free to walk away from a police encounter. The best way to determine if you are free to go is to ask! "Am I being detained or am I free to go?" The answer will be clear. If you aren't being detained, carry on with your day. No need to stick around, unless you really have a desire to chit chat with police officers on duty.
If, however, the officer tells you you are being detained, or he has the blue lights on in his patrol car, or he throws you up against a wall or the ground or his patrol car, it's a safe bet that you are being detained. The detention could very well be illegal, but if you find yourself in such a sitation: don't resist. Resisting can only make the situation worse for you. Let your lawyer fight it out later on in court.
When you are being detained, the officer can legally pat you down for what he believes in his "training and experience" to be concealed weapons or contraband. Some people think that they will be making things easier on themselves if they announce their possession of illegal substances right away. Doing the officer's job for him isn't making things easier on you - it's making it easier for the officer to arrest you and easier for the State's Atttorney to convict you. Anything you say can and will be used against you. Telling the officer you have weed in your pocket is a confession and voluntary confessions make defending you a whole lot more difficult. So, just remain silent if you are being stopped and frisked.
[You should also know that you don't have to pull out your pockets for them - that's their job. Emptying your pockets for a police officer is the same as consenting to a search. Don't do it; you have the right to refuse searches.]
Officers know what they need to say for a stop and frisk to be found legal. But remember, just because they write the buzz-words in their reports doesn't mean that your case is lost. It is up to your lawyer to challenge illegal searches. While Stop and Frisk laws (also known as Terry Stops) give law enforcement broad authority on the streets, knowing your rights and utilizing them can help your attorney use the law to your advantage to fight back in court.
Discussions and Summaries of updates to Florida Law from the web pages of Criminal Defense Attorney, Roger P. Foley. www.lawyerfoley.com
Monday, April 25, 2011
Thursday, April 21, 2011
Law Updates for April 15, 2011
Rogers, 36 FLW 725, 4th DCA, Protective sweep - Officers responded to a neighbor's 911 call reporting men and women arguing, throwing things, and being violent, entered the residence without a warrant when they heard the male voice cursing and ordering someone not opening the door. Trial court erred in denying the Motion to Suppress cocaine and drug paraphernalia seized from the locked bedroom within the residence. The search of the premises were impermissibly broad
Ferguson, 36 FLW 727, 4th DCA, Third Party consent - Court properly found that def's girlfriend, a co-occupant of the apt, validly consented to the ofcs entry into the apt where the girlfriend possessed a key to the premises, made sworn statement to the ofcs she lived with the def of the apt, kept substantial amount of clothes in the residence and was allowed to be alone in the apt and was so on the night of the incident. Fact that the girlfriend was not on the lease is not dispositive of her claim of actual authority given the fact that the def's name was not on the lease. No error in denying motion to suppress of gun found in plain view in the bedroom.
Washington, 36 FLW 733, 4th DCA, Good case - Trial court was mistaken in believing it did not have discretion to reinstate probation without grounds for a downward departure, where the original sentence was a downward departure. Remand for re-sentencing so the court may consider def's request to reinstate probation, court can reinstate under 948.06 without it being considered a downward departure, Harrison, 589 So. 2d 317, 318(5th DCA 1991)
Jones, 36 FLW 741, 5th DCA, Continuance - Abuse of discretion to deny motion for continuance filed by newly appointed counsel where counsel clearly had insufficient time and resources for trial. Although def failed to waive speedy trial in this case, speedy trial was not an issue. Good case for this issue where judge forced the new lawyer into trial quickly.
The Law Offices of Roger P. Foley,P.A.
Ferguson, 36 FLW 727, 4th DCA, Third Party consent - Court properly found that def's girlfriend, a co-occupant of the apt, validly consented to the ofcs entry into the apt where the girlfriend possessed a key to the premises, made sworn statement to the ofcs she lived with the def of the apt, kept substantial amount of clothes in the residence and was allowed to be alone in the apt and was so on the night of the incident. Fact that the girlfriend was not on the lease is not dispositive of her claim of actual authority given the fact that the def's name was not on the lease. No error in denying motion to suppress of gun found in plain view in the bedroom.
Washington, 36 FLW 733, 4th DCA, Good case - Trial court was mistaken in believing it did not have discretion to reinstate probation without grounds for a downward departure, where the original sentence was a downward departure. Remand for re-sentencing so the court may consider def's request to reinstate probation, court can reinstate under 948.06 without it being considered a downward departure, Harrison, 589 So. 2d 317, 318(5th DCA 1991)
Jones, 36 FLW 741, 5th DCA, Continuance - Abuse of discretion to deny motion for continuance filed by newly appointed counsel where counsel clearly had insufficient time and resources for trial. Although def failed to waive speedy trial in this case, speedy trial was not an issue. Good case for this issue where judge forced the new lawyer into trial quickly.
The Law Offices of Roger P. Foley,P.A.
Wednesday, April 13, 2011
Law Updates for April 8, 2011
Roussonicolas, 36 FLW 644, 4th DCA. Trial court reversibly erred in ruling that the transcript of sworn testimony exonerating the def given by co-def at def's bond hearing was inadmissible. Co-def was unavailable to testify at trial, invoked 5th A. The State had the opportunity to cross co-def at the bond hearing and, given exculpatory nature of the testimony, the State had similar motive at bond and at trial to discredit the co-def's testimony and show it was not worthy of belief.
