April 2000
UNITED STATES SUPREME COURT Search and seizure - anonymous tip
An anonymous tip that a person is carrying a gun, without more, is not sufficient to justify a police officer's stop and frisk, the U.S. Supreme Court held in a Florida case. The court's unanimous opinion rejected the state argument for a "firearm exception" to the general rule that requires corroboration of an anonymous tip for officers to have a reasonable suspicion of criminal activity. The justices affirmed a December 1998 decision of the Florida Supreme Court, which threw out evidence of a concealed firearm discovered on a minor identified only as J.L. The youth was searched solely on the basis of an anonymous tip, and was engaged in otherwise lawful activity at the time of the search. "That the allegation about the gun turned out to be correct does not suggest that the officers, prior to the frisks, had a reasonable basis for suspecting J.L. of engaging in unlawful conduct: The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L.," Justice Ginsburg wrote for the court. "Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions. Our decisions recognize the serious threat that armed criminals pose to public safety. ... But an automatic firearm exception to our established reliability analysis would rove too far. Such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun."
[Florida vs. J.L., 3/28/00] 11TH CIRCUIT COURT OF APPEALS Qualified immunity - force used during arrest
A "minimal amount" of force used by a law enforcement officer to make an arrest will not defeat the officer's qualified immunity in a case where excessive force is alleged, the 11th U.S. Circuit Court of Appeals said. Reaffirming a position it has taken in the past, the court said a trial judge incorrectly denied an Alabama officer's qualified immunity defense when he was sued for excessive force in making an arrest. The plaintiff maintained that he suffered bruising during the arrest, but admitted the bruises disappeared quickly and he did not seek medical treatment. "(T)his Circuit has established the principle that the application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment. The district court disagreed, determining it should ignore the binding authority of three separate opinions of this Court based on its view that those opinions failed to follow an earlier, controlling case. In doing so, the district court erred," the 11th Circuit said.
[Nolin vs. Isbell, 3/28/00] FLORIDA SUPREME COURT Prior DUI convictions
The jury, rather than the trial judge, must determine that a defendant has three prior misdemeanor DUI convictions in order to support a conviction for felony DUI, the Florida Supreme Court held. The state argued on appeal that Robert Harbaugh's request to have the jury determine the issue of prior DUI convictions amounted to a waiver of the bifurcated procedure spelled out in 1991's State vs. Rodriguez. Under Rodriguez, the jury considers evidence in the current case without hearing about the prior convictions, and then upon conviction the judge determines whether the earlier cases provide the legal basis for a felony DUI conviction. In the present case, the Supreme Court held that in this bifurcated process the jury, not the judge, must determine the issue from the evidence presented in the second phase. "Given ... that every element of felony DUI must be proven to the satisfaction of the jury beyond a reasonable doubt, the jury, unless waived by the defendant, must decide the issue regarding the three prior convictions. It follows then that felony DUI trials must be conducted before the jury in two stages because the concern remains about tainting the consideration of the current misdemeanor DUI with evidence concerning the past DUI," the court said.
Senior Assistant Attorney General Celia Terenzio and Assistant Attorney General Ettie Feistmann represented the state on appeal.
[State vs. Harbaugh, 3/9/00]
2ND DISTRICT COURT OF APPEAL Officer's testimony - failure to give Miranda
The testimony of a police officer about a defendant's statements where no Miranda warning was given is inadmissible, the 2nd DCA said. Daniel Larson appealed his convictions for robbery with a firearm and kidnapping. Larson filed a pretrial motion to suppress custodial statements he made after a probable cause arrest, asserting that the statements were obtained in violation of Miranda. The trial court denied Larson's motion, ruling that Miranda warnings were not required because Larson volunteered his statements and the officer did not conduct an interrogation. The DCA disagreed, holding that the state did not carry its burden of showing that no interrogation occurred. On appeal, the state argued that any error in admitting Larson's statements was harmless because the statements themselves were not incriminating. Reversing, the DCA rejected the state's argument, noting that during his closing argument the prosecutor argued forcefully to the jury that Larson's statements were highly incriminating.
