Pinellas County Florida Criminal Lawyer Blog

Can the police search my house after I've been arrested?

Probably not.  Unless you invited them in to search, or some one else who lives in your house did, or you were arrested in your home.

But if you were arrested outside of your home, and no one else that the police are looking for are inside, and no one invites them into search, AND IF THE POLICE DO NOT HAVE A WARRANT TO SEARCH THE INSIDE OF THE HOUSE; then the police can not go in to search. 

Be sure you are aware of your rights.  The police may try to convince you that you will be in less trouble if you let them in.  YOU DO NOT HAVE TO LET THEM IN. 

In a Second DCA case from May 29, 2009, the police arrested a man inside of his home, secured him in the back of the car, and went back into the house to do a "protective sweep."  Inside of the house, the police found a gun, and in addition to being arrested for a violation of probation, the man was arrested for felon in possession of a firearm.  The Second DCA said the police could not go back into the house, once the man had been arrested and secured into the back of the patrol car. 

What's a protective sweep? See upcoming blog posts for the answer.

 

The St. Petersburg Times reported today that a man in Tampa, Florida let his 12 year old son drive while he sat in the back seat drunk.  What's wrong with this?  At least he was taking some responsibility and not driving drunk right? 

It may have been fine, except the 12 year old hit another car with a pregnant woman in it.  Therein lies the problem.  If this were South Dakota, it may have been ok to let the kid drive, but Tampa is probably not the best place to learn to drive.  Sorry Dad, just another example of alcohol impairing judgment. How about calling a cab next time?

    

A 64 year old man was arrested in Brooksville, Florida for cutting down a Canadian flag outside his local community center.  He had apparently made serveral complaints that the flag was flying higher than the US Flag.  Here's the link to the St. Petersburg Times article.

In their purusuit of justice and protecting the public they arrested the man, in his home.  Boy did they catch the bad guy this time.  Good work guys - maybe tomorrow you'll get that terrible criminal whose dog keeps barking. 

 

By they way, the man was arrested for criminal mischief.  If indeed the police thought he had committed a crime, they had the option of giving him a Notice to Appear in Court rather than arresting him in front of his friends and neighbors, hauling him to jail and making him pay a bond to get out.   But then this article wouldn't be in the paper, would it? 

 

In a recent round up by the DEA and Hillsborough County Sheriff's Office, a local St. Petersburg doctor was arrested for selling prescriptions for Xanax and Hydrocodone.   Apparently this guy wrote scripts for over $25,000 of oxycodone last month alone.  Yikes?  Was it covered by insurance?

Finally, the police, in Hillsborough County, at least,  are arresting the right people.  It will be interesting to see if the Pinellas or Pasco County Sheriff's Offices actually look at the doctors or continue to arrest the little guys. 

Granted, the little guys are much easier to catch.  Too many people walk through my door with charges of prescription drug fraud, doctor shopping, or possesion of controlled substances which are not cocaine.  Each one of these people has an addiction to prescription drugs.   If I ask how the problem started, nine times out of ten they tell me that, at some point, they had a legitimate prescription for whatever drug they are addicted to.  Until now, in Tampa at least, it never seemed like the doctors got into trouble, or were even questioned.  Rather, the police waste time on the little guy- not the people who actually cause the problem.  
 

Judging from the number of "Pain Management "clinics along US 19 in Pinellas and Pasco counties, it's clearly big business.  Here's how most "Pain Management" clinics work:  A doctor (or nurse) takes some x-rays, agrees you have an injury, and then writes a script for hydrocodone and muscle relaxers, never attempting to actually fix your problem.  

Sure they tell you the drugs are addictive, but do they monitor to see if you are having a problem?  If the doctor solved your injury who would pay them? 
 

Hats off to those in Hillsborough County who finally went after the right people. Next stop: insurance companies. 

For those of you old enough to remember, there used to be a live court reporter in each court room for criminal proceedings.  To save money, the Sixth Judicial Circuit stopped court reporters in misdemeanor proceedings about six years ago. Shortly thereafter, the court did away with any live court reporters in felony court proceedings.  This does not include trial, for which, I believe, there is still a live court reporter. 
 
