FLORIDA LEGAL GUIDELINES

Transcription

1 [Editor's Note: Every effort has been made to keep these legal guidelines up to date. We welcome comments and suggestions on ways to impro~ve these guidelines. No police procedures should be changed, dlt'ered, or modified pursuant to the material found herein before consulting with your local sta~e at~orney', state Attorney General, supervisor, or United States Attorney.] LIST OF TO,PICS FLORIDA 1. Arrest by Warrant 2. Warrantless Arrest 3. Loitering or Prowling 4. Justifiable'Use of ForGe' 5. Arrest by Surety ~ 6. Consensual Encounte'rs, Reasonable Suspicions and Probable Cause 7. Stop'and Frisk ' " 8. Eyewitness.~ineup~,, ' 9. Miranda Warnings 10. Interrogations and Confessions 11.(.Arrests Within Dwellings ~ 12. Searches and Search Warrants 13. Automobiles ' 14. Seizur~ of Vehicles, ' ' 15. Arrest GUIdelines 16. Service of Process and Subpoena 17. Charging Documents 18. Fresh Pursuit.( 19. Custody 'and Release 20. Criminal Justice ' Procedure Flow Cliarti._ ",1; 21. Civil Action for Deprivation, of Rights ~ 22. Criminal Liability of Law Enforcement Officers 23. Florida's Residential Landlord and Ten-. ant Laws,'., i 24. Repossession '., 25. Motor Vehicle Repairs!~',i. 26. Removal or Towing or Vehicle Illegally Parked on Private Property 27. Child Custody Dispptes _ 28. Florida's Civil Forfeiture Statute 29. Foreign Nationals ) " 'J Missing Children 31. Sexual Harassment 1. '< ARREST BY WARRANT. Under Chapter 901. of Title. XLVII of the Florida Statutes (F.S.), a law enforcement officer is given the authority to make"an arrest for the commission of a crime with,or without a warrant. Under of the Florida Statutes, a warrant of arrest may be issued bya judge if after examination of the complainant 'and other witnesses, the judge reason- ably believes that the person complained against has committed an offense within the judge's jurisdiction. If the offense is for an offense which the judge is empowered to'try 'summarily, he or she shall issue a summop.s instead of a warrant, unless the judge reasonably believes that the person against whom the complaint was made will not appear upon a summons; in which event the judge shall issue a warrant :(F.S ). 't~ A peace officer making an arrest by a warrant 'shall inform the person to be arrested of the cause of arrest and that,a warrant has been issued,. except when the person flees orjorcibly resists before the officer has an opportunity to inform him or her, or when 'giving the information will imperil the arrest. The officer need not have the warrant in his or her posses~ion at the time of the arrest. However, 'on the request of the person arrested the officer shall show it to him or her as soon as practicable (F ). \ ' Under Rule of the Florida Rules of Criminal Procedurk (FRCRP) an arrest warrant' when issued shall: ", (1) b'e~ in wri~ing and in the name of State of Florida~,, " (2) set forth substantially the nature oldie offense; t,, " j',\ :: (3) command "that the... person against ~hom the complaint was made be arrested and brought before a judge;, (4J specify the name of the person to b~,arrested or, if the flame is unknown to the judge, designate the perso?l'liy any name or description by which the person can be' identified' with reasonable 'certainty; (5) state the date when isslled and the county where issued; - ') (6) be signed by the judge with the title of the office; and " " (7) in all offen$es bailable as of right, be endorsed with the amount of bail and the return date., No arrest warrant shall be dismissed because of any defect in form. Warrants which are defective in form may be subsequently amended by the fudge to remedy such defect: ',~', ', _ Under F.S , a peace officer making an arrest by warrant may use all necessary and'reasonable force to enter any building or property wqere the person to be arrested is or is reasonably believed to be, after the peace officer has announced his'or her authority and purpose and fails' to gain admittance. J " ~ 2. WARRANTLESS ARREST I A peace ' officer maki~g an ar~~st, with9ut a warrant" shall inform the person to be arr:ested of the officer's.authority and the cause of arrest except when the person flees or forcibly resists before the officer has an opportunity to.inform the person or' when giving the inf~rm~tion will imperil the arrest. F.S J.. ' '1" t L', LG-1

2 LG-2 LG-3 NOTE: ' An arrest is valid as long as there was objective probable cause, even if the officer had a different subjective motivation for -making the arrest. Arkansas v. Sullivan, 532 U.s. 769.(2001) (arrest for driving without registration or proof of insurance and carrying a weapon valid when su'pported by probable cause, even if the officer's"true:' purpose for making the arrest was to search defendant's car for drugs). An arrest is valid even if the criminal offense for which probable cause actually. exists is not "closely related" to the offense stated by-the officer at the time of arrest. Devenpeck v. Alford, 543 u.s. 146 (2004). An arrest may be made" by an officer without a warrant in the following instances (F.S. 90i.15; Fla.R.Crim.P.3.120):. " (1) if a felony or misdemeanor or violation of a municipal or county ordinance is committed in the presence of the officer (an arr,~st for the commission of a misdemeanor or the,violation of a municipal or county ordinance,shall be made immediately or in fresh pursuit);. (2) if a felony has been committed, not within. the officer's presence, and the officer "reasonably believes" the offender committed it; (3) if 'the officer "reasonably believes" th~t a felony has been or is being committed and that the person to be arrested has committed or is committing it;., (4) a warrant for arrest has bee~ issued and is held by another peace officer for execution;.. (5) a violation ofchapter.316 (Stat~ Uniform Traffic Control) l,aws has been committed in th~ presence of the officer (s~e in particular arr.est under F.S for driving under the influence);. (6). there is probable causit to believe that: (a) the person. has,knowingly committed a criminal act (see F.S , F.S , and. F.S ) in violation of an injunction for, protection entered pursuant to F.S Qr 'F.S, ;.. '~<';JJI'",.'.' (b) the person has committed a battery as. defined in F.S ;, (c) ' the pe~~on has committed an act of domestic violence as defined in F.S ;. (d) the person has committed an act of retail or farm theft as defined ii). F.S ; (e) ' the per:son, as the driver of a y,ehicle involved in a 'crash, Bas committed an offense under Chapters 316 and 322 in connection "Yith the crash'.. "., \ ' (f) the person is carrying a concealed weapon ~ (F.S and 790:02);,. (g) the person is guilty of disorderly con-, duct on the premises of ap.,establishment (F.s );. (h) the person has stolen personal 'property of a public"lodging establishment or public food service establishment (F.S ); (i) the person has committed the offense of trespass upon the grounds of a school facility (F.S ); G), the person has in his or her possession. an amount of cannabis less than 20. grams (F.S (6)(b) and (d»;. (k) the per.son has committed the offense of. stalking as defined in F.S ~ ; ~.' (l) the person has committed the offense of transit fare evasion (F.S. 812:015(4»;. ' (m) the person has contributed to the delin-. quency or dependency of a minor (F.S (1), (2»; (n) the person has committed the offense of criminal mischief or graffiti-related offenses (F.S ); _ (0) the person has, in his or her po~session, a firearm or ammunition when the person is subject to an injunction against committing acts of domestic violence (F.S ); ~. (P) the person has trespas~ed, as qescribed in : in any retail establishment, farm land or mass transit vehicle as described in '812:o-15 (see (3)(a), (4) and (5)(a); (q) a misdemeanor ha's been committed, based upon assigned affidavit provided to ' the officer by a law enforcement officer,of the United States government; (r) a felony was committed on stat,e military property or a misdemeanor was committed in the presence of a law enforceme~t officer of the Florida National Guard. ' NOTE: Arrest Mfldavits." When, preparing an affidavit following a warrantless. arrest, the officer should explain in the beginning of the affidavit the circumstances under which contact was first made with the arrestee, and should justify that contact as a consensual encounter or explain why it was supported by reasonable suspiclon or probable cause. 3. LOITERING OR PROWLING Under F.S it is unlawful for any person to loiter or prowl in a place, at a time10r in a manner not usual for law-abiding individuals, under circumstii\nces that warrant a justifiable and re~sonaple alarm Q..r immediate concern for the safety of persons or property in the vicinity. '. Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that (1) the person, ~akes flight upon appearance of a law enforcement officer, (2) refuses to identify himself, or (3)' manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstance makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would'otherwise b"e~ warranted by requesting that person to identify. himself or herself and explain his or her presence and' conduct. By case law, a'la:w 'enforcement officer must give the' person his ot:h.er Fifth Amendment rights before affording the person the opportunity to dispel any alarm. No person shall be convicted of an offense under this section if the law enforcement officer did not com- ply with this ~rocedure o! if it appears.at tri~l th~t the explanation given by the person IS true and, Ifbeheved by the officer at the time, would have dispelled the alarm or immediate concern. '. L, Any person violating the provisions of this section shall be guilty of a misdemeanor of the second degree. -, ;' j Any sheriff, policeman, or other law enforcement officer may arrest any suspected loiterer or prowler without a warrant if a delay in procuring a warrant would probably enable such suspected loiterer or prowler to escape arrest. F.s making it. unlawful for ~ny person to ioiter or prowl has been held'to be constitutional (Watts v. State, 463 So.2d 205 (Fla. 1985». However, since the statute (F.S ) reaches the outer limits of constitutionality, it must be. applied with special care (Carroll v. State, 573 So.2d 148, (Fla. 2d DCA 1991». (Also see D.A. v. State, 471 So.2d 147 (F,la. 3d DCA 1985». ". ' ' "An officer must be able to articulate specific facts showiilg an immip.~nt b~each of th'e pea~e. or threat to pubri~ safe~:y." Williams v. State, 674 So.2d 885 (Fla. 2nd DCA 1996). All elements of the misdemeanor offense of loitering and prowling have to occur in the presence of the arresting ~fficer fo~ the arrest t() constitute a legal arrest (G.E. C. v. State,' 586 So.2d 1338 (Fla. 5th DCA 1991); Springfield v. State, 481 So.2d 975 (Fla. 4th DCA 1986». In one case, an arrestee's conduct consisting of riding a bicycle in the early: after!loon on a public road while carrying a bag, although personally observed by the police officer., 'could not be con~idered to have satisfied the elements required to establish probable cau~e to arres.t for loitering andrprowling as defined by F.S (Carter,v. State, 516 So.2d 312 (Fla. 3d DCA 1987». However: where a defendant was wheeling a lawnmower through a residential rieighborhooq. late at night; the officer was, justified in stopping th~ defendant for investigatory purposes. Although the defendant claimed that he had ju~t fip.-. ished a mowing job, the mower was cold to the touch and clean of grass. The mower subsequently proved to have been stolen by defendant. The investigatory stop and arrest were upheld as being reasonable under the totality of circumstances (State v. Williams, 627 So':2d 97 (3d DCA 1993». Where defendant was standing, smoking and talking to another man in the rear corner of a bar parking lot at 11:30 p.m., it was held that. there was insufficient reasonabl.e cause for the stop, and evidence of the.cocaine and marijuana found in defendant's pos'session was suppressed (Barna v. State,,636 So.2d 571 (Fla. 4th DCA 1994».., When an officer saw' defendant standing in the hedges between. two rooming houses,. in th'e dark around 2:15 a.m., and knew from prior contacts with defendant that he did not live in either rooming house, the officer had reasonable suspicion to believe defendant was loitering and prowling. "Lurking in the dark by residences in the wee hours of the morning is unusual for law-abiding persons."'(battle v. State, 868 So.2d 587 (Fla. 4th DCA 2004». '. \ - In Hiibel v. Sixth Jud. Dist. Ct. of Nevada, Humboldt Co., 542 U.s.; 177 (2004), the U.s. Supreme Court upheld a Nevada law, which the; Court compared to F.s , making it unlawful for a suspect to f.efuse to disclose his or her identity in the course of a valid Terry stop. 4. JUSTIFIABLE USE OF FORCE Use ' of Force : in Making ' 'J an Arrest (F.S ) A.law enforcement officer, or any person whom he orshe has summoned or directed to assist him or her, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. The law enforcement officer is justified in the use of any force: (1) which he or she reasonably believes to be necessary to defend'hi'mself or herself or another from bodily harm while making the arrest; (2) when necessarily committed in retaking felons who have escaped; or ' (3) " when'necessarily committed in arresting felons fleeing from justice.,'". However, this subsection shall not Iconstitute a defense in any civil action for damages brought for the wrongful use of deadly force unless the use of deadly force was necessary to prevent the arrest from being defeated by such flight and, when feasible, some warning had been given, and:., '- (a), The officer reasonably believes that the fleeing felon poses a threat of death 6r i serious P~ysi\cal harm to the officer or others; or -', r (b) The officer reas01iabjy believes tl].at the fleeing felon has committed a crime involving the infliction or threatened infliction of serious physical harm to another person. '. <, " Also see GraHam v. Conner, 490 U.S. 386 (1989) where the U.S. Supreme Court applies the' reasonableness standard in determining whether 'excessive force is used::),. 'In soine situations,. the use of deadly force is reasonable within the meaning of the Fourth Amendment. Dea'd~y force does not mean force that necessarily results "in the death of the suspect, but rather a level of force that is reasonably likely to cause death or serious bodily injury; The V.S. Supreme Court has described the circumstances under which the use of deadly force may'be reasonable for purposes of Fourth Amendment analysis, a'nd therefore permissible. In Tennessee v. Garner, 471 VB: 1 (1985), the Court stated "Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using'deadly force." Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the "infliction or threatened infliction of. serious physicalai'arm," the use of deadly force is permissible. If the officer does not have probable cause fo believe the above, reasonable, non-deadly force must be used to effect' the arrest.

3 LG-4 LG 5 See also Scott v. Harris, 550 U.S. 372 (2007), where the U.S Supreme Court held that actions undertaken by police to terminate a dangerous high-speed car chase that threatens the liv.es of innocent by-standers-such as bumping the fleeing vehicle-do not subject officers to civil or' criminal liability, even when such actions place the fleeing motorist at risk of death or serious bodily injury Use of Forc~ -in Resisting - an Arrest (F.S ) A person is not justified in the use of force to resist an arrest by a,law',enforcement officer who is known or reasonably appears tobe a'law enforcement officer. However, the law enforcement officer is not justified in the use of force if the arrest is unlawful and known to the officer as being unlawful-. Use of Force in a Terry Stop A Florida Court has ruled that law enforcement officers may use drawn weapons in a Terry.8top (Terry v. Ohio, 392 U.S. 1 (1968» when they reasonably believe that the us,e of weapons is necessary to protect the officers or prevent a suspect's ability to flee. State v. Hendrix, 865 So.2d 531 (Fla. 2d DCA 2003), review denied, 879 So.2d 621 (Fla. 2004)., Use of Force in Defense of Person (F.S. 7't6~012) A person is justified in 'the use of force, except <:lead~y force (that force which is likely'to cause death or great bodily harm including the firing of a firearm (F » ', against another, when and to the extent that he or she reasonably believes that such conduct i~ necessary to defend himself, herself, 'or another against such other-'s imminent use of unlawful force. The use of deadly force is justified if such 'force is reasonably believed to be necessary to prevent imminent death or grea~ bodily harm. i A person usirig defensive deadly force is presumed to have a reasonable fear of imminent de lth of great bodily harm if: (i) the person against whom force is used was unlawfully and forcefully entering' a dwelling, residence, or occupied vehicle, or was removing another person from the same against their will, and (ii) the, person using deadly force knew or had, reason to believe an unlawful and forcible entry or unlawful and forcible act was occurring. This presumption does not apply if: (i) the person against whom force was used had,: a lawful right to be inthe residence or vehicle, and there was no injunction or court order against him or her; (ii) the p,erson being r,emoved was a child, grljlndchild, or otherwise in the lawful custody of the person agaii),st whom force was U:sed; (iii) the person using deadly force was engaged in an unlawful act; or (iv) the person against who deadly force was used was. a law enforc~ment officer e,ngaged ip. the performance of official duties, and the,officer identified himself or herself or the person using force should have recognized him or her as an officer. A person who is not engaged in illegal aetivity and,wpo is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to use deadly force if the person reasonably believes this necessary to prevent death or great bodily harm to any person or the commission of a forcible felony,. A person who unlawfully and forcibly enters or attempts to enter a dwelling, residence, or vehicle is presumed to. do so with the intent to commit an unlawful act involving force or violence. F.S Pursuant to F.S , a law enforcement agency may use standard procedures to investigate use of force, but may not make an arrest unless there is probable cause to believe force was used 'unlawfully. 5. ARREST BY SURETY (BAiL BOND AGENTS), UI).der F.S a surety may arrest a defendant before' a' forfeiture of the bond for the purpose of surrendering him or her. A surety'may be a bail bond agent or runner or anyone who has put up the' security for the bail bond. The surety may authorize a peace offic.er to make the arrest by endorsing the authorizatiori on a certified copy 'of the bond. Although tliis arrest by a peace ofticer is not for a felony or a misdemeanor committed in tlie peace officer's presence, this is a case where a peace officer may make a warrantless arrest. Under F.S: a principal may be arrested by his surety withi,n 2 years from' the date of forfeiture of the bond. This arrest is for the purpose of surrendering the principal to the official in"whose custody the principal was at the time the bail was taken, or in 'whose custody he or she would have heen placed had he or she been committed. It would' appear that the surety could authorize a peace officer to make the arrest in this instance as indicated in F.S by endorsing the authorization on a certified copy of the bond. A person 'may not act in the capacity of a bail bond agent or runner or perform any of the functions, duties, or powers prescribed for bail bond agents or runners under Chapter 648 of the 'Florida Statutes unless that p,ers6n is qualified, licensed and appointed as provided in Chapter 648.., 6. CONSENSUAL ENCOUNTERS, REA SONABLE SUSPICIONS AND PROBABLE CAUSE In General!, There are three levels of contact between law enforcement officers and citizens; These are' (1) Consensual Encounfers (Smalls v. State, 858 So.2d 1244 (Fla. 5th DCA 2003»; (2) Reasonable Suspicions; and (3) Probable Cause. If an officer understands the limits of each type of encounter he or she can be more effective when the officer is conducting criminal investigations.,to.<; Consensual Encounters, 'A consensual encounter is a' mere contact and involyes no coercion, no detention and the~efore no arrest or seizure (i.e., the citizen has consented to the encounter). "Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, asking that person ifhe or she is willing to answer some questions, putting questions to him or her if the person is willing to listen, or offering in evidence in a criminal prosecution such person's voluntary answers to such questions" (Florida v. Royer" 460 U.S. 491 (1983». ' The objective test in a consensual 'encounter is whether a reasonable person would think he or she were free to go. The following are suggestions~ to establish a consensual encounter: Ask the citizen: ', "May I talk to you?", "Can I have a minute of your time?" "Do you mind if I search you for drugs?" "Would-.you mind showing me what's in your hand?",,i, "May I look in your purse/luggage?" Or, simply walk up:' to a citizen in a public place and start a conversation.,:'." The courts will probably rule that what the officer thought was a consensu~l encounter was in,jact a dete,ntion if any of the following occurs:, ' (1), The officer displays a weapon;., (2). The office:r uses a '}:larsh, accusatorial ton~ of voice; (3), The officer orders the citizen to do something, i.e., stop, open your",hands,. don't move, stay right there or co:rp.e oyer here; J ' (4). The officer blocks an individual's path with a police vehicle or.officer(s);,'n (5)' The ~nq.~vidual is ~old 4e or sj1e)s a suspect; (6) The, officer physically touches the ip.dividu- " al;,' ',' ;,' "', } (7) The'individual's property (driver's license, air,lij?e ticket or other per~onal property' be" longing to the person) is. r~tained. In State v. R.H., 900 So.2d 689 (Fla. 4th DCA 2005;; two uniformed officers approached RH. at around 1:00 a.m. and said, "Hey, how you doing? What's your name? Your date of birth?" One of the officers later testified, "at no point did we like surround him or tell him he was detained or anything like that. We were j ust talking to him." In addition, RH. never indicated thath'e wished to leave. This Was a consehsual encounter, so that RH. consent to a search of his' pockets was valid. - " A detention f6r: the purpose of' issuing' a trespass warning on behalf of a private owner, absent other circumstances giving rise to a :rea'sonable suspicion of other criminal activity, is a consensual encounter: This is because a police'officer,,under'the' trespass statute; may issue a trespass warning for unauthorized. entrance into a structure, but' does not have the'1egal authority to conduct an investigatory-stop or arrest for tr'espass unless the owner or his agent first warned the potential trespasser: Gestewitz v. State, 34 So.3d 832 (Fla. 4th DCA 2010). Knowingly and willfully providing, false information to a law enforcejpent officer conducting a missing persons or: felony criminal investigation with intent to mislead -the officer or impede the investigation is a misdemeanor of the first degree. F.8. 83, Encounter v. Arrest or "Seizure~~, In U.S. v. Mendenhall, 446 U.S. 544 (1980), the Court held "a person is seized only when his freedom of movement is restrained." In this case, the court ruled that a consensual encounter:>occurred when: plainc,1ot,hes officers approache~ the defendant in an airport concourse, identified themselves as officers; displayed no weapons, requested 'to see identification and promptly returned the identification. The Supreme Co~rt in California v. Hodari D., 499 U.S. 621 (1991), held that an individual is "seized" either, when the police restrain the individual through,the use of phy!?fcal force or when the,police make a show of authority' or force to which, ~he.indiy;idual acquiesces or' submits. Florida courts have held that "... a seizure occurs only w~en by means of physical force or show of authority; one's freedom of movement has been restrained and when in light of all the circumstances, it may be 'said that a reasonable person 'would have believed that he or she was not free to leave." (J. C. W. v. State, 545 So.2q 306 (Fla. 1st DQA), rf!h'g d.enied, review denied, 553 So.2d 1165 (Fl~. 1989); also see,tl!rner v. State, 674 So.2d 896 (Fla. 5th DCA 1996».. In Florida v. Royer, 460' U.S. 491 (1983) the.courts stated "when the detectives identified themselves as narcotics agents, told respondent he was suspected of transporting narcotics and asked him to accomp'any them to the police room, while retaining his airline ticket and driver's license and without indicating in any way that he was frely to depart, the re.spondent was effec;tively seized for purposes' of the,fourth Amendment.:' What had started out as. ~,eorisens'ual inquiry esc:;llaled into a'n investigatory procedure when the police re~ained defendant's property. By retaining the defendant's :property, police made, the defendant not free to leave.,., Reaq.ing a persc!n the Mirarl:.da ~ ~ighjs. does not automat~cally transform a consensual encounter into a seizure. However, because the reading ot the"warning ~ight add to the coercive nat~lre of an encou~ter under at least some circumstances', that is a factor to be considered in evaluating the totality of circumstances ~ur;rounding a stop. Caldwell v. State, 2010 Fla. ~EXIS 1115 (Fla. 2010).. Activation of police lights is one i!llp-rr~apt factor to be considered in a totality-based analysis of whether a seizure under the Fourth Amendment had occurred. G.M. v. State, 19 So.3d, 973 (Fla. 2009). In Young v. State, 803' So.2d 880 (Fla. 5th DCA 2002), defendant V\!as seized when an officer pulled behind him, blocking his driveway's exit, and activa,ted his patrol car's em~r'gency lights. Similady, in. Brooks v. Sta~e, 74q So.2d 1113 (Fla. 1st DCA 1999), when an officer pulled behind defendant's vehicle, which had pulled off the road to change drivers, an'd activated his-lights, there was a seizure, even if the lights were only a safety precaution. In Errickson v. ' State, 8.55 So.2d 700 (Fla. 4th DCA 2003), defendant was seiz~e?d when the officer a,ctivated his overhead lights and put his spotlight on defendant, to see ifhe was armed and to disorient him.

