July 15, 2015
June 18, 2015
|Must Prove Defendant |
Knew Drug was Illegal
Defendant claimed "he did not know the “bath salts” he was distributing were regulated as controlled substance analogues . . . ." Court said "Government [must] establish that the defendant knew he was dealing with a substance regulated under the Controlled Substances Act . . . ."
Certiorari to the United States Court of Appeals for the Fourth Circuit
Decided June 18, 2015
May 23, 2015
Marijuana Grow Conviction Overturned - Knock and Talk
Having a couple of marijuana plants in your Florida back yard just got easier. A Marijuana grower in Pasco County, Florida's Spring Hill was cleared this week when cops ignored several signs that the guy's home was intended to be private. Aggressive drug law enforcement did not stop at a gate, a beware of dog sign, and a no trespassing sign and came to the residence to knock on the door and talk about information they had received from a tipster. In copspeak this is a "knock and talk."
"After entering the property through this gate, the officers located Mr. Robinson and convinced him to allow them to search the property. They found the two marijuana plants behind Mr. Robinson's house. This resulted in the State's prosecution of Mr. Robinson for manufacturing marijuana."
Download and Share the Florida Cannabis Opinion in PDF Format
Complete text of Opinion:
Complete text of Opinion:
ALFRED ROBINSON, v. STATE OF FLORIDA,
Case No. 2D13-4412
Opinion filed May 22, 2015.
Appeal from the Circuit Court for Pasco County; Mary Handsel, Judge.
Alfred Robinson appeals a withhold of adjudication and a three-year term of probation for the offense of manufacturing marijuana in violation of section 893.13(1)(a), Florida Statutes (2012). The withhold of adjudication and sentence were imposed as a result of a plea following the denial of a dispositive motion to suppress.
The motion to suppress was based on the fact that detectives entered Mr. Robinson's property without a warrant or permission. We conclude that the detectives could not enter the property to conduct a knock and talk or to pursue a consensual encounter with Mr. Robinson without first obtaining his permission to enter the property. We reach this conclusion because the property, a semirural homestead where the detectives found two marijuana plants, was surrounded by a chain-link fence; had a closed gate with a "no trespassing—violators will be prosecuted" sign and a "beware of dog" sign; and had a mailbox accessible from outside the fence. These facts distinguish this case from Nieminski v. State, 60 So. 3d 521 (Fla. 2d DCA 2011). Accordingly, the trial court was required to grant the motion to suppress. We remand for the trial court to vacate the withhold of adjudication and sentence and dismiss the proceeding.
On July 24, 2012, three detectives went to Mr. Robinson's property on a semirural road in Spring Hill, Florida. They were investigating an anonymous tip that the house on the property was used to grow marijuana. It is undisputed that the detectives did not have a warrant and had not performed an investigation to establish probable cause for such an offense. When they arrived, they discovered that the property, a small acreage, was completely surrounded by a chain-link fence. The only entrance gate was closed but not locked. Although the detectives did not recall any signs on the property, the trial court found that both a "no trespassing" sign and a "beware of dog" sign were posted at the entrance. The mailbox was on a post at the fenced line outside the gate so that the mailman did not need to enter the property.
After entering the property through this gate, the officers located Mr. Robinson and convinced him to allow them to search the property. They found the two marijuana plants behind Mr. Robinson's house. This resulted in the State's prosecution of Mr. Robinson for manufacturing marijuana.
Mr. Robinson filed a motion to suppress arguing that the detectives' entry onto his property was an illegal search and that the State had failed to prove that his subsequent consent to search was voluntary. The trial court denied the motion based on this court's decision in Nieminski. On appeal, the parties agree that the dispositive issue is whether the detectives were authorized to enter the property without a warrant or consent.
Our decision in Nieminski involves a similar anonymous tip and a similar fence, but the opinion emphasizes that the "property was not posted with 'no trespassing' signs" and "did not have any other signs that might discourage a person from entering." Id. at 522-23. There was no evidence to establish the location of the mailbox. This court held that Mr. Nieminski failed to establish that he had a reasonable expectation of privacy that included the right to assume ordinary citizens would not open his gate and knock on his front door. See id. at 528-29.