At the time, it did not seem like a big deal, since one rarely needs a transcript of the day to day court proceedings transcribed.  However, now to get a transcript of the record, one must call the Digital Reporting office, then hire a court reporter to transcribe what was recorded.   Needless to say, this is time consuming and costly. 
 
In a recent Florida's Second District Court of Appeal decision from Florida's Sixth Judicial Circuit  of Pinellas and Pasco counties, the Tampa Tribune wanted the actual recording of a sentencing hearing.  Not a written transcript of the record, but an actual recording.  The Chief Judge of the Sixth Circuit, Robert Morris, refused to give them the recording, arguing (and rightly so according to the appellate court) that the recording does not fall under the public records exception.  The Chief Judge did agree to provide the Tribune with a written transcript of the record.  The Tribune appealed the decision and on appeal was shot down.  

 
Much more interesting than the facts of the case is the reasoning by the 2nd DCA.  The Court reasoned that the audio recordings of court proceeding pick up much more than the proceeding at hand.  In addition to recording the proceeding, the audio recording may pick up other sounds and conversations between people in the gallery or at the bench which are not meant to be recorded.  Therefore - and it is stated most succinctly by a concurring opinion by Second DCA Judge CASANUEVA:   "Without any editing -- any evidence that a person or entity utilized intelligent thought in culling out the nonrecord anomalies from the unfiltered audio data -- there is no suggestion of the necessary "intent" to create the "final evidence" that is a record. "

 So basically, even though the purpose of the audio recording is to make a "record of the procceedings"; without "intelligent thought" and filtering (i.e.: editing) by a court reporter no one has a right to hear the audio recording.   Is the Court saying we leave the decision of what gets on the record in an official proceeding up to a court reporter?

Not sure how I feel about this . . . .
Opinions?
 
Full 2nd DCA opinion Media General Operations v. State of Florida

 

On April 21, 2009, the U.S. Supreme Court handed down an opinion which will directly affect the manner in which law enforcement in Florida, and across the country, can search vehicles during traffic stops.  Prior to this decision, law enforcement typically searched a vehicle once the driver or a passenger was arrested for any crime, even a traffic charge such as Driving while License is Suspended or Revoked.  Practically speaking, this meant that when a driver was arrested and placed in the back of the officer's patrol car in handcuffs, the police could search the car. 

 

 
The case of Arizona v. Gant clarified some of the Supreme Court's previous cases which addressed this issue, and concluded that "Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search, or it is reasonable to believe the vehicle contains evidence of the offense of arrest."  This means that if you are arrested for a crime involving drugs or guns, they can still search the car once you are arrested.  However, if the arrest is for a traffic offense or something that a search of the car has nothing to do with, they should not be able to search.

Be aware that the police will use coercive tactics to get your consent to search, or may be able to conduct an inventory search if your car is impounded.  However, the law now in place should prevent unbridled searches of vehicles if police are following the law.

 

Like all things legal - that depends . . .

I was reading a recent case from Florida's Third District Court of Appeals where a juvenile driver was stopped for an expired tag.  The officer decided not to give him a citation since the tag was only 10 days expired.  As the officer was about to let him go, the officer asked, 

 "[I]s there anything on you or in this vehicle that I need to know about. Illegal, that I need to know about." D.A. responded, "[Y]eah, there's a baggy of marijuana which is in the center console." Nunez seized the bag of marijuana and arrested D.A." 

  D.A. argued on appeal that because the traffic stop was ending in no issuance of a citation, the officer had no right or probable cause to ask more questions.   See D.A. v. State of Florida, 3rd DCA, April 29, 2009.

The 3rd DCA agreed with the cop.  The Court said that because a traffic stop is a legal seizure, the officer was justified in asking a question.  Interestingly, had D.A. refused to answer; the officer, without probable cause, couldn't have done anything further.  Specifically the court said:  "That law includes the ability to ask unrelated questions, subject, of course, to the right of the detainee to refuse to answer." (Emphasis added)

The answer to the question above: No, you shouldn't lie, BUT maybe you should refuse to answer. Just be quiet, and don't talk, the more you talk the bigger the hole you usually dig.  Besides, the police will usually twist your words and lie themselves, so it usually does no good to talk.