4 LG-6 LG-7 However, in Hrezo, supra, the Court emphasized that an officer's use of a s'potlight alone is not the same as the use of emergency lights. But see State v. Christman, 838 So.2d 1189 (Fla. 2d DCA 2003), where there was no seizure whem an officer puued up perpepdicular to the rear of defendant's car while defendant was pumping gas and then called out to ask defendant about the nature of the unfamiliar tag on his car. The positioning of the officer's car did not prevent" the defendant from leaving the scene, and his question about the tag and request for defendant's license were within the scope of a consensual encounter. In Davis' v. State, 946 So.2d 575 (Fia. 1st DCA 2006), 'defendant was seized when an armed, uniformed deputy ordered him -to exit his vehicle, then told him to place his hands on the roof of the vehicle.. In Wooden v. State, 724 'So.2d 658 (Fla. 2d DCA 1999), defendant was seized when officers ordered hini to lie on the ground so they could check him for weapons'. " In Armstrong v. State, 880 So.2d 1283 (Fla. 2d DCA 2004), defendant was seiz'ed when an officer demanded that defendant open his ~and ~,, In 'Williams v. State, 874 So.2d 45 (Fla. 4th DCA 2004), defendant was seized when, as he sat on an old sofa in a vacant lot around 8:00 p.m., an officer approached with 1).is hand on his weapon, shined a flashlight in defendant's face, and ordered him to stand. In State v. Newton, 737 So.2d 1252 (Fla. 5th DCA 1999), defendant was seized when an officer grabbed him from'behind by his collar, held a flashlight to his face, and 'ordered him to open his mouth. But see State 'u. Poole, 730 So.2d 340 (3d'DCA 1999), where there was no seizure when two officers (one in uniform, one plain-clo'thed) walked up to d~fendant, who was' sitting on 'a crate against a wall on a street corner at '1:10 in the afternoon, identifi~d themselves, and asked if she had any narcotics. The officers di4 not display their weapons, and their language and actions in no way restricted defendant's ability to leave. A consensual encounter is transformed into a detention if a pat-down search is conducted. Caldwell v. State', 985 So. 2d 602 (Fla. 2nd DCA 2008). In Raysor u. State, 795 So.2d"1071 (Fla. 4th DCA 2001), the Fourth District Court of Appeals held that that the issuance of the Miranda warning by an officer transforms an otherwise consensual encounter into an investigatory stop. However, in Caldwell v. State, supra, the Second District Court of Appeals disagr,eed, finding that giving the Miranda warning alone was not sufficient to transform a consensual e'ncounter into a seizure; when the warning is followed by a clarifying statement to the effect 'that the person being questioned is not under arrest. The Florida Supreme Court has not yet addressed this apparent split in authority between the two appellate courts., Often an officer will approach a person in a public place (i.e., airport, bus station,' train, plane, or bus, etc.). The officer needs no reasonable suspicion to ask questions or ask for' a person's identification, as long as a reasonable person would understand that he or she could refuse to cooperate. Florida v. Bostick, 501 U.S. 429 (1991). For example, in U.S. v. Drayton, 536 U.S. 194 (2002), defendant:was not seized when officers boarded a bus and began questioning the passengers, even after an officer asked consent to search defendant's bag. Although the officers displayed their badges, they did not brandish weapons or make intimidating moves. They gave the passengers no reason to believe that they were required to answer the officers' questions and left the aisle free so that passengers could exit the bus. Only one officer did the questioning, and he spoke in a polite, quiet (not authoritative) voice. "Nothing he said would suggest to a reasonable person that he or she was barred from leaving the bus or otherwise terminating the encounter." NOTE: It is important for the law enforcement officer to remember that in a consensual encounter the officer does not have to give the citizen Miranda warnings. Once an arrest is made or there is a detention equivalent to arrest, the person must be advised of his or her Miranda rights if the officer plans on q~estioning the person in custody (see below). Reasonable Suspicion The next higher level of contact a law enforcement officer may have with a citizen is a reasonable, investigatory stop, i.e., Terry Stop. Probable Cause is a higher level of contact than Reasonable Suspicion. Factors to weigh ' in determining if reasonable suspicion exists include the following: the time of day or night; the day of the week; the location; the appearance of the suspect, the appeara'iice and operation of any vehicle involved; and anything incongruous or unusual in the situatibnas interpreted in light of the officer's knowledge': Hernandez v. State, 784 So.2d 1124 (Fla. 3d DCA 1999). It is important to remeinber that an officer's training' and experience can be taken into account in determining whether reasonable suspicion exists in a given situation. U.S. v. Arviza, 534 U.S. 266 (2001)., Probable Cause has to be distinguished from Reasonable Suspic~on. In order to make an investigatory stop of a suspect, the law enforcement officer need not have probable cause to believe that a crime has been committ.ed by the suspect. All that is required is a reasonable suspicion by the law enforcement officer. Thus, probable callse requires a higher standard than a suspicion" What represents a,reasonable suspicion to make an investigatory stop depends upon the facts and circumstances, of each case., In J.E. v. State, 73~ So.2d 788 (Fla. 5th DCA1999), the District Qourt of Appeal of Florida held that the officers had reasonable suspicion n~cessary to justify an investigatory stop. ',- The facts of the case are as follows: The officer. observed defendant's car parked in the woods after dark (11:22 p.m.) near a boat ramp and a car park. The car park was open only to boaters, yet defendant's car did not have a trailer or boat attached. In addition, the officer knew this area was a frequent site for drug users to smoke marijuana or crack cocaine, and the neighborhood had been the scene of a number of burglaries. The officer had reasonable suspicion for a stop.. A bank employee called 911 to report that a sixfoot tall black man had just attempted to cash a forged check; the man was still in the bank at the time of the call. An officer arrived five minutes later and. saw a Chevy Blazer backed into a parking space in front of the bank's doors. The Blazer's driver,(defendant) was a black male in "the six-foot range." Upon seeing the officer, defendant drove off hurriedly. The parking lot was "fairly empty"; the officer saw no one else and no other cars leaving at that time. The officer had reasonable suspicion to stop defendant. State v. Malone, 729 So.2d 1008 (Fla. 5th DCA 1999). Cases which have held that the officer had a reasonable suspicion for an investigatory stop are as follows: In State v. Wimbush, 668 So.2d 280 (Fla. 2d DCA 1996), an officer's observation of, a white streak under the suspect's nose along with the officer's experience in drug investigations and the officer's opinion that the white streak was cocaine was sufficient to warrant a Terry Stop. In State v. Chang, 668 So.2d '207 (Fla. 1st DCA 1996), officers approached persons at a crack house. They observed the suspect discard' an envelope. They asked for identification andconse'nt to search. The suspect consented and the officers found a weapon. The Court'held this to be a lawful encounter and the search was valid. In State v. Crumpton, 676 So.2d 987 (Fla. 2d. DCA 1996), officers asked a: crowd to disperse. They observed the suspect place som~thing in his pants. 'J;qe officer$ asked what the suspect placed' in his pants and the suspect answered "cocaine." The Court held this to be a consensual encounter. In Hernandez v. State, supra, an officer responded to a 3:00 a.m. report of suspicious activity in the p'arking lot of an apartment complex. He saw a van in a parking space with another van backed up to it; the rear doors of both vans were open. The officer' could reasonably suspect that the parked van' was being burglarized, and therefore was justified in conducting an investigatory stop. Where a law enforcement officer stopped a suspect while he was wheeling a lawn-mower,through a residential neighborhood at about 11:00 p.m., the lawn mower was cold to the touch, and-the suspect lied to the officer, the Court in State v. Williams, 627 So.2d 97 (Fla. 3d DCA 1993) held that the investigatory stop was justified because the officer had a i'easonablesuspicion that the suspect either committed, was committing, or was about to commit a criminal offense. In State v. Abraham, 625 So.2d 9.86, (Fla. 3d DCA 1993), review denied, 639 So.2d 975 (Fla. 1994)" the Court held that the officer had a reasonable suspiciqn to stop the suspect where the officer observed the suspect in a downtown shopping section late at night running with large shopping bags. \ In State v. Black, 617 So.2d 777 (Fla. 3d DCA 1993), the Court held that the officer had a reasonable suspicion to stop the suspect when he was pushing a shopping cart containi,ng six rolls of new roofing paper along a street at 6:50 a.m. In State v. Jenkins, 566 So.2d 926 (Fla. 2d DCA 1990), the Court held that the officer had a reasonable suspicion to' stop the suspect when he was riding a bicycle in the early morning hours with a box overflowing with goods'. ' >, In State p. K. V.., 821 So.2d 1127 (4th DCA 2002), reh'g denied, an officer had reasonable suspicion to stop a vehicle, following a tip from a guard,at an apartment complex security station that she had smelled marijuana coming from K.V.'s car. In Blice v. State, 825 So.2d 447 (Fla. 5th DCA 2002), reh'g denied, officers saw a car parked in an improper area outside a closed, business at 1:30 a.m. As the officers approa.ched the car, they saw the butt of a gun inside it and partially concealed by clothing. The officers had reasonable suspicion to detain defendant by asking him to step :out of the car and asking him why he was in the area. -, Ip,.$tate v. Davis, 849 So.2d 398 (Fla. 4th DCA 2003), a BOLO was broadcast regarding a bank robbery committed by two black or Hispanic men, both in hoo(led sweatshirts, early twepties and around five-foot-ninejn height, with thin builds. Four to five minutes after the BOLO, an officer saw two thin black males of about the same age and height as the robbers, wearing hooded sweatshirts, and sitting in a car,at an apartment complex about a block away from the bank. Both appeared nervou.s and were, sweating profu,sely, even though 'it was only '10 0u.tside. The officer had reasonable,suspicion for a stop. " In U.S. v. Smith, 201 F.2d 1317 (11th Cir. 2000), a DEA agent and a Border,Patrol agent were conducting narcotics-interdiction surveillance at a Jackso:p.ville bus station. The agents noticed defendant's co-indictee as he. constantly changed seats, walked around the terminal and scanned every person who passed him. Mter about 40 minutes, he met with defendant, and the two had a brief, whispered conversation, then turned and walked in opposite directions. Defendant also walked around, in and out of the terminal, and switched seats. As hoarding for defendant's bus was announced, he grabbed two expensive-looking, hard-sided suitcases which had been lying unattended in the terminal. On his way to,the gate, he slid one to his co-indictee, and both men took one bag as they boarded the bus. Mter the men were on board, the agents looked at the suitcases in the cargo bay and learned they had originate.d in Miami, a, source city for narcotics. The agents then had reasonable suspicion to detain both men for questioning. In Illinois v. Wardlow, 528 U.S. 119 (2000), two uniformed officers were 'in the last car of a four-car police caravan that converged on an area known for heavy narcotics trafficking, in order to investigate,drug transactions. The officers observed defendant, who was standing next to a building holding an opaque bag, look at the police caravan and then run in the opposite direction. Given the character of the area and defendant's headlong flight ("the consummate,act of evasion"), the officers had reasonable suspicion to stop him. Also see State v. Gandy, 766 So;2d 1234 (Fla. 1st DCA 2000); Copeland v. State, 756 So.2d 180 (Fla. 2d DCA 2000).

