Pinellas County Florida Criminal Lawyer Blog

Can I be pulled over by the police when my stereo is too loud?

According to the 2nd and 5th District Courts of Appeal, the answer is no.

Florida Statute 316.3045, the statute which controls how loud your stereo can be, has been deemed unconstitutional.
I won't pretend to be a 1st Amendment (freedom of speech) expert, but here's the basic reason why. In order to control anyone's speech in any public place - the statute must pass various constitutional tests. One of those tests is called "content neutral" - which means whatever type of speech the government is trying to regulate can't be of only one certain content. For example, they can't pass a law regulating the speech of those who are proponents of one issue and allow the speech of those who are against that issue.

In this case, the statute says that any "noise" that one can hear within 25 feet of where it's being played is illegal - unless it's political speech or used in the normal course of business.
The US Supreme Court says music is speech. So by regulating music from a car, but allowing political or religious speech at the same sound level by a car parked next to it - Florida has enacted a law which is NOT content neutral and therefore unconstitutional.

Remember the Blues Brothers? They put a speaker on their car to advertise their upcoming show. Because that is a business purpose (marketing), under the Florida law it would be allowed. However, if they merely played their music from their car, under Florida law that wouldn't be allowed.

Interestingly, although two Florida District Courts of Appeal have reached this conclusion, the Supreme Court hasn't ruled on it yet and the law remains on the books. So what happens if you get pulled over for a noise violation? First of all it's a non-moving traffic violation, so you can't be arrested for it. Secondly, after the officer is done giving you the ticket, unless he sees or smells something that gives him probable cause, he can't search your car. As you all know, all the cop has to say is that he smelled marijuana, and he's good. You all know, if the cop wants to search, he'll smell it.

DOES DEFENDANT HAVE TO GIVE THE Department of Justice HER LAPTOP PASSWORD?

That is the question a federal court must answer when a Colorado woman goes on trial for bank fraud, wire fraud, and money laundering charges.

The woman, Ramona Fricosu, had her laptop seized after a federal investigation revealed that she and her husband allegedly tried to take title to foreclosed homes by fraud.

This case raises some fascinating issues about the Fifth Amendment, the Right to Privacy, and what actions by criminal defendants are considered "testimonial" and thus not subject to privacy. As you may or may not know to "plea the fifth" means to exercise your right against making statements that may incriminate yourself.
Apparently the woman's laptop has an encrypted code. The only way federal investigators can view the evidence is to have the woman enter this secret code on her laptop. But if she is forced to do this, is her right to privacy being violated? Is the passcode "testimonial"?
If she enters the password, she will incriminate herself.

Remember that under the Fifth Amendment, everyone has the right against self incrimination, but in today's modern world the records you keep could be considered a form of incrimination that requires Fifth Amendment protection. Don't second-guess yourself! When faced with a situation where you are being asked to turn over or reveal what could potentially be incriminating information, CALL US FIRST before you do anything that could jeopardize your freedom or liberty.

A common scenario for drug dog sniffs that we hear all the time is when a person is stopped for a traffic violation, the officer asks for consent to search the car, the person (rightly) says NO, and the officer threatens to get the drug dog out there.  Sound unfair?  That's because it is - he can't do that without probable cause.  Probable cause is more than a hunch. Probable cause is not the officer's opinion of the length of your hair, your tatoos, the color of your skin, or the shine of your rims.  

If they need to get a dog out to the scene of their "investigation" they have every right to do it, so long as they have reasonable suspicion to continue detaining you, then in order to SEARCH, they need probable cause.

 

What if they get the dog out, and it "alerts" to an odor of drugs - do the police have the right to search then?  Not neccessarily - dogs are not always accurate, and just because they smell drugs TODAY, doesn't neccessarily mean there's drugs in the car TODAY.  For example, if you smoked in your car last week, the dog might alert, and there might be nothing illegal in your car at the time of the search. 

 

 

Prior to last week - the District Courts of Appeal were all over the place with what could be considered probable cause to search based on the drug dog alert.  Harris v. State, decided last week by the Florida Supreme Court, says that if the officer is basing his proable cause to search your car on the alert of a drug dog -  Evidence of the dogs track record in the field must be proven by the State.  That means, if you challenge your arrest based on an illegal search of the vehicle, the State has the burden of proving the reliablity of the dog, meaning how many times the dog alerts when drugs were actually found versus how many times the dog alerted when drugs weren't found.  

 

So the point of all this legal mumbo jumbo for those reading is:  If you're asked for consent to search you vehicle, it's your right to say NO.  And if they bring a dog out to sniff, you might have a great motion to suppress whatever evidence was found in the vehicle.  Of course, my first advice is not to get pulled over at all.  Make sure you're not speeding, your tag's not expired, and your tail lights work.  

 

If you think your car was searched illegally CALL US

CAN THE POLICE SEARCH MY CELL PHONE BEFORE OR AFTER I'M ARRESTED?

    That answer is complicated - the US Supreme Court says yes, although most Federal and State courts say no.  