Unlike Mr. Nieminski, Mr. Robinson did establish that he had a reasonable expectation of privacy in this property because ordinary citizens would not disregard his threat of prosecution and the risk of a bad dog to enter through his closed but unlocked gate. This case is more similar to the cases distinguished in Nieminski and to this court's recent decision in Ferrer v. State, 113 So. 3d 860 (Fla. 2d DCA 2012).
In the trial court, because the entry onto the property was found to be lawful, the State was only required to prove that Mr. Robinson's consent was voluntary by the preponderance of the evidence. See Faulkner v. State, 834 So. 2d 400, 403 (Fla. 2d DCA 2003). Had the trial court found the entry to be unlawful, the State would have faced the heavier burden of overcoming the presumption that Mr. Robinson's consent was not voluntary by clear and convincing evidence. See id. Without detailing the evidence, we agree with the State's concession on appeal that the evidence would not establish voluntary consent under this heightened standard.
Although we do not have occasion to recede from Nieminski, we note that the Nieminski decision relied significantly on the "reasonable expectation" test derived from Katz v. United States, 389 U.S. 347 (1967). See Nieminski, 60 So. 3d at 524-29. We recognized that the officers in that case may have committed a trespass under section 810.09, Florida Statutes (2008). Id. at 528-29. We discussed cases in which an officer's trespass had not been treated as a violation of the Fourth Amendment based on the Katz analysis. Id. Since our decision in Nieminski, however, the United States Supreme Court has twice written divided decisions relying upon a pre-Katz trespass analysis. See Florida v. Jardines, 133 S. Ct. 1409 (2013); United States v. Jones, 132 S. Ct. 945 (2012). Whether these cases would now require a different outcome in Nieminski is open for debate but is not a matter that we need to decide today. Reversed and remanded.
CASANUEVA and BLACK, JJ., Concur.
March 15, 2015
|'faint odor' of marijuana |
but found no marijuana
"the officer lacked reasonable suspicion of criminal activity and
probable cause to seize the evidence."
Drug Crime Cop Gone Wild
One of Polk county's finest, a deputy sheriff under the notorious Sheriff Grady Judd pulled over a car for a traffic violation. The Court said there was “initially a stop due to the traffic violation, once the officer determined not to cite the driver and asked the driver for consent to search the vehicle, the encounter became consensual”
The cop takes the passenger's purse and searches it. The appeals court found, as a matter of fact, the officer had searched the defendant’s purse. The wayward officer had removed a pill box from the vehicle. The cop did not know what kind of pills he had found during his soon-to-be illegal search. He had to search on the internet. I kid you not - Drugs.com . As a drug crime defense attorney, the offensive tactics that some Florida state law enforcement use to obtain criminal charges to justify seizure of both drugs and then cash, vehicles, and real estate are disturbing.
"The officer testified to a 'faint odor' of marijuana but found no marijuana"
By the way here is another case where they was an allegation of an "odor of marijuana." Shockingly, there was no weed found in the car. It turns out the pills were Ritalin (methylphenidate) and Tramadol. Nevertheless, the Fourth Amendment violation continued when the officer wandered to his patrol car with the pill box. At that point the Second District Court of Appeal found “the encounter again became an investigatory detention . . . .” The court ruled that the search of the pill box in the passenger's purse “requires reasonable suspicion that an individual has committed or is about to commit a crime . . . .” For the search to have been legal the officer must have “a well-founded, articulable suspicion of criminal activity” (quoting Smith v.State, 95 So. 3d 966, 968).
Excerpts from the Drug Seizure Opinion
"The officer testified that although he knew the purse belonged to Gay [ name of the passenger ]and not the driver, he did not seek consent from Gay to search the purse."
"The officer testified to a 'faint odor' of marijuana but found no marijuana in either the purse or pill box. And the mere observation of pills in an aftermarket container is equally consistent with noncriminal activity as with criminal activity."
