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HomeMy Public PortalAboutAugust 2014 Legal Eagle IPM.Note August 2014 Legal Eagle Barry Krischer SMTP bkrischer@sa15.org August 2014 Legal Eagle X-Vipre-Scanned: 1001673D01363C1001688A Received: from GSEXCH-1.GulfstreamTH.local (10.0.0.22) by GSEXCH-1.GulfstreamTH.local (10.0.0.22) with Microsoft SMTP Server (TLS) id 15.0.775.38 via Mailbox Transport; Thu, 31 Jul 2014 11:47:54 -0400 Received: from GSEXCH-1.GulfstreamTH.local (10.0.0.22) by GSEXCH-1.GulfstreamTH.local (10.0.0.22) with Microsoft SMTP Server (TLS) id 15.0.775.38; Thu, 31 Jul 2014 11:47:44 -0400 Received: from proofm2v-eoc.co.palm-beach.fl.us (151.132.51.133) by GSEXCH-1.GulfstreamTH.local (10.0.0.22) with Microsoft SMTP Server (TLS) id 15.0.775.38 via Frontend Transport; Thu, 31 Jul 2014 11:46:36 -0400 Received: from pps.reinject (proofm2v-eoc.co.palm-beach.fl.us [127.0.0.1]) by proofm2v-eoc.co.palm-beach.fl.us (8.14.7/8.14.7) with ESMTP id s6VFkNQ8002486 (version=TLSv1/SSLv3 cipher=DHE-RSA-AES256-GCM-SHA384 bits=256 verify=NOT); Thu, 31 Jul 2014 11:46:23 -0400 Received: from pps.reinject (proofm2v-eoc.co.palm-beach.fl.us [127.0.0.1]) by pps.reinject (8.14.7/8.14.7) with SMTP id s6VFkM92002480; Thu, 31 Jul 2014 11:46:22 -0400 Received: from mail-1.sa15.state.fl.us ([151.132.207.4]) by proofa3v-gcc.co.palm-beach.fl.us with ESMTP id s6VF3EUa028591 (version=TLSv1/SSLv3 cipher=AES128-SHA bits=128 verify=NOT); Thu, 31 Jul 2014 11:03:15 -0400 Received: from MAIL-2.sa15.state.fl.us ([172.19.100.42]) by MAIL-1 ([172.19.100.43]) with mapi id 14.01.0289.001; Thu, 31 Jul 2014 11:03:15 -0400 From: Barry Krischer <bkrischer@sa15.org> To: Attorneys <Attorneys@sa15.state.fl.us> Thread-Topic: August 2014 Legal Eagle Thread-Index: Ac+sz2QlY5/DLWyOT6ud5DqOC0z1UQ== Date: Thu, 31 Jul 2014 15:03:14 +0000 Message-ID: <104357FAE6191640806F918C9E92532248E81AFB@Mail-2.sa15.state.fl.us> Accept-Language: en-US Content-Language: en-US X-MS-Has-Attach: yes X-MS-TNEF-Correlator: x-originating-ip: [151.132.207.26] x-tm-as-product-ver: SMEX-10.2.0.1135-7.500.1018-20850.005 x-tm-as-result: No--22.993200-8.000000-31 x-tm-as-user-approved-sender: No x-tm-as-user-blocked-sender: No Content-Type: multipart/mixed; boundary="_004_104357FAE6191640806F918C9E92532248E81AFBMail2sa15statef_" X-Proofpoint-maxrcpt: 100 X-Proofpoint-Virus-Version: vendor=fsecure engine=2.50.10432:5.12.52,1.0.27,0.0.0000 definitions=2014-07-31_06:2014-07-30,2014-07-31,1970-01-01 signatures=0 X-Proofpoint-Virus-Version: vendor=fsecure engine=2.50.10432:5.12.52,1.0.27,0.0.0000 definitions=2014-07-31_05:2014-07-30,2014-07-31,1970-01-01 signatures=0 X-Proofpoint-Virus-Details: default_rule X-Proofpoint-Virus-Details: default_rule Subject: August 2014 Legal Eagle X-Proofpoint-Sentinel: stfsU2FsdGVkX19apEB3K/TQ+QTdrwaav2qS5pSopqMVHQ0URL/L8KazlaxK NrDdRxQ+MqH2uDNswZu3fc4E+vpUXM9uLLbSab9orQ65h2XdL/uHw/qs5ZHJB3KSYfuXQDamwgeT efpgsxvQsxcYWBHVT0wGQx2qN5av4U1phJkYpG+ayt9WDVKI6N03DcjTMuxH+Lx5fPqFjcenhtvK idk0wQ== Return-Path: prvs=02899aeb12=bkrischer@sa15.org X-MS-Exchange-Organization-PRD: sa15.org X-MS-Exchange-Organization-SenderIdResult: None Received-SPF: None (GSEXCH-1.GulfstreamTH.local: bkrischer@sa15.org does not designate permitted sender hosts) X-MS-Exchange-Organization-Network-Message-Id: 34dce261-5b49-4e2c-e95a-08d17aedec99 X-MS-Exchange-Organization-SCL: 0 X-MS-Exchange-Organization-PCL: 2 X-MS-Exchange-Organization-Antispam-Report: DV:3.3.13921.466;SID:SenderIDStatus None;OrigIP:151.132.51.133 X-MS-Exchange-Organization-AVStamp-Enterprise: 1.0 X-MS-Exchange-Organization-AuthSource: GSEXCH-1.GulfstreamTH.local X-MS-Exchange-Organization-AuthAs: Anonymous MIME-Version: 1.0 Barry Krischer SMTP bkrischer@sa15.org Attorneys Email from outside August 2014 Legal Eagle Good morning; This month's Legal Eagle leads off with an interesting federal case out of New York and NYPD. After a questionable shoot NYPD required all officers involved in on- or off-duty shootings that cause injury or death to submit to a breath test. PBA sued arguing the policy was in violation of 4th Amendment. The U.S. Court of Appeals disagreed. Also reviewed is the Florida Supreme Court case that analyzes the basis for a law traffic stop, after an officer effected a stop because of a vehicle's color discrepancy with the vehicle registration. Searching truants prior to transport, as well as the public/officer safety exception to the Miranda rule are also covered. Lastly, another federal case sustaining the seizure of firearms not mentioned in a search warrant, based on plain view. As always feel free to disseminate as you need. Be safe, --B ________________________________ Please note: Florida has a very broad public records law. Most written communications to or from state officials regarding state business are public records available to the public and media upon request. Your e-mail communications may therefore be subject to public disclosure. 