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HomeMy Public PortalAboutJanuary 2014 Legal Eagle IPM.Note January 2014 Legal Eagle Barry Krischer SMTP bkrischer@sa15.org January 2014 Legal Eagle X-Vipre-Scanned: 1008EE7C01363C1008EFC9 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; Mon, 30 Dec 2013 09:14:06 -0500 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; Mon, 30 Dec 2013 09:13:52 -0500 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; Mon, 30 Dec 2013 09:12:15 -0500 Received: from pps.reinject (proofm2v-eoc.co.palm-beach.fl.us [127.0.0.1]) by proofm2v-eoc.co.palm-beach.fl.us (8.14.5/8.14.5) with ESMTP id rBUEBoxE021520 (version=TLSv1/SSLv3 cipher=DHE-RSA-AES256-SHA bits=256 verify=NOT); Mon, 30 Dec 2013 09:11:51 -0500 Received: from pps.reinject (proofm2v-eoc.co.palm-beach.fl.us [127.0.0.1]) by pps.reinject (8.14.5/8.14.5) with SMTP id rBUEBoGu021509; Mon, 30 Dec 2013 09:11:50 -0500 Received: from mail-1.sa15.state.fl.us ([151.132.207.4]) by proofa3v-gcc.co.palm-beach.fl.us with ESMTP id rBUE52YI028506 (version=TLSv1/SSLv3 cipher=AES128-SHA bits=128 verify=NOT); Mon, 30 Dec 2013 09:05:04 -0500 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; Mon, 30 Dec 2013 09:05:00 -0500 From: Barry Krischer <bkrischer@sa15.org> To: Attorneys <Attorneys@sa15.state.fl.us> Thread-Topic: January 2014 Legal Eagle Thread-Index: Ac8FZ/Z2drZzIgV1T3yojCsFh5sd0A== Date: Mon, 30 Dec 2013 14:04:59 +0000 Message-ID: <104357FAE6191640806F918C9E925322232795BE@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: [151.132.107.25] x-tm-as-product-ver: SMEX-10.2.0.1135-7.000.1014-20392.004 x-tm-as-result: No--42.850700-8.000000-31 x-tm-as-user-approved-sender: No x-tm-as-user-blocked-sender: No Content-Type: multipart/mixed; boundary="_004_104357FAE6191640806F918C9E925322232795BEMail2sa15statef_" X-Proofpoint-maxrcpt: 100 X-Proofpoint-Virus-Version: vendor=fsecure engine=2.50.10432:5.11.87,1.0.14,0.0.0000 definitions=2013-12-30_01:2013-12-30,2013-12-30,1970-01-01 signatures=0 X-Proofpoint-Virus-Version: vendor=fsecure engine=2.50.10432:5.11.87,1.0.14,0.0.0000 definitions=2013-12-30_01:2013-12-30,2013-12-30,1970-01-01 signatures=0 X-Proofpoint-Virus-Details: default_rule X-Proofpoint-Virus-Details: default_rule Subject: January 2014 Legal Eagle X-Proofpoint-Sentinel: stfsU2FsdGVkX19VtPQufZpT6bCPemddDVk3BNszyhFUItnJimDpmNIsjHJE 3o0EfANpU5fRjN7q4HsvIAOHlO8oZ8QdYwIqT8/9tTVp9MxwzdZR24wxnc1mqjxbhkPCO6Tz2Ekc gzOunzZqxk9EI8B2CVg5Ew7ZPire6/Uu7rRwOeM= Return-Path: prvs=307668c00f=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: 57c35880-7370-4cf6-841c-08d0d38083f1 X-MS-Exchange-Organization-SCL: 0 X-MS-Exchange-Organization-PCL: 2 X-MS-Exchange-Organization-Antispam-Report: DV:3.3.5705.600;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 January 2014 Legal Eagle Good morning; This month's Legal Eagle leads off with yet another cell phone case. This time police used the onboard GPS to locate the stolen phone. Also analyzed is a case that sustains a dog sniff relying on the U.S. Supreme Court's ruling in Florida v. Harris. Rounding out this month's issue is an FDLE Case Law Update on drug testing, and cases reviewing arrests for altered auto tags and altered or missing firearm serial number. This month's issue begins my 22nd year as editor-in-chief. Best wishes for a safe New Year. --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. 61119DF0410D4342B7908F0161630712@namprd09.prod.outlook.com <104357FAE6191640806F918C9E925322232795BE@Mail-2.sa15.state.fl.us> Good morning; This month's Legal Eagle leads off with yet another cell phone case. This time police used the onboard GPS to locate the stolen phone. Also analyzed is a case that sustains a dog sniff relying on the U.S. Supreme Court's rulin 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=2273b676-7505-7c4f-a88c-2b05879b1dd0;IDXHEAD=CF0567F676;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 2E9F1377B421443 Anonymous 1008EE7C01363C1008EFC9 Attorneys SMTP Attorneys@sa15.state.fl.us Attorneys@sa15.state.fl.us Attorneys January2014.pdfJanuary2014 1 L LL Legal Eagle egal Eagle egal Eagle egal Eagle January 2014 In this issue:    Drug Testing     K-9 Search    Altered Firearm    Altered License Tag Legal Eagle Published by: Office of the State Attorney West Palm Beach, FL 33401 B. Krischer, Editor Carolyn Fey and friend were walking in San Francisco when a black male approached them, brandished a handgun, and demanded their belongings. Fey ran across the street and threw her turquoise Prada handbag under a parked car. The gunman retrieved the purse and fled on foot. Fey described the gunman as: wearing blue jeans, a white T-shirt underneath a black hooded