5 LG-8 LG-9 Lee v. State, 868 So.2d 577,(Fla.r 4th DCA 2004); State v. o.s., 767 So.2d 509 (Fla. 4th DCA 2000); Baker v. State, 754 So.2d 154 (Fla. 5th DCA 2000). Cases which have held that the officer did not have a reasonable suspicion for an investigatory stop are as follow's: In Lugo v. State, 889 So.2d 949 (Fla. 5th DCA 2004), an officer saw defendant walking, down a sidewalk 'along Highway AlA in Daytona Beach during a crowded special event. Defendant and the men he was with were all holding red plastic cups. Defendant held the cup down by his leg and changed paths in the crowd, in what the officer believed to be an attempt to avoid him. 'Because 'defendant's cup was opaque, the officer could not see the alcohol in it. In addition, defendant did not exhibit any drunken behavior. The officer had only a hunch, not reasonable suspicion, so his subsequent stop of defendant (by grabbing defendant's arm 'and asking him what was in the cup) was unconstitutional.. In Stiffler v. State, 744 So.2d 1187 (Fla. 2d DCA 1999), an officer saw two Caucasians driving an openair jeep at 2:00 a.m. through a high-crime/drug area that is predominantly African-American. The pair circled the block twice before stopping; at that point, at least three men ran up to the Jeep, blocking the officers' view of the interior. Ten to fifteen seconds later, these men walked away. A stop was not justified, because the officer saw no actual exchange of drugs or money. In Riley v. State; 737.So.2d 1111 (Fla. 2d DCA 1999); there was no reasonable suspicion ~ for a stop when, at around 3:00 a.m., an officer saw defendant walking behind a trash dumpster at a shopping center where some stores had been burglarized, even though defendant, returned to his car and drove' away upon seeing the officer. Defendant carried 'no burglary tools or flashlight, was not walking stealthily or hiding; and was closer to the dumpster than to any of the back doors to stores in the complex, In addition, the officer, gave no information regarding how recently the burglaries had been committed. Thus, he had no more'than a hunch or bare suspicion of criminal activity. ' "J In Pritchett v. State, 677 So.2d 317 (Fla: 1st DCA 1996), officers received a call that several persons in an apartment complex were selling drugs. Officers went to the location, saw defendant, and asked to talk; defendant walked away. When officers saw the aefendant place money in his pocket, an officer ordered defendant to stop. The Court ruled there was insufficient suspicion to make the stop. In Lang v. State, 671 So.2d 292 (Fla. 5th DCA 1996), an officer saw the suspect walking in a high-crime area and asked him to "step back into [his] patrol car." The suspect dropped a pill bottle in response. The Court ruled this was a seizure (if not more), not a'voltmtaty encounter, and the evidence from the bottle was 'suppressed. In Simpson v. State, 970 So.2d 463 (Fla. 2nd DCA 2007), an officer ran the tag of a 'vehicle being driven by defendant and learned that the registered owner (defendant's wife) had her driver's license suspended for failure to maintain insurance. However, the officer could see that defendant, ' the current driver,was a male. Therefore, the officer had no reasonable suspicion to stop the vehicle. In Langello v. State, 970 So.2d 49'1 (Fla. 2nd DCA 2007), an officer did not have"reasonable suspicion for a stop when only one of two lights illuminating the license plate on a vehicle was operational-the law requires only that the tag be legible, not that all lights be operational, and the officer could not recall whether or not the tag remained legible with only one functioning light. An investigatory stop was deemed to have insufficient cause where the officer observed a suspect 'in late evening. meet with one person at the trunk of his car, drive to a pizza parlor, and talk to another person, despite the fact that the suspect lied to the officer when questioned (Johnson v. State, 640 So.2d 226 (Fla. 5th DCA 1994». InLevin v. State,.449 So.2d 288 (Fla. 3d DCA 1983), the Court held that the officer did not have a reasonable suspicion to stop the suspect when the' suspect was walking toward the water along a public street at 3:00 a.m. in a residential area carrying a fishing pole. Citizen Informants,, "A tip by a citizen-informant, as opposed to an anonymous tipster, is entitled to a presumption of relia~ility and does not require further corrobora~ tion." s,tate v. Manuel,,796 So.2d 602 (Fla i fth DCA 2001), reh'g denied (tip~that defendant was carrying a firearm and selling drugs-from a convenience store clerk whom the officer had seen at the store previously provided reasonable suspicion for a stop)., But see Woodson v. State, 747 Sp.2d 965 (Fla. 2d DCA 1999). An individuarwho identified himself only as "Frank" approached an officer and said that a black male named "Cedric", dressed Jin a "white tqrik top, brown boots, ~nd a black hat over braided hair, hlld a handgun,in his left front P9cket.-8hortly thereafter, the officer observed defendant, who matched this description, walking into a store. Beca1,~se the ' office~ ' did not see defendant ~ngage in any suspiciqus activity and confirmed only innocent details of the tip (~efendant's clothing and ~ocation), he' did no~ have reasonable suspicion justifying a stop of defendant. An informant whose identity is readily ascertainable is not an anopymous tipster; ~n informant's ~ctual name ne'ed not be known so long as his or her identity is' rea,dily discoverable. State t v. Maynard, 783 So.2d 226 (Fla. 20~n): '. Anonymous Tips In Williams v. State, 721 So.2d 1192 (Fla. 1st DCA 1998), the Court held that an anonymous tip may permit a reasonable suspicion stop but only after the tip has been independently corroborated. Also see Alabama v.' White, 496 U.S. ' 325 (1990). Mpntgomery police received an'anonymous tip'stating that defendant, carrying a brown briefcase filled with cocaine, would leave a specific unit of an apartment bui~ding and travel i;n her brown Plymouth station wagon,! which had a broken taillight, to a specific motel. Police watched the apartment complex, and saw a brown Plymouth wagon with a broken taillight. They then watched defendant, empty-handed, exit the specified apartment, get into the car, and drive di~ectly toward the motel. Even though not every detail in the tip turned out to be totally correct, the partial corroboration by police alone provided reasonable suspicion for a stop.,, But see Florida v. J.L., 529 U.S. 266 (2000). An anonymous caller to Miami-Dade County Police stated that a young black male dressed in a plaid shirt who was -standing at a specified,bus stop was carr,ying a gun. Officers arrived at the bus stop approximately six minutes later and saw three black males, one of whom (defendant) was wearing a plaid shirt. Other than the tip, the officers had no reason to suspect any of the three of criminal activity! They saw no firearm nor any threatening or unusual movements'. However, the tip carried no indicia of reliability. It provid~d no predictive information and thus no means to test the caller's credibility. The caller neither explained how he knew defendant had a gun nor.supplied any basis for believing that he' had "insidej information'" about defendant. Therefore,,the officers lacked reasonable suspicion, so their stop of defendant was illegal. Also see Lee v. State, 868 So.2d 577 (Fla. 4th BCA 2004). At around 9:00 p.m., police received an 'anony~ mous tip that a "black male or several black males... [were] loitering on the street corner, selling narcotics" at the 5600 block of SW 27th Street in Broward County. The tip provided no information regarding the clothing, the height and weight of the suspects, or any other descriptive information. Police arrived at the corner within one minute and saw five black males, who quickly disp.ersed; the officers observed no suspicious activity. Because this tip lacked the requisite specificity, and because there was no independent corroboration of its significant aspects by police, there was, no reasonable suspicion. -:. Cautions.to Observe ', One of the"most common pitfalls' in the area of reasonable, suspicion and probable cause is the timing of an officer's arrest. In his or her zeal, an officer frequently acts prematurely and as a result nulli~es what might have been a valid arrest. Thus, an offiqer. may have gr~unds to approach an individual to question him or her and may even have reason to stop a person in order to obtai!). information., Swartz v. State, 857 So.2d 950 (Fla: 4th DCA 2003). Certain officers, based on a "hunch" or a "gut" feeling that the,individual is "dirty," will search or arrest the individual before they legally have grounds to do!30' Mary officers f~el that the results of the search :will, justify the police activity. However, the courts have made it quite clearthat a bad arrest or a bad search cannot be salvaged or corrected by what th~ officer recovers fro:ql t,he suspect. Therefore, a police officer must proceed "very carefully" when approaching an individual on the street or in a car. The officer may only intruge upon the individual's privacy to the extent permitted. The officer can only act in relation to the information he or she possesses at that time. If th~ information he or she possesses does not constitute pr,obable ca.use to arrest, \the officer must not act prematurely and cannot take the person into custody. A law enforcement officer should proceed with questioning, surveillance, Qr other appropriate police work which can culminate in probable cause. De Facto Arrest Under' certain circumstances, what an officer intends to be an investigatory stop may be transformed into a de facto arrest. For example, when an officer handcuffed defendant, patted him down for weapons, then,placed him (still handcuffed) in the pack of a patrol car for 30 ' minutes, defendant was effectively arrested, even thought the State"attempted to characterize this encounter Jas merely an investigatory stop. Because police lacked"probable cause, defendant'~ subsequent confessio~ was suppressed. (Cocke v. Statf!, 889 So.2d 132 (Fla. 4th Dist. 2004), reh'g denied). SiIp.i: lllrly, when defendant was informed of his Mira:,nda rights, handcuffed,' and placed inside th(( patrol car, he was arrested. (State v. Poey, 562 So.2d 449 (Fla. 3d DCA 1990». Even absent other circumstances, if a,n investigatory stop ~ontinues on for too 10J).g, beyond the amount of time reasonably necessary to,effectuate its purpose, it can become a de facto arrest. (Zukor v. State, 488 So.2d 601 ~Fla. 3d DCA 1986» : Be aware that the use of handcuffs does not ~utomatically turn an investigatory stop into a de facto arrest: 'Studemire v. State,~ 955 So. 2d 1256 (Fla. 4t~ DCA 2007). A suspect may he handcuffed when reasonably necessary ~ to protect the officers' safety (i.e.;, if there is reasonable suspicion to believe the suspect is armed and dangerous) or to thwart an 'attempt to flee. Th~ h,andcuffing must be temporary and l~st no longer thin necessary to eff~gt:uate the purpose of the stop. Absent other threatening circumstances,(such as belli'gererit behavior 'on the' part of the suspect), the handcuffs should be removed once a pat-down reveals the absence of a weapon. Reynolds v. State, 592 So.2d 1082 (Fla. 1992)', reh'g denied. However"handcuffing not supported by a reasonable suspicion that a suspect is a threat to the pfficer's safety or might attempt to flee constitutes de facto arrest. Stickroth v. State, 963 So.2d 366 (Fla. 2nd DCA 2007)., Similarly, the fact that an investigative stop is effected at gunpoint does not necessarily convert it into an arrest. State v. Hendrex, ~65 So.2d,532 (Fla. 2d DCA 2003), review denied, 879 So.2d 621,(Fla. 2004). A confession must be suppressed if j.t is pbtained during a detention that amounts to the functional equivalent of,an arrest if police do not have probable cause to make arrest. Kaupp v. Texas,538 'U.s. 626 (2003). In Kaupp, alth_ough police lacked probabl~ cause to arrest the, defendant, they removed him from his home i;n handcuffs, and tr~nsported him to the Sheriffs Department fo!, questioning. The defendant's subsequent statements were suppressed, even though he was Mirandized and the,handcuffs were remov~d upon arrival. (;, :'/ Probable Cause In'General The highest level of contact a law enforcement dfficer may have with a citizen is probable cause to arrest. An officer may make a warrantless arrest if he or she has probable cause. Florida v. White, 526 U.S. L _

6 LEGAL GUID ELINES LG ll 559 (1999). Probable cause exists where the facts and circumstances within the arresting officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of redsonable cautioh in the belief that an offense has been or is 'beipg"committed. Draper v~ U.S., 358 U.S. 307 (1959). ''',' Probable ca'use (or reasonable cause) means that ~an officer need n6t have Informatipn which excludes every conceivable possibility of innocence. Probable cause depends upon probabilities, not certainties. Thus, it must ap~ear to the offic'et'that it is" at lea:st mbre probable than not that a crime has taken place and that the one arr,ested is its perpetrator. Conduct eqi.ullly c:om:patible with guilt or innocenc'e will not constitute probabl(; cause.' "The' probable-cause' standarcl is incapable 'of precise definition or.qu~p:tificatiql1 int~ perc;entages because it deals with 'probabilities and' depends on the totality of the circumstarces.'~ Maryland v. Pringle, 54'0 U ~ S. 36'6 (2003). ),. " In:"'Pringle, a car with three male 'occupants was sto'pped for $peeding in the early morning hours. When the;,driver retrieved his lic~ns~. from"the glove compartment, an officer noticed a large amount of cash. Be:cause hejound this suspiqious, the officer ask~d for and rjceived consent tb' sear~h 'the car. Police found $763 in the glove sompaitment and fiye glassine bags of cocaine between the back-seat armrest and the back-seat. All th!,e~ men d~p.ied ownership o(the drug. Because the cocaip.e wa~ ~ccessible to all ti;te men, it wa.s reasonable to infer all,three had knowledge of, imd exerclsed domain and contro( o~er, it. Police 'therefore hild probable Ci USB to 'arre~t'ali 'three' o,ccupants, including defendant, the' front-seat passenge'r. ' :;r ~'"..~ The subs~q~ent determination of t~e guilt oriil' nocence of the "person arrested does not tletermine the legality of the arrest. '\,.. <.",,;. "-, ~... ' Because probable cau'se depends,on the facts of each case, probable cause mayor may ndt be"found In certain instan~ es :.,:, '" '\i!' I' ' i}'~\' i' <J t L, Cautions to Observe in.regard to Probable Cause " <,,' I~,.\' As every,'citizen knows; our society is overrun with drugs. NJi~ny people rely on the p'olice to fight this "war'1 again'st!dfug' activity.' The police ~'officer must resist the "temptation to us'e whatever means possible in fighting this "war." C'ourts'will not tolerate a violation of eonstitutional rights merely: because it occurs in the'fight 'against-ditugs. Thus, while an exchange Of money for a glassine enve:10pe, tinfoil packet, or small vial with white pdwdet wilh:onstitute prebaole cause for ' an. arrest in most cases, not every exchange will permit an arre'st. An officer-may feel. that if he 'or she sees an exchange, for any object, the courts will'back him or her up should he or she make an arrest. This is not so. An officer must still have reason to believe that he or she is observing a sale of d~ugs. Sh6uid the bfficer observe an exchange of an object he or she canilot see, the officer should not move in to make an arrest unless ther~ are other factors which make it probable that drugs are being transferred. For example,-in Williams v. State 717 'So:2d 1109 (Fla: 5th DCA 1998), an experienced narcotics. officer ina location known for frequent drug sales and observing a known drug dealer, coupled with furtive movements, the removal of an item from the buttocks area, arid the handing of the item to individuals who gave something in exchange, pr.ovided sufficient probable cause'to arrest (and search) the individu;::tli. Although the object exchanged remained.unseen, the surllounding circumstances gave the officer probable caase to believe that drugs were involved. f.'~j The officer cannot use the "high ~crime area" factor as a crutch to make the arrest. M@t geographical areas today can.be considered high-crime areas and that fact in and of itself will not turn an improper, arrest for drugs into a valid arrest, An officer r may feel that he or she knows from past experience:that the individual has no other reason to be in this area except to buy or. sell drugs,. However, that fact by :itself will not be enough probable' cause to justifyran arrest..' ~ " In tlle case of State v. Paul;' 638 So.2d 537 (Fla. 5th DCA 1994), review ' denied, 654 So.2d 131 (Fla. 1995), the orficer observed several males around the df?fendant's vehicle in a high-drug area in the evening but, did not see any cash or packaging consistent with a drug transaction:r.thecourt held that there was insufficient cause to'coiist'hute a reasonable suspicion for a' stop. 'i c' If a suspect {lees, that fact by itself may not-be a reason for an Officer to' pursue and make an arrest. It is usually'the fact that the perpetrator flees, in addiiion to other factors, that will'give"rise to probable cause. For example, if the perpetrator drops property whioh appears to be stolen, or a"motoristthrows property:out the window, th0sefactors in combimition with"flight can result in probable cause: See California v. Hodari D., 499 U.S. 621 (1991), where a fle?eing suspect in a 4ig~-crime 'area runs after being approached by officers and throws a,way his cq~aine., T4e U.S: S\lpreme Qqurt held that where the defendant had not Been arrested or seized' through any use of phys,i,~ ~(force or show of authority and ~here the indi:vidual didpot acquiesc~ or submit to any authority, the cocaine was adinissibl~ as,evidence ag~inst the suspect. ", Identification Required for o' Probable Cause ' ", i> An officer -must be sure that the des~ription of a suspect is sufficiently. detailed before he 'or t3he can effectuate an arrest.' If. tlre (lescription is too vague. or general, the officer should refrain' froin L making the mistake of arresting the suspe'ct prematurely. Instead; he) or she should ask the suspect certain questions or ke;ep the suspect under surveillance. Obviously, if those procedures are not practical, the officer'should use Common,sense and take re'asonable steps to keep the suspect under observation.. Law' enforcement officers can obtain iriformatio~ from aivariety of sources which will constitute pr~b ' dble cause to arrest. The most ' obvious sources are personal observation or the victim of a crime who can usually-supply the most relevant details. Milhouse v. State, 673 So.2d 911 (Fla. 2d DCA ~ 1996), ruled the officer had probahle cause to arrest when he observed defendant drinking from a long-neck beer bottle while crossing a public street. The victim is the best source because courts will assume that he or she is reliable and that he or she obviously knows' what he or she is talking about. Unless a police 'officer has,.reason not to believe a victim (if he or she exhibits' emotional or mental problems; for 'example), the officer can rely on the victim for sufficient probable cause' to make an arrest, without having to verify the information. A police officer can also rely On a citizen, who is not the victim of a crime, to provideinformati'6'n which'\vill constitute probabie cause. While the courts have also found this type of citizen to be trustworthy; an'officer must still verify that the citizen knows wh,a,the or she is talking about. This is known as the'citizen's'''basis of knowledge:" ~,. ' Occasionally a victim will tell a police officer that he or she is not 100% certairi of an identification orthat a person only looks like the perpetrator of the Grime. This information is usually insuj icient to provide an officer with probable cause. However, probable cause will exist if the yictim picks Qut"a suspect's photograph. Informants Where a police officer' relies upon a con'fidential informant for information; there are certain points' which the officer must keep in mind. Befor~ the court~ will find probable cause based on 'the informant's in ~ formation, the officer must be sure that the informant is both "reliable" and thatlhe or she has a "basis-of knowledge." In order to establish "reliability," an offker should determine, any of the following: (1) Did the informant come forward in the past with accurate information? (2) Is he or she making a declaration against his or her penal'interest?.'j, (3) Can the o ficerconfirm details' of the infor~ mant's story?.., In order to establish an informant's basis of know l edge, the officer must consider the following: (1), Did the ~ informant speak from personal knowledge? ~,,~ (2) Did the officer observe conduct directlyinvolving the' criminal activity about which,the informant gave information? If,both "reliability" and a "basis for knowledge" can be established by the officer, probable cause "for an arrest will exist. Where an arfidavitjor a search warrant was based upon the hearsay of an unreliable informant and there were no independent corroborating facts, it was held that the affidavit was insufficient (Wynn'v.Btate, 640 So.2d 134 (Fla. 4th DCA 1994». ~ \i. Where, however, an informant claimed to have seen several 'criminal acts by defendant 'coupled with officer's verification of certain facts, it was held that this was adequate.to s'upport:an investigatory stop (Austin v. State, 640 So.2d 1247 (Fla. 5th DCA 1994». In Dozier v. State, 766 So.2d 1105 (Fla. 2d DCA 2000), the justification for the stop was held invalid because the office'r could not establish his informer's rel ~ability and basis of~nowledge. A law enforcement agency that uses, confidential informants must: inform each person ~ho is requested to serve as a confidential informant that the agency cannot promise inducements such as a grant of imml,mity, dropped or reduced charges, or reduced sentences or plicement on probation in exchange for serving as a confidential informant;,,.~., inform each person who is requested to serve as a confidential informant that the value of his' or, h~r assistance, as. a confidential informant.and any effect that ~ssistance may have on pending '(2.riPlinal matters can be determined only,by the appropriate legal authority; \ 'f '~~ provide a person wlio is r'equested to serve as a confidential informant with an opportunity to Gonsult with legal counsel upon request before the person agrees to perform any activities as a confidential' informant;." ~nsure that all personnel who are inv~lved in the use or recruitment" of confidential infor~,ants are trained: in th~ i~~ ~nforcement agency's policie?s a,nd,proc~dures (keeping documentation demonstnlting the date of such traipip.g),;, and :~.',. adopt pqlicies arid procedures' that assign 'r the highest ;priority i'n operational decisions. and actions -to the presetvation 'of the safety of confidential informants, law enforcement 'personnel; target ' 'offender~, and the public. A law enforcement agency that uses confidential informaj?,ts shall establish policies and' procedures addressing the recruitinent, control; alid'use of confidential informants. The policies and procedures must state the: '.. ).. " ii1formation that the law enforcement agency shall 'maintain concerning' each confidential informant; general guidelines for handling confidential informants; process to 'advise a confidential informant of conditions, restrictions, 'and:'procedures associated with participating irilthe agency's investigative or intelligend~q~'athering activities;,. d~ " designated supervisory or commanq-ievel review and ov~rsight inthe use of a con,fidential inf9rmant;,.. t " ",j. ' limifsor,restrictiop.s op' off-duty association 'or social 'relationships, qy agency personnel '. involve'd,in investigative' or intelligence gath- I ering with 'confidential informan~s;, guidelines to deactivate confidential informants, including guidelines for q.eactivating communications with confidential informants; Iiln,d,.' ",." ' I level of supervisory approval required before a jvvenile is u~ed as a confidential iriform~nt.