34B88A87946B1546B1FA233500A6F96E@namprd09.prod.outlook.com <104357FAE6191640806F918C9E92532248E81AFB@Mail-2.sa15.state.fl.us> Good morning; This month's Legal Eagle leads off with an interesting federal case out of New York and NYPD. After a questionable shoot NYPD required all officers involved in on- or off-duty shootings that cause injury or death to submit to a breath tes Edward Allen Edward Allen EX /O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=CAD5B837DE1E49D48EA9BB5B6008829E-EALLEN EX /O=EXCHANGELABS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=CAD5B837DE1E49D48EA9BB5B6008829E-EALLEN Barry Krischer Barry Krischer Edward Allen Edward Allen sa15.org bkrischer@sa15.org bkrischer@sa15.org eallen@gulf-stream.org eallen@gulf-stream.org II=[CID=2dc39f63-8e6c-ab4f-9de4-3a8e0b4cf551;IDXHEAD=CFACCF6425;IDXCOUNT=1];TFR=NotForking;Version=Version 15.20 (Build 2157.0), Stage=H4;UP=10;DP=1C5 en None (GSEXCH-1.GulfstreamTH.local: bkrischer@sa15.org does not designate permitted sender hosts) GSEXCH-1.GulfstreamTH.local en-US 526069854952E7EE Anonymous 1001673D01363C1001688A Attorneys SMTP Attorneys@sa15.state.fl.us Attorneys@sa15.state.fl.us Attorneys Aug2014.pdfAug2014 1 L LL Legal Eagle egal Eagle egal Eagle egal Eagle August 2014                                      The Fourth Amendment prohibits unreasonable searches and seizures. In the criminal-law context, a warrant and probable cause are usually required. Warrantless searches must generally fit within “a few specifically established and well-delineated exceptions,” such as the warrantless search pursuant to a lawful arrest. The Supreme Court recognized a special-needs exception that was limited to instances where “special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” Such searches, have historically been treated as a “closely guarded category,” have been upheld only in limited circumstances, including searches conducted at the border, in prisons, and at airports and entrances to government buildings; administrative or regulatory searches, particularly of closely regulated businesses;       Officers should consult with their agency advisors to confirm the interpretation provided in this pub lication and to what extent it will affect their actions. Past issues of the Legal Eagle are available at //SA15.org under “Resources.” August 2014 2 L LL Legal Eagle egal Eagle egal Eagle egal Eagle August 2014 student and employee drug tests; information-seeking checkpoints; and searches of probationers’ residences. What unifies these cases, despite their varied contexts, is that in each instance, the Court found that the suspicionless-search rule at issue served some special need distinct from normal law-enforcement needs. “We have upheld certain regimes of suspicionless searches where the program was designed to serve special needs, beyond the normal need for law enforcement,” as well as limited searches for “certain administrative purposes.” See, City of Minn. v. Edmond (S.Ct.2000) (“The ‘special needs’ doctrine, which has been used to uphold suspicionless searches performed for reasons unrelated to law enforcement, is an exception to the general rule that a search must be based on individualized suspicion of wrongdoing.”). !"#  The U.S. Court of Appeals examined the new internal police department policy to determine whether its primary purpose was unrelated to normal law enforcement needs. The court set forth the central issue, “in the context of the ‘special needs’ doctrine, a court must consider the ‘programmatic purpose’ of the searches at issue, applying the ‘special needs’ doctrine only if the primary programmatic purpose of the searches is unrelated to the government’s general interest in crime control.” The court found that the Breathalyzer policy was designed to address several issues unrelated to crime control. “First, the NYPD conducts a detailed administrative review every time an officer fires his or her gun, was fit for duty when he or she chose to fire. Here, the NYPD’s interest is in maintaining strong community relations, not in crime control.” “We also hold that, having found that the primary purpose of the Breathalyzer policy was not crime control, the District Court correctly applied the special needs doctrine to evaluate the policy. Here we must clarify one aspect of law surrounding the ‘special needs’ doctrine: the special needs doctrine applies to any program of searches whose ‘primary purpose’ is a government interest other than crime control, and the mere fact that crime control is one purpose—but not the primary purpose—of a program of searches does not bar the application of the special needs doctrine.” “Finally, we recognize that the NYPD's reputation in the eyes of the public is directly tied to its effectiveness as a police force. Thus, to the extent that the Breathalyzer policy improves the NYPD’s public reputation, it furthers an important governmental interest.” “In light of each of these factors, we conclude that the ‘special needs’ asserted by the NYPD outweigh the ‘privacy interest advanced’ by [PBA]. Accordingly, we hold that, . . the Breathalyzer program is reasonable under the Fourth Amendment, based on this record. As a result, the District Court did not abuse its discretion in denying plaintiffs’ motion for a preliminary injunction.” Lynch v. City of New York U.S. Court of Appeals  n Circuit (Dec. 11, 009) and the Breathalyzer program facilitates that review. To that end, it ensures that an officer who fires his or her gun while intoxicated—a clear violation of NYPD policy—can be quickly disciplined or removed from duty. That aim is not related to crime control; it is related to personnel management. The point is not to prosecute the offending officers but to remove them from duty or to impose on them internal, employmentrelated sanctions.” “The Breathalyzer program also operates as a deterrent to officers who may consider carrying their firearms while under the influence of alcohol. . . Thus, the Breathalyzer policy is designed to convey to NYPD officers the message that alcohol-related firearms incidents are likely to be discovered, providing an extra incentive to the officers to follow the NYPD’s regulations regarding firearms and alcohol. Here again, the NYPD’s interest is not in crime control but in personnel management; the Breathalyzer program, in this respect, is more concerned with encouraging officers to follow the NYPD's internal safety policies than with prosecuting NYPD officers who violate the law.” “Another purpose of the Breathalyzer program—apart