sweatshirt, and white shoes. Fey told police that her wallet and a “Palm Pre smart phone” were in her handbag. Fey advised the officers that her cell phone “had GPS on it.” Officer Zeltser “contacted Sprint PCS and spoke to their corporate security people, who stated that if Fey would sign a release form, they would be able to ping the cell phone.” “The way they explained it to me was that they would send a signal to the phone ... they described it as ‘pinging it,’ that they could then basically find a general location within 15 yards or 15 meters of where the phone was.” Sprint faxed the release form to the police station, Fey completed it, and it was then faxed back to Sprint. Zeltser testified that “I asked them to ping the cell phone; they advised me that it was stationary at 16th and Mission Street.” This occurred approximately 45 minutes after the robbery. Shortly thereafter the vehicle Barnes was riding in was stopped by the police, he was removed from the car and was found to have a handgun in his waistband. The victim identified him, her purse that was also found in the vehicle, and her cell phone. The defendant filed a motion to suppress all the evidence claiming that the GPS technology violated his reasonable expectation of privacy. The prosecutor argued in return, “Here, the defendant, at gunpoint, stole a cell phone from Ms. Fey. He has no expectation of privacy in the location of that stolen cell phone. So the motion to suppress should be denied.” The trial court agreed: “I think Ms. Fey had every right to utilize her phone company to find her phone, and I think that’s what happened here. I don’t believe that the defendant has a privacy interest in that regard. I don’t think that there was a particular action on the part of the police ... to intrude on the defendant’s privacy. They were in pursuit of a phone that they have consent from the owner of the phone to pursue; so they went to the area Pinging Cell Phone 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 www.SA15.org under “Resources.” January, 2014 2 L LL Legal Eagle egal Eagle egal Eagle egal Eagle January 2014 where this phone was located. I don’t feel that there was an unreasonable intrusion with the stop of the defendant. Motion to suppress is denied.” Issue: Was the Fourth Amendment violated when police used the Global Positioning System (GPS) to locate the stolen cell phone and detain the thief? No. Fourth Amendment Protections: “The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. Because the ‘balance between the public interest and the individual’s right to personal security’ tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity may be afoot.” In making determinations of reasonable suspicion to justify a detention, reviewing courts “must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting wrongdoing. This process allows officers to draw on their own experience and specialized training to make inferences from, and deductions about, the cumulative information available to them that ‘might elude an untrained person.’ The likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of ant fares under the ‘reasonableexpectation-of-privacy test.’ Put more precisely, did defendant have a legitimate expectation of privacy in the cell phone he had stolen? The answer is an emphatic ‘No.’ As stated most baldly by the Ninth Circuit: ‘The Fourth Amendment does not protect a defendant from a warrantless search of property that he stole, because regardless of whether he expects to maintain privacy in the contents of stolen property, such an expectation of privacy is not one that society is prepared to accept as reasonable.’ The principle enjoys wide acceptance.” “Moreover, Fey, the actual owner of the cell phone-and the only person who could have a legitimate expectation of privacy-had consented to its use by Sprint and the police in apprehending the person who was illegally in possession of the phone. Federal courts have weighed such consent against a criminal defendant’s claim of privacy. (See, United States v. Bruneau (8th Cir.1979) (consent by owner of airplane to attach electronic tracking device upheld).” “Accordingly, we conclude that the use of GPS technology in ascertaining the location of the stolen cell phone, and thus assisting in the locating of defendant was no violation of the Fourth Amendment.” stolen.” People v. Barnes Court of Ap peals, First Dist., Cal. (June 11, 2013) satisfying a preponderance of the evidence standard.” United States v. Jones: Antoine Jones, a suspected narcotics trafficker, drove his Jeep for 28 days without realizing police had, without benefit of a warrant, attached a GPS device to track the vehicle’s movements. The