The only reason police have a right to search a person or a car after they've been arrested - WITHOUT A  SEARCH WARRANT- is for the preservation of evidence and officer safety (or if they impound your car which is an entirely different topic).  

For example, if you are arrested in your home, they do not have the right to search your entire house, unless they fear for their safety or they fear that evidence of the crime might be found in the house and if they don't search, it will possibly be destroyed. (guns and drugs are good examples of this).

In the case of a cell phone, there is clearly no officer safety issue, unless you've McGyver'ed your phone with a gun.  Also, the courts have ruled that a cell phone is not a container, which provides another exception to warrantless searches.

As to the issue of preservation of the evidence, once the police have confiscated your phone, and you no longer have access to it, there's no fear that any potential evidence, such as incriminating text messages, a phone log, or the address book - can be destroyed since the arrested person no longer has access to it.

There's a further issue of the expectation of privacy in a cell phone.  Prior appeallate court decisions have based their opinions on pagers - cell phones are much more sophisticated with emails, videos, pictures, etc.  Clearly people have all sorts of things on their cell phones that they intend to keep private, beyond things that are potentially illegal.

There's a recent case out of Brevard County, Florida, a Circuit Court case, where the judge writes a great narrative on the case history of searches.  (I found it on Florida Law Weekly Supp. and couldn't figure out how to get a public link for it)  It's called State v. Glasco and ultimately the court GRANTS the suppression of evidence found in Glasco's cell phone after his arrest. 

Circuit Judge John Harris writes:  "If courts continue to allow the unfettered exploration of this personal data, then courts are permitting the government to execute an unwarranted search of the cell phone user's life and habits.  This intruision cannot reasonable be justified by the rationales of officer safety and evidence preservation; therefore, a simple seizure of the cell phone must suffice until a WARRANT can be procured." 

I can only hope the judges in the Fifth, Sixth, and Thirteenth Circuits feel the same way. 

If your cell phone has been searched -CALL ME - you may have a good Motion to Suppress.

I thought I should clarify my June 18 blog post, about the PCSO chase up US 19 allegedly after a "blue pickup" which may have been involved in a hit and run accident, where the victim was killed.

The First District Court of Appeal, recently ruled against the police in a case very similar to this. The Court quoted a Florida Supreme Court case and said that in order for the police to justify an investigatory stop, the Court would look at "[t]he totality of the circumstances . . . when determining whether an officer had a reasonable suspicion of criminal activity to justify the investigatory stop." Huffman v. State, 937 So. 2d 202, 206 (Fla. 1st DCA 2006). When assessing whether a "be-on-the-lookout" alert sufficiently justifies an investigatory stop, the court considers: "(1) the length of time and distance from the offense; (2) route of flight; (3) specificity of the description of the vehicle and its occupants; and (4) the source of the BOLO information." Hunter v. State, 660 So. 2d 244, 249 (Fla. 1995).  See Hugh Garrett King v. State, 1st DCA, July 7, 2009.

 

In the above case, the police recieved a BOLO (be on the lookout) for 2 men in a home invasion who were described as black, driving a grey Blazer.  Nine blocks away they stopped a green Ford Explorer driven by 2 black men, and subsequently found cocaine.  Interestingly, the police never questioned them about the home invasion after the cocaine was found.  (why bother solving two crimes one you already have one, right?)

 

In the Pasco case,reported in the local press, the police may have had a BOLO for a blue pickup truck.  But the crime occurred near Moog Road and US 19 and they tried to stop this guy on Ridge Road and US 19.  That's several miles away.  Having not seen the police report, I don't know how long after the first crime was committed that this stop was made.  But I do know that on a Friday night, in New Port Richey, on US 19 there are ALOT of blue pickup trucks. 

Whoever this guy is that was arrested, needs an attorney - if you know him, tell him to call me. 

Florida Governor Charlie Crist has signed a new bill into law  (SB 2276) requiring people "arrested" for felony offenses to provide a DNA samples to be placed into a statewide database. Prior to this enactment, only those citizens "convicted" of specific felony offense were required to provide DNA. Just so you know, the State keeps the DNA in a database to be used, possible against you, in future crimes. Or to be used in unsolved crimes.

Think this is an intrusion on your privacy? Wondering what happened to "innocent until proven guilty"? Me too. Apparently, if you are found innocent, AFTER YOU ARE ARRESTED, you can go through a petition process to have your DNA removed.  Sound counter - American?

The real problem however is a legal one. In 1966 the U.S. Supreme Court decided the case of Schmerber v. California, 384 U.S. 787 (1966). This case essentially discussed whether it was an unlawful violation of an arrested citizen's 4th Amendment rights to be free from unreasonable search and seizure, if a police officer took a blood sample from them after a DUI accident. A major factor the Supreme Court considered was the fact that during the time it would take to obtain a warrant to get the blood, evidence would be destroyed (i.e. the alcohol level in the blood after the accident). However, the Supreme Court also noted that searches after arrest, though reasonable for weapons and officer safety, have little applicability to searches "involving intrusions beyond the body's surface". Think about the recent US Supreme Court case where they said searching a girl's underwear at school was an unnecessary intrusion.