from crime control—is promoting the NYPD’s reputation among New York City residents. In this context, the Breathalyzer program is an effort to promote public confidence in the NYPD by showing the public that the NYPD takes seriously its policies regarding alcohol and firearms. Moreover, when an officer fires his or her gun while not under the influence of alcohol, a Breathalyzer test assures the public that the officer 3 L LL Legal Eagle egal Eagle egal Eagle egal Eagle August 2014 OFFICE OF GENERAL COUNSEL FLORIDA CASE LAW UPDATE 14-03 Case: State v. Cartner, 39 FLW D1443a (Fla. 5th DCA) Date: July 11, 2014 Subject: Probable Cause existed to arrest defendant for Solicitation of a Minor for an Unlawful Sexual Act after the state established that the defendant was the first to explicitly mention sex during chat session with undercover detective, and police adequately identified the defendant through DHSMV records prior to arrest FACTS: While working as a “chat” person during a Task Force sting operation, a detective posted a message on a dating website, identifying herself as the aunt of a 14 year old girl, and stating that she and her niece were interested in “hanging out” and “having fun.” The detective received responses from a party using the screen name “Big Blues 83.” Included in these responses was a photograph purporting to be the man using that screen name, along with a number of sexually explicit e-mails and instant messages. The “aunt” and “Big Blues 83” arranged to meet at a local Starbucks, and the suspect advised the aunt “if you don’t like me you can tell me and no harm done.” In the meantime, investigators matched the photograph provided by “Big Blues 83” to a driver license photo contained in the DAVID database, and also obtained vehicle registration information on the suspect (the case is silent as to what investigative techniques may have been utilized by the investigators to specifically identify the suspect.) When the suspect arrived at the appointed time, in the vehicle registered to him, he was arrested. The defendant filed a motion to suppress all evidence against him, arguing that there was no probable cause to arrest him. The trial court agreed, finding that Cartner’s arrest was premature because law enforcement had insufficient evidence, prior to the arrest, establishing that the defendant was in fact “Big Blues 83,” and that the planned meeting at Starbucks was not for the purpose of having sex, but simply so the parties could meet and decide if they “liked” each other. The state appealed. RULING: The 5th District Court of Appeal reversed the trial court, and ruled that sufficient evidence existed which both adequately identified the suspect, and which established a violation of Section 847.0135 prohibiting the solicitation of minors to commit a sexual act. DISCUSSION: The appellate court noted that “to establish probable cause, the State must demonstrate that an officer had reasonable grounds to believe that the arrestee committed a crime.” (Citing Hughes v. State, 132 So.3d 933 (Fla 1st DCA 2014). In the instant case, matching the photograph provided by Cartner to his photo in the DAVID database, along with his arrival in a vehicle registered to him, at the time and place agreed to, was sufficient to identify him as the perpetrator. As to the legal sufficiency of the communications, the court found that the state presented evidence that “Big Blues 83” used a computer to solicit the under-aged “niece” to commit an illegal sex act, that the transcripts established that “Big Blues 83” was the first to mention sex between the parties, and that his comments made clear his intent to engage in sexual contact with a minor (the opinion does not, however, provide further details as to the content of the communications.) COMMENTS: Note that in this case, the defendant assisted in his identification by voluntarily sending a photograph to the undercover detective. Their subsequent ability to match this photo to a known photo in a law enforcement database was persuasive to the appellate court. Great caution must be taken, however, when seeking an arrest warrant or making a PC arrest on a subject based on computer communications alone. The individual who subscribes to internet service at a particular location may not be the person engaging in the unlawful communications. Make sure to work closely with your prosecutors or agency legal advisors when establishing probable cause in these cases. John E. Kemner Regional Legal Advisor Florida Department of Law Enforcement Jacksonville Regional Operations Center 4 L LL Legal Eagle egal Eagle egal Eagle egal Eagle August 2014 Recent Case Law   A deputy sheriff observed Kerrick Teamer driving a bright green Chevrolet, and “ran” Teamer’s license plate through the DHSMV database, as was his custom, and learned that the vehicle was registered as a blue Chevrolet. Based only on the color discrepancy, the deputy pulled the car over to conduct a traffic stop. Upon interviewing the occupants, the deputy learned that the vehicle had recently been painted, thus explaining the inconsistency. However, during the stop, the deputy noticed a strong odor of marijuana emanating from the car and decided to conduct a search of the vehicle, Teamer, and the other passenger. Marijuana and crack cocaine were recovered from the vehicle, and about $1,100. cash was recovered from Teamer. He was charged with trafficking in cocaine, possession of marijuana less than 20 grams, and possession of drug paraphernalia. At the defendant’s motion to suppress the deputy acknowledged that the car was not reported stolen, he had not observed any other traffic violations or suspicious or furtive behavior, nor was he “aware of any reports of stolen vehicles