District of Columbia Circuit Court of Appeals concluded that evidence obtained from the GPS device violated the Fourth Amendment, requiring reversal of Jones’ conviction. All nine members of the United States Supreme Court agreed with this result. “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” U.S. v. Jones, (S.Ct.2012). The Supreme Court noted that there was little legislative guidance regulating the use of GPS tracking technology for law enforcement purposes. “The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.” Court’s Ruling: The Court of Appeals in the instant case noted that there was no physical trespass or intrusion, under the facts that even Barnes agreed with. “The question then becomes how defend 3 L LL Legal Eagle egal Eagle egal Eagle egal Eagle January 2014 OFFICE OF GENERAL COUNSEL FLORIDA CASE LAW UPDATE 13-08 Case: Greenwade v. State, 2013 WL 5641794 (Fla. 2013) Date: October 17, 2013 Subject: Testing individual baggies for drugs in trafficking cases FACTS: Officers executed a search warrant at a Jacksonville home. The officers found and detained Mr. Greenwade while executing the warrant. After he was detained, Greenwade told the officers, “I know why you’re here…. What you are looking for is in the garage.” He then led the detectives to the garage, and showed them a digital scale sitting next to a green bag; white residue could be seen on top of the bag. Greenwade admitted that he owned the bag, and he admitted that the bag contained cocaine. When the detectives searched the bag, they found nine smaller one-ounce baggies inside the larger green bag. Each of the smaller baggies contained a white powder. All nine baggies were individually field tested; however, the records do not reveal the results of this test. The baggies were then submitted to FDLE for testing. However, the FDLE chemist did not receive nine individual bags; instead, she received one Ziploc bag that comingled or contained the entire contents of each of the individual bags. It is unclear from the record how or when the individual bags were comingled. Ultimately, FDLE detected the presence of cocaine in the Ziploc bag, and calculated the total weight all contents as 234.5 grams. The defendant was charged with Trafficking in Cocaine in an amount exceeding 200 grams. Greenwade was later convicted at trial and sentenced to fifteen years in prison. On appeal, Greenwade argued that he was entitled to a judgment of acquittal because the State never tested each individual bag for cocaine before comingling the contents and weighing them. The First District Court of Appeals affirmed his conviction. However, the Florida Supreme Court reversed the conviction for Trafficking and ordered that the defendant be convicted of and sentenced on the lesser charge of Possession of Cocaine. RULING: If a defendant is charged with Trafficking based on multiple containers of a white, powdery substance, the State is required to prove that each individual packet contains a controlled substance. DISCUSSION: This opinion resolves a conflict among Florida’s intermediate appellate courts. In this case, the First District Court of Appeal had upheld Greenwade’s conviction. The First District emphasized that Greenwade admitted to owning the green bag that was found in the garage, and he admitted that the bag contained cocaine. Thus, the First District concluded that the defendant had implicitly admitted that all of the individual, smaller baggies contained cocaine. However, the Florida Supreme Court rejected this reasoning. The Court was worried that if the State is allowed to comingle individual baggies without testing each bag, there is a significant risk that one or more of the smaller containers may contain a noncontrolled substance or a counterfeit controlled substance. According to the Court, that risk is especially great when the suspected substance is white powder: the white powder could be anything, including many non-controlled substances. Therefore, when law enforcement seizes multiple containers of white powder, each container must be tested to ensure the presence of a controlled substance. In reaching this conclusion, the Court emphasized that this rule applies only to white powder or other substances that carry a substantial risk of misidentification. Earlier cases held that marijuana and even rock cocaine do not carry a substantial risk of misidentification and do not need to be tested individually. The Court’s opinion leaves those cases intact. David H. Margolis Regional Legal Advisor Florida Department of Law Enforcement Orlando Regional Operations Center 4 L LL Legal Eagle egal Eagle egal Eagle egal Eagle January 2014 Recent Case Law Canine Search Warrant Deputy David Alvarado of the Orange County Sheriff’s Office was working at the FedEx sort line with his assigned K-9, ‘Dixie.’ For reasons that are unclear from the record, Officer Alvarado pulled a package addressed to Joseph Grue at the Buena Vista Palace Hotel from the line and placed it with other similar packages. Dixie alerted Officer Alvarado of the presence of narcotics in the package addressed to Grue. Based upon Dixie’s alert, Officer Alvarado applied for a search warrant. The affidavit in support of the application for the warrant was a preprinted form with a minimal amount of case-specific information. The affidavit noted Officer Alvarado’s credentials, training, and experience handling narcotics detection dogs, including Dixie. The affidavit also set forth information regarding Dixie’s training, including that she participated in a narcotics scent discrimination course. It attested to the fact that Dixie was “certified” and had located “thousands of pounds of narcotics” in the past. The affidavit related what occurred at the FedEx office leading up to and including Dixie’s alert on the package addressed to Grue. Based on the information contained in the affidavit, a search warrant was issued. Officer Alvarado opened the package and found it contained 6.2 grams of oxycodone pills and approximately 19.1 grams of cocaine. When Grue came to the business center at the Buena Vista Palace Hotel to pick up his package, Officer Alvarado, acting undercover, handed the package to him. Grue was detained and subsequently charged. Grue filed a motion to suppress alleging the search warrant was deficient because the K-9 was not properly qualified to provide probable cause for the search. The trial court granted the motion based on the Florida Supreme Court’s ruling in Harris v. State (Fla.2011). The State took this appeal. In the interim the U.S. Supreme Court overturned the Florida Supreme Court’s ruling in Harris. Issue: What elements must the State establish to verify a police drug dog is qualified to establish probable cause for a search with or without a warrant? Canine Search: In Harris, the Florida Supreme Court held that, to establish that a dog is sufficiently reliable such that its alert can provide probable cause, the State must present the following evidence: (1) “the dog’s training and certification records;” (2) “an explanation of the meaning of the particular training and certification;” (3) “field performance records (including any unverified alerts);” and (4) “evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog’s reliability.” The U.S. Supreme Court overruled the Florida Supreme Court’s requirement that the State present particular evidence in order to establish a dog’s reliability. See, Florida v. Harris, (S.Ct.2013). The Court noted that this “evidentiary checklist” was the antithesis of the ‘totality of the circumstances’ approach. It specifically took issue with the Florida Supreme Court’s requirement that the State present field performance records, noting why field performance records are actually less reliable than records of a dog’s performance in standard training and certification settings. For this reason, the Court held that “evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.” Even without formal certification, the Court noted, a dog’s alert can provide probable cause if the dog “recently and successfully completed a training program that evaluated his proficiency in locating drugs.” The Supreme Court then concluded that the State had established probable cause for a warrantless search. Court’s Ruling: Relying on the Supreme Court’s pronouncement overturning the ruling in Harris v. State, the 5th D.C.A. sustained the search warrant - thereby reversing the trial court’s ruling. 5 L LL Legal Eagle egal Eagle egal Eagle egal Eagle January 2014 affidavit in support of the search warrant. “The form affidavit utilized by Officer Alvarado was not a model of clarity nor did it provide a wealth of information. It did not contain any factual information bearing on the time, place, or qualifications of any of the facilities where Officer Alvarado or Dixie trained or the training programs in which they participated. It contained a rote statement that Dixie was trained and certified, but did not describe or explain the training process. Although Harris allows for evidence of a dog’s certification or training to presumptively establish probable cause, we believe that it is preferable to provide additional information as to the identity of the organization that certified the K-9, the dates of that certification, and additional subsequent training.” These deficiencies noted by the