The URL can be used to link to this page

Home My Public Portal AboutOctober 2015 Legal Eagle IPM.Note October 2015 Legal Eagle Barry Krischer SMTP bkrischer@sa15.org October 2015 Legal Eagle X-Vipre-Scanned: 0FE066FF01363C0FE0684C 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 15.0.847.32 via Mailbox Transport; Thu, 1 Oct 2015 11:14:14 -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 15.0.847.32; Thu, 1 Oct 2015 11:14:12 -0400 Received: from proofa3v-gcc.co.palm-beach.fl.us (151.132.50.246) by GSEXCH-1.GulfstreamTH.local (10.0.0.22) with Microsoft SMTP Server (TLS) id 15.0.847.32 via Frontend Transport; Thu, 1 Oct 2015 11:13:48 -0400 Received: from pps.reinject (proofa3v-gcc.co.palm-beach.fl.us [127.0.0.1]) by proofa3v-gcc.co.palm-beach.fl.us (8.15.0.59/8.15.0.59) with ESMTPS id t91FBrkH030842 (version=TLSv1.2 cipher=ECDHE-RSA-AES256-GCM-SHA384 bits=256 verify=NOT); Thu, 1 Oct 2015 11:11:53 -0400 Received: from proofa3v-gcc.co.palm-beach.fl.us (proofa3v-gcc.co.palm-beach.fl.us [127.0.0.1]) by pps.reinject (8.15.0.59/8.15.0.59) with SMTP id t91FBqHO030822; Thu, 1 Oct 2015 11:11:53 -0400 Received: from mail-1.sa15.state.fl.us ([151.132.207.19]) by proofa3v-gcc.co.palm-beach.fl.us with ESMTP id t91FBhfT030770 (version=TLSv1 cipher=AES128-SHA bits=128 verify=NOT); Thu, 01 Oct 2015 11:11:52 -0400 Received: from MAIL-2.sa15.state.fl.us ([172.19.100.42]) by MAIL-1 ([172.19.100.43]) with mapi id 14.03.0224.002; Thu, 1 Oct 2015 11:11:44 -0400 From: Barry Krischer <bkrischer@sa15.org> To: Attorneys <Attorneys@sa15.state.fl.us> Subject: October 2015 Legal Eagle Thread-Topic: October 2015 Legal Eagle Thread-Index: AdD8WyayUn7AtZv3QBa5+SLh6fZi8Q== Date: Thu, 1 Oct 2015 15:11:43 +0000 Message-ID: <104357FAE6191640806F918C9E92532251E70BD2@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-10.2.0.1135-8.000.1202-21850.004 x-tm-as-result: No--36.796700-8.000000-31 x-tm-as-user-approved-sender: No x-tm-as-user-blocked-sender: No Content-Type: multipart/mixed; boundary="_004_104357FAE6191640806F918C9E92532251E70BD2Mail2sa15statef_" X-Proofpoint-Spam-Details: rule=notspam policy=default score=0 spamscore=0 suspectscore=0 malwarescore=0 phishscore=0 adultscore=0 bulkscore=0 classifier=spam adjust=0 reason=mlx scancount=1 engine=8.0.1-1507310000 definitions=main-1510010212 X-Proofpoint-Virus-Version: vendor=fsecure engine=2.50.10432:,, definitions=2015-10-01_05:,, signatures=0 X-Proofpoint-Virus-Details: default_rule Return-Path: prvs=4716b5e07a=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: dd7fedba-7f51-490e-08aa-08d2ca72f6f8 X-MS-Exchange-Organization-SCL: 1 X-MS-Exchange-Organization-PCL: 2 X-MS-Exchange-Organization-Antispam-Report: DV:3.3.15106.474;SID:SenderIDStatus None;OrigIP:151.132.50.246 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 October 2015 Legal Eagle Good morning; This month's issue of the Eagle leads off with a case of first impression involving the police use of a License Plate Reader to effect a lawful traffic stop. Also included is an in-depth review of Vehicle C.C.F. based upon an actual traffic stop with an interesting photo of the vehicle's interior. As well as a case finding no exigent circumstances to permit police to obtain real time cell phone data without a search warrant. A case discussing the legality of seizing a cell phone pending a search warrant. Lastly, yet another excessive use of force case. As always feel free to distribute. --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. 3DE493143197A940BC4DB44A62906E16@namprd09.prod.outlook.com <104357FAE6191640806F918C9E92532251E70BD2@Mail-2.sa15.state.fl.us> Good morning; This month's issue of the Eagle leads off with a case of first impression involving the police use of a License Plate Reader to effect a lawful traffic stop. Also included is an in-depth review of Vehicle C.C.F. based upon an actual tr 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=b5c07e52-f79b-1640-b9f9-22e1e9f662f1;IDXHEAD=D0FC5B26B2;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 4E4F3E6C97DD98DB Anonymous 0FE066FF01363C0FE0684C Attorneys SMTP Attorneys@sa15.state.fl.us Attorneys@sa15.state.fl.us Attorneys October2015.pdfOctober2015 1 L LL Legal Eagle egal Eagle egal Eagle egal Eagle October 2015 endricks was driving her patrol car when its license plate recognition (“LPR”) system gave an alert about a nearby car. The LPR system scans the license plates of cars that are within range of cameras mounted on the patrol car and can generate an alert if a scanned car is connected to a wanted person. The alert showed Officer Hendricks that a man named Otis Hicks was associated with a nearby car and was wanted for first-degree domestic assault. The alert also said that Hicks may be armed and dangerous. Importantly, the LPR alert did not provide any information as to how or when Hicks was associated with the car in question. After pulling the car over, Officer Hendricks approached the driver’s side