or swapped plates in the area,” and “the only thing that was out of the ordinary was the inconsistency of the vehicle color from the registration.” The trial court denied the motion to suppress, stating that the deputy “had a legal right to conduct an investigatory stop when a registration search of the automobile license tag reflected a different color than the observed color of the vehicle.” Further, since “the vehicle was legally stopped for investigative purposes,” the odor of marijuana that the officer smelled during the stop gave him probable cause to conduct a search. The defendant appealed his conviction. The 1st D.C.A. reversed and ruled that a color discrepancy alone did not warrant an investigatory stop. The court found that under the converse ruling, “every person who changes the color of [his or her] vehicle is continually subject to an investigatory stop so long as the color inconsistency persists.” The State appealed to the Florida Supreme Court, who agreed with the D.C.A.   Is a non-criminal color discrepancy, with a vehicle registration, sufficient grounds to initiate a traffic stop? No. $%& &      The United States Supreme Court has held that “the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” However, a “police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” an investigatory stop. “The real test is one of reasonableness, which involves balancing the interests of the State with those of the motorist.” “When a search or seizure is conducted without a warrant, the government bears the burden of demonstrating that the search or seizure was reasonable.” Reasonable suspicion must also be assessed based on “the totality of the circumstances—the whole picture.” “A trained officer draws inferences and makes deductions that might well elude an untrained person.” However, “the officer’s subjective intentions are not involved in the determination of reasonableness.” “The relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal acts.” In the instant case, the State agreed that “the failure to update a vehicle registration to reflect a new color is not a specific violation of a Florida law.” Therefore, the Supreme Court focused on what degree of suspicion attaches to this noncriminal act. To warrant an investigatory stop, the law requires not just a mere suspicion of criminal activity, but a reasonable, wellfounded one. !"#  The Florida Supreme Court found that a single noncriminal discrepancy in color of defendant’s vehicle with the color indicated on its registration did not provide the deputy with reasonable suspicion of criminal behavior to justify an investigatory stop. “Turning to the instant case, the sole basis here for the investigatory stop is an observation of one completely noncriminal factor, not several incidents of innocent activity combining under a totality of the circumstances to arouse a reasonable suspicion-as 5 L LL Legal Eagle egal Eagle egal Eagle egal Eagle August 2014 was the case in Terry. The discrepancy between the vehicle registration and the color the deputy observed does present an ambiguous situation, and the Supreme Court has recognized that an officer can detain an individual to resolve an ambiguity regarding suspicious yet lawful or innocent conduct. However, the suspicion still must be a reasonable one. In this case, there simply are not enough facts to demonstrate reasonableness. …The color discrepancy here is not ‘inherently suspicious’ or ‘usual’ enough or so ‘out of the ordinary’ as to provide an officer with a reasonable suspicion of criminal activity, especially given the fact that it is not against the law in Florida to change the color of your vehicle without notifying the DHSMV.” “The law allows officers to draw rational inferences, but to find reasonable suspicion based on this single noncriminal factor would be to license investigatory stops on nothing more than an officer’s hunch… Thus we must balance the nature and quality of the intrusion required to stop an individual and investigate a color discrepancy against the government’s interest in finding stolen vehicles or enforcing vehicle registration laws.” “Likewise, the likelihood that a color discrepancy such as that at issue here indicates a stolen vehicle may be high enough to make it a relevant factor, but standing alone, it does not justify initiating a stop to determine if the law has been violated. The deputy here needed more indicia of a violation to distinguish between an illegal transfer of license plates, for example, and a legal decision to paint one’s vehicle. Conducting an investigatory stop based on a       R.A.S. was charged as a delinquent for possessing marijuana as a result of an encounter with a sheriff’s deputy. The deputy had been driving around R.A.S.’s neighborhood looking for him because he had been reported absent from school. The deputy located R.A.S. and asked him to come over to talk to him. R.A.S. told the deputy that he was on his way to school. The deputy offered to give him a ride, and R.A.S. accepted. The deputy then stepped out of his car and told R.A.S. to empty his pockets. R.A.S. emptied all except one back pocket. The deputy then asked if he could “do a weapons pat-down” and R.A.S. agreed. The deputy patted the pocket that R.A.S. had failed to empty, and he felt a small “squishy bulge.” He asked what the pocket contained, and R.A.S. pulled out a plastic baggy containing a green, leafy substance. The juvenile’s motion to suppress was denied by the judge on the theory that R.A.S. voluntarily produced the contraband after the deputy merely asked him what was in the pocket. On appeal the 2nd D.C.A. did not agree.   