7 LG-12 f LG-13 The agency must also establish policies and 'procedures to assess the suitability of using a person as a confidential informant by considering the minimum following factors:.. ~. the person;s age and II}aturity; the risk the person poses to adversely affect a present or potential investigation or prosecution;. the effect upon agency efforts that the disclosure of the person's cooperation in the community may have;. whether the person is a substance abuser or has a history of substance abuse or is in a court-supervised drug treatment program; the risk of physical harm to the person, his or her immediate family, or close associates as a result of providing information or assistance, or upon the disclosure of the person's assistance to the 'community; ). whether the person has shown any indication of emotional instability, unreliability, or of furnishing false information; the person's criminal history or prior criminal It record;1 and ' whether the use of the person is important to or vital to the success of an investigation. In addition, the agency must establish written security procedures that, at a minimum: provide for the secured retention of any re-,cords related to the law enforcement agency's confi)dential sources, including access to files identify~ng the. i~emtity of confidential sources; limit a~ailability to recor'ds relating to confidential informants to those within the law enforcement-agency or law enforcement community having a need to know or review those records, or to those whose access has been required by court process or order;,require notation of each person who accesses such records and the date that the records are accessed;. " provide for review and oversight by the law enforcement agency to ensure that'~the security procedures are followed; and define the process by which records concerning, a confidential informant may be lawfully destroyed. (F.S ) H), Fellow Officer Rule.-If a law enforcement officer has information amounting to probable cause, he or she can communicate that probable cause to an officer who lacks that knowledge for purposes of the second officer making an arrest. The directing officer's knowledge is imputed to the arresting officer. (Dewberry v. State, 905 So.2d 963 (Fla. 5th DCA 2005». This rule is applicable whether the communication is from a superior or fellow officer or between officers of different agencies (Smith v. State, 719 So.2d 1018 (Fla. 3d DCA 1998». The "Fellow e>fficer Rule" pertains to misdemeanor offenses, as well ' as felony offenses (B.D.K. v. Slate, 743 So.2d 1155 (Fla. 2d DCA 1999». Be aware that the "fellow officer rule" applies in cases of searches as well as arrests: State v. Peterson, 739 So. 2d 561 (Fla. 1999). Other Basis for Probable Cause When a police officer relies on information from fellow police officers or from official police sources, he or she is entitled to assume that the "sending" officer has "probable cause" and that the information is reliable and accurate. However, an officer should also realize that ifhe or she acts on information which has become stale or ou'tdated before the arrest (i.e., an outdated arrest warrant, parole warrant, stolen car report, etc.), the arrest will be voided by the courts. Note also that a failure to make a diligent search when acting on a warrant can in-validate an arrest. The Court in McNetl v. State, 673 So.2d 125 (Fla. 3d DCA 1996), held that the delay in serving a capias for defendant in a noncapital nonlife felony (grand theft) may be determin.ed in light of the defendant's effort to elude arrest, but where the state offered' no evidence of a diligent effort to locate the defendant (use of the phone book, etc.) the search is not diligent under F.S. 7,75.15(5).. ''Probable cause" can come from a variety of other sources. A police officer can obtain informationjrom a defendant's accomplice. An officer can utilize fingerprints at the scene of a crime or even'information from a conversation heard through a wall to obtain the necessary information for an arrest. It is important to remember that the courts will review the information underlying the arrest (i.e., whether or not there is probable cause) from an objective view (i.e., from a neutral, detached;' unbiased point of view). The case of State v. Jordan, 590 So.2d 1118 (Fla. 4th DCA 1991), illustrates what is probable or reasonable cause (different courts use "probable ca.use" or "reasonable cause" but both texms have the same meaning). In this case, a police officer responding to a BOLO, followed a vehicle until it suddenly st.opped and its three occupants scattered in different directions. The police officer caught the driver, the defendant in this case, and questioned him. The defendant had no driver's license. It had been suspended. Another officer arrived at the scene and the defendant was placed under arrest for driving without a valid driver's license. [Driving without a valid operator's license is a vi01ation off.s and justifies an arrest (State v. Warren, 450 So.2d 1249 (Fla. 5th DCA 1984».] The first officer then searched the defendant and found' cocaine' on the defendant's person. The appeals court found that the search was incident to a lawful arrest; i.e., the arrest for driving without a license (also see New York u, Belton, 453 U.S. 454 (1981» and the cocaine revealed by that search was admissible.evidence. In Curtis v. State, 748 So.2d 370 (Fla. 4th DCA 2000), officer was on routine patrol. He approached defendant. and another individual bec.ause he wanted to get to know the people in the area. While speaking with defendant, standing about two feet away, officer observed what he identified 'as a rock of crack cocaine in defendant's mouth,~ partially concealed by his upper lip. Officer had five years of experience; during which time he had made hundreds of arrests for crack, and he knew the upper lip was a common hiding place among users. Officer had probable cause to arrest defendant, and could order him to spit the crack out as part of a search ~ncident to arrest. But see Johnson v. State, 741 So.2d 1223 (2d DCA 1999), where the discovery of crack cocaine in a cigarette pack lying on, the ground about one foot from defendant did not establish probable cause for defendant's arrest, because no evidence was presented that he was ever in possession of the pack or claimed ownership of it. Street Encounters on L~s,s Than Probable Cause There is probably no area which causes more confusion for a police officer than'that of street encounters with citizens where the officer acts'on less than probable cause. The 'officer must constantly balance his or her safety with the proper performance of his or her job. The two concepts are frequently in conflict with each other. How can officers.do their job effectively, while protecting themselves at the same time? The following will provide some tips in this difficult,arefl: The officer. must remember that he or she can only take official action (i.e." make an arrest) which is reasonably related to the amount of informatiol). he or she possesses. Obviously, if the officer has facts which constitute probable cause, he or she can make an arrest. However, the officer will frequently' have facts which fall far short of probable cause. The most minimal intrusiim an officer can make is a request for information. This can be done as a "public,$,ervice" function in situations, where people are in distress. Where the police are performing a law enforcement function, 'an officer is even more restricted in the amount of information he or she can request. The request must be limited in scope and must be brief. The citizen queried has the right to refuse to answer these limited questions and can even walk or run away. The officer cannot use the refusal t ~ pursue and stop die individual, unless the citizen a,cts in a manner which ' places the officer in fear for his o'r her safety or which creates' a r,easonable suspicion that the citizen has'" committed a crime. ' A second, more 'intrusive cont~ct with a citizen is based upon the common-law right to inquire. Here, an officer can interfere with a citizen, to maintain the "status-quo" while obtaining more information. The officer is permitted to ~ake this inquiry when he or she has a' suspicion, that "criminal activity is afoot." However, the officer is not permitted to make a forcible seizure of the citizen (i.e., the officer,c,annot physically or constructively interfere with the citizen's freedom of movement). ThIS has been found to be an unlawful arrest. ''Vigilant law enforcement is part of society's need to protect itself and does not violate a citizen's constitutionally protected rights," Florida v. Royer. 460 U.S. 491 (1983); State v. Walden, 464 So.2d 691 (Fla. 5th DCA H)85); Turner v. State, 674 So.2d 896 (Fla. 5th DCA 1996). "There is a nee'd for police questioning as a tool for effective enfqr.c:ement of criminal laws':' Florida v. Royer, supra; U.S. v. Mendenhall, supr;a; also see Light~urne v. State, 438 So.2d 380 (Fla. 1983), cert. denied, 405 U.s (1984). The citizen is not obligated to answer the officer's questions and his silence cannot be used as a basis for further action. The Court in Jeralds u. State, 664 So.2d 56 (Fla. 5th DCA 1995), held that officers. may freely ask for identification and request permission to search. However, when the officers persist and create an appearance that the person must c.omply and the person is not free to leave then the encounter becomes a Terry Stop and the officers must have reasonable suspicion to detain the person. An officer can stop a citizen when he or she reasonably suspects that the citizen has committed or is about to commit a crime (F.S ). This "st0p" is an intrusive procedure and must be based on "reasonable suspicion." It canno,t be based on an officer's "hunch" that an individual was doing something wrong (Smith v. State, 637 So.2d 343,344 (Fla. 2d DCA 1994». If the officer is acting on a hunch then the officer can only J;'esort to a consensual encounter. The officer will be required to give specific facts which justified his or her actions. The "stop" can take a number offorms: physical restraint; blocking the path of a car, etc. Whatever the forb). of the stop, the office.r must b.e prepared to back it up with facts when he or ~he testifies in court., Frequently an qfficer will get an anonymous tip or a call over the radio that there. is a "man with a gun" at a specific location. That information is not sufficient to stop an individual 'although the officer could certainly ask some questions of that person. If the tip was in junction with something the officer personally observed, a stop 'would be justified. For'example, if the citizen was engaged in unusual or suspicious behavior, th~ officer could stop him or her. The offjcer cannot rely on innocuous (adj., producing no injury or not likely to give offense) behavior 'as a basis for a stop even if the behavior occurred in a "high-crime area." Th~ stop would be invalid under those circumstances. See/Britt v. State, 673 So.~d '934 (Fla.. 1st DCA 1996).,, 7. STOP AND FRISK Under the "Florida St'op' and Frisk Law;' (F.S ) whenever any law enfqrcement officer encounters any person under circumstances which reasonably indicate" that such person has copimitted, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he or she may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his or h~r presence abroad which led the officer, to believe that he or she had committ~d, was committ~ng, or was about to commit a criminal offense. No person shall be temporarily detained under the provisions of this act, lpng~r than is reasonably necessary t.o effect the purposes 6f this act. Such temporary detention shall not ext~nd b~yond fhe place where it was first effected or the immediate vicinity thereof. This statute (F.S ) authorizes temporary dete~tion when circumstances reasonably indicate that a' person i~ 'YiQlating the criminal laws (Winters v. State, ~78 So.2d 5 '(Fla ~ 2d DCA 1991»..

8 A police officer has authority to temporarily detain a person under F.s in order to investigate a reported misdemeanor performed outside of his or her presence (State 'v. Wise, 603 So.2d 61 (Fla. 2d DCA 1992»..', "c' An officer needs a reasonable articulated suspicion to conduct a stop and frisk under F:S What is a reasonable suspicion depends upon the facts and circumstances of each case (Watts v. State, 578 So.2d 437 (Fla. 1st DCA 1991); also see State v. Webb, 398 So.2d 820).. Law enforcement officers may use drawn weapons m a Terry Stop when they reasonably believe that the use of weapons is necessary to protect the officers or prevent a suspect's ability to flee. State v. Hendrix, 865 So.2d 531 (Fla. 2d DCA 2003); review denied, 879 So.2d 621 (Fla. 2004). It is unlawful for any person lawfully detained (or arrested) by a law enforcement officer to give a false name, or otherwise falsely identify,himself or herselfirt any way, to the law enforcement officer. (F.S ) To constitute a violation, the detention must be lawful' ifthe officer did not have reasonable suspicion to initi~ ate an investigatory stop, then giving a false name is not a crime, and there is no probable cause to arrest for the misrepresentation. Cook's v. State, 901 So.2d 963 (Fla. 2d DCA 2005); Belsky v. State, 831 So.2d 803 (Fla. 4th DCA 2002). ' r (1) FriskIng,. ' In addition to stopping a citizen,,an officer can frisk an individual whe:q. the officer reasonably $USpects ~hat he or.she is in dang~r o(physical injury. The frisk can be used to feel for any weapons 'arid it essentially is a "pat-dowri" 9f th~ suspect. The officer cal). also pat-down a cit~zen's bag o~ container if that officer has a right to frisk the individual. A frisk can be conducted while the individual is in any number of positions. However, a frisk is not a full-blown search. It is only a self-protective procedure which is utilized to feel for weapons. The right to frisk includes the right of the officer to draw his or her weapon or to grab an individual's hand if that is where the weapon is. In Hines v. State, 737 So.2d 1182 (Fla: 1st DCA 1999), an officer exceeded the scope of a lawful pat-down when he immediately reached into defendant's pocket without fi~st I?atting down the exterior of p.is clothing. Once a frisk IS completed and the officer's fears have abated the officer cannot continue t (J search the suspect: ' B~ aw~re that there is no automatic right to'frisk a su~pect d~ring an in;restigatory stop ~s a matter of routme-the officer must be able to articulate some specific factual basis for believing that the suspect is ar~ed,,before conducting a :{)a,t-down. Moore v. State, 874 So.2d 42 (Fla. 2d DCA 2004), reh'g denied., However! an officer need not have any reasonable suspicion to frisk a person w:ho is about to voluntarily become a passenger in that officer's vehicle. Williams v. State, 403So.2d 453 (Fla. 1st DCA 1981); 'caldwell v. State, 985 So. 2d,?02 (Fla. 2nd DCA 2008). ', An officer cannot order a suspect to spit out the contents of his or her mouth unless the officer has probable cause to arrest the suspect and conduct a lawful search incident to arrest. Smalls v. State, 858 So.2d LG (Fla. 5th DCA 2003) (officer had probable cause when he saw defendant using his tongue to manipulate a small, beige, rock-like substance in his mouth)... An officer may pat-down a driver or passenger durmg a traffic stop only if there is reasonable suspicion to believe the driver or passenger may be armed and dangerous. Arizona v. Johnson, 555 U.S. _ (2009).' (2) Violent crimes. An officer cannot conduct a frisk merely because he or she has the right to "stop" an individual; he must also have an independent suspicion that the suspect is armed. Tarver v. State, 961 So.2d 1094 (FIg. 2nd DCA 2007). The only exception to this rule occurs when the officer suspects that the individual has committed a violent crime. An 'officer can base a reaso'nable suspicion ~o stop and frisk on a number of factors. For example If he or she observes a dangerous or suspicious moveme~t of the suspects,?r ~f' he or she observes, activity which confirms an anonymous tip, that officer would be justified in conducting a "stop and frisk.". " (3) :A "bulge" seen on suspect Many stop and frisk cases revolve around a "bulge" which is seen on the person of the suspect. An officer cannot merely claim that he or she saw a bulge and expect that a court will uphold his or her right to frisk the suspect. Obviously, if an officer observes the outline of a gun through a bulge, he or she can conduct a frisk!f ~he officer. camlot identify a weap<)ll and the' bulge IS m ~he WaIst 'area, he or she 'can,'conduct a frisk if there IS some other indication of criminal activity (radio run, officer's own observations, etc.). If the unidentifiable bulge is in some otper are'a (pants pocket, jacket pocket, coat pocket, groin area; ankle area), 'a "frisk is only authorized if the officer is responding to ~ a report of a' crime involving a weapon.. '-'. A 1993 U.s. Supreme Court decision (Minnesota v. Dickerso1J" ~08 U.S. 366 (1993» held that police do not need a warrant to seize narcotics while frisking a suspect for concealed weapons as long as the contraband is instantly recognizable by "plain feel." (The evidence, however, in Diqkerson was not admissible where the lump detected in the defendant's pocket during ';1 pat ~own sea~,ch was determined to be c~mtrahand only after further search.) Compare with Ray v. State, 849 So.2d 122 (Fla. 4th DCA 2003) (no'valid seizure when officer testified that he felt a plastic baggie in defendant's pocket but offered no te~timony regarding the contour or mas$ of the object within the'baggie, instead saying he removed it because he'knew narcotics are frequently packaged in' baggies). Also see "Fruits of' a weapons search" below.. Where police officers had reasonable suspicions that ~ d~fendant was armed and dangerous, they' made a JustIfied protective frisk or "pat-down" pursuant to Terry v. Ohio, 392 U.S. 1 (1968). The Florida court held that the coins and,straw removed from defendant's pocket were able to be entered into evidence. However the marijuana discovered oy a police officer whel), he op~ned and mspected a Marlboro cigarette box removed from defendant's pocket:,was inadmissible (In re J.B., 632 So.2d 708 (Fla. 4th DC~ 1994». (4) Presence at scene of a crime LG-15 An officer cannot frisk a suspect merely because that individual is present at the scene of a crime. In State v. Rodriquez, 674 So.2d 899 (Fla. 5th DCA 1996), officers arrested a person who they knew was only visiting a house when drug paraphe~nalia was found. The Court held that there was nothing to show a factual basis for the officers to "have reasonably believed that the defendant was in constructive possession of drug paraphernalia in the house they knew she was visiting... " and held the arrest invalid. Nor can an officer frisk a motorist who is only stopped for a violation or traffic infraction. Probable cause is required to search the vehicle. In Pennsylvania v. Labron, 518 U.S. 938 (1996), the warrantless sear-ch of an automobile pursuant to the "Automobile Exception" to the warrant requirement under the Fourth Amendment was held to be justified by the U.s. Supreme Court where probable cause exists; see also Whren v. U.S., 517 U.S. 806 (1996), where a seizure of drugs in plain view on the front seat of a vehicle stopped because of an observed vehicle infraction was held valid. (5) Furtive Movements Furtive movements may be sufficient to establish reasonable suspicion justifying a pat-down search for weapons. Lightbourne v. State, 438 So.2d 390 (Fla. 1983). In Dewberry v. State, 905 So.2d 963 (Fla. 5th DCA 2005), defendant was a passenger in car stopped for erratic driving in a high crime and drug area. During the stop, while another passenger was "jumping around," defendant ducked down, possibly reaching underneath the passenger seat as if to place or retrieve,something from under the seat. The Court concluded that a patdown search of defendant was justified. (6) Lawful stop When an officer makes a lawful "stop," he or she can detain a suspect for a brief time to investigate criminal activity. This is known as a temporary investigative detention. Again, the detention for investigative purposes must be based on a reasonable and articulable suspicion that a suspect has committed or is about to commit a crime (Alabama v. White, 496 U.s. 325 (1990». The officer must be careful: to keep this detention as brief as possible. If the detention continues for too long a time, the officer runs the risk of turning the "stop" into an arrest. The time period must-be ''brief' (usually,no more than 15 to 30 minutes). (7) Fruits of a weapons search ;', The U.S. Supreme Court case Minnesota v. Dickerson, supra, held that police do not need a warra~t to seize narcotics while friskin.g a suspect for'.concealed weapons as long as the contraband is instantly recognizable by "plain feel." The search must be part,of a protective pat-down for weapons justified on the basis of a reasonable suspici<m that a suspect is armed and dangerous, and the contraband nature of the abject must be immediately obvious to the police officer. The contraband in combination. with flight can result, 'in probable cause. Also see Woodson v. State, 579 So.2d 381 (Fla. 5th DCA 1991), where officers observed defendant with others in a problem area at 8:45 a.m., stopped defendant, obtained consent to search, and found a weapon. The Court held the seizure of the weapon invalid as the fruit of an unlawful stop, even where consent was given. Also see Wong Sun v. U.S., 371 U.S. 471 (1963); Dobson v. State, 737 So.2d 590 (Fla. 4th DCA 1999). (8) Use of handcuffs The Florida. Supreme Court has ruled that handcuffing a person while conducting a stop and frisk is reasonable when circumstances reasonably justified the use of such restraint (e.g. for officer safety or to thwart a suspect's attempt to flee). The continued use of handcuffs after the pat-down was held illegal. In one case, the police cuffed the subject during the patdown but did not remove the cuffs after the pat ~ down revealed the absence ofweapons, therefore making the consent to search, given after the pat-down and while the subject was' still cuffed, involuntary. Reynolds v. State, 592 So.2d 1082 (Fla. 1992); reh'g denied., The case of Turner v. State, 674 So.2d 896 (Fla. 5th DCA 1996), provides an overview of some issues associated in a street encounter. Turner involved the response by officers to the scene of an alleged argument about drugs based on a tip from an unknown witness. When the officers arrived, they found no argument and saw no drugs or guns at the scene. All they found were two individuals. The Court ruled that the search and subsequent find of weapons were illegal. The Court found that: Investigatory Stops: There must be "a well-founded suspicion that criminal activity is afoot," quoting fro,n State v: Simmons, 549 So.2d 785, 786 -(Fla. 2d DCA 1985). "Hunch alone is not enough for an investigatory search." Smith v: State, 637 So.2d 343, 344 (Fla. 2d DCA 1994). It is not enough to rely on the fact that others in the area have had weapons in the past (Hamilton v. State, 597 So.2d 417 (Fla. 2d DCA. 1992». Officers must have a founded suspicion that the person has commitj ted, is committing, or is about to commit a crime before there can be an investigatory stop. Further, "the law enforcement officer must be able to articulate reasons for his suspicions." (Turner, supra.) ' Pat-Down for Weapons: According to Woodson, supra, "Section (5) of the Florida 'Statutes (1989) authorizes a police officer to conduct a weapons search if there is probable cause to believe the person he has temporarily detained is armed." Woodson relies on Doctor v. State, 573 So.2d 157 (Fla. 4th DCA 1991); L.D.P. v: State, 551 So.2d 1257 (Fla. 1st DCA 1984). Questioning: "All citizens should expect reasonable contad with the police. 'Even in a democratic society, law enforcement officers have the right to iriitiate questioning in a public place. Police may even request a citizen to consent to a search of his or her person 6r belongings." Turner, supra. Where an officer "merely approaches a citizen to ask questions or to check identification and the contact between the police officer and citizen 'evokes voluntary cooperation on the part of the citizen' the encounter is not a seizure within the meaning of the Fourth Amendment." (J.C. W v: State,,545 So.2d 306 (Fla. 1st DCA), reh'g denied, review 'denied, 553 So,.2d 1165 (Fla. 1989),quoting State v. Rawlings, 391 So.2d 269 (Fla.,4th DCA),' petition denied, -339 So.2d 1145 (Fla. 1989»

