Being convicted of a drug related offense can have devastating consequences for a Floridian, including a felony conviction, a driver’s license suspension, and, in drug trafficking cases, a $50,000.00 fine. What can you do if you or a loved one is convicted of possession of a controlled substance, sales of a controlled substance, or trafficking in a controlled substance? A person can appeal their conviction if he or she went to trial or a person can appeal if he or she enters a plea on a dispositive issue and reserved the right to appeal. A dispositive issue means that the State could not have proceeded on the charge if the contested motion, like a motion to suppress, was granted.
A motion to suppress evidence obtained illegally in violation of a Floridian’s constitutional rights is the most frequent motion filed in drug cases and the most frequent dispositive issue raised on appeal. This can arise many different factual circumstances and this article discusses a few. In order for a law enforcement to stop a vehicle, the police officer must have either probable cause of a traffic infraction or reasonable suspicion of criminal activity. If the officer lacks both, it is an illegal traffic stop, in violation of a person’s Fourth Amendment rights and any evidence, such as illegal drugs, obtained should be suppressed. Similarly, an investigatory stop occurs when an officer “hinders or restricts the person’s freedom to leave or freedom to refuse to answer inquiries.” A law enforcement officer must have reasonable suspicion of criminal activity before that officer detains a person for an investigatory stop, under Florida’s Stop and Frisk law. Should a police officer illegally detain someone and he or she finds drugs on their person, then the trial court should suppress the drugs as it was a violation of the Fourth Amendment.
Florida courts have consistently recognized a person’s home is entitled to the highest level of constitutional protection from unreasonable searches and seizures. Courts have been especially sensitive to these types of searches where illegal contraband, such as drugs, are found. During a “knock and talk,” police officers knock on a door, try to make contact with persons inside, and talk to them about the subject of an underlying criminal investigation. A “knock and talk” is only justified as a consensual encounter during which officers are authorized to “approach a dwelling on a defined path, knock on the front door, briefly await an answer, and either engage in a consensual encounter with the resident or immediately depart.”
The key to the legitimacy of the knock-and-talk technique—as well as any other technique employed to obtain consent to search—is the absence of coercive police conduct, including any express or implied assertion of authority to enter or authority to search. In properly initiating a knock-and-talk encounter, the police should not “deploy overbearing tactics that essentially force the individual out of the home.” Nor should “overbearing tactics” be employed in gaining entry to a dwelling or in obtaining consent to search.
Law enforcement also may attempt to search a home during a “protective sweep.” A protective sweep is a “quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others.” “Where a person is arrested outside his or her home, a warrantless protective sweep of the defendant’s home is permissible only if the officers have a reasonable, articulable suspicion that the protective sweep is necessary due to a safety threat or the destruction of evidence.” Therefore, drugs obtained during a protective sweep of a home are not admissible unless “both the arresting officer had a reasonable belief that there were third persons inside the residence and a reasonable belief that those persons were aware of the arrest outside so that they might destroy evidence, escape, or jeopardize the safety of the officers or the public.”
Narcotics evidence seized during an illegal vehicle stop, during an illegal seizure of a person, or during an unauthorized search of a residence should be excluded if a motion to suppress is granted. If a court denies a motion suppress and a Floridian either goes to trial or enters a plea reserving their right to appeal, then an appeal may be taken to determine whether the search was illegal.
Contact a board certified specialist in Criminal Trial and Appellate Practice today for a free consultation to see what your appellate rights may be.