Assistant Attorney General Helene S. Parnes represented the state on appeal. DUI - order staying driver's license suspension
A court may not stay the administrative suspension of a driver's license during judicial review of the order, the 2nd DCA said. A woman was arrested for driving under the influence of alcohol and her driver's license was suspended for one year for refusing to submit to a blood, breath or urine test. The suspension was upheld during a formal administrative review hearing, but the circuit court granted a stay of the suspension pending the outcome of the review of the hearing officer's decision. The Department of Highway Safety and Motor Vehicles argued that the stay was improper because it violates section 322.28(5), F.S., which provides that a court may not stay the administrative suspension of a driver's license during judicial review of the order. The DCA agreed and reversed the trial court, quashing the order staying the suspension.
[Department of Highway Safety and Motor Vehicles vs. Peterson, 3/24/00] Forfeiting currency
An individual forfeits currency discovered in his vehicle upon a probable cause finding that the currency was used illicitly, the 2nd DCA said. Marlo Albury challenged a non-final order forfeiting currency discovered in his vehicle. Albury and his wife were traveling in a rented vehicle that was stopped for speeding. Albury's wife told the officer there was nothing in the car he should be aware of, but Albury and his wife gave conflicting statements about the amount of money in the car. Albury agreed to a search of the vehicle, but a police dog failed to indicate the presence of narcotics. The officer subsequently searched the vehicle and found a package containing $55,045 in cash. The DCA concluded that while Albury and his wife gave conflicting statements about the money, there was nothing in those contradictions to indicate that the money was being used in violation of the Florida Contraband Act. The court reversed the forfeiture, noting that Albury provided receipts in support of his claim that he won the money gambling.
[Albury vs. City of North Port, 3/22/00] UNLAWFUL DETENTION
It is illegal for police to continue to detain an individual after the justification for the initial stop has ended, the 2nd DCA said. Tragus Palmer challenged his conviction for possession of cocaine. Palmer was initially stopped for a possible expired license tag. As a deputy approached Palmer's vehicle he was able to determine that the tag was not expired, ending the justification for the stop. However, Deputy Harris preceded to request Palmer's license and registration. On appeal Palmer contended that it was illegal for the deputy to continue to detain him once he determined that the tag was not expired. The DCA agreed. The DCA noted that it has previously held that a defendant has the burden to prove that a search is invalid, but once he has done so the burden then shifts to the state to establish that the warrantless search was legal. By relieving the state of its burden, the trial court improperly forced Palmer to prove that the search was invalid, the DCA said. "(O)nce Deputy Harris determined that Palmer's license tag had not expired, the justification for the stop ended and Palmer should have been free to leave. Palmer's continued detention after the justification for the stop ended was illegal," the DCA said.
Assistant Attorney General John M. Klawikofsky represented the state on appeal.
[Palmer vs. State, 3/15/00] Consent for search of mouth
A law enforcement officer must obtain informed, verbal consent from a defendant before performing an oral cavity search, the 2nd DCA said. Paul Smith appealed his conviction for possession of cocaine, asserting that the trial court erred in concluding that he consented to a search of his mouth. The officer received consent to search Smith, but when the officer asked to see the inside of Smith's mouth Smith he refused to lift his tongue. According to the DCA, "When Smith failed to comply with the officer's command to lift his tongue, a command with which he had no legal duty to comply and which the officer had no legal authority to compel, Officer Tull attempted to procure compliance by issuing instructions, all the while holding Smith there with his mouth apparently open. In seeking compliance, the officer was not seeking consent. Smith had the right to rescind his consent or to limit his consent. Through his non-verbal conduct, Smith denied or withdrew consent for the officer to see beneath his tongue by holding his tongue to obscure the officer's view." Dissenting, Judge Davis concluded that Smith gave voluntary consent to the search. "We should not classify all compliance as mere acquiescence. Although I am mindful of the privacy interests implicated by search of certain areas of a person's body, this case does not display factors that tend to demonstrate a seizure of Smith's person and his mere acquiescence to authority. That is, there is no evidence of the threatening presence of several officers, or use of a demanding tone of voice or language," the judge said.
Assistant Attorney General Tonja R. Vickers represented the state on appeal.
[Smith vs. State, 3/17/00] Illegal search
A law enforcement officer must have probable cause to arrest an individual prior to ordering him to empty his pockets and conducting a frisk or patdown, the 2nd DCA said. A juvenile identified only as C.F.G. appealed the denial of his dispositve motion to suppress cocaine and drug paraphernalia. When deputies asked C.F.G. to provide identification, he led them to his hotel room, where they saw a device they considered to be drug paraphernalia. The deputies then searched C.F.G. and found the cocaine in his pocket. The DCA held that there was no legal basis for the deputies to conduct a frisk or patdown. "At the time C.F.G. was ordered to empty his pockets the deputies had no probable cause to arrest him for any crime. Additionally, one of the deputies testified at the hearing on the motion to suppress that there was no suspicion that C.F.G. was armed. Without such a concern or suspicion, the frisk was illegal," the DCA said.