9 LG-16 f LG-17 Illegal Search and Seizure:,"A consent to search, given after illegal police conduct, is presumptively tainted ' and is deem'ed involuntary absent clear and convincing proof of an unequivocal break in the chain of official illegal action." (Norman v. State, 379 So.2d 643, 647 (Fla. 1980); Cooper v. State, 654 So:2d -229 (Fla. 1st DCA 1995». However, see State v. Paul, 638 So.2d 537"(Fla. '5th DCA 1994), review denied, 654 So.2d 131 (Fla. 1995), where the Court.found that the taint of an illegal stop may be dissipated when a defendant consents to a search after being advised of his constitutional right to refuse consent. Seizure/Arrest: "[A] seizure occurs only when by means of physical force or show of authority, one's freedom of movement has been restrained and when in light of all the circumstances, it may be said that a reasonable person would have believed that he or she was not free to leave." (J. C. W. v. State, supra.), ; 'A school official asking a school resource officer (a police officer assigned to a public school) to pat down a student for weapons, where the school official has a reasonable suspicion that a student is armed, is valid. The Court stated "If a.school official has a reasonable suspicion that a student is carrying a dangerous weapon'on his or her person, that,official may request any police officer to perform the pat-down search for weapons without fear that the involvement of the police will somehow-violate the student's Fourth Amendment rights or require probable cause for such a search." J.A.R. v. State, 689 So.2d'1242 (Fla. 2d DCA 1997). Identiq~ation Requirement Whe,n, ~ person is stopped based upon reasonable suspici9n, the,p.erson must identify himself or herself. See F.S (2): If. the person refuses to give his or her name, he ort,sqe can be arrested.' Hiibel v. Sixth Judicial Dist. Court of Nevada, lfumboldt,cty., 542 U.S. 177 (2004). In Harper v. State, 532 So.2d 1091 (Fla. 3d DCA 1988), the court approved the warrantless search of a handcuffed defendant's wallet for a driver's license or similar identification document to confirm his,identity. Also see Johnson v. State, 547 So.2d 699 (Fla..1st DCA 1989). _ 8. EYEWITNESS ;LINEUPS, '.J ~,, In general, the Fifth Amendment prqtection that "no, person shall be compelled in any criminal case to be a witness against himself," does not protect a suspect from being compelled by the State to provide "r.eal or physical evidence." The Fifth Amendment protection afforded an accused only protects the accused from being compelled to testify against himself or herself. Certain acts, although incriminating,-have been held not to be within the Fifth Amendment protection. For example, a suspect may be compelled to,furnish a blood sample, Schmerber v. California, 384 U.S. 757 (1966); to provide a handwriting exemplar, Gilbert v. California, 388 U.S. 263,(1967), or a voice exempla:r, US. v. Dionisio, 410 U.S. 1 (1973); to stanu'in'a lineup,,us. v. Wade, 388 U.S. 218, (1967); and to wear particular clothing, Holt v. US., 218 U.S. 245 (1910). Raving a suspect or an accused come in for a showup or stand in a lineup, or placing a photograph of a suspect or an accused in a photographic array, does not violate the Fifth Amendment privilege to be free from selfincrimina tion. Thus, a photographic lineup where the defendant was identified from a series of photographs was held to be neither impermissibly suggestive nor did it give rise to a substantial likelihood of irreparable misidentification (Figueroa v. State, 632 So.2d 195 (Fla. 3d DCA 1994».. Evidence of an out-of-court identification from an eyewitness viewing of a photo array which contained a picture of the defendant taken during the course of an unlawful arrest is inadmissible. However, the "in court" identification of the defendant may be admissible if police knowledge of the defendant's identity and the victim's independent recollection of him or her both developed before the unlawful arrest and was tainted by the unlawful arrest (US. v. Crews, 445 U.S. 463 (1980». The method or procedure used in an eye-witness identification, if employed in an unnecessarily suggestive manner, may invalidate an eye-witness identification. Although each case will be considered on its own facts, a court will invalidate an in-court eye-witness identification when it follows a pretrial identific'ation procedure which was "so impermissibly suggestive as to give ris~ to a very substantial likelihood of irreparable misidentification." Simmons v. US., 390 U.S. 377 (1968); Thomas v. State, 748 So.2d 970 (Fla. 1999). Also see Mari v. State, 675 So.2d 176 (Fla. 4th DCA 1996) where the Court 'can preclude the victim from testifying about identification made at trial where a pretrial identification'was made at a pretrial hearing, a very suggestive method of identification since only the defendant was present. The Court found that exigent circumstance's'would have to exist and the recall had to be based solely on an independent recollection. The standard for the admissibility of testimony concerning the out-of-court identification is whether or not there is a substantial,"likelihood of misidentification which violates a defendant's right to due process." (Neil'v. Biggers, 409 U.S. 188 (1972». The admissibility of the eye-witness identification will, in light of the totality of the circumstances, depend upon its "reliability" and "suggestiveness." The following factors will be examined to determine such reliability and suggestiveness:, " (a) The opportunity of the witness to view the suspect at the time of the crime (including items such as length of time viewed; lighting, whether face-to-face of' side view, Qr, whether casual observance or direct victim of the crime)'; ' (b) The witness' degree of attention;, (c~" The accuracy of the witness', prior description of the criminal;, '(d) The level of certainty demonstrated by the witness at the confrontation; and.' ~. >. ( e) The length of time between the crime and the confrontation. (The Court upheld a: showup idefntification on the street which was conducted two hours after the crime was committed. Davis v. State, 760 So.2d 977 (Fla. 3d DCA 2000), reh'g denied.) For example, in Tumblin v..-~state, 747 So.2d 442 (Fla. 4th DCA 1999), even though the victim failed to pick defendant out of a pre-trial photo line-up as his attacker, his in-court identification was still reliable. There was no evidence in the record indicating' how closely the photos used resembled defendant. The victim had ample opportunity to observe defendant during the attack (which lasted five minutes, in daylight), the victim was able to describe his attacker in some detail and the in-court identification occurred just 4lJJ months after the attack.. When making eye-witness identifications by (1) "showup" (a direct one-qn-one examination ofthe actual person, place or object), (2) ~ 'photo lineup" (a _photographic array), or the (3) "in-persqn lineup" (a viewing of a group of individuals), law enforcement should observe the following procedures, so that the event may be reconstructed at court: (a) make a complete record of an identification procedure; ', - (b) record the identify of persons participating in a lineup; (c), take a picture of the lineup; (d) when a photographic array is used for eye" witness identification, 'a record should be made of the photographs exhibited; (e) in-person lineups should use at least six individuals ofthe same sex and race as the'aceused having a "substantial" degree of similarity to;the accused; (f) allow 'only one,witness at a time to view the lineup; (g) do not indicate whether the witness identifies the "correct person." Exemplary Evidence While police are permitted to take handwriting and voice sa'mples as part of the identification-process, courts have consistently held that the taking of blood samples and breath tests are searches and seizures subject to the protections of the Fourth Amendm~nt to the U.s. ConstitutioI;l (Fosman v. State, 664 So.2d 1163'(Fla. 4th DCA 1995); State V,. Quartararo, 522 So.2d 42, 43 (~la. 2d DCA 1988». "A 'search' is an inspection orexamination of places closed from public or general view, and requires some measure offorce or iritrusion.a 's,eizure', on the other hand, is the act of taking custody of evidence or contraband.". Lightfoot v. State, 356 So.2d 331, 333 (Fla. App. 1978), reh'g denied).. J 9. MIRANDA WARNINGS " ' A law enforcement officer's obligation to administer Miranda warnings attaches only where there has been such a restriction on a person's freedom ~s to render him or her "in custody." A person's Miranda rights are not triggered by virtue, of the fact 'tha,t he or she has become the focus of an officer's suspicions. "The ultimate inquiry is simply whether,there was a formal arrest or restraint on freedom of movement of the deg:ree associated WIth formal arr~st." Stansbury v. California, 511 U.s.-318 (1994); Ramirez v. Steite, 739 So.2d 568 (Fla. 1999), reh'g denied,-cert. denied, 528 U.S (2000). Miranda rights are, triggered when custodial interrogation takes place when law. enforcement officers take a person into custody or otherwise deprive that person of one of his or her freedoms in any significant way and initiate questioning. Miranda v. Arizona, 384 U.s. 436 (1966). Factors a court will weigh in determining whether: a suspect was 'lin custody" include: (1) the manner in which police summoned the suspect for questioning; (2) the purpose, place', and manner of the interrogation:; (3) the extent to which the suspect is confronted with evidence of his or her guilt; (4) whether the suspect is informed that he or she is free to leave the place of questioning. Ramirez v. State, supra. Note that a suspect's age and:frrevious experience with law enforcement are not. relevant to the Miranda custody analysis. Yarborough v. Alvarado, 541 U.S. 652 (2004). With regard to Miranda warnings, in cases involving juveniles, a court should consider: (i) the methodology employed to administer. the Miranda rights; (ii) the age, experience, background, and intelligenoe of the child; (iii) whether the parents were contacted and whether the child had an opportunity to speak with them prior to giving the statement; (iv) whether the questioning occurred 'in the station house; and (v) whether the child executed a written waiver of rights. There is no constitutional requirement that police notify a juvenile's parents prior to questioning the juvenile. : Neverthele~s, if the juvenile indicates to police that he or she does not wish to speak to them until he or she has had an ~opportunity to speak with parents, the questioning must cease. State v. S. V., 958 So. 2d 609 (Fla. 4th DCA 2007). In State v. 'Rodriguez, 785 So.2d 759 (Fla. 3d DCA 2001), the defendant ~as not in'custody when he voluntarily drove himself to the sheriffs headquarters, where he was questioned in a closed but unlocked room. The det~ctive infor~ed the defendant that he was free to leave at any time. ). NOTE: " The Fifth Amendment to ' the U.s. Constitution provides ' that "no person shall be corhpelled in any criminal case to be a witness against himself." (.' When a hiw enforce~ent officer places a motorist u~der arrest for driving under the ilffluence (F.S ) or any other motor vehicle violation, and subjects the motorist(driver) to treatment which renders him or her in custody, the officer must advi$e the motorist of his or her Miranda rights if the officer int~nds to question the suspect regarding any incriminating information. Any answers to,poiice-instigated 'questions after the formal arrest without Miranda warnings administer~d,~iil be held inadmissible. If, however, a law enforcem~nt officer temporarily detains a motorist In order to ask a few brief questions and possibly issue,a traffic citation, no Mirande;. warn~ng~ are required. Routine motor vehicle detentions or stop and frisk detentions (under F.S ) which, by their nature, are usually brief and temporary, and involve no more than a check of credentials, and issuance of citations for violations observed, do not rea~h the param~ters of an arrest which would normally invoke the necessity of Miranda warnings. Howev.er, if a motorist

10 LG-18 LG-19 is subjected to treatment that renders him or her "in custody" for practical purposes, such as handcuffs, Miranda warnings must be given. State v. Whelan, 728 So.2d 807 (Fla. 3d DCA 1999). The Court will evaluate claims of police coercion and may permit use of expert testimony to determine the defendant's ability to understand Miranda warnings even absent any evidence of police coercion. Colorado v. Connelly, 479 U.s. 436 (1986). The Court will also investigate the sufficiency of defendant waivers of Miranda and whether or not the defendant was permitted access to.counsel (Moran v. 'Burbine, 475 B.S. 412 (1986». ' In Roberts v. State, 874, 0.2d 1225 (Fla. 4th DCA 2004), an officer reading the Miranda warning from his department's form did not adequately inform defendant of his rights when he told him he could "have a lawyer present before any questioning." This wording was defective because it failed to inform defendant.of his right to have an attorney present during questioning as well as before it. When an officer told the defendant he was interviewing him to investigate a fellow officer's use of force in arresting the defendant, not- the underlying criminal offense, the defendant's incriminating statements were inadmissible even though he had previously been read the Miranda rights.. By misleading the defendant into believing his statements would only be used in an administrative report, the officer vitiated the earlier reading. Jackson- v. State, (Fla. 3d DCA 2003).., " '. I 10. INTERROGATIONS 'AND,CONFES SIONS The Supreme Court in Miranda v. Ari~ona, 384 U.S. 436 (1966), decided that under the Fifth Amendment to the United States Constitution the accused person is guaranteed the right "to remain silent unless he chooses to speak in the unfettered exercis,e of his own free will." The Court referred to "custodial interrogation" which is "questioning initiated by -law enforcement officers after a person has been taken into custody or otherwise, deprivetl of his freedom of action in any significant way." Thu s, in addition to giving an accused "in custody" his or her "Miranda rights," the accused must be warned that he or she has the right to remain silent and that any statement he or she does make can and will be used against him or her in a court oflaw. In addition; the warning given must convey that t4e susp'ect has the righf to have an attorney present not only at the outset of interrogation, but at all times. Florida v. Powell, 559 U.S. _ (2010). The accused may waive effectuation of these rights; provided the waiver is made voluntarily, knowingly, and intelligently. In making this determination, the court will examine the tot~lity of the circumstances surrounding the waiver, including: (1) the manner in which the Miranda rights were' administered, including any cajoling or trickery; (2) the suspect's age, 'experience, background and intelligence; (3) if the suspect is a juvenile, whether he was given a chance to contact his parents; (4) whether questioning occurred in the station house; (5) whether police secured a written waiver from the suspect at the outset of the interrogation. Ramirez v. 'St'ate, 739 So.2d 568 (Fla. 1999), reh 'g denied, cert. denied, 528 U.S (2000). rlf,the accused indicates in any manner, and at any stage of the interrogation that he or she wishes,to consult. with an attorney before speaking, or that he or she does not wish to be interrogated, questioning must cease immediately (the "Edwards Rule"). The fact that the accused has previously. answered some questions does not prevent him or her from terminating the interrogation (Edwards v. Arizona, 451 U.S. 477 (1981». Unless the accused himself or herself initiates further communication with the police, the interrogation cannot be reinitiated., Wilder,v. State, 2010 Fla. App. LEXIS 9884 (Fla. 1st DCA 2010). A confession or admission obtained during custodial interrogation which violates the accused's rights to remain silent or consult with a lawyer will be' excluded. In Minnick v. Mississippi, 498 U.S. 146 (1990), the U.S. 'Supreme Court clarified the "Edwards Rule." Officers stopped the interrogation after defendant requested counsel. Mter defendant had visited with his counsel several times, I officers began questioning defendant and told him that since counsel had been made available, the defendant could not refuse to answer questions. The Court held that under the "Edwards Rule" counsel must be made available and must be present during questioning. The U.s. Supreme Court has ruled that when a suspect who has requested,an attorney is re-leased from pretrial custody for, 14 days or more, then the Edwards rule no longer applies. Mter a 14-day break in custody, police may attempt to once again initiate questioning even though the suspect is not accompanied by an attorney. Maryland v. Shatzer, 559 U.S. _ (2010). In a U.S. Supreme Court case (Davis v. U.S., 512 U.S. 452 (1994», the defendant Davis, a member of the U.S. Navy, was suspected of killing another sailor. Interrogation was done by Naval Investigative Service (NIS). The NIS' agents advised the defe;ndant that he was a suspect and he was not ~equired to make a,statement and that he was entitled to speak with an attorney and have an attorney present during questioning. Defendant waived his rights, both orally and in writing. Approximately an hour and a naif into the "interview the defendant said, "Maybe I should talk to a lawyer." At this point, the interviewing agents stated' that they would stop if the defendant really wanted a lawyer. The defendant stated that he really didn't want a lawyer and the interview continued. It was held that the defendant's statement "Maybe I should talk to a lawyer" was not a request for counsel. Also see Jones v. State, 748 So.2d 1012 (Fla. '1999), reh'g denied (defendant's request "to arrange to either '(sic] for the attorney to see my mother or for me to see my mother" was too'equivocal to invoke his right to counsel). A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Berghuis v. Thompkins,' 560 U.S. _ (2010). "' '. \ Unlike the right to counsel, if the suspect invokes the right to remain silent, police may resume question- ing after the, passage of a significant period of time, if the suspect is reminded of the Miranda rights. The questioning ~ho,:ld concern a different topic than the earlier questlonmg. Of course,. the suspect may once again r.efuse to 'speak. Michigan v. Mosley",423 U! ~, 96 (1975); Boyer v. State, 736 So.2d 64 (Fla. 4th DCA 1999), re.h'g denied. I In Ahedo v. State, 842 So.2d 868 (Fla. 2d DCA 2003), defendant was Mirandized and invoked the right to remain silent. About two hours later, he asked to 'talk "about what was going on" and initiated a new conversation. Although the officer reminded the defendant of his Miranda rights, he did not re-read them at this time. Nevertheless, the defendant's statements were admissible, because only a few hours had pa:ssed and there was no indication the earlier warnings had been incorrectly stated or that the'defendant had failed to understand them. \ 'v When a suspect has been brought into custody on one criminal charge and waives his or her Mira'hda rights, law enforcement officers may question the suspect on unrelated crimes without re-administering Miranda. State v. Jones, 763 So.2d 1180 (Fla.. 4th DCA 2001).. In decidingwhether Miranda applies, the Court will inquire as to (l)what circumstances surround the interrogation and (2) would a reasonable person have felt he or she was not at liberty to terminate the interrogation (Thompson v. Keohane, 516 U.s. 99 (1995». Interrogation is referred to as questioning initiated by law enforcement officers-either direct questioning or its functional equiv'alen:t;' The' term interrogation refers not only to express questioning, but also 'to any words or actions on the part of the police (other than those normally attendant to arrest and custody, e.g., "routine booking questions") that \ the police should reasonably expect to elicit an incriminating response. (Rhode Island v. Innis, 446 D.S. 291 (1980». Service of an arrest warrant on a defendant is a routine police procedure-it does not requite any response from a suspect, and cannot be reasonably expected to elicit an incrimillating response. Therefore, it does 'not constitute interrogation. Similarly, an officer's request for consent to a search or to provide biological samples does not constitute interrogation. (Everett v. State, 893 So.2d 1278 (Fla. 2004), cert. 'denied, 1&1 L. Ed. 2d 747 (2005». In addition, routine booking questions designed to lead to essential biographical data (e.g. name, address, height, weight, eye color, date of birth, current age) are not interrogation. (Allred v. State, 622 So.2d 984 (Fla. 1993». ' "., After reading a suspect the Miranda rights, police must make a good faith effort' to answer any bona fide questions the suspect may ask. Almeida v. State, 748 So.2d 922 (Fla. 1999), reh'g 'denied (defendant's question-"well, what good is an attorney going to do?"-was a bona- fide question calling for an answer; because the officers failed to provide one, defendant's waiver was invalid).. In Clark v. State, 780 So.2d ~184 (Fla. 3d DCA 2001), the Court stated that, even though a suspect has invoked his right to remain silent, an inculpatory statement is admissible if it was voluntary and initiated by the defend~nt.. As long as a suspect's un-mirandized statements are voluntary, they are admissible when made by the suspect aft.er the Miranda rights are read (even though earlier unwarnedstatements must be suppressed). Oregon v. Elstad, 470 U.S. 298 (1985); State u."ernst, 809 So.2d 52 (Fla. 5th DCA 2002). However, police may not 'circumvent th~, Miranda requirement by using a "two-step" interview technique. Officers violated the. defendant's rights when they first deliberately interviewed. him without reading the Miranda rights until' a confe$sion was obt:;tined, then, although that confession itself was inadmissible, used informatron obtained,from theconfession to direct questioningduring a s\lbsequent interview Gonducted after defendant had been read the Miranda rights. Missouri v. Seibert, 542 U.S. 600 (2004).._, Lawfully obtained admi~sions and confessions continue to play an integral role in the law enforcement scheme, and are extremely persuasive at trial. The intrqduction of an admission Or a. confession at trial is unlike other evidence,' If the arrest oftthe accused is without.probable cause, and therefore illegal, any subsequent confessions or admissions obtained during custodial interrogation will be excluded. Unless intervening events break the causal connection between the illegal arrest and the confession so that tbe confession i$ sufficiently an act of free will to purge (or remove) the primary taint (or illegality), no statements will be admissible (Dunaway v. New York, 442 U.S. 200 (1979». See also Shingles. v. State, 872 So.2d 434 (Fla. 4th DCA 2004), where the defendant's statement was suppressed when it was made only after the detective confronted him with evidence obtained in an illegal manner. It should be noted that an uncorroborated confession obtained by a law-enforcement officer cannot, without more, sustain a conviction (State of New Jersey v. Lucas, 152 A.2d 50 (1959); Commonwealth of Pennsylvania'v. McCaQe, 498 A.2d 933 (1985». In Sapp v. State, 6.90 So.2d 581 (Fla. 1997), the Florida Supreme Court stated that a Miranda interrogation by police after the person signed a claim of rights form at or shortly.. before a first appearang,e hearing is valid. The Court continued by$tating that-," A,rule allowing one to invoke the right to counsel for custodial interrogation before it is ev.en imminent... would provide little additional protection against involuntary confe$sions but would unnecessarily hinder lawful efforts by police to obtain voluntary confessions." One way in' whiyh a defendant may attempt to show his or her statement was involuntary is to show. that actual physical or psychological force was used on him,or her to coerce the confession (e.g., actual or threatened bodily harm, or threats of adverse consequenc,es). See, e.g., Arizona v. Fulmiante, 499 U.S. 279.(1991) (a"credible threat of physical violence" will render a subsequent statement involuntary); Lynumm v.' Illinois, 372 U.s. 528 (1963) (defendant's coofession in:voluntary when police told her that her s.tatefinan ~ cial aid would be cut off and her six children taken from her unless she "cooperated" with them). However,

