Motion to Suppress

The Police violated your 4th Amendment Right Against Unlawful Searches, Seizures and Arrests.

The person seeking to have the evidence suppressed or excluded must demonstrate that he has “Standing”- a reasonable expectation of privacy with respect to the place searched or the item seized, based upon the totality of the circumstances and must be an expectation that society is prepared to recognize. Persons have no reasonable expectation of privacy over items they throw in the trash and leave out for the curb. Homeowners and renters or those with a right of possession have standing. Overnight guest in most circumstances also have a legitimate expectation of privacy.

The police must have a warrant for an arrest or search based upon probable cause based upon what a reasonable person would believe that a crime has been or is being committed or the place to be searched contains the fruits or instrumentalities of a crime. A police officer may also stop and frisk a person without probable cause if he has an articulable suspicion that criminal activity is afoot. There are several exceptions to the warrant requirement for as follows:

  • Consent: No warrant is required if a person with apparent authority to use or occupy the property freely and voluntarily gives the police permission to search. The scope of the search should be limited to the scope of the consent.

  • Plain View: The police may seize an item if the police are viewing the object from a location that they are legitimately on and the object seized has an obvious incriminating nature.

  • Search Incident to a Lawful Arrest: Incident to a lawful arrest the police may search the person and the areas into which he might reach for weapons or destroy evidence. The police may also make a “protective Sweep” of the area if it is believed to have accomplices that pose a threat to the crime scene.

  • Automobile Exception: If the police have probable cause to believe that the vehicle contains the fruits or instrumentalities of a crime - evidence of a crime, they may search the whole car and any container that might reasonably contain the item which they had probable cause to search.

  • Hot Pursuit, Exigent circumstances: Hot pursuit of a fleeing felon. Or Circumstances where the delay to obtain a warrant would result in destruction of or loss of evidence, or danger to life or property.

  • Searches at the Border: No warrant required for border restrictions.

New Case Law

  • Possession of cocaine, Search and seizure: Anonymous tip that two juveniles were loitering around apartment complex and that narcotics were possibly involved did not provide enough reasonable suspicion to justify stopping and detaining defendant, who was twenty-two years old and with a friend, and who informed officer they were visiting a friend who lived in one of the apartments. Stop was investigatory, not a consensual encounter, where officer told defendant to stand by while he investigated. Information provided in tip, even if corroborated by officer, was not sufficient to justify investigatory stop. Mere presence on property which had no trespassing sign posted was not sufficient to give rise to reasonable suspicion that crime of trespass was being committed and could not serve as basis for investigatory stop. Error to deny motion to suppress cocaine dropped by defendant while officer was investigating claim that defendant was on property to visit friend

  • Possession of Prescription pill not in Rx container, the police officer lacked probable cause to make an arrest of defendant who was carrying an oxycodone pill in his pocket. Unlike a drug such as heroin, oxycodone may be lawfully possessed with a prescription. It is not unusual for a traveler with a valid prescription to separate a pill from the prescription bottle for later consumption. State of Florida v. Deaton, 109 So. 3d 338 (4DCA 2013). (Click here to see Drug Possession and Drug Trafficking) Further, a police officer is required to conduct a reasonable investigation to establish probable cause. The determination if a person has a valid prescription for the suspect medication can easily be verified. Such poor police work could be grounds for a civil lawsuit for false arrest. City of St. Petersburg v. Austrino, 898 So. 2d 955 (2DCA 2005) (Click here to see Police misconduct)
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