D.C.A. provide an outline of the factual basis needed for a valid warrant. State v. Grue 5th D.C.A. (Dec. 6, 2013) Ed. Note: See Legal Eagle Legal Eagle Legal Eagle Legal Eagle, March, 2013, “Dog Sniff as Probable Cause.” Possession of a Firearm with an Altered Serial No. Two Sheriff’s deputies smelled the odor of burning marijuana emanating from a parked car. They removed the four occupants from the vehicle and searched it. K.D.T. had been sitting in the front passenger-side seat, in close proximity to an unlocked glove compartment in which the deputies found a handgun. K.D.T. made spontaneous statements incriminating himself as the possessor of the gun. The firearm was found to be missing the serial number plate. He was therefore charged with the additional crime of possession of a firearm with the serial number removed, F.S.790.27(2)(a). At trial the defendant argued that the State did not present any evidence that he was aware that the firearm’s serial number had been altered or removed. The trial court disagreed with that analysis of the law. It analogized this possession charge to one of marijuana possession and determined that the State needed only prove that K.D.T. knew he possessed the gun, not that he knew the serial number had been altered or removed. The D.C.A. disagreed. Issue: Is the unlawful possession of a firearm sufficient to prove the related charge of a possession of a firearm with the serial number removed? No. Constructive Possession: As has been oft stated in these Legal Eagles, mere proximity to contraband is insufficient to prove knowledge and control to sustain criminal charges. In this instance the juvenile defendant was seated in a vehicle with others and in close proximity to the glove compartment containing the firearm. Those facts standing alone would have been insufficient for the State to prove the gun charge. However, here K.D.T. made incriminating statements as to his ownership. An admission, his fingerprints, DNA, or the presence of other of his possessions in the glove compartment, would have allowed “Generally, an alert by a properly trained narcotics detection dog provides probable cause. The alert, however, must be sufficiently reliable. Whether the alert is reliable enough to establish probable cause is determined based on the totality of the circumstances…” “However, the test for probable cause does not require the proof that the beyond a reasonable doubt standard or even the preponderance of the evidence standard requires. Rather, the question we must answer ‘is whether all the facts surrounding [the] dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.’ Here, the affidavit passes this test. It represented that Dixie and Officer Alvarado had gone through extensive training and that Dixie had discovered thousands of pounds of narcotics in the past. It then alleged that she had given a positive alert to the presence of narcotics in the package addressed to Grue. Based on these facts, a magistrate making a ‘practical common sense decision’ could reasonably have found that there was a ‘fair probability’ evidence of a crime would be discovered in the package.” “Accordingly, we reverse the order granting the motion to suppress.” Lessons Learned: The 5th D.C.A. made the point that the trial court relied on the law available at the time. That ruling was subsequently overturned by the U.S. Supreme Court. That issue aside, the D.C.A. commented on the deputy’s 6 L LL Legal Eagle egal Eagle egal Eagle egal Eagle January 2014 identification number ‘has been destroyed, removed, covered, altered, or defaced,’ s 319.33(1)(d), F.S. The Fourth District has held that possession of a vehicle, without more, did not prove the guilty knowledge necessary to support a conviction. Jackson v. State, (4DCA 1999). Jackson suggested that an additional fact, such as the defendant’s fingerprints appearing in the area of the altered VIN, might have been sufficient to show the requisite knowledge that the number had been tampered” “Finally, there is the . . . statutory directive that when the language of any provision in the criminal code is susceptible of differing constructions, ‘it shall be construed most favorably to the accused.’ 