11 merely informing the defendant of realistic penalties for the offense under investigation' will not. render a subsequent confession inadmissible. Nelson v. State, 688 So.2d 971 (Fla. 4th DCA 1997):,' "A confession obtained as a res1ult of a ' direct or implied 'promise of benefit or leniency is involuntary and inadmissible." Hill v. Haywood, 735 So.2d 538 (Fla:.2dDCA 1999); see-also Calvert'v. State, 730 So.2d 316 (Fla. 5th DCA), review dismissed, 731 So.2d 648 (Fla. 1999)., In Samuel v. State, 905 So.2d 271 (Fla. 4th DCA 2005), an officer misled defendant by telling him that police were potentially going to charge him with fifteen robberies' (in fact, defendant. was only suspected in seven to nine robberies, and probable cause existed to arrest him for just two). When defendant protested that he had only committed five or six robberies, the officer told him that if he discussed those crimes, he would not be charged with the others. This promise of leniency was coercive, and rendered defendant's subs(i)quent statements involuntary. However, when art officer told the defendant that, if he confessed to the.crimes of which he was suspected., the cases could be consolidated, it did not rise to the level of being an impermissible promise in return for a confession. State v. Bobo ~ 760 So.2d 261' (Fla.,3d DCA 2000).. Similarly, police cannot use.deception or misinformation to obtain a Miranda waiver: Dooley v. State, 743 So.2d 65 (Fla. 4th DCA 1999) (implying that a Juture invocation of rights would prevent earlier stateme'nts from being used in court rendered defendant's waiver involuntary). But see Colorado v. Spring, 479 U.S. 564 (1987) (a waiver of Fifth Amendment rights is not invalid solely because police do not inform the suspect of the potential subjects that might be covered in the interrogation before questioning begins). In US. v: Patane, 542 U:S. 630 (2004), 'the U.S. Supreme Court held that when a suspect's u:nmirandized statements lead police'to'physical evidence; that evidence is admissible even though the underlying statements themselves are not., The U.S. Supreme Court has held that, in certain instances, statements made by a custodial suspect, in response to questions asked by law enforcement may be ~ctmissible even if no Miranda warnings were given prior to'the statement.. New York v. Quarles, 467 U.S. 649 (1984). The Court reasoned that "police officers can and will distinguish almost instinctively between 'questions necessary to secure their own safety or the safety of the public and 'questions designed solely, tb' elicit testimonial e idence from a suspect." If the question is motivated 'primarily out of concern for the officer's safety, 'or that of the public at farge, rather than a; deliberate attempt to obtain an incriminating statement, there is no reason to bar the statement's subse'quent use against its maker. In Quarles, the Court held an officer was not required to give warning-to' a 's'uspect before asking-"where's the gun?"-when the officer had a reasonable fear for' the safety 'of bystanders. As a result the suspect's reply~"it's over there"~to the question was admissible at trial, even though it was incriminating, and'rendered without the benefit of the LG-20 Miranda warnings. See also Benson v. State, 698 So.2d 333 (Fla. 4th DCA 1998), where an officer asked defendant how much crack cocaine he had swallowed without first reading him the Miranda warnings. Because this questioning stemmed from an objectively reasonab1e concern over 'an immediate threat to defendant's health, defendant's unwarned response was admissible..,' Juveniles " rn- determining whether a, juvenile's ' ~aiver of Miranda rights was voluntary, a C0urt will'consider: (i) the methodology employed -to. administer the Miranda rights; (ii) the age, experience, background, and intelligence of the child; (iii) whether the parents were contacted and whether the child had an opportunity to speak with them prior to giving the statement; (iv) whether the questioning occurred in the s,tation house; and (v) whether the child executed a written waiver of rights. State v. S. V", 958 So.2d 609 (Fla. 4th DCA 2007). ; ;, When a child is taken into custody as provided'in this section, the person taking the child into custqdy shall attempt to notify the parent, guardian, or legal custodian of the child. The person taking the child into custody shall continu~ such attempt until the parent, guardian, or legal custodian of the child is notified or the child is delivered to a juvenile probation officer, whichever occurs first. If the child is delivered toa-juvenile probation officer before the parent, guardian,; or legal custodian is notified, the juvenile probation officer shall continue the attempt to notify until the parent, guardian, or legal custodian of,the child-is notified. Following notification, the parent or guardian must provide identifying information, including name, address, date of birth, social security number,. and driver's license number or identification card number of the parent,or guardian to the person taking the childinto,custody or the juvenile probation officer. F.S (3).., " Although lack of notification to parents is a factor a court will consider in determining the voluntariness of a confession, there is no constitutional requirement that police notify a juvenile's parents prior to questioning the juvenile; nor is there a requirement on the part of police to.extend an opportunity to a juvenile to speak with his or her parents prior to questioning when the juvenile,does not request such opportunity. Harri$ v. State; 979 So.2d ;372 (Fla. 4th DCA 2008). Nevertheless, if the juvenile indicates,.to police that he or she does not wish to speak to them until he or she has had an opportunity to speak with parents, the questioning must cease. State v. S. v., supra..'. ' Sixth Amendment The Sixth Amendment right to cpunsel attaches the right attaches when the criminal justice,proc'ess has reached a critical stflge, at the initiation of the prosecution, rather. than during a custodial interrogation. A pros~cution is initiated, for example, when (i) formal charges are filed, (ii) a preliminary hearing is held, (iii) an indictment ;9r information is filed, or (iv) an arraignment is held. Brewer v. Williams, 430 U.S. 387 (1977). Once the Sixth Amendment right attaches, police may not "deliberately eiicit" incriminating statements from the suspect outside the presence of his LG-21 or her counsel. This is not the s~me a's the "custodial. terrogation" standard under MLrando--officers have :en held to have ~'deliberately elicited" information ven when their conduct did not rise to, the level of ~interroga\tion. " Fellers v. Stat,e, 540 US. ~51~ (2004). Be aware that the Sixth Amendment right to counsel is offense specific. Once the, right has attached fqr a given charge, the suspect cannot be. questioned about that charge withoui'counsel present. He or she can, however, be questioned regarding other offenses for which the Sixth Amendm.ent right has not yet attached without viblating.that pfovision. McNeil v. Wisconsin; 501 U.S. 171 (1991). Suspects can even be.questioned regarding an offens~ w~ich is "factual~y related" to the offense for which this.nght has been mvoked,.as long as the offenses are not the same for Double Jeopardy purposes. Texas v. Cobb, 53~ U.S. 162 (2001). ~n the other hand, the Miranda FIfth Amendment right to counsel is not offense specific. If a suspect has,invoked his or her Fifth Amendment right to have counsel present during a custodial in~errogation, that s,:!spect cannot be questioned regardmg any offense WIthout co.unsel present. '. ~. Unlike the Fifth Amendment:.right to counsel, a waiver of the Sixth Amendment right to counsel is'not valid if police fail to inform the suspect that an attorney is trying to reach him or her. Patterson v. Illinois, 487 U.S. 285 (1988). " 11. ' ;'ARRESTS WITHIN DWELLIl\iGS ~ The most intrusive action a police officer can take is an arrest. An arrest dm take many forms but the common' denominator is that it is a significant-intrusion upon the individual's liberty. Thus;,if'an officer physically grabs a suspect and holds him or her against his or 'her will or handcuffs.. a citizen and places him or her in a squad car, an arrest has been made (See J.e. W. v. State, 545 So.2d 306 (Fla. 1st DCA), review denied, 553 So.2d 1165' (Fla. 1989». An officer can make an arrest without a warrant when he or she has probable cause to believe the person has committed a felony or,misdemeanor exception, whether in the officer's presence or not..the possession of an arrest warrant provides officers with the authority to arrest an individualwithin his or her own home, and limited authority to enter the dwelling for that purpose, if police have reason to believe' that the subject of the warrant is inside at the tim~of entry. Payton v. New York, 445 U.S. 573 (1980). If a police officer wishes to enter to make a routine arrest of a suspect in his or her or a third party's home, the officer must obtain an arrest war:r:ant eoen if he or she has probable cause to arrest the person. (See exceptions below.) An officer should keep in mind.:. that once a suspect leaves the.threshold of his or her "home"'and enters a public hallway or a back yard, a warrantless arrestc'an be made. In-.. Elder v. Hollaway, 510 U.S. 510 (1994), the defendant's home was surrounded arid the police used a bull horn. to request the defendant to voluntarily leave. Note that a determination of an unlawful entry will result in the, suppression of any statements or evidences obtained from that entry (New York v. Harris, 495 U.S. 14 (1990». Although a police officer may use a trick or deceptive techllique,:>to convince an individual to leave his or her home, the arrest will only be valid if the person voluntarily leaves the home. (Elder v. Hollaway, supra.) However, a\n officer. cannot deceive a 'person in order to gain entry into a home. An arrest without a wa'rrant under those circumstances, will be invalid. N otmally an officer can make a valid arrest inside a place of business, which is not a dwelling, without an arrest warrant. -I, There are three exceptions to the rule which requires issuance of an arrest warrant befor(i) an arrest can be' made inside a home. (1) A police officer can make a warrantless entry where a suspect has committed a violent crime, and he or she is inside the premises and armed and there is a likelihood that he or she will escape; or the suspect(s) poses a serious danger to the police and or citizens. (2) If.an officer obtains a consent to.enter'the premises from an owner or lessor, an arrest warrant is not required to enter the premises., I NOTE: The officer should establish prior'to entering the pr~mises th~t the person giving consent has authority to do so. (Illinois 'v:'rodriguez, 497 U.S. 177 (1990». (3) "Hot pursuit" of a fleeing felon. ' US. v. Santana, 427 U.S. 38 (1976). NOTE: Hot pursuit of a.fleeing misdemeanant is permissible where the misdemeanor is punishable by a jail'sentence. (Ulysse v. State, 899 So. 2d 1 \2~3 (Fla. 3d DCA 2005». Moreover, a suspect cannqt av~id a lawful warrantles~ public arrest already set in motion by retreating into his or her home. (U~l' /!! Santana 427 U.S. 3'8 (1976~). Ofncers in hot pursuit of a fleei~g ~uspect ' need not comply with the knock and announce requirement. (State v. Brown, 36 So.3d 770 (Fla. 3d DCA 2010»., Where police officers were in a bedroom with the consent ~f the defendant, the use of a flashlight t.o illuminate a'partially open bedroom closet where con~ traba.'nd drugs were in plain view did not result in an illegal search and seizure (State v. Hite, 642 So.2d 55 (Fla. 2d DCA 1994».... (. r' - The requirement of a warrant for an in-home arrest applies as well to the arrest of a suspect in a motel or hospital room where the suspect has set up a temporary residence: See Turner v: State, 645 So.2d444 (fla. 1994); Jones v. State, 648 So.2d 669 (Fla. 1994): 'For similar reasons, if an officer has an arrest warrant for a suspect but the suspect is in a third party's home'(absent consent or exigent circumstances), the police will also need to obtain a search warrant for that person's home. In addition, when a police officer is executing a bench warrant, he or she cannot enler a 'defendant's home without a reasonable belief that the defendant is inside the premises at the time ofth ' warrant's execution (Steagald v. U.S, : 457 U.s. 204 (1~81».

12 LG-22 LG SEARCHES ANp SEAR~H WARRANTS In General '~ The search warrant came from the English Common Law established in Article XXXIX of the,magna Ca~ta in 1215: "No freemen shall be taken or imprisoned or disseised or outlawed or exiled or in any way destroyed nor will we go upon him nor send upon him except by the lawful judgment of his peers or by the law of the land." The search warrant found its wayj nto the u.s. C~nstitution and state constitutions by way of the American Revolution and the desire to protect individuals from government intrusion without notice, such as occurred with the British Writs of Assistance that allowed searches of colonial ships without warrants. _./ Search and inspection warrants are governed by the requirements of Chapter 933. A search is an invasion of a citizen's expectation of privacy in a particular area. A police officer should always keep in mind that absent a warrant, a search is unconstitutional unless it falls within the exceptions to the rule requiring search warrants.. In order for a police officer to obtain a searcl?- warrant, he or she niust present a judge (neutral and detached) with information which constitutes probable cause to believe that an offense has been or is being committed at a specific location. Such information consists of an application for a warrant duly sworp. and subscribed and such other testimony from witnesses or supporting affidavits, or depositions in writing, to support the application (F.S ). Issuance in blank is prohibited (F.S ). If the information comes from an informant, the Courtmust examine the totality of the circumstances to ins~r e that informant is credible, including the informant's reliability and his'or her "basis of ~riow~edge." Illinois v. Gates, 462 U.S. 213 (1983)';' State v. Peterson, 739 So.2d 561 (Fla. 1999), reh'g denied. '.. To establish reliability, the informant must be shown to be trustworthy. Thus, the officer who submits the information must be prepared to show.t he judge that the, informant has supplied information,in the past or that the officer was able to corroborate the information with sufficient details. If the informant made a statement under oath or a statement against his or her penal interest, this ~ould also establish his reliability. Where an affidavit for a search 'warrant was based upon' the hear~say of an. unreliable informant and there were no independent corroborating facts,rit was held that the affidavit was insufficient (Wynn v. S~ate, 640 So.2d 134 (Fla. 4th DCA 1994». ', \ The officer seeking the search vv-arrant should also show that the informant's information is credible. This is known as "basis of knowledge.:' The officer can show the informant's credibility by'showing that the informant personally observed or par.ticipated in the criminal activity or by showing the informant's detailed description of the activity. The officer can corroborate details of the informant's story to establ ish a ' ~basis of knowledge.".. State v. Peterson, supra, provides an example of how a tip from an informant can establish probable cause. Officer was contacted by a confidential-informant who had :provided information on illegal activities in the county to both he and other officers on at least twenty prior, occasions, leading to the arrests of fo~r individu". als, and the seizure of $400 in controlled sub-stances. The informant stated that within the previous ten days, he had been in defendant's residence and seen a large quantity.of marijuana. (He,also stated that he had observed marijuana on-more than 100 occasions, so he was familiar with it"s appea't'anceand odor.) He said that to of a pound had.peen packaged for distribution, an amount officer knew to be consistent with.quantities typically held by distributors. Through recor.ds, officer ver ified that defendant had three prior arrests for possession of narcotics. Under the totality of the circumstances, probable cause existed for a 'warrant to search defendant's residence. See also State v. Gross, 833 So.2d 777 (Fla. 3d DCA 2002). An anonymous tip alleged that the defendant was selling drugs from his residence. Police knew that defendant had a history of drug activity, and that cocaine had been seized from his previous residence three months earlier. A "trash pull" was performed outside the residence, and Zip lock baggies with cocaine residue were found. The defendant's history and the drug-related paraphernalia found -in his trash corroborated the tip enough to establish probable cause for a search warrant. In State v. Vallone, 868 So.2d 1278 (Fla. 4th DCA 2004), an informant, "D..C.," informed police that defendant, an old high school friend of his, had asked him to help him transfer."files from an old computer to a new one. While doing so, D.C. noticed some of the files were child. pornography, police used this information to obtain a search warrant. D.C.'s identity was easily ascertainable" as the affidavit stated that,d.c. WqS a relative of a named 'Stuart officer who had referred him to the detective- an informant whose identity is readily ascertainable is.not an anonymous tipster. Because it was undisp.uted that D.C. was a citizen informant, his.ver~city was es.tablished, and the warrant was valid: I,, [,. Once a police officer has probable cause to search, he or she must quickly apply for a warrant: If not, the officer runs the risk that the information may become "stale.' ~ Before a judge will sign a warrant he or, she must believe that the property sought is curre~tly at the designated location. The officer must be careful in preparing. the warrant, and fill out the paperwork,with precision" It is suggested that an officer consult with the local prosecutor's office to make sure that the application is prepared correctly. Fortunately, certain errors will not be fatal For example, a search warlant which is not dated, or which contains the wrong, date, can.still be valid. An affidavit for a search warrant which is nocdated can als.o be valid. The courts have been very' strict in reviewing applications for search warrants. If the warrant mentions a particular person, -that individual can be searched when the warrant is executed. However, an officer cannot search a person wh0 is not mentioned in the warrant merely because he or she is present at the loca- tion (State v. Rodriquez, 674 So.2d 899 (Fla. 5th D~A 1996». Persons at the scene of the warrant execution can only be searched where the facts establish p~obable cause to believe that every.person,on the premises possesses the property sought. How~v er, t~e offi~e: c~n rform a- pat-down and check the ImmedIate vicimty ~; every person to protect himself or herself from hidden weapons. D.etaining Persons. ' r I, ' An officer can al,so detam persons pn the prerpises during the e~ecution or a search warrant where officers have a reasonable basis to detain. See State v. I?ooream, 560 So ~ 2d 1303 (Fla. 2d PCA 1990). See also,state v. Thomas 603 So.2d 1382, 1'384 (Fla. 5th DCA), where the defe~dant was ordered to the ground for safety. See also Michigan v. Summers, 452 U.S. 692 (1981), where the Supreme Court held "... a warra.;nt t~, ~,earch ~or contraband (ounded.on probable caul?~imphcitly carries with it the limited'imthority to detain the occupants on the premises while a proper search is con4ucted." Officers may detain anyone found in the residence, regardless of whether or not the occup,ant is a suspect named in the warrant, and may use reas9i).able fo,rce in detaining the occupapts. Muehler v. Mena, 544 U.S. 93 (2005). In Muehler, the Court ruled that police were justified in handcuffi~g a woman for two to three hours while executing search warrant for weapons at the residence of a suspected gang member. """ In Illinois v. McArthur, 531 U.S. 326 (2001), the Supreme Court held that police Gould detain, defendant on the front porch outside his home for two hours while they obtained a search warrant, when they haq probable cause to believe that marijuana was hidde.ri inside the home and that defendant would destroy this contraband if allowed to enter unesc()rted' (the Court noted with favor that this detention lasted only -long enough for police, acting '~ith diligence, to obtaina vyarrant). Compare with Smith v. State, 904 So.2d 534 (~la. 1st DCA 2005), finding that officers have authority to secure a dwelling to prevent thejlestruction or removal of evidence whil.e a search warrant is ~ought :, J. However, a visitor who arriyes at the premises while the warrant is being served mainot be 'searched unless there is sufficient evidence to connect the visitor to the criminal activities at the residence.,sosa-leon v. State, 848 So.2d 342 (Fla. 2d DCA 2003); Harris v. S~ate, 792 So.2d 1246 (Fla. 5th DCA v 2001). Officers may detain anyone found in the reelidence, regardless of whether or not the occupant is a suspect name~ in the warrant, and may use reasonable force in detaining the occupants ~ Muehler v. Mena, 544 U.S. 93 (2005) (police justified in handcuffing woman for two to three ho,urs,while executing search warrant for weapons at the residence ',.. > of a suspeqted gang me.rnber). Warrant Language Must Be Specifi,c A warrant must specify the exact premises to be searched. Thus, a warrant to search a "building" is invalid if there are several apartments in the building. A warrant to search a building does not authorize a search of a vehicle. A warrant to search a vehicle does not authorize a search of a building. A defect in a description of the premises to be searched will not be fatal if the officer executing the warrant is.able to.ascertain the targeted premises with reasonable certainty. ' In State v. Freeman, 673 So.2d 141 (Fla. 5th DCA 1996), the Court held that where a warrant allowed ~he search of vehicles located on the premises, the vehicle of a defendant who drove on the premises during the search was subject to a sear'ch and valid seizure of evidence. The Court held that the language and the reasonable belief of the officers that a Q.efendant was involved in illegal activity va~idated tile search. The warrant read: "... to enter the aforesaid premises together with the yard and curtilage th~reof, and 'any and all outbuildings and vehicles thereon, and. any persons thereon reasonable (sic) believed t6 oe conj}~c\t~a ~ith said illegal activity.".,.'. An officer who prepares an affidavit for a' search warrant must be very specific in describing the property to be seized. Thus, a warr ant cannot describe "any other contraband,'" "any other crimes"?r sim~la:r language which is too general. Ho~ever, a warrant which describes' "narcotic drugs" or "narcotic paraphernalia" is permissible. Where a'warrant describes one item, an officer cannot seize a different'item ui?-less the additional item 'lsj'n plain view and is obvio~sly incriminating.,f " ".. ' In Groh v. Ramirez,' 540 U.s. 551 (2004),!l sear~h warrant was plainly invalid when it provide.~ no description of the type.of evidence sought. The fact ' ~h~t the application for'the warrant adequately described the "things to be seized" did not save if, because there were no words in the warrant incorporating other documents by reference and' the application did not accompany.the warrant' (it had 'been sealed). Even though the search was conducted with'restraint and only items listed in the applicatio~ were seized, the search was unlawful. '.~.'. Timihg)' '~.'.'".1,'" An officer must execute a search warrant within 10 days of its issuance (F.S ). Only the officer or officers mentioned in the warrant or persons aiding said officers may execute the warrant (F.S ). The police can enter a 'premises without a warrant if they know a warrant has been issued and is en route, but they cannot begin to search until the warrant actually arrives. Warrants are issued in duplicate. When,the police serve the warrant, they shall deliver a copy to the person named in the warrant, or in h~s or her absence to some person in charge of, or living 9n the premises.. -", j ~,...: Entry by Force'..,' ". An officer may use r.easonable force to gain entry only after he or she.announces his or her purpose, exhibits the warrant upon request, and is then refused entry. See State v. Stepp, 661 So.2d 375 (Fla.' 2d DCA 1995), where officers failed to give defendant an opportunity to respond as they,knocked, announced, and entered immediately. Also see Kellom v. State, 849 So.2d 391 (Fla. 1st DCA 2003) (while the amount of time officers must wait varies with the circumstances, a five-second delay between announcemen.t and entry was not sufficient). The officer may then,break open any outer door, inner door, or window r use, or

