SEARCH AND SEIZURE
State v. Kraft, 4D19-1499 (Fla. 4th DCA 2020) Anorder permitting video surveillance shall not be issued unless: (1) there has been a showing that probable cause exists that a particular person is committing, has committed, or is about to commit a crime; (2) the order particularly describes the place to be searched and the things to be seized; (3) the order is sufficiently precise so as to minimize the recording of activities not related to the crimes under investigation; (4) the judge issuing the order finds that normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or appear to be too dangerous; and (5) the order does not allow the period of interception to be longer than necessary to achieve the objective of the authorization, or in any event no longer than thirty days.
Bent v. State, 2D19-1920 (Fla 2nd DCA 2020) Defendant who parked his car with its driver’s-side tires resting along the fog line at the edge of a two-lane road was unlawfully stopped. “[N]o one in this case—not the deputy, the prosecutor, the circuit court, or the State in this appeal—has ever identified a provision of law that forbids parking a vehicle in the manner that the deputy found objectionable.”
N.S. v. State, 4D16-0514 (Fla. 4th DCA May 24, 2017) Officer responds to call of a suspicious vehicle, but hears noises in a nearby park. The officer lacks reasonable suspicion to order the child to stop and conduct a pat down search.
G.M. v. State, 172 So.3d 963 (Fla. 4th DCA 2015) Officer’s perception that bulge in juvenile’s pocket contained contraband did not come as a result of officer’s tactile perception, but rather from an educated hunch based on the plain feel of the object, and thus removal and seizure of baggy containing marijuana was improper under the plain feel doctrine.
Robinson v. State, 164 So.3d 742 (Fla. 2nd DCA 2015) Defendant had reasonable expectation of privacy in his real property, such that police officers were required to obtain warrant or consent for search of property, where property was a semi-rural homestead, surrounded by a chain-link fence, having a closed gate with a “no trespassing – violators will be prosecuted” sign and a “beware of dog” sign, and property had a mail box accessible from outside the fence.
McBride v. State, 158 So.3d 608 (Fla. 5th DCA 2013) A person’s dwelling, whether in a hotel or motel or in a private home, is protected by the Fourth Amendment. Owner or manager of a motel cannot validly consent to entry into a lawfully rented room to facilitate a search or seizure.
Gay v. State, 138 So.3d 1106 (Fla. 2nd DCA 2014) After officer determined not to cite driver during traffic stop and driver consented to search of vehicle which rendered the encounter consensual, officer’s actions in searching passenger’s purse and pill box contained in purse removing the pill box from the vehicle, and taking the box to his patrol car for further investigation resulted in the encounter again becoming an investigatory detention which was not justified by reasonable suspicion of criminal activity. Officer’s actions would have lead a reasonable person to conclude she was not free to leave, and nothing about the pills or pill box gave officer reasonable suspicion that passenger or driver had committed, was committing, or was about to commit a crime. Probable cause must exist before an object can be seized. After the fact discovery of contraband does not render the seizure legal. For a seizure legal to be under the plain view doctrine, it must be immediately apparent to the officer that the seized object constitutes evidence of a crime. Immediately apparent for purposes of plain view doctrine means that at the time the police view the object to be seized, they must have probable cause to believe that the object is contraband or evidence of a crime.
Durham v. State, 5D15-732 (Fla. 5th DCA Sept. 11, 2015) Officers do not have exigent circumstances or an objective fear for anyone’s safety to enter a home without consent (or a warrant) after a neighbor reports that a man and woman are arguing in the yard and when police arrive, the man is inside the home, and the woman is in the yard with no visible signs of injury.
Dieujuste v. State, 44 Fla. L. Weekly D1285a (4th DCA 5/15/19) Officers lacked reasonable suspicion to detain the Defendant based on an anonymous call that a black male with dreads, wearing designer pants with glitter on the back side of the pants, standing by a convertible black Camaro parked in front of a liquor store was dealing drugs out of the vehicle. The anonymous tip’s assertion of illegal conduct must be corroborated in some way to establish its reliability. The Defendant’s quick return to the vehicle, bending down, and placing something inside the vehicle is insufficient corroboration of illegal activity to justify the stop. “Appellant’s retreat to the vehicle did not evidence criminal activity. Indeed, if appellant could not retreat, then he was not free to leave, which circumstance constitutes a seizure for Fourth Amendment purposes.”
SEARCH AND SEIZURE – JUVENILE
T.L.B. v. State, 44 Fla. L. Weekly D1283d (4th DCA 5/15/19) School resource officer may not search a juvenile based solely on a hunch that he might have a weapon.
SEARCH AND SEIZURE- INEVITABLE DISCOVERY
O’Hare v. State, 263 So.3d 255 (Fla. 5th DCA 2019) Inevitable discovery doctrine did not apply to allow admission of evidence obtained from an unlawful warrantless search of residence during a child pornography investigation, where the state failed to show that police officers were in pursuit of a search warrant at the time of the search.
Rogers v. State, 264 So.3d 1119 (Fla. 2nd DCA 2019) Inevitable discovery doctrine did not apply to evidence obtained by police during illegal search of defendant’s recreational vehicle pursuant to search warrant for residence and its curtilage, although it was not entry onto premises described in warrant that was illegal. There was no indication that police were actively pursuing search warrant for RV at time of illegal entry into RV, and defendant disputed officer’s authority to enter RV as soon as search warrant was produced. RV that was located within curtilage of residence was being used as a separate residence and thus did not fall within scope of search warrant for residence and its curtilage where RV had an awning and septic line affixed to ground, it was connected to main house by router cable, and interior was blocked from view by shades on all windows. Officers are not authorized to search a separate dwelling unit that exist on the premises but is not separately identified in the warrant.