Assistant Attorney Erica M. Raffel represented the state on appeal.
[C.F.G. vs. State, 3/8/00] Withdrawal of consent to search
When an individual gives an officer consent to search his shirt pocket, he withdraws that consent when he informs the officer that there is nothing else in his pocket, and so the officer must then have probable cause to continue the search, the 2nd DCA said. Earl Jacobs appealed his conviction for possession of cocaine. Jacobs' arrest came after he complied with an officer's request that he remove the contents of his pocket. After he said nothing remained in his pocket, an officer saw and removed a cellophane wrapper that contained crack cocaine. Jacobs contended that the cocaine should have been suppressed, and the DCA agreed. "(W)e find nothing in this record demonstrating that the deputy had probable cause to seize the partially revealed cellophane wrapper from Jacobs. This case did not involve a pat down search, and it is apparent that the cellophane did not suggest a weapon. Thus, the deputy had to have probable cause to believe that the cellophane wrapper contained illegal contraband," the DCA said.
Assistant Attorney General William I. Munsey Jr. represented the state on appeal.
[Jacobs vs. State, 3/10/00] 3RD DISTRICT COURT OF APPEAL Aggravated assault on a law enforcement officer
It is up to the jury to decide whether evidence is sufficient to determine if an individual knew the men chasing him were police officers, the 3rd DCA said. Norris Nelson appealed his conviction and sentence for four counts of aggravated assault with a firearm on a law enforcement officer and one count of resisting arrest without violence. Nelson contended that the evidence was insufficient for the jury to conclude that he knew the plainclothes officers were in law enforcement, which is an essential element of the crime. Upholding the decision of the trial court, the DCA said, "We consider the blue lights on two different vehicles in conjunction with a concerted effort by four men to apprehend Nelson, with one of them wearing a T-shirt with police markings, sufficient to support a jury's verdict."
Assistant Attorney General Regine Monestime represented the state on appeal.
[Nelson vs. State, 3/8/00] 4TH DISTRICT COURT OF APPEAL Recorded confession
When a suspect waives his Miranda rights and gives an unrecorded confession, officers must give him a "straightforward" answer when he inquires about his need for counsel prior to giving a taped confession, the 4th DCA said. The DCA asked the Supreme Court to determine what is required of officers when a suspect asks if he should invoke his right to counsel. Brian Glatzmayer moved to suppress the recorded confession he gave police officers concerning a robbery and murder. Glatzmayer argued that the trial court should have granted his motion to suppress because his case is indistinguishable from the Florida Supreme Court's ruling last year in Almeida vs. State. The state argued that the admission of the recorded confession was harmless because Glatzmayer gave an unrecorded confession before he ever asked the officers if they thought he needed counsel. The officers gave a vague response, and Glatzmayer then proceeded to give a taped confession. Reversing the trial court's decision to allow the taped confession, the DCA said, "Clearly, the only straightforward answer to appellant's question would have been some type of affirmative response. We therefore conclude that the confession must be suppressed." The DCA certified the question for a determination of what is required of officers under Almeida in such cases.
Assistant Attorney General Heidi L. Bettendorf represented the state on appeal.
[Glatzmayer vs. State, 3/8/00] DUI manslaughter
A defendant who testifies but failed to offer any evidence concerning his co-defendant's physical condition at the time of an accident loses the right to argue the evidence on appeal, the 4th DCA said. Floyd Persaud appealed his manslaughter and culpable negligence convictions, arguing that the trial court erred by not allowing him to introduce evidence of co- defendant Joseph Conti's intoxication at the time of the accident. The DCA affirmed the decision of the trial court because Persaud failed to preserve the issue of Conti's intoxication "by failing to reoffer the evidence of Conti's sobriety during the defense case, once Persaud's testimony had made that evidence relevant to his defense."
Assistant Attorney General Jeanine M. Germanowicz represented the state on appeal.