and saw two men inside. She asked the driver for his license, which identified him as Otis Hicks. Upon his arrival as backup, Officer Christensen asked the passenger, Lawrence Williams, to get out of the car and present identification. According to Christiansen, Williams patted his waistband two times while getting out of the car and Williams’s hands were shaking uncontrollably as he retrieved his identification. Officer Christensen handcuffed Williams and conducted a pat-down search for weapons. He felt what he recognized to be a firearm and removed a handgun from Williams’s waistband. After finding the handgun, Officer Christensen found a bag containing heroin. Prior to trial Williams filed a motion to suppress the seized items arguing the officer did not have reasonable suspicion to effect the vehicle stop. The magistrate denied his motion. On appeal the U.S. Court of Appeals agreed, and sustained the conviction. Did the LPR “hit” provide the officer with reasonable suspicion to effect a lawful vehicle stop? Yes. Stopping an automobile and detaining its occupants constitute a “seizure” within the meaning of the Fourth Amendment. Delaware v. Prouse, (S.Ct.1979). “The essential purpose of the proscription in the Fourth Amendment is to impose a standard of ‘reasonableness’ upon the exercise of discretion by a government official in order to safeguard the privacy and security of individuals against arbitrary invasions.” “The permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” The reason ess argues that Officer Hendricks did not have reasonable suspicion to conduct the traffic stop because a ‘police officer who receives an alert from the LPR system has no way of knowing the extent of the person’s relationship to the vehicle.’ Williams and the Government seem to agree that there liams asserts, without citation, that Officer Hendricks must ‘have [had] some idea at least that there [was] a black male driving the car’ before making the traffic stop. Officer Hendricks testified that she was unable to see who was inside the car until after she stopped it. Common sense dictates that police officers will often be unable to confirm the race or gender of a driver before initiating a traffic stop. Accordingly, we fail to see how Officer Hendricks’s decision to briefly stop the car and check the driver’s identification was an unreasonable seizure in violation of the Fourth Amendment merely because she initially could not identify the driver’s race or gender. “Williams concedes that Hicks was ‘perhaps associated with the car’ but nonetheless argues that the stop violated the Fourth Amendment because Officer Hendricks ‘had no information of the time frame of when Hicks had been associated with the car.’ But our precedent makes clear that ‘officers may rely upon notice from another police department that a person or vehicle is wantare no reported federal decisions that have specifically dealt with the use of an LPR system in the Fourth Amendment context. However, as we have held, ‘if a flyer or bulletin has been issued on the basis of articulable facts supporting a reasonable suspicion that the wanted person has committed an offense, then reliance on that flyer or bulletin justifies a stop to check identification, to pose questions to the person, or to detain the person briefly while attempting to obtain further information.’ ‘Police officers may rely upon notice from another police department that a person or vehicle is wanted in connection with the investigation of a felony ‘when making a Terry stop, even if the notice omits the specific articulable facts supporting reasonable suspicion.’ ” “We fail to see how the use of the LPR system makes any difference in this case. Williams does not cite any precedent holding that the mechanism through which an officer receives notice from another department matters for Fourth Amendment purposes. Indeed, the LPR system merely automates what could otherwise be accomplished by checking the license-plate number against a ‘hot sheet’ of numbers, inputting a given number into a patrol car’s computer, or ‘calling in’ the number to the police station. Thus, we conclude that Officer Hendricks was entitled to ‘rely upon notice from another police department,’ she obtained by using a more automated process: the LPR system. “Williams argues further that Officer Hendricks’s stop violated the Fourth Amendment ‘because she could not tell who was driving the car until after she stopped it.’ Wil “W e fail to see how the use of the LPR system makes any difference in this case. Williams does not cite any precedent holding that the mechanism through which an officer receives notice from another department matters for Fourth Amendment purposes.” 3 L LL Legal Eagle egal Eagle egal Eagle egal Eagle October 2015 ed in connection with the investigation of a felony ‘when making a Terry stop, even if the notice omits the specific articulable facts supporting reasonable suspicion.’ Accordingly, this argument is without merit. Affirmed.” er would understand that during the time a car is lawfully stopped, he or she is not free to terminate the encounter with the police and move about at will. Arizona v. Johnson, (S.Ct. 2009). In a case of similar facts, Ellis v. State, (2DCA 2006), the officer testified that she randomly entered vehicle tags into her on-board computer as she patrolled. On this occasion she received back from DMV, “no record found.” Based on that response she effectuated a traffic stop. She acknowledged at the motion to suppress that there had been occasions when she had stopped cars on the basis of a “no record found” response and found that the car was properly registered. She further testified that “that’s why you conduct the stop to see the paper registration, to verify the paper.” The defendant argued that because there was a pos AELE Law Enforcement Legal Center P.O. Box 75401 Chicago, IL 60675-5401 USA Tel. 1 (847) 685-0700 Fax 1 (847) 685-9700 E-mail: info@aele.org “Building integrity and confidence through research and education.” 1. The IACP has updated its model policy on Use of Force. It was last revised in Feb. 2006, The policy and Commentary paper are gratis for IACP members. http://www.theiacp.org/ 2. New AELE Monthly Law Journal article: ** Police Accommodation of Mentally Impaired Persons Under the Americans with Disabilities Act (Part 2) It addresses deadly force, Tasers, suicide, drug use and other subtopics. View at http://www.aele.org/ law/2015-10MLJ101.html 3. The Oct. 2015 issues of AELE's three periodicals been uploaded. The current issues, back issues since 2000, case digests since 1975, and a search engine are FREE. Everyone is welcome to read, print or download AELE publications without charge. The main menu is at: http:// www.aele.org/law sible innocent explanation the stop was unlawful. The D.C.A. disagreed: “Officer Wilson actually had information indicating that the Department of Motor Vehicles had no record of the tag, which in light of her experience gave her a reason to suspect that the car was not properly registered or that there was ‘something wrong’ with the tag… Officer Wilson was justified in stopping Ellis to investigate after having received information that indicated that the Department of Motor Vehicles had no record of the tag affixed to Ellis’s car.” “Ellis argues that Officer Wilson did not have a reasonable suspicion because she admitted that there had been occasions when she had received the ‘no record found’ response and then on further investigation determined the car was properly registered. ‘Even in Terry the conduct justifying the stop was ambiguous and susceptible of an innocent explanation.’ Illinois v. Wardlow, (S.Ct.2000). Terry does not require absolute certainty nor does it require an officer to ignore facts that indicate an individual may be committing a crime simply because those facts do not rise to the level of probable cause to make an arrest. Where the facts known to an officer suggest, but do not ‘necessarily’ indicate ongoing criminal activity, an officer is entitled to detain an individual to resolve the ambiguity. See, Wardlow.” “Accordingly, we conclude that the trial court correctly denied Ellis’s motion to suppress.” U.S.v.Williams U.S. Court of Appeals 8th Cir. (Aug. 7, 2015) 4 L LL Legal Eagle egal Eagle egal Eagle egal Eagle October 2015 """ Was the firearm “readily accessible” to motorist at the time the deputy encountered him? Yes. Was the firearm “on or about” motorist’s person, and was the weapon hidden from the ordinary sight at the time the deputy encountered him? Yes anner as to conceal the firearm from the ordinary sight of another person.” The Florida Supreme Court in the seminal case on this topic, Ensor v. State, (Fla.1981), stated: “We . . . find that absolute invisibility is not a necessary element to a finding of concealment under section 790.001.The operative language of that section establishes a two-fold test. For a firearm to be concealed, it must be (1) on or about the person and (2) hidden from the ordinary sight of another person. The term ‘on or about the person’ means physically on the person or readily accessible to him. This generally includes the interior of an automobile and the vehicle’s glove compartment, whether or not locked. The term ‘ordinary sight of another person’ means the casual and ordinary observation of Photograph of vehicle interior as observed by deputy after motorist exited vehicle. 