Trapp, 36 FLW 652, 4th DCA. Error to allow the State to go into the specifics of def's prior perjury conviction when he admitted the conviction. Def did not open the door when he said he told the victim that if she lied she would be charged with perjury. State argued in closing as reason to reject def's version and accept victim's version and case was based on conflict in testimony of both. Plus Allen charge needed as jury was out a long time deliberating.
Robinson, 36 FLW 655, 4th DCA. Error to exclude defense witness on the ground that the defense failed to give the State notice of intent to claim an alibi, where witness was not presenting an alibi as contemplated by the rule, but rather a general denial of criminality, and testimony that the brother would testify that defendant was not present at the crime scene. Error to prohibit defendant from testifying on his own behalf that he was not at his parents house when police allegedly saw him exit parents' residence, and put in a garbage can what was allegedly a Ziploc bag containing cannabis. Defendant may testify to his own activities without filing notice of alibi if he is the sole alibi witness. Error compounded by prosecutor when she said he took the stand and "did not say anything." New trial.
Mack, 36 FLW 682, 1st DCA, Comment on def's right to remain silent. Trial court erred in denying motion for mistrial where the investigator testified that at the time of his arrest, the def made no statements and said he would rather talk to his attorney and did not want to talk anymore.
The Law Offices of Roger P. Foley,P.A.
Trapp, 36 FLW 652, 4th DCA. Error to allow the State to go into the specifics of def's prior perjury conviction when he admitted the conviction. Def did not open the door when he said he told the victim that if she lied she would be charged with perjury. State argued in closing as reason to reject def's version and accept victim's version and case was based on conflict in testimony of both. Plus Allen charge needed as jury was out a long time deliberating.
Robinson, 36 FLW 655, 4th DCA. Error to exclude defense witness on the ground that the defense failed to give the State notice of intent to claim an alibi, where witness was not presenting an alibi as contemplated by the rule, but rather a general denial of criminality, and testimony that the brother would testify that defendant was not present at the crime scene. Error to prohibit defendant from testifying on his own behalf that he was not at his parents house when police allegedly saw him exit parents' residence, and put in a garbage can what was allegedly a Ziploc bag containing cannabis. Defendant may testify to his own activities without filing notice of alibi if he is the sole alibi witness. Error compounded by prosecutor when she said he took the stand and "did not say anything." New trial.
Mack, 36 FLW 682, 1st DCA, Comment on def's right to remain silent. Trial court erred in denying motion for mistrial where the investigator testified that at the time of his arrest, the def made no statements and said he would rather talk to his attorney and did not want to talk anymore.
The Law Offices of Roger P. Foley,P.A.
Wednesday, April 6, 2011
Law Updates for April 1, 2011
R.H. 36 FLW 604, 4th DCA, Juvenile could not be adjudicated delinquent for possession of weapon on school property based on his possession of common pocketknife, blade 3 1/4 inches.
Coleman, 36 FLW 618, 1st DCA, Comment on right to remain silent - Detective's testimony that the defendant "abruptly ended the interview" when detective told her he suspected certain thefts involved a single employee of the victim who had opportunity and ability to gain access to two different stores at which the thefts occurred and when the detective began "to put those pieces together." New trial - the comment was not harmless.
Miles, 36 FLW 620, 1st DCA, Statement of def was unequivocal right to remain silent when he told the police, "actually I do not know nothing about this, so I'm not fixing to say nothing about this," made at outset pre-Miranda and detectives were required to terminate interrogation at that point. Error not harmless. see Cuervo, 967 So. 2d 155(Fla. 2007)
J.L., 36 FLW 626, 5th DCA, Burglary, Curtilage - Testimony that there was a fence in the back of the dwelling, and a fence between the dwelling a and neighboring house, was insufficient to prove that the juvenile took property from the curtilage of the residence when he took property which was leaning against the side of the dwelling.
The Law Offices of Roger P. Foley,P.A.
Coleman, 36 FLW 618, 1st DCA, Comment on right to remain silent - Detective's testimony that the defendant "abruptly ended the interview" when detective told her he suspected certain thefts involved a single employee of the victim who had opportunity and ability to gain access to two different stores at which the thefts occurred and when the detective began "to put those pieces together." New trial - the comment was not harmless.
Miles, 36 FLW 620, 1st DCA, Statement of def was unequivocal right to remain silent when he told the police, "actually I do not know nothing about this, so I'm not fixing to say nothing about this," made at outset pre-Miranda and detectives were required to terminate interrogation at that point. Error not harmless. see Cuervo, 967 So. 2d 155(Fla. 2007)
J.L., 36 FLW 626, 5th DCA, Burglary, Curtilage - Testimony that there was a fence in the back of the dwelling, and a fence between the dwelling a and neighboring house, was insufficient to prove that the juvenile took property from the curtilage of the residence when he took property which was leaning against the side of the dwelling.
The Law Offices of Roger P. Foley,P.A.
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