[Persaud vs. State, 3/1/00] 5TH DISTRICT COURT OF APPEAL Reasonable suspicion to conduct Terry stop
An officer who observes an individual parked late at night near a closed business does not have a well founded suspicion to conduct a Terry stop, the 5th DCA said. Gregory Baker was convicted of burglary, possession of burglary tools, and grand theft based on an officer discovering bolt cutters in the back of his van, as well as on certain incriminating statements Baker made. Baker appealed the trial court's failure to suppress the evidence, arguing that the officer had no well-founded suspicion to make a Terry stop. The DCA agreed, concluding that the officer had no reasonable grounds for suspicion that the closed business had been or was about to be burglarized. "If Baker's actions are sufficient to warrant a Terry stop, then anyone who parks in a business area late at night would be subject to a Terry stop," the DCA said.
Assistant Attorney General Alfred Washington Jr. represented the state on appeal.
[Baker vs. State, 3/24/00] Probable cause to search
An officer has probable cause to conduct a search if based on his training and experience he reasonably believes an object contains contraband, the 5th DCA said. Phillip Jenkins appealed the denial of his motion to suppress crack cocaine found inside a cut-down cigar tube. Jenkins was a passenger on a golf cart stopped by Deputy Taylor because it was being unlawfully driven the wrong way on a street. The DCA upheld the trial court's decision, citing the 4th DCA's 1989 holding in Gray vs. State. The DCA said that at a hearing on a motion to suppress the search and seizure of an ordinary looking object, the state must prove through the officer's testimony that, prior to the seizure, he reasonably believed the object contained contraband based on his knowledge gained through training and experience.
Assistant Attorney General Patrick W. Krechowski represented the state on appeal.
[Jenkins vs. State, 2/25/00] Investigatory stop - temporary vehicle tag
The failure of a vehicle to display a temporary tag in a clearly visible manner is an objectively valid reason to conduct an investigatory stop, the 5th DCA. Wayne Sands appealed the trial court's denial of his motion to suppress cocaine found in his vehicle after he was stopped for improper display of a license tag. Sands argued that subsection 316.605(1), the statute with which he was charged, does not apply to temporary tags. The DCA concluded that a reasonable officer would have been justified in stopping Sands for failing to display a temporary tag in a clearly visible manner in violation of subsection 320.131(4), F.S. (1997). Assistant Attorney General Alfred Washington Jr. represented the state on appeal.
[Sands vs. State, 2/25/00] Odor of marijuana - probable cause
An officer has probable cause to search all occupants of a vehicle after he detects a strong smell of marijuana emanating from the vehicle, the 5th DCA said. The state appealed an order suppressing evidence obtained during a traffic stop. Roy Chambliss was a passenger in a vehicle stopped because the tag did not match the car. While fleeing the scene, Chambliss took a pill bottle from his pocket and threw it on top of a police cruiser. The trial court issued a suppression order for the bottle, which contained cocaine. Reversing, the DCA concluded that the detention was lawful and the evidence obtained when the defendant bolted and threw away the cocaine should not be suppressed.
Assistant Attorney General Denise O. Simpson represented the state on appeal.
[State vs. Chambliss, 3/3/00] Refusal to take breathalyzer test
In order to sustain a driver's license suspension for refusal to take a breathalyzer test following arrest, the record does not have to include an affidavit of refusal, the 5th DCA said. After the Department of Highway Safety and Motor Vehicles sustained the suspension of her driver's license, Beverly Perry sought review in the circuit court by filing a petition for certiorari. The circuit court held that the suspension should not have been sustained because the record failed to include an affidavit of refusal pursuant to section 322.2615(2), F.S. Reversing the decision of the trial court, the DCA agreed with the department that there was competent evidence to support the hearing officer's decision to sustain the suspension of Perry's driver's license and that section 322.2615(2), F.S., does not mandate the filing of an affidavit of refusal on a form provided by the department. The statute only requires an affidavit stating that the breath, blood or urine test was requested by a law enforcement officer, implied consent warnings were given, and the person arrested refused to submit, the DCA concluded.
[Department of Highway Safety and Motor Vehicles vs. Perry, 3/17/00] Expungement of criminal history records
In response to a request from the Sarasota County Sheriff, the Attorney General issued an advisory opinion (2000-16, 3/8/00) stating in sum: "Information formalizing the petitioner's criminal history, such as an arrest, detention, indictment, information, or other formal criminal charge and the disposition thereof, would be subject to expungement under section 943.0585, Florida Statutes."
Opinion #2000-16 Approved by:
Enoch J. Whitney
General Counsel
Edited by:
Peter N. Stoumbelis
Assistant General Counsel