Can an officer lawfully search (as opposed to pat-down) a juvenile in preparation for transport after being detained for truancy? No.   rule is designed to punish intentional police misconduct, the court ruled, “We are satisfied that the exclusionary rule will have an appropriate deterrent effect in this case and that none of the exceptions to the rule apply.”     The Florida Supreme Court in State v. Diaz, (Fla. 2003), resolved a similar case involving a temporary license plate. The Court held that as soon as an officer determined that the basis for his stop was invalid, the officer, without more, no longer had reasonable grounds to further detain the driver or to subject the driver to a subsequent personal examination, including the requirement to provide license and registration. “…While the officer’s reason for the initial stop may arguably have been legitimate, once that bare justification had been totally removed, the officer’s actions in further detaining Mr. Diaz equated to nothing less than an indiscriminate, baseless detention...” State v. Teamer Florida Supreme Court (July 3, 2014) 6 L LL Legal Eagle egal Eagle egal Eagle egal Eagle August 2014 police vehicle.’); Op. Att’y Gen. Fla. 11-08 (2011) (stating that when an officer has taken a juvenile into custody pursuant to section 984.13, the officer ‘may perform a limited frisk or pat-down for weapons before placing the minor in a law enforcement vehicle’).” “We recognize that, at the outset, the deputy properly could have conducted a pat-down for weapons instead of the illegal search. But he did not feel an object that remotely resembled a weapon in R.A.S.’s back pocket. As the L.C. court explained, when law enforcement is arresting a criminal suspect, the officer may conduct a warrantless search incident to that arrest in order to disarm a suspect before taking him into custody ‘and to preserve evidence for trial.’ But when taking a truant into custody, the only concern is for officer safety-no crime has been committed and, accordingly, there is no need to preserve evidence of a crime.” !"#  The 2nd D.C.A. reached its conclusion by finding that the officer’s search went too far, when only a patdown would have sufficed. “By directing R.A.S. to empty his pockets, the deputy essentially conducted an unauthorized full search. See, Sanders v. State, (1DCA 1999), (for the proposition that a pat-down does not include a search into a detainee’s pockets). Ordering someone to remove items from his pockets has the same legal effect as an officer actually reaching into the pockets to search. The deputy did not have a reason to think that R.A.S. was carrying a weapon or contraband. Thus, the initial search had no legal basis.” “When R.A.S. did not remove the contents of his back pocket, the deputy asked for and obtained the youth’s consent to conduct a patdown search of that pocket. But the illegal search had already tainted his consent and rendered any evidence discovered as ‘fruit of the poisonous tree.’… The deputy here knew that the ‘squishy object’ in R.A.S.’s pocket was not a weapon. Therefore, he had no legal basis for questioning R.A.S. further about the contents of the pocket. R.A .S.’s production of the contraband was a direct consequence of the initial illegal search and seizure, and there was no ‘unequivocal break’ in the chain of illegality. We reverse the denial of the motion to suppress.”     The 3rd D.C.A. summed up the law on this issue by simply observing, “Although we appreciate the concern of officer safety, we are aware of no case that stands for the proposition officers can search an individual without having performed a patdown simply because the individual is being placed in a police vehicle.” L.C. v. State, (3DCA 2009). With regard to the request that a suspect empty his pockets, the courts have consistently found that directive to be equivalent to the officer himself reaching into the pocket. “When a suspect empties his pockets in response to an officer’s directive that he do so, the legal effect is the same as if the officer had himself searched the suspect’s pockets. The only justification offered by the [State] for the search of the [defendant’s] pockets in the present case is that the [defendant] consent to a pat down also provided consent for a more extensive search of his person. But ‘a consensual search by its very definition is tigation but rather “community caretaking.” The 3rd D.C.A. in D.O. v. State, (3DCA 2011), stated, “Law enforcement officers serve as the eyes and ears of our community and are often the first to encounter individuals in the very situations addressed in Chapter 984. Law enforcement, in a very real sense, fulfills a role as a ‘community caretaker’ when they encounter truants, child runaways, children locked out of their home, and children beyond the control of their parents. They have not only the authority, but also a statutory obligation, to quickly reunite the child with their parent or guardian, or return the child to school or the appropriate agency that can provide the services needed in light of the individual circumstances.”  '(   The 2nd D.C.A. here disagreed with the trial court’s ruling finding, “Law enforcement may take a child into custody if the officer has reasonable grounds to believe the child is a truant. See, sec. 984.13(1)(b), F.S. But truancy is not a crime, and a custodial detention for this purpose is not an arrest. Therefore, the warrant requirement exception for searches incident to arrest did not apply in this situation.” “It is also the case that an officer may conduct a pat-down for weapons before placing a truant in his vehicle, but he is not authorized to conduct a full search. See, L.C. v. State, (3DCA 2009)(‘Although we appreciate the concern of officer safety, we are aware of no case that stands for the proposition officers can search an individual without having performed a pat-down simply because the individual is being placed in a 7 L LL Legal Eagle egal Eagle egal Eagle egal Eagle August 2014 ing he had been ripped off by a local drug dealer so he stole his stash in retaliation. Those statements further confirmed Hernandez was aware that there was a firearm in the bag. Prior to trial Hernandez sought to suppress his statements claiming that the officers violated Miranda by asking him what was in the bag, thus his later statements were infected by the “ask then warn” interrogation technique. The U.S. Court of Appeals disagreed, finding that “Officers do not violate Miranda by asking a ‘routine booking question,’ Pennsylvania v. Muniz, (S.Ct.1990), or ‘questions necessary to secure their own safety or the safety of the public.’ New York v. Quarles, (S.Ct.1984).”   Did the question, “what is in the bag?” asked after the defendant’s arrest, but prior to Miranda warnings, violate the defendant’s constitutional rights? No. )  nded to a burglary of a warehouse at night, the defendant was arrested leaving the building. Prior to reading Miranda warnings the officer asked if anyone else was inside the darkened building. The defendant responded “no” there was no one else in the warehouse. The officer later testified that before any other officers entered the building they needed to know if there were others inside that might do them harm. The D.C.A. allowed the defendant’s statement in evidence at the burglary trial. The D.C.A. ruled, “The basis for the exception in Quarles is that the need for answers to questions in situations posing a threat to the safety of the public, or to the police such as in this case, outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against selfincrimination.” Joppy v. State, (1DCA 1998). !"#  The U.S. Court of Appeals focused on whether the Miranda exception announced by the Supreme Court in circumscribed by the extent of the permission given, as determined by the totality of the circumstances.’ And, in the absence of additional circumstances which would justify a more complete search, consent to a mere pat down does not include consent to reach into the pockets of a suspect and retrieve the contents.” Sanders v. State, (1DCA 1999). See also, “Truant Pat-Down for Transport,” Legal Eagle Legal Eagle Legal Eagle Legal Eagle, January, 2012. R.A.S. v. State  D.C.A. (Jue 5, 014)        z replied that he had “ripped the guys around the corner for dope and a gun.” The officers then opened the bag and found a loaded .38 caliber gun, 61 small bags of crack cocaine, and 55 small bags of marijuana. At that point, the officers gave Hernandez Miranda warnings, put him in the patrol car, and took him back to the station. En- route to the police department he made a spontaneous declaration stat 8 L LL Legal Eagle egal Eagle egal Eagle egal Eagle August 2014 disease. See United States v. Carrillo, (9th Cir. 1994) (stating that ‘the danger of transmission of disease or contact with harmful substances is real and serious enough’). Further, ‘drug dealers are known to arm themselves’ so the officers could have reasonably suspected a firearm might be in the bag....That the officers did not articulate these concerns is no matter; the public safety exception applies based on objective facts, not subjective motivations. Accordingly, [the] Officer’s question about what the red bag contained was within the public safety exception to Miranda.”     While not relevant to the facts of this case, it is important for law enforcement to keep foremost in their mind that, “Voluntariness is the linchpin of the admissibility of any statement obtained as a result of government conduct.” Thus, officers must be careful that their questioning and other actions, even if prompted by an emergency situation involving public safety, permit the subject to exercise his free will in deciding whether to answer questions. The Public Safety Exception does not permit police officers to compel a statement from a suspect, i.e. “water-boarding.” It simply permits them to question him before providing any Miranda warnings to resolve an impending public safety concern. Interestingly, in Benson v. State, (4DCA 1997), the court extended the Public Safety Exception to include a suspect’s medical emergency from a possible overdose. The D.C.A. found that the officer had an “obligation and a responsibility” to make sure that the defendant received treatment if he had consumed a dangerous amount of narcotics. In rejecting the defendant’s contention that the emergency doctrine applies only when the life of a victim, an officer, or the public-at-large is at risk, and not the suspect alone. The court observed that “when a life is in danger, the law should make no distinctions.” U.S. v. Heraez U.S. Court of Appeals  7th Circuit (May 7, 014)          A Palm Beach County Deputy Sheriff while undercover made three purchases of Oxycodone from Nicholas Brandow, a seventeen year old minor. Nicholas lived with both his mother, Cheryl Brandow, and with Jack Folk, in Loxahatchee, Florida. Each of the three Oxycodone transactions was made just outside of the residence, and on at least one occasion, Nicholas had to first enter the residence to retrieve the drugs. The deputy knew about Folk before he bought the Oxycodone from Nicholas. Prior to working in the Narcotics Division, he had been assigned to the Tactical Unit and had helped investigate the “Safe Boys,” a local gang of which Folk was a member. The deputy recognized Folk, and he knew that Folk was a convicted felon. On the deputy’s application a warrant to search the residence was granted. The warrant authorized the seizure of financial records, electronic media, items used in packaging