Pinellas County Florida Criminal Lawyer Blog

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