775.021 (1), F.S. The circuit court’s interpretation of section 790.27(2)(a) in this case was inconsistent with that statutory rule of construction.” “Here, the State did not present any evidence other than that the serial number plate was missing. Without additional evidence such as an admission, or that it was obvious to an observer that the plate had been removed, K.D.T.’s mere possession of the weapon was insufficient to prove the knowledge element of the section 790.27(2) crime. We reverse the court’s finding that K.D.T. committed this crime.” Lessons Learned: Had the Florida Legislature wanted to make the possession of a firearm without a serial number a strict liability crime the language of the statute would be devoid of the word “knowingly.” In that F.S. 790.27 (2)(a) contains that limiting word the State will require proof that the defendant knew or should have known the firearm had a missing or altered serial number. Additionally, the standard jury instruction for the crime requires a finding that the defendant “knew the serial number had been altered or removed.” Florida Jury Instruction 10.18 provides, “To prove the crime of Sale or Possession of Firearm with Altered or Removed Serial Number, the State must prove the following elements beyond a reasonable doubt: 1. Defendant knowingly [altered] [removed] the [manufacturer’s] [importer’s] serial number from a firearm. 2. Defendant did so with the intent to disguise the true identity of the firearm. To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed. Possession may be actual or constructive. Actual possession means: a. the firearm is in the hand of or on the person, b. the firearm is in a container in the hand of or on the person, or c. the firearm is so close as to be within ready reach and is under the control of the person. Mere proximity to a firearm is not sufficient to establish control over that firearm when it is not in a place over which the person has control. Constructive possession means the firearm is in a place over which defendant has control, or in which defendant has concealed it. the State to prove the constructive possession of the firearm. But the State’s evidence concerning the gun’s missing serial number was not sufficient to prove the elements of that crime. Section 790.27 (2)(a) makes it unlawful for “any person to knowingly sell, deliver, or possess any firearm on which the manufacturer’s or importer’s serial number has been unlawfully altered or removed.” On the type of gun at issue here, the serial number is not engraved directly on the weapon. Rather, it is etched on a separate plate that is attached to the weapon. According to the trial evidence, the plate was missing from the particular gun that K.D.T. possessed. Court’s Ruling: As stated above the trial court ruled that there was no separate knowledge requirement for the State to prove. Rather, the crime was completed when K.D.T. possessed the firearm without the serial number. The D.C.A. disagreed. “We disagree. . . . The drug possession offenses are not analogous to this crime. Our legislature amended the drug possession statutes to provide that knowledge of the illicit nature of the controlled substance is not an element of the possession crime, but is an affirmative defense to that crime. In contrast, section 790.27(2) requires knowing possession and the standard jury instruction recites that the defendant must know the serial number has been altered or removed. The more apt analogy is to the crime of possessing a vehicle ‘with knowledge’ that the motor vehicle 7 L LL Legal Eagle egal Eagle egal Eagle egal Eagle January 2014 license tag. An inventory search of the car uncovered seven hundred counterfeit music and video CDs and DVDs. The defendant was charged with all offenses, and upon his rearrest a violation of probation was instituted. The trial court found him guilty and sentenced Jenkins to 36 months incarceration. The defendant filed a motion to suppress all the evidence obtained from the two traffic stops arguing that his arrests were unlawful because altering a license tag was a misdemeanor that must be committed within the presence of a law enforcement officer for an arrest to be lawful. It is undisputed that Jenkins did not alter the tag in the presence of the police officers. Unpersuaded, the trial court denied the motions based on its review of the case law on obscured tag. Issue: Is the offense of altering a license tag a misdemeanor, and if so must it be committed in the officer’s presence. Yes, and Yes. Altering a License Plate: Section 320.061, provides as follows: “No person shall alter the original appearance of any registration license plate, mobile home sticker, validation sticker, or vehicle registration certificate issued for and assigned to any motor vehicle or mobile home, whether by mutilation, alteration, defacement, or change of color or in any other manner. No person shall apply or attach any substance, reflective matter, illuminated device, spray, coating, covering, or other material onto or around any license plate that interferes with the legibility, angular visibility, or detectability of any feature or detail on the