and production, and lastly, items of identification. Prior to the deputy and search team making entry the Sheriff’s Office SWAT entered to effect a protective sweep. A SWAT member observed in a bedroom closet two Quarles extended to potential harm to the officers or only the public at large. The court concluded that officer safety was included in the exception. “Even among circuits that otherwise take a narrow approach, questions designed to prevent officers from hurting themselves during a search of the suspect’s person are permitted. See, e.g., United States v. Webster, (5th Cir. 1998) (holding, under a narrower view, that asking whether the suspect ‘had any needles in his pockets that could injure them during their pat down’ fell within the exception).” “This type of question is logical and important to permit. While firearms on a suspect’s person or in close proximity to him can be lunged for and used to harm an officer, sharp and bio-hazardous objects pose a great risk to officers regardless of any action by the suspect. Accordingly, a search of his person and items in close proximity is necessary, and a question about what an item on his person contains is a narrow, practical way of ensuring officer safety during the immediate and inevitable search of the item. This is true whether the item is the clothes the suspect is wearing or something that he is carrying—especially when there are circumstances that suggest the possible presence of a hazard.” “Whatever was in the red bag had prompted its owner to put it by a garbage can in an alley, had prompted Hernandez to run when he had it, and had prompted him to drop it when he saw police officers. Hernandez had already turned over what appeared to be heroin to the officers—a drug often administered by a (sometimes used) syringe and, therefore, associated with blood-borne 9 L LL Legal Eagle egal Eagle egal Eagle egal Eagle August 2014 ly recognized that firearms can be so connected to the sale of narcotics that their seizure is implicitly authorized by a warrant to search for narcotics. See, United States v. Smith, (11th Cir.1990) (‘The firearms were not improperly seized, though not named in the warrant. They are ‘tools of the drug trade.’”); United States v. Cruz, (11th Cir.1986) (‘Of course, numerous cases have recognized that guns are a tool of the drug trade. There is a frequent and overpowering connection between the use of firearms and narcotics traffic.’).” However, the deputy never expressed any concerns that Nicholas Brandow was armed with a firearm while he made the drugs sales to the U.C. The Court of Appeals noted that in its ruling. “Despite this recognized connection between drugs and firearms, the facts in this case give us pause. [The deputy] admitted that he had no suspicion that Nicholas Brandow was armed while he engaged in his drug transactions or that he was storing firearms in his residence. When he saw the firearms, [the deputy] believed they were probably used for hunting rather than as tools of the drug trade. The small scale of Nicholas Brandow’s observed drug transactions further differentiate them from larger operations, where the ownership and use of firearms can be more readily inferred.” !"#  Unlike the lower court, the Court of Appeal sustained the firearm seizure based on the plain view doctrine. “Ultimately, we need not address whether the search warrant implied authorization to seize the firearms because we hold that the seizure was valid under the plain view doctrine.” “Under the plain view doctrine, the warrantless seizure of an item is permissible where ‘(1) an officer is lawfully located in the place from which the seized object could be plainly viewed and must have a lawful right of access to the object itself; and (2) the incriminating character of the item is immediately apparent.’ The seizure of Folk’s firearms satisfied both of these prongs.” “First, the shotgun and the riflewhich were inside the master bedroom closet - were lawfully observed during the SWAT team’s protective sweep and [the deputy’s] search for narcotics. Folk does not challenge the warrant’s validity or the deputies’ authority to search the residence for prescription drugs. The SWAT team and [the deputy], therefore, had the right to conduct a search as ‘extensive as reasonably required to locate the items described in the warrant.’ The master bedroom closet certainly qualified as a place where Oxycodone pills might reasonably be found - particularly since empty pill bottles with prescription labels for Oxycodone, Xanax, and Alprazolam were found in the master bedroom.” “Since [the deputy] knew that Folk was a convicted felon and reasonably believed that the firearms belonged to him, the second prong of the plain view doctrine was satisfied. This prong ‘merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief that certain items may be contraband.’ Here, [the deputy] was justified in reasonably believing that the firearms belonged to Folk. He had been told by both a fellow officer and by Nicholas Brandow himself that Folk resided in the home where the guns were found. He could recognize Folk’s face, and he noticed firearms, and reported same to the deputy. Also observed in the bedroom were pictures of Cheryl and Folk, and empty Oxycodone pill containers, each in the name of Folk and Cheryl. In the master bedroom closet the deputy located the two firearms, a rifle and a shotgun. He assumed they belonged to Folk rather than Cheryl because they appeared to him “to be more hunting, sport-type weapons.” In and of themselves, the firearms did not appear to be illegal, but the deputy knew that Folk was a convicted felon who could not legally possess them. Both firearms were seized. Folk was indicted and convicted of the illegal firearm possession and sentenced to 180 months incarceration. He appealed arguing the search warrant language did not include, nor authorize, the seizure of firearms; nor were they in plain view. The U.S. Court of Appeals did not agree.   