13 any part ~of a house or anything therein (F.S Florida's "Knock and Announce" rule). '. Th~ warrant may be executed in the daytime or mghttime or even on Sunday if expressly'stated in the warrant by the issuing judge (F.S , ). Entry Without "Knock and Announce". In t~o U.S.. Supreme Court cases, Richards u. WLsconsm, 520 U.S (1997), and Wilson u. Arkansas, 524 U.S. 927 (1995), the Court held that "~n unannounced or forced entry was reasonable under circumstances.including a likelihood of violence or of imminent destruction of evidence." Officers had knowledge th~t the defendant possessed handguns and kept cocaine in his kitchen where it could be easily d~str0f.ed.. The Court ruled that the "knock and announc,e rule was never stated as an "inflexible rule." It will be left to the lower courts' to determine ~he circumstances under which an'unannounced entry IS reasonable. In Wilson u. State, 673 So.2d 505 (Fla. 1st DCA 1~96), reh'g denied, officers entered without k~ock ~ng. based on th~ir knowledg~ of weapons and cocaine InsIde. The officers, yelled "police, search warrant" over and over. The Court stated that an entry without announcement is valid where n) the person, inside knows of the au~ho~ity and purpose of'the warrant, (2) ~he. officers are ~us.tifie~ i~ their belief that the person InsIde may be In ImmInent peril of bodily harm, (3) where the officers' p~ril would have been incu:r:red by ~nno~nce~ent, or (4) where the officers are justified m,.thelr b,eli~f tha t.escape or, destruction of evidence is bemg attempted. Also see Kellom u. State, 849 So.2d 391 (Fla. 1st DCA 2003) (a generalized belief that dealers will often attempt to destroy drugs is not enough to justify warrantless' entry). Altho~gh officers should make every effort to com~ly ~Ith the knock-and-announce rule, in Hudson u. MLchLgan,~ 547 U.S. 586 (2006), the U.S. Supreme Court held that evidence seized pursuant to a,valid search warrant is not subject to suppression under the Exclusionary Rule solely because the officers executing the warrant entered in violation of the knock-andannounce requirement. The Court did note that officers who vi?late the rule still face the threat of possible civil ~emedres ~su~h as a lawsuit under 42'U.S.C: 1983) or mternal discipline by their employer. Ret~~n of Seized Items:. Once a warrant is executed, a written retur~ of ~ll m.struments, articles, or things seized shall be made without unnecessary, delay before the judicial officer ~ai?e~ iz: the w~rrant or,before any court of competent JU:lsdlCtIOn. An mventory of things seized shall be filed with the r.eturn and signed under oath by the officer executing the warrant (F.S , ). " The U.S. Supreme,Court ruled in a civil case (City of West C:ouinc:- u. Perkins, 525 U.S. 234 (1999» that when police seize property for a criminal investigation the due proc~ss clat~se does not require them to provide the owner with notice of state law remedies for return of the property. ' "". LG-24 Searches Without a Search Warrant Florida Statutes (1) provides for the search of a person and the area within the person's control when a lawful arrest is effected to: (a) protect the officer from attack (b) p.revent the person from esca;ing; or (c) discover the fruits of the,crime. The scope of the search must be limited to the ~uspect's person or what is in, or potentially could be m, ~he suspect's immediate control. Courts say that a region is within the immediate control of the suspect when h.e or she might imm'ediately and easily gain possession of a weapon or destructible evidence from that area. Chimel u. California, 395 U.S. 752 (1969)~ In Washin[Jton u. State, 889 So.2d 170 (Fla. 1st DCA 2004), a search of defendant's motel room indcient to arrest was not valid when defendant was ar~ested outside the room. Be aware that a search is also allowed.~hen ~ person is taken into custody pursuant to.a CIVIl WrIt of attachment (e.g:, for failure to pay child support). State' u. Gilbert, 894 So.2d 1055 (Fla ~ 1st DCA 2005). The search rieed not only be for weapons, but' may also be used to preserve evidence. Therefore an officer was justified in searchin'g a "crumpled up': cigarette pack found in an arrestee's pocket (where he- discovered heroin), even though the officer did not fear the arr~stee was ~rmed and could not have rea,so~ably believed the CIgarette pack held a weapon. U.S. v. Robinson, 414 U.S. 218 (1973). ' An, officer yvho wishes to conduct a search without a warrant must be prepared to justify his or her action based on an exception to the general rule requiring search warrants. "A mere suggestion of criininal activity" is not enough justification for entry into a third party's residence (Britt u. State, 673 So'.2d 934 (Fla. 1st DCA 1996); Palmer u. State, 625 So.2d 1303, 1306 (Fla. 1st DCA 1989». One of the major exceptions is a voluntary co~sent to search. Courts will not find'that an individual consented to a s~arch where the police thr~aten an individual or use deceptive techni'ques which coe~ce the individual. Basicatly, 'if an officer ~ses unfair,tacfcs, any "consent" obtained will be mvoluntary. " ' Also see A!arYla.n~,u. Ga~~on,,527 u:.s (1996), where a canme smff of a VIsItor s vehicle at a prison ~ntrance was found invalid when the driver, after being mformed of the search requirement, declined. '. A peace officer may also enter a citizen's home without a search warrant to prevent the imminent use of a ~angero~s weapon, or to prevent the potential destruction of evidence. This exception is known as the "exig~nt, circui?stance~" exception and the officer must be prepared to show that the,evidence (i.e:,'weapons ~r drugs) were likely to be removed or destroyed before a warrant could be obtained. An officer can also enter 'a premises without a warf ant. under exigent circumstances to protect individuals m dlstre.ss, to assist victims of crimes, to investigate a f~lony m. progress, or to investigate suspicious signs of Impendmg danger. This exigency is based on the officer's obligation to protect life and property. The of7 ficer must be pr~pilred to justify his or her actions by LG-25 a showing that entry was not made for the purpose of gathering,or seizing evidence. (Th~ courts have ruled that entry under exigent circumstances is not valid when the exigency is created by the police.) See In re J.B., 621 So.2d 489 (Fla. 4th DCA 1993), where a deputy arrived at J.B.'s residence to investigate a 911 "disconnect" where the emergency number was called but no one spoke or requested assistance. J.B answered the door and said that he had no knowledge of the call and that everything was all right. When the deputy asked if his mother was home, J.R asked the deputy to leave. During the encounter, J.B. kept turning around, looking through the house, as if someone else was there. The dep,uty also saw a screen was off a front window and trash was all over the front room. The deputy made a valid warrantless entry into the house to investigate th~ potential emergency.. Compare with State u. Barmeier, 878 So:-2d 411 (Fla. 3d DCA 2004), re~ 'g denied. The de~e~dant call~d 911 in the early mornmg hours, complammg that his tenant was yelling and'banging on his car. There had been previous calls at this residence. Officers -arrived to find,the front door of the residence wide open. The officers knocked and yelled out. Mter no response, the officers went to the adjoining house where the tenant lived and asked th'e tenant about the incident. The tenant indicated that he did not know of any calls to police. The officers t.hen returned to defendant's house and knocked again, but received no response. At -this point, the officers entered and proceeded through the home; they saw defendant inthe back yard, as he was carrying m~rijuana. Th~ Court upheld this warrantless entry, because police were concerned that the defendant might. be inside the house and,injured. In Ortiz u. State, 24 So~3d 596 (Fla. 3d DCA 2009), an elementary school called police when a 6-year-old student's parents failed to pick him up from an afterschool program. A deputy drove the child home; the child told the deputy that his parents were or should be home. However, the house app~ared to be,dark and it did not appear that anyone was home. From his vantage point in the street, the. officer was able to see,no lights in the house, and no one answered when the child knocked on the front door. The child enter~d, the ho:use through an unlocked garage door, and the deputy followed. By this point, over an hour. had passed since the child's pick-up time, with no word from his parents. The.child indicated his parents were probably in their bedroom; the deputy knocked on the Cloor, but received no answer, even though the door had been locked from the inside. Because the deputy reasonably believed that a medical emergency or worse might be under way, he was justified in making a warrantless entry into the bedroom. Also see Riggs u. State, 918 So.2d 274 (Fla. 2005), two sheriffs deputies were summon~d to an apartment complex in the middle of a January night,.where a 4-year-old girl had been seen wandering there, naked and alone. When the deputies arrived at about 3:00 a.m., they found the girl in the company of local residents. She was disoriented and "had no idea where she had wandered out of." The deputies decided to search the complex door by door for her caretakers, concerned for the parents' welfare as well as their apparent abandonment of the child. On the second story of the apartment complex" the deputies noticed every door was closed except one- that door was "standing slightly ajar, and it was just obvious that somebody had come out of there or somebody had left it open, and that was possibly where the child had come out of." Through a small opening, the deputies could see light inside the apartment. They pounded loudly on the doo~at least three dozen times, identifying themsel~es as police officers, but no one inside responded. The deputies then entered the apartment, where they observed marijuana in plain view on a coffee table, as well as seven marijuana plants growing in a bedroom. Because the deputies reasonably feared the lost girl's parents may have suffered a medical emergency, and because the apartment searched showed signs of having recently been occupied,. this warrantless search was justified.. In Michigan u. Fisher, 558 U.S. _ (2009), Brownstown, Michigan, officers responded. to a complaint of a disturbance---r-a man was reportedly. "going crazy" at a residence. Upon arrival, the officers found a household in considerable chaos: a pickllp truck in the driveway with itsjront smashed, dam;:lged fenceposts along the side 0f the property, and three broken house windows, the glass still on the ground outside. The officers also noticed.-blood on the hood of the pickup and on clothes inside it, as well as on one of the doors-to the house. Through a window, the, officers could see defendant inside, -screaming and throwing things. The back door was locked, and a couch had been placed to block the front door. The officers knocked, but defendant would not answer. They saw defendant had a cut on his hand and asked if he needed medical help, but defendant ignored these questions and demanded, with accompanying profanity, that they get a search warrant. One of the Qfficers then pushed,his way inside. The U.S. Supreme Court ruled. that this warrantless ~ntry " was justified under the "Emergency Aid" doctrine because of defendant's violent behavior. Although the officers h~d not seen defendant hit anyone, they did see him throwing things, and it was objectively reasonable to believe that these projectiles might have a human target (perhaps a, sp0use or a child), or that defendant would hurt himself in the course of his rage. In Brigham City u. Stuart, 547 U.s.' 398 (2006), four officers responded to a loud party at a residenc.e at around 3:00 a.m. When they arrived, they heard sounds of an altercation occurring inside- "thumping and crashing" as well as people yelling "stop,'stop" and "get off me." The officers looked in the front window but saw nothing; because the sounds seemed to be coming from the back of the house, they proceeded down the driveway to investigate further. Fr.om the end of the driveway, they could see two juveniles drinking beer in the back yard. When they entered the back yard, they saw an altercation taking place in the kitchen through a screen door and windows. "[F]our adults were attempting, with some difficulty, to restrain a juvenile." The juvenile, fists clenched, eventually "broke free, swung a fist an.d struck one of the adults in the face." That adult then spit blood into the sink. The other three adults continued to restrain the juvenile, pressc