"investigatory detention and seizure of the pills and pill box was unauthorized"
"[T]he deputy’s actions constituted a show of authority that would lead a reasonable person to conclude he or she was not free to end the encounter and leave. . . . [N]either the illegal nature of the possession of the pills nor the type of pills was known to the officer at the time he removed them from the vehicle. Nothing about the pills or pill box gave him a reasonable suspicion that the defendant had committed, was committing, or was about to commit a crime. Nor did he know that any of the pills were controlled substances at the time he seized them. . . . The investigatory detention and seizure of the pills and pill box was unauthorized; the officer lacked reasonable suspicion of criminal activity and probable cause to seize the evidence. [The defendant’s] motion to suppress should have been granted."
Source: Gay v. State, 138 So. 3d 1106 (Fla. 2d DCA 2014)
|Drug Crimes Defense Expert|
March 14, 2015
|Drug Dog Sniffs|
"evidence of a drug-sniffing dog’s satisfactory performance in a certification or training program, the dog’s alert can provide probable cause to search a vehicle."
Drug Dog Search Update - Breaking news that an unwitting dog helped police bust his owner. The cops were chasing a drug suspect who hid in tall grass. The narcs had noticed the suspect had a dog. For those playing along at home, the dog's name was Bo. Anyhow, when confronted by the police, the man and his faithful companion hit the road. The dog followed his owner. The police lost the track. They noticed the dog was standing nearby. They said, "go get him." That is what Bo the dog did. His owner was found hiding nearby. Good dog?
Also in an update the state of the case law discussed below: One legal source summarized the result of the Supreme Court review of dog sniffs. "When, subject to challenge by the defendant, the police provide evidence of a drug-sniffing dog’s satisfactory performance in a certification or training program, the dog’s alert can provide probable cause to search a vehicle."
Tampa Drug Defense Attorney has received an interesting comment on Drug Sniffing Dogs from one of our anonymous sources.
I post the anonymous comment it in its entirety:
"The dog lovers at the United States Supreme Court have once more dissed the dog haters at the Florida Supreme Court (I'm a cat person myself). You may recall that in January the SCOTUS granted cert in Florida v. Jardines, No. 11-564, to decide the question whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause. Starring in Jardines is a drug-sniffing dog named Franky."
"Today, not content with one Florida drug-sniffing dog case per term, the SCOTUS granted cert in Florida v. Harris, No. 11-817, another drug-sniffing dog case. I am not sure of the exact question presented, but I do know the name of the dog -- Aldo. In any event, the holding of the Florida Supreme Court to be reviewed is as follows:"
"We hold the fact that a drug-detection dog has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate the reliability of the dog. To demonstrate that an officer has a reasonable basis for believing that an alert by a drug-detection dog is sufficiently reliable to provide probable cause to search, the State must present evidence of the dog's training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and 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 trial court must then assess the reliability of the dog's alert as a basis for probable cause to search the vehicle based on a totality of the circumstances. Because in this case the totality of the circumstances does not support a probable cause determination, the trial court should have granted the motion to suppress. We remand for proceedings consistent with this opinion."
Harris v. State, 71 So.3d 756, 775 (Fla. 2011).
Drug Dog Sniff Questions? Call Casey at 813-222-2220
March 7, 2015
|Tampa Drug Charge Defense|
"Less than one-half of one percent of Florida's lawyers have qualified"
Tampa Criminal Drug Defense Attorney, Casey Ebsary is a local defense attorney and former prosecutor. Casey was a Prosecutor in Hillsborough County's Drug Court, which was one of the first drug treatment-oriented court programs in Florida. Casey is ready to fight all types of criminal charges including drug charges and Driving Under the Influence DUI where drug use is alleged.
Casey Ebsary is Board Certified in Criminal Trial Law by the Florida Bar Board of Legal Specialization and Education. Less than one-half of one percent of Florida's lawyers have qualified for this distinction. Click on the Florida Bar Board Certified Criminal Trial icon above to review Casey's qualifications. Then give Casey a call to discuss how he can fight for you, a family member, or a loved one.
Casey is available 24/7/365 at 813-222-2220.
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