Was the firearm seizure lawful as within the parameters of the search warrant or, in the alternative, in plain view? Yes. * (  The trial court sustained the seizure “based upon the well-recognized connection between firearms and drug-related activity.” In the Judge’s view, implicit in the text of the warrant - which authorized the seizure of drug-related items - was an authorization to seize the firearms. Having reached this conclusion, the Judge did not consider the alternative argument for denying Folk’s motion - the plain view doctrine. On appeal, the Court of Appeals commented on the guns and drugs connection. “This circuit has routine 10 L LL Legal Eagle egal Eagle egal Eagle egal Eagle August 2014 clude that the contents were, in fact, contraband. On their face, the containers held innocuous candy. Because the officers lacked probable cause to believe the containers held contraband and because the incriminating nature of the contents was not immediately apparent, they could not seize them, even though the containers themselves were in plain view. Because the seizure and search of the M & M containers did not fall within an exception to the Fourth Amendment’s warrant requirement, we must reverse the conviction for possession of cocaine.” Simply stated, the officer had no probable cause to believe that there were not chocolate candies inside the M&M wrapper. The same can be said for plastic film canisters commonly used to transport crack cocaine. The container may be in plain view, but its contents are not immediately apparent. Examining the container’s contents is a search that requires a warrant. U.S. v. Folk U.S. Court of Appeals, 11t Circuit (June 12, 2014)  AELE Law Enforcement Legal Center “Building integrity and confidence through research and education.” You can view their bulletin in color, with live links, at: www.aele.org/alert-email.html This month: 1. New FBI article: Excited Delirium and the Dual Response: Preventing In-Custody Deaths (Jul. 2014). 2. New IACP article: Encountering Mentally Ill People and Potential Liability under the ADA (Jul. 2014). 3. New AELE Monthly Law Journal article: Civil Liability for Use of Police Dogs. The article is an update of our Jan. 2007 article. Part One focuses on warnings, mistake or accident and supervisory liability. We also have four menus for the more than 35,000 case summaries: 1. Law enforcement civil liability at http://www.aele.org/law/Diges ts/ civilmenu.html 2. Employment law and discipline at http://www.aele.org/law/Digests/ emplmenu.html 3. Jail and prisoner legal issues at http://www.aele.org/law/Digests/ jailmenu.html 4. Electronic control weapons case summaries at http://www.aele.org/ law/Digests/ECWcases.html that there were pictures of Folk in the master bedroom - which was connected to the closet containing the firearms. Moreover, there were four prescription pill bottles bearing Folk’s full name strewn across the master bedroom. It was therefore reasonable for [the deputy] to treat the firearms as facially contraband and to seize them under the plain view doctrine. Because both prongs of the plain view doctrine were satisfied in this case, [there was no error] in denying Folk’s motion to suppress.”     The Court of Appeals’ ruling recognizing the guns and drugs connection is a positive statement to suggest that search warrants for drug houses include a specific authorization to seize all firearms on the premises. The plain view doctrine worked here because the obvious nature of the contraband, firearms, was immediately apparent to the deputy, who knew Folk to be a convicted felon. That is not always the case, and in that regard Hollman v. State, (2DCA 2007), is instructive. In that case a narcotics detective was lawfully inside a motel room effecting an arrest for unlawful sale of drugs. He observed in plain view an M&M wrapper that based upon his experience, knowledge, and training, he believed to contain rock cocaine. He seized the wrapper, looked inside and found cocaine. The D.C.A. found that the search of the M&M wrapper violated the 4th Amendment. The D.C.A. said, “Although the officers may have had a suspicion, even a reasonable suspicion, that these particular containers [M&M wrappers] might contain contraband, they had no probable cause to con .pdf Aug2014.pdf Aug2014.pdf application/pdf df432f53-e196-48cf-8a44-6f9d0e974ccd EnUsGood morning; This month's Legal Eagle leads off with an interesting federal case out of New York and NYPD. After a questionable shoot NYPD required all officers involved in on- or off-duty shootings that cause injury or death to submit to a breath test. PBA sued arguing the policy was in violation of 4th Amendment. The U.S. Court of Appeals disagreed. Also reviewed is the Florida Supreme Court case that analyzes the basis for a law traffic stop, after an officer effected a stop because of a vehicle's color discrepancy with the vehicle registration. Searching truants prior to transport, as well as the public/officer safety exception to the Miranda rule are also covered. Lastly, another federal case sustaining the seizure of firearms not mentioned in a search warrant, based on plain view. As always feel free to disseminate as you need. Be safe, --B    _____   Please note: Florida has a very broad public records law. Most written communications to or from state officials regarding state business are public records available to the public and media upon request. 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