license plate or interferes with the ability to record any feature or detail on the license plate. Any person who violates this section commits a misdemeanor of the second degree, . . .” Court’s Ruling: Because the statute clearly imposes a misdemeanor sanction for violation of the altering a license tag statute, and it is not one of the enumerated misdemeanors where arrest on probable cause is permitted, and because Jenkins did not violate the statute in the officer’s presence, the 2nd D.C.A. reversed all his convictions. “The officers were not present when the clear tinted plastic cover was placed over the license plate. We note that the officers could have instead charged Mr. Jenkins with violating section 316.605, F.S., requiring display of license plates in a manner that ‘all letters, numerals, printing, writing, and other identification marks upon the plates regarding the word ‘Florida,’ the registration decal, and the alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear....’ “However, the arrest still would not have been lawful, even though Mr. Jenkins displayed the license plate-in the officers’ presence-in a manner that allegedly was not plainly visible and legible, because violating If the firearm is in a place over which defendant does not have control, the State establishes constructive possession if it proves that defendant (1) has knowledge that the firearm was within [his] [her] presence, and (2) has control over the firearm. Possession may be joint, that is, two or more persons may jointly possess an article, exercising control over it. In that case, each of those persons is considered to be in possession of that article. If a person has exclusive possession of the firearm, knowledge of its presence may be inferred or assumed. If a person does not have exclusive possession of the firearm, knowledge of its presence may not be inferred or assumed. K.D.T. v. State 2nd D.C.A. (Dec. 13, 2013) Altering a License Tag Police officers stopped Tyrone Jenkins’ vehicle because he was playing loud music, had a tinted plastic cover over his license tag, and failed to make a complete stop at a red light. The officers arrested Jenkins for altering a license tag, a second-degree misdemeanor. Incident to arrest, they searched him and the car. The officers found cocaine in Jenkins’ wallet and baggies with cocaine residue and a digital scale in the car trunk. Less than a month later, police officers again spotted Jenkins’ car; it still had the tinted plastic license tag cover. They conducted a traffic stop and arrested him again for obscuring a 8 L LL Legal Eagle egal Eagle egal Eagle egal Eagle January 2014 court and commences prosecution of the criminal traffic case.’ See Fla. R. Traffic Court 6.165.” “Because the arrests were unlawful, ‘the law mandated suppression of the evidence seized in any search performed incident to that arrest.’ Accordingly, we reverse Mr. Jenkins' convictions. . .” Lessons Learned: This is really just a simple case of a misdemeanor not committed in the officer’s presence. Under normal circumstances it merely requires a filing package directed to the State Attorney’s Office, which will result with a Summons issued to the defendant requiring him to appear in court to respond to the charges. Once the arrest is deemed unlawful the “fruit of the poisonous tree” doctrine will deny the State the use of any of the seized evidence in court against the accused. Obviously, without the items that constitute the felony charges all those counts are dismissed as well. Jenkins v. State 2nd D.C.A. (Dec. 14, 2012) section 316.605 is not a misdemeanor or municipal or county ordinance, but a noncriminal traffic infraction. See s. 316.605(1) (‘A violation of this subsection is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.’).” “The proper procedure to handle the tag alteration charges was for the officers to issue a traffic citation containing a notice to appear, see 316.650, Fla. Stat., which ‘invokes the subject matter jurisdiction of the .pdf Januar~1.pdf January2014.pdf application/pdf f9e052ec-ce8a-40d3-8415-4edfcbfbb9e7 EnUsGood morning;   This month's Legal Eagle leads off with yet another cell phone case. This time police used the onboard GPS to locate  the stolen phone.   Also analyzed is a case that sustains a dog sniff relying on the U.S. Supreme Court's ruling in Florida v. Harris. Rounding out this month's issue is an FDLE Case Law Update on drug testing, and cases reviewing arrests for altered auto tags and altered or missing firearm serial number.   This month's issue begins my 22nd year as editor-in-chief. Best wishes for a safe New Year.   --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.