5 L LL Legal Eagle egal Eagle egal Eagle egal Eagle October 2015 another in the normal associations of life. Ordinary observation by a person other than a police officer does not generally include the floorboard of a vehicle, whether or not the weapon is wholly or partially visible.” “These statements are not intended as absolute standards. Their purpose is to make it clear that a weapon’s possible visibility from a point outside the vehicle may not, as a matter of law, preclude the weapon from being a concealed weapon under section 790.001. Similarly, a weapon’s location in some extreme part of the vehicle’s interior may be such that the trier of fact finds the weapon to be not about the person, and thus not concealed. In all instances, common sense must prevail. The critical question turns on whether an individual, standing near a person with a firearm or beside a vehicle in which a person with a firearm is seated, may by ordinary observation know the questioned object to be a firearm. The ultimate decision must rest upon the trier of fact under the circumstances of each case.” ted in court sufficiently establishes that the firearm was simultaneously “on or about the person” and “concealed from ordinary view” when the individual was encountered by the officer. The fact that the defendant was later removed from the vehicle prior to the moment the firearm was seized is of no import. The 4th D.C.A. in State v. Smith, (4DCA 2011), cited to multiple cases where the defendant was outside of his vehicle for an extended time prior to the discovery of the firearm in the vehicle. Citing to Evans v. State, (1DCA 2009), the D.C.A. ruled, “the [defendant] was inside the vehicle with the concealed firearm at the time the law enforcement officer approached; the [defendant] was ordered out of the vehicle; and the firearm was found concealed in the vehicle immediately after.” “The firearm was readily accessible immediately prior to the defendant being ordered out of the car. Smith would have us hold that based on [other cases], anytime a firearm is retrieved from a vehicle after the person charged is out of the vehicle, the requirement that the firearm be ‘on or about the person’ or ‘readily accessible’ cannot be met. We decline to so hold.” “The facts in [other cases] are distinguishable from the instant case. In those cases, the defendant was out of the vehicle when approached by law enforcement. Here, Smith concealed the firearm underneath the passenger seat as the deputy approached the vehicle. We cannot say as a matter of law that the firearm was not ‘on or about his person’ or not ‘readily accessible’ to him. Smith had been outside his vehicle for a mere seven minutes before the firearm was retrieved. …We therefore reverse the dismissal…” Section 790.25(5), Possession in a Private Conveyance, was intended to create a new exception to the prohibitions of section 790.01.The exception is very specifically and clearly limited to private conveyances. “(5) POSSESSION IN PRIVATE CONVEYANCE.—Notwithstanding subsection (2), it is lawful and is not a violation of s. 790.01 to possess a concealed firearm or other weapon for self-defense or 6 L LL Legal Eagle egal Eagle egal Eagle egal Eagle October 2015 other lawful purpose within the interior of a private conveyance, without a license, if the firearm is securely encased or is otherwise not readily accessible for immediate use. Nothing herein contained prohibits the carrying of a legal firearm other than a handgun anywhere in a private conveyance when such firearm is being carried for lawful use. Nothing herein contained shall be construed to authorize the carrying of a concealed firearm or other weapon on the person. This subsection shall be liberally construed in favor of the lawful use, ownership, and possession of firearms and other weapons, including lawful self-defense as provided in s. 776.012.” “ ‘Securely encased’ means encased in a glove compartment, whether or not locked; in a snapped holster; in a gun case, whether or not locked; in a zippered gun case; or in a closed box or container which requires a lid or cover to be opened for access.” F.S. 790.001(16). “A gun case can be of any type of receptacle for carrying a gun that makes the gun not readily accessible for immediate use. As long as the purposes of the statute are fulfilled, any further definitions are unnecessary.” Alexander v. State, (Fla.1985). The firearm depicted in the photo above is not securely encased in the center console. It is at the same time, on or about the person of the driver, as well as readily accessible. Further, the testimony of the deputy will be dispositive on the concealment issue. If the body of the motorist, while he was seated in the driver’s seat, blocked the officer’s view of the firearm, and it only later became visible after he was removed from the vehicle, then as the Ensor ruling made clear, the firearm was concealed from ordinary view. Obviously, if the deputy had a clear view of the firearm as he approached the vehicle then the occupant would be in violation of F.S. 790.053, Open carrying of weapons — “Except as otherwise provided by law and in subsection (2), it is unlawful for any person to openly carry on or about his or her person any firearm or electric weapon or device… Any person violating this section commits a misdemeanor of the second degree.” """ $