The major issue here is this: when a citizen has simply been "arrested", should they legally lose the same rights that a "convicted" person has lost? In L.S. v. State, (Fla. App. 2001), the First District Court of Appeals concluded that it was not unreasonable to demand a DNA sample from a convicted felon. Two major points of rationale were that the search was minimally intrusive to a person who has a lesser expectation of privacy since they are a convicted felon, and, that from a 14th Amendment Equal Protection perspective, a convict has a lesser expectation of privacy, therefore, a rational basis test (as opposed to strict scrutiny) is appropriate. (i.e., does the law bear a rational relationship to the State's legitimate interest in collecting the sample for law enforcement's future needs). (For a more in depth answer to what the heck the "rational basis test" or the "strict scrutiny" standards are, call me or go to law school. I happen to be one of the few who loves Constitutional Law)

Arrested citizens should be innocent until proven guilty. They have the right to be free from unreasonable searches and seizures under the 4th Amendment, especially if the crime they are being investigated for bears no relationship to the police officer's need for a DNA sample to solve the current crime. My suggestion? Call your representatives and VOTE - or for those of you who no longer have that right - call us and we'll tell you how to get your civil rights reinstated.

This is a question that comes up time and time again and every legal answer seems to be a little different and the reason for that is every circumstance is different. Once again, it depends.

The police only have the right to enter your house when:

1. You give them consent to enter, or someone else with authority gives them consent.

2. There are "exigent circumstances" which gives them probable cause to believe that a crime is being or has been committed inside of the house.

3. They have a warrant.

Numbers 1 and 3 should be self explanatory. However, #2, is where the law gets tricky. Every situation is different.

Let me give you an example of #2. Let's say someone calls the police and says there's a runaway child inside of a house. The police go to the house and no one answers. The police see people peeking out of the windows, and hear movement inside of the house. So clearly, they have a reasonable suspicion that someone is in the house and can go inside.

Why don't they need a warrant? Because there are "exigent circumstances" that a crime is being committed and they have "probable cause" because a (hopefully) reliable source called the police and told them the child was in the house. It takes time to get a warrant. Contrary to what you may see on TV, judges and state attorney's aren't hanging out in their offices after hours waiting for some great crime to be solved. Because of this, the law allows the police to make the decision as to whether or not they believe there are "exigent circumstances" to enter a house.

DISCLAIMER: THIS IS NOT LEGAL ADVICE, MERELY A VERY BASIC SUMMARY OF THE LAW - ALL FACTS OF CASES ARE DIFFERENT. CONTACT AT CRIMINAL ATTORNEY IF YOU BELIEVE THE POLICE DID NOT HAVE THE RIGHT TO ENTER YOUR HOME.

Check out some of these videos on YOU TUBE 

This morning in the Tampa Tribune there was a story about a driver who refused to stop and led the police on a 27 mile chase into Hernando County reaching speeds of 130mph. You can read it yourself.

Does this mean the police were chasing him up US 19 at 130mph? Does the public's safety matter to PCSO? Or are they still trying to figure out how Twitter works?
The worst part of the story is his kids were in the backseat and weren't in car seats. As it was reported in the press, this is the problem. I would definitely agree that running from police with your kids in the car is horrible. Plus, the guy didn't have a valid driver's license. And there was allegedly a gun in the car. But the police didn't know any of that - YET.

But the real problem for me as a lawyer is the reason the police were chasing him. He was apparently driving a Chevy Silverado which looked similar to the truck involved in the fatal hit and run that occurred at US 19 and Moog Road in NPR on Friday night June 15th, 2009. Does this mean everyone driving a dark colored pickup through Pasco County will be stopped? That's an awful lot of people. My brother in law has a dark colored pickup. My father does too. I happen to know where they were on Friday night, so I know it wasn't them.

But I'm concerned about the reason for the stop. The police have to have a valid reason to stop people. Everyone driving a dark colored pickup on US 19 is not a valid reason.

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.

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.

In a recent case from Tampa, Florida, the police stopped a kid for not having a bell on his bicycle. According to the Tampa Florida City Ordinances, it is illegal to ride a bike without a bell.  

Beyond the obvious question of: "Why take time making these ridiculous rules?" is  - "Don't these cops have something better to do?"  Apparently not.  When the cop stopped the kid for not having the bell, he arrested him and searched him.  In a search incident to the arrest the cop found marijuana.  (See Fla. L. Weekly D261b - L.B.B. v. State of Florida, 2DCA, January 30, 2009)  Luckily, the higher courts decided that a person cannot be arrested and searched for a bicylcle related city ordinance because it's a non-criminal infraction. 

In Florida, apparently, you are safe from unlawful search and seizure if you don't have a bell for your bicycle.  But it doesn't mean the police can't stop you and give you a ticket.  Surely, they must have something better to do.