SEARCH AND SEIZURE
State v. Kraft, 4D19-1499 (Fla. 4th DCA 2020) Anorder permitting video surveillance shall not be issued unless: (1) there has been a showing that probable cause exists that a particular person is committing, has committed, or is about to commit a crime; (2) the order particularly describes the place to be searched and the things to be seized; (3) the order is sufficiently precise so as to minimize the recording of activities not related to the crimes under investigation; (4) the judge issuing the order finds that normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or appear to be too dangerous; and (5) the order does not allow the period of interception to be longer than necessary to achieve the objective of the authorization, or in any event no longer than thirty days.
Bent v. State, 2D19-1920 (Fla 2nd DCA 2020) Defendant who parked his car with its driver’s-side tires resting along the fog line at the edge of a two-lane road was unlawfully stopped. “[N]o one in this case—not the deputy, the prosecutor, the circuit court, or the State in this appeal—has ever identified a provision of law that forbids parking a vehicle in the manner that the deputy found objectionable.”
N.S. v. State, 4D16-0514 (Fla. 4th DCA May 24, 2017) Officer responds to call of a suspicious vehicle, but hears noises in a nearby park. The officer lacks reasonable suspicion to order the child to stop and conduct a pat down search.
G.M. v. State, 172 So.3d 963 (Fla. 4th DCA 2015) Officer’s perception that bulge in juvenile’s pocket contained contraband did not come as a result of officer’s tactile perception, but rather from an educated hunch based on the plain feel of the object, and thus removal and seizure of baggy containing marijuana was improper under the plain feel doctrine.
Robinson v. State, 164 So.3d 742 (Fla. 2nd DCA 2015) Defendant had reasonable expectation of privacy in his real property, such that police officers were required to obtain warrant or consent for search of property, where property was a semi-rural homestead, surrounded by a chain-link fence, having a closed gate with a “no trespassing – violators will be prosecuted” sign and a “beware of dog” sign, and property had a mail box accessible from outside the fence.
McBride v. State, 158 So.3d 608 (Fla. 5th DCA 2013) A person’s dwelling, whether in a hotel or motel or in a private home, is protected by the Fourth Amendment. Owner or manager of a motel cannot validly consent to entry into a lawfully rented room to facilitate a search or seizure.
Gay v. State, 138 So.3d 1106 (Fla. 2nd DCA 2014) After officer determined not to cite driver during traffic stop and driver consented to search of vehicle which rendered the encounter consensual, officer’s actions in searching passenger’s purse and pill box contained in purse removing the pill box from the vehicle, and taking the box to his patrol car for further investigation resulted in the encounter again becoming an investigatory detention which was not justified by reasonable suspicion of criminal activity. Officer’s actions would have lead a reasonable person to conclude she was not free to leave, and nothing about the pills or pill box gave officer reasonable suspicion that passenger or driver had committed, was committing, or was about to commit a crime. Probable cause must exist before an object can be seized. After the fact discovery of contraband does not render the seizure legal. For a seizure legal to be under the plain view doctrine, it must be immediately apparent to the officer that the seized object constitutes evidence of a crime. Immediately apparent for purposes of plain view doctrine means that at the time the police view the object to be seized, they must have probable cause to believe that the object is contraband or evidence of a crime.
Durham v. State, 5D15-732 (Fla. 5th DCA Sept. 11, 2015) Officers do not have exigent circumstances or an objective fear for anyone’s safety to enter a home without consent (or a warrant) after a neighbor reports that a man and woman are arguing in the yard and when police arrive, the man is inside the home, and the woman is in the yard with no visible signs of injury.
Dieujuste v. State, 44 Fla. L. Weekly D1285a (4th DCA 5/15/19) Officers lacked reasonable suspicion to detain the Defendant based on an anonymous call that a black male with dreads, wearing designer pants with glitter on the back side of the pants, standing by a convertible black Camaro parked in front of a liquor store was dealing drugs out of the vehicle. The anonymous tip’s assertion of illegal conduct must be corroborated in some way to establish its reliability. The Defendant’s quick return to the vehicle, bending down, and placing something inside the vehicle is insufficient corroboration of illegal activity to justify the stop. “Appellant’s retreat to the vehicle did not evidence criminal activity. Indeed, if appellant could not retreat, then he was not free to leave, which circumstance constitutes a seizure for Fourth Amendment purposes.”
SEARCH AND SEIZURE – JUVENILE
T.L.B. v. State, 44 Fla. L. Weekly D1283d (4th DCA 5/15/19) School resource officer may not search a juvenile based solely on a hunch that he might have a weapon.
SEARCH AND SEIZURE- INEVITABLE DISCOVERY
O’Hare v. State, 263 So.3d 255 (Fla. 5th DCA 2019) Inevitable discovery doctrine did not apply to allow admission of evidence obtained from an unlawful warrantless search of residence during a child pornography investigation, where the state failed to show that police officers were in pursuit of a search warrant at the time of the search.
Rogers v. State, 264 So.3d 1119 (Fla. 2nd DCA 2019) Inevitable discovery doctrine did not apply to evidence obtained by police during illegal search of defendant’s recreational vehicle pursuant to search warrant for residence and its curtilage, although it was not entry onto premises described in warrant that was illegal. There was no indication that police were actively pursuing search warrant for RV at time of illegal entry into RV, and defendant disputed officer’s authority to enter RV as soon as search warrant was produced. RV that was located within curtilage of residence was being used as a separate residence and thus did not fall within scope of search warrant for residence and its curtilage where RV had an awning and septic line affixed to ground, it was connected to main house by router cable, and interior was blocked from view by shades on all windows. Officers are not authorized to search a separate dwelling unit that exist on the premises but is not separately identified in the warrant.