14 ing him against a refrigerator with such force that it slid across the floor. The officers called out,,but were ignqred. They then entered the residence and broke up the fight. The adults were arrested for contributing to the delinquency of a minor (because of the juveniles outside with beer), disorderly conduct and intoxication. The U.S. Supreme Court upheld this warrantless entry under the Fourth Amendment. The officers were confronted with ongoing violence. They had.an objectively reasonable belief that "both the injured adult might need help and that the violence in the kitchen was just beginning.'"the Court noted that police are not required to wait until'someone is unconscious (or semi-conscious) before enteting: "The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided." A threat to public safety may also create exigent circumstances justifying warrantless eritry. In Barth v. State, 955 So.2d 1115 (Fla. 2d DCA 2006), two detectives were engaged in surveillance at a residence as part of an ongoing investigation of methamphetamine production and sales in the area. During their surveillance, the detectives observed defendant and an 'accomplice depart the residence in a pickup truck. As the detectives and other members of the Sheriffs Department followed, they observed the two men travel to several stores where they purchased items commonly used'in the production of methamphetamine, after which they returned to the residence. Based on the information deve'loped during the ongoing investigation, the immediate surveillance, and their knowledge and experience, the detectives had reason to believe that materials necess'ary for the production of methamphetamine were present in the residence and that a methamphetamine laboratory was likely to be in operation there: Because the process involved in the production of methamphetamine is highly dangerous and presen'ted an unacceptable level of risk to the occupants and neighbors, the detectives made the decision to enter the residence prior to obtaining a search warrant solely for the purpose of evacuating the persons inside. The detectives entered the residence, evacuated its 'residents, and contacted the fire department. Once the occupants were removed from the..residence and fire department investigators had determined the residence was safe, the detectives refrained from reentering to 'conduct a search until the warrant had heen obtained. The subsequent search resulted in the seizure of.methamphetamine, chemicals used in the production of methamphetamine, and drug paraphernalia. The Court held that the operation of a' methamphetamine lab is inherently dangerous, presents an immediate threat to public safety, and is well within the scope of the exigent circumstance exception. Thus, the detectives' initial entry into the residence was based Ion clear exigent circumstances and was therefore lawful.. When police come upon the scene of a homicide, they may make a "prompt warrantless se'arch of the area to see if there are other victims or if a killer is still on the premises." Mi'ncey v. Arizona, 437 U.S. 385 LG-26 (1978). However, there is no general "murder scene" exception to the warrant requirement, and police may not continue to search for evidence once the crime scene has been secured. Flippo v. West Virginia, 528 U.S. 11 (1999). ~, ' When police have a reasonable belief that eviderice is being or about to be destroyed, a warrantless entry may be permitted. In Murphy v. State, 898 So.2d 1031 (Fla. 5th DCA 2005), reh g denied, review denied, police went to a motel room where drugs were allegedly being sold to perform a "knock-and-talk." When' defendant opened the door, one of the officers saw, and instantly recognized, two baggies of cocaine on a table five 'or six feet inside the room. The officers had not placed the room under surveillance so they had no way of knowing, one way or the other, whether anyone else was in room besides defendant. The officers also knew that drugs'are easily disposable. Therefore, a warrantless entry was justified to make sure no one would destroy or dispose of the cocaine. ' Police cannot create the exigency that serves as an exception to Fourth Amendment requirements by their own prior unreasonable action in failing.to procure a valid warrant when probable cause to do so existed, Hornblower v. State, 351 So. 2d 716 (Fla. 1977); State v. Chivers, 400 So.2d 1247 (Fla. 5th DCA.1981). An officer can enter. a premises as part of a protective sweep based on exigent circumstances surrounding a particular arrest. This security check permits the officer to protect himself or herself by looking for other persons who m,ay be present irr an area and who may pose a danger to the officer. If a sweep is conclucted inside the premises after an arrest is made outside, the officer must be prepared to establish that there was evidence to suggest the presence of 'other persons in the premises (Maryland v. Buie, 494 U.S. 325 (1990». See also Meece v. State, 742 So.2d 319 (Fla. 2d DCA 1999) (officers can look in closets and other spaces large enough to conceal a person immediately adjoining,the place of arrest; however, a search of defendant's couch was not justified as' part of a protective sweep, as it was uniikely any individual was hiding under the cushions of the couch).. Warrantless "squeezing" or other physical manipulation by police of luggage in the overhead compartment of a vehicle or other publicly accessible space-as opposed to mere visual inspection-violates the Fourth Amendment: Although passengers must expect,some "casual-contact" with their bags by:other passengers, they. also have a reasonable expeotation that their privacy will not be invaded by the other.passengers feeling their bags in an exploratory manner. U.S. v. Bond, 529 U.S. 334 (2000). The common areas of a hotel outside' the rooms, such as a hallway, receive no Fourth Amendment protection. Therefore, no warrant was required wheri police allowed a drug dog to sniff all the room doors in a hotel. Nelson v. State, 867 So.2d 534 (Fla. 5th DCA 2004). Abandoned Property Abandoned property can be searched without a warrant.,for example, after witnessing an apparent drug transaction, an officer approached defendant and LG-27 dered him to freeze. Defendant fled, run~ing i~to or lleyway while pulling something from his waistan a b d The officer then heard the loud,' meta 11' IC noise. 0 f s~~ething being dropped in the alley. After defendant was captured, a search of the alley' recovered a han~n Because defendant had abandoned the gun, It g~s' admissible against him. Perez, v. State, 6~0 So.2d ~256 (Fla. 1993). Similarly, in State v. Colhns, 874 So 2d 724 (Fla. 2d DCA 2004), an officer attempted, to ~b defendant when he fled after an apparent drug feal. However, the officer was ~nly ab~e to ge~ hold of defendant's jacket. Defendant essentially ran out. of h's jacket, leaving it behind with the officer." Pohce IUld infer that defendant did not intend to return for co h'. h t the jacket and thus could searc It WIt out a warran. In Diaz v. State, 548 So.2d 843 (Fla. 3d DCA,1989), a warrantless search of an automobile trunk was uph~ld when defendant effectively abandoned the car by leaving it unattended and running in the middle of the street after a high-speed chase. Note, however, that property is nof legally abandoned if the defendant was illegally stopped ~n~ su? mitted to.the officer's authority before rehnqulshi~g It. California v. Hodari D., 499 U.S. 621 (1991); State v. Anderson, 591 So.2d 611 (Fla. 1992); Clemons v. State, 747 So.2d 454 (Fla. 4th DCA 1999). " In reference to garbage left at curbside, the U.S. Supreme Court stated in Greenwood v.. CaZ.iforn:ia,4~6 U.s. 35 (1988), that there is no expectation ofpriva~y In garbage that has been disposed of outside the curtilage of a residence. If a suspect disclaims ownership of property ~r any possessory interest, police may use such a de mal as sufficient proof of an intent to abandon the property. In State v. Daniels, 576 So.2d 819 (Fla. 4th DCA 1991), defendant was sitting on a bench waiting for a train, with a tote bag and suitcase in.front of her. She was approached by two plainclothes officers who asked to see her tigket, then asked if she, was carr,ying any luggage. Defendant said that the tote bag was he:s but denied ownership of the suitcase. No one else In the area would claim ownership of the suitcase. The officers could therefore search it without a warrant (they found cocaine and papers with defendant's name). Abandoning evidence may also constitute a crime under F.S (tampering with physical evidence). For example, conviction under that section was proper when as an officer tried to initiate a traffic stop following a' suspected drug deal, defendant threw an object out of the window of his truck, then continued to drive for another half-mile before pulling over. Chapman v. State, 36 So.3d 822 (Fla. 5th DCA 2010). Tampering with Evidence., It is a felony of the third degree to alter, destr.oy, conceal, or,remove evidence. F.S Placmg drugs in one's mouth and swallowing them constitutes tampering with evidence. State v. Jennings, 666 So.2d 131 (Fla. 1995); E.I. v. State, 25 So.2d 625 (Fla. 2d DCA 2009). However, when a suspect placed drugs in his mouth but ultimately spit them out upon police order, conviction was not proper (although conviction for attempted tampering with evidence would have been proper). State v. Gilmore, 658~d 629 (Fla. 2d DCA 1995). When a suspect merely tosseti a bag of coca~ne away from his person in the presence of the arresting officer there was no' tampering. Boice v. State, 560 So.2d '1383 (Fla. 2d DCA 1990). However, dropping a bag of cocaine into a drainage ditch did support a conviction for tampering. Hayes v. State, 634 So.2d 1153 (Fla. 4th DCA), review denie.d, 645 So.2d 452 (Fla. 1994)., Similarly, conviction was proper when"as an officer tried to initiate a traffic stop following a suspected drug deal, defendant threw an object out of the window of his truck, then continued to drive for another halfmile before pulling over. Chapm.an v. State, 36 So:3d 822 (Fla. 5th DCA 2010). The defendant was also guilty of tampering when he hid a bag of marijuana under ~h~ seat of his car placed a soda can used as a~crack pipe between the s~ats, and swallowed what looked like a piece of crack cocaine. Cassidy v. State, 853 So.2d 594 (Fla. 5th_DCA 2003). -,,,f Consent ' ~ A lawful warrantless search may be conducted pursuant to consent given by the suspect. Jorgenson v. State, 714 So.2d 423 (Fla. 1998).. ' J,- Permission to search may also be obtained. from a third party who possesses common authority over, or other sufficient relationship to the premises or effects sought to be inspected. Moreover, even ",here the person granting permissiqn does' not in fact ha~ e a legal right to do so, the consent may nonetheless be valid if the officer reasonably believes that the party had common control. Illinois v. 'Rodriguez, 497 U.S. 177 (1990). However, if an unknown person answers the doqr, an officer cannot, without more, assume that that person has the authority to consent to police entry. Williams v. State, 788 So.2d 334 (Fla. 5th DCA 2001), reh'g denied; see also Moore v. StC!-te, 83? So.~d 883 (Fla. 2d DCA 2002), reh'g denied, (consent mvahd when police knew nothing about the Jtatus of ~he man who agreed to their entry)... Searches have been upheld when consep.t was given by a woman who shared a residence with the defendant (Ishmael v. State, 803 So.2d 910 (Fla. 1st DCA 2002», the man who owned the house where the defendant was ~taying as a guest (Arnold-v. State, 586 So.2d 4&7 (Fla. 1st DCA 1991), and a babysitter (Cook v. State, 531 So.2d 1369 (Fla. 1st DCA 1988), reh'g denied, cert. denied, 489 U.s (19,89». A minor child may consent, if the child shares the ho\1.se with a parent who is absent. Saavedra v. State, 622 So.2d 952 (Fla. 1993), reh'g denied, cert. denied, 510 U.s (1994); Gonzalez v. City of Tampa, 776 So.2d 290 (F~a. ed DCA 2000), review denied, 792 So.2d'1214 (2001)'. A 'grandmother could consent to a search of her grandson's room in ~~r home when she was re'sponsible for doing his l~u:r~ary and picking up the room. Leonard v. Stat~, 6 9' So.2d 1210 (Fla. 4th DCA), 'revie1;v dismissed, 666, ~0.2d 1~4 (Fla. i995). Similarly, a nonresident father's consent to a search of his minor son's room was upheld, even over the son's objection to the search, when the father owned the home and had a key to it. State v. S.B., 758 So.2d 1253 (Fla. 4th DCA 200'0). A driver may consent to a search of an entire vehicle, even if he does not actually own it. State v. Walton, 565 So.2d 381 (Fla. 5th DCA 1990). See also U.S. v. Zapata, 180 F.3d

15 1237 (11th Cir. 1999) (both the driver and the lessee/ passenger have authority to consent to a search of a rental vehicle)., When,one co-occupant of a residence consents to a se~rch, but another co-occupant is also physically present and expressly objects to the search, >,then any subsequent search and seizure is unr'easonable and invalid as to the objecting party. Georgia v. Randolph, 547 U.S. 103 (2006). In Randolph, defendant's wife called police regarding a domestic disturbance. twhen officers arrived; 'defendant was not home, but his wife alleged that' he had a cocaine habi"t, and that he had drug paraphernalia in the house. While officers were speaking with defendant's wife, defendant returned home. He denied he had a drug habit, but also refused to consent to a search of the residence. Undeterred, the officer who asked defendant for consent then turned to defendant's wife and asked her; she readily agreed to let him search, leading the officer to a bedroom, where the, officer saw a section of a drinking straw covered with a powdery residue. Bec'ause defendant had been present at the start of the search and objected to it, the contraband the'officer observed could not be used against him. '., A landlord generally cannot 'consent to a search of a tenant's apartment (unless the tenant has vacated the pro.~erty). US: v: Braz<;l, 102 F.3d 1120 (11th Cir.), cert. demed, 522 U.S. 822 (1997). Similarly, a hotel man'ager cannot consent to a search of a guest's room: Dempsey v. State, 717 So.2d 1071 (Fla. 1st DCA 1998).. To. be valid, consent must be Lgiven voluntarily. Courts will examine the circumstances under which the consent was given and1ascertain ifit was rendered intentionally' and deliberately. Courts will inquire if the permission was the product of an essentially free and uaconstrained choice by its'maker. In making this deter~ina~io~, ~ court will consider the ~ge, maturity, educat1on, mtelhgence and experience of the individual giving permission, as well as the 'circumstanc~s under which the consent was given, such as the number of officers present and their actions, and the duration, location and timing of the "encounter. The state has the burden of proof to show that the consent to search ~as freely and voluntarily given. Consent may be rendered verbally, or inferred from th_e conduct or actions of the person from whom the police seek consent. Turner v. State, 645 $o,.2d 444 (Fla ) (defendant consented to police entry by openmg door to officers, then stepping back into room leaving door ajar)., There is no requirement that officers tell an individual he or she has a right fo refuse permission to se.a~~h. Whil~ an ~ndivid,~ al:s 'knowledge, or la<;k t~ere?f; concernmg his or her right to refuse permiss1on, IS a factor to be considered in assessing the voluntariness of any consent given, it is not dispositive. US. v. Drayton, 536 U.S. 194 (2002); Sims v. State, 743 So.~d ~7 (Fla. 1st DCA 1999). Sill?-ilarly, follo'ying a vahd traffic stop, there is no requirement that an officer tell an individual that he or she is free to leave, before a.sking for permission to search his or her vehicle. Ohio v. Robinette, 519 U.S. 33 (1'996). LG-28 The search -must be limited to those areas to which the defendant actually or implicitly gives permission to search. The scope of the search is generally determined with reference to that which the officer is seeking, i.e., to areas or containers where the stated subject of the search could be located. In Florida v. Jimeno, 500 U.S. 248 (1991), the Court approved the search of a paper bag, found on the floor of a car, for narcotics,' after the defendant had given consent to a general search of his car. The Court concluded that, based on these facts, it was reasonable for the searching officer to believe the scope of the consent given permitted him to open the bag. The defendant knew the purpose of the search was to look for drugs, and it was objectively reasonable 'to assume drugs could be found there. But see Gonzalez v. State, 578 So.2d 729 (Fla. 3d DCA 1991). Defendant's wife admitted police after they indicated they "would like to speak with [her]." The officers exceeded the limited scope of this consent by conducting a room-to-room search. In J.J. V v.. State, 17 So.3d 881 (Fla.,4th DCA 2009), a deputy exceeded the scope of a juvenile's consent to a search of his car when the juvenile indicated that only his mother had a key to the locked center console, but the deputy searched the console anyway-the deputy should have reasonably understood that the juvenile was setting limits on his consent to search. See also Sims v. State, supra (suspect's consent to a pat-down of his person does not extend to a search of his groin area). Having been given a general consent to search one's person, a police officer may indeed seize objects found in that person's pocket, and if they consist of closed containers (such as a pack of cigarettes or a Chapstick container), the officer may open them. Allen v. State, 909 So.2d 435 (Fla. 5th DCA 2005). Consent can be withdrawn at any time. In Jackson v. State, 730 So.2d 364 (Fla. 4th DCA 1999), after defen~ant consented to a police search of a bag while boardmg a bus, he removed a pair of shorts from the bag,. thereby withdrawing his consent as to a search of the shorts. If, in an attempt to gain consent to search a residence, officers mislead a person by saying or implying the~ have a warrant and will search anyway, when in reahty they do not, any permission given is invalid. (Bumper v. North Carolina, 391 U.S. 543 (1968» : However, the threat to obtain a warrant while bearing on the voluntariness of cc>nsent, is not treated the same. Stating that a warrant can and will be obtained if police in fact have the requisite grounds, will not au~ tomatically vitiat~ an ensuing consent.,(us. v. Garcia, 890 F.2d 355 (11th Cir. 1989».~ NOTE: "The Knock-and-Talk." "A police officer in. the scope of his duties may approach a suspect's front door and knock in an attempt to talk to, that suspect." State v. Morsman, 394 So.2d 408 (Fla. 1981). The officer may walk up to the front door even if the property is posted with "No Trespassing" signs. Wysong v. State, 614 So.2d 670 (Fla. 4th DCA 1993) review denied, 632 So.2d 1029 (Fla. 1994). However: the officer may not enter a back yard without a warrant. Potts v. Johnson; 654 So.2d 596 (Fla. 3d DCA 1995). LG-29 Curtilage and Open Fields The area around.the home, often referred to as the "curtilage", enjoys the same constitutional protections as the home itself. This includes areas such as the garage, garden, or the immediat~ yard. How~ver, ~ourts have held that the 'area outside the curtilage IS not worthy of the same (protection. The extent of the curtilage is determined by factors that bear upon wheth~r an individual reasonably may expect that the area m question should be treated as the home itself. Courts look to see if the area is used for the,"intimate activity associated with the sanctity of a man's home and the privacies of life." The analysis employed by courts entails an examination of-four factors: the proximity of the area claimed to be curtilage to the home; whether the area is enclosed, for example, by a fence or hedge; the types of activities for which the homeowner uses the area; the measures taken by the resident to guard the area from observation by people passing by. US. u. Dunn, 480 U.S. 294, reh'g denied, 481 U.S (1987). Also see Maggard v. State, 736 So(2d 763 (Fla. 2d DCA 1999) (defendant had a reasonable expectation of privacy in his back yard when it was. fenced in and could not be seen from the front of the house); State v. Duhart, 810 So.2d 972 (Fla. 4th DCA 2002), reh'g denied (warrantless search of motorcycle upheld when the defendant had no reasonable expectation in a covered but otherwise open carport exposed to public view); Ruiz v. State, 743 So.2d 581 (Fla. 4th DCA 1999) (driveway which abutted an alleyway behind defendant's residence was not within the curtilage when it was neither covered, nor fenced, nor enclosed, and was fully visible and accessible to any member of the general public in the alleyway). In contrast,. courts have said that people cannot maintain a reasonable expectation of privacy as to items placed in open fields, or concerning activities conducted there. Because there' is no intrusion on'a constitutionally protected zone of privacy, the Fourth Amendment is not implicated when law enforcement officials survey structures found, or activities conducted, in an open field. Because the Fourth Amendment does not protect open fields, the examination of objects therein does not constitute a search ~ and neither a warrant, nor any exception to the warrant requirement, need be shown to justify the seizure of articles in an open field. Oliver v,"' US., 466 U.S. i 70 '(1984).. Electronic Surveillance Use of a nightscope, under certain circumstances, may not be a search requiring a warrant (Newberry v: State, 421 So.2d 546 (Fla. App. 1982». Use of binoculars to confirm defendant's growing, of marijuana did not constitute a search (Bernsteil v. State, 416 So.2d 827, 829 (1982), r:eh'g denied). However, police cannot use a device which is not in general public use to 'explore details of the home that would previously have been unknowable without physical intrusion without first obtaining a warrant. Kyllo v. US., 533 U.S. 27 (2001) (warrantless police use of a thermal. imager, which measured the amount of heat emanating from different areas of defendant's house and is not the sort of device typically used by the general, violated the Fourth Amendnient). Electronic surveillance, such as wiretapping, will be subject to very strict compliance with a valid search warrant and the wiretap statute, Chapter 934 (Larzelere v. State, 676 So.2d 394 (Fla. 1996), as revised, reh 'g denied). Also see State v. Rivers, 660 So.2d 136Q (Fla. 1995), reh'g denied, cert. denied, 516 U.S (1996), where the Florida Supreme Court found that a state statute permitting wiretaps-for investigating nonviolent prostitution cases invalid. The Court reasoned that Federal law only allows wiretaps for murder, kidnapping, drug crimes and crimes "dangerous to life, limb or property" and under Florida law, prostitution is a misdemeanor (the prosecution unsuccessfully argued that the risk of AIDS made prostitution a dangerous crime).. Use of a pen register (a device that records the numbers dialed on a telephone) is not a search and therefore does not. violate the Fourth, Amendmentr Maryland v. Smith, 442 U.S. 735 (1979). Similarly, there was no violation of-the defendant's constitutional rights when police obtained records for his cell phone from his service provider which showed the numbers dialed from and received by the phone without a warrant or court or!ier. Figueroa v. State, 870 S,O.2d 891 (Fla-. 5th DCA 2004). But see State v. Jackson, 650 So.2d 24 (Fla. 1995)" wh~re the ' qour~ held that'police required a court order to intercept iriformation transmitted to defendant's p'ager when the information contained included a two or three digit code to identify the caller and the amount of drugs the 'caller wished to purchase in addition to the caller's telephone number. Admission of historical cell phone sit~ evidencerecords that identify the relay tower or tower~\ through which a customer's calls are handled, thereby identifying the location from which a call is made-does not violate the Fourth Amendment. Such information is not content-based, and a cell phone user has no?xpectation of privacy in those records; further~ore : historical cell site information discloses only a defendant's past 10catioI?; and,do,e,s not pinpoint his current location in a, private area. Mitchell v. State, 25 So. 3d 632 (Fla. 4th DCA 2009). '. ". "- Plain View.,. Under the plain view ~octrine, -the warra~tless seizure of a piece of evidence that 'is in plain view is permissible when three criter:ia are 'met. First, the evidence must be seen from ' a lawful v1;lntage point, i.e., the officer must have a legal justification for his place of observation. Second, it must be immediately apparent to the viewer that the object observed is incriminating evidence. In other words, the observing officer must have probable cause to believe the evidence in question is contraband or incriminating evidence and should need no further investigation of the Qbject or item in' question to realize its evidentiary value. Finally, the officer must have a right of lawful access to the object itself. Horton v. California, 496 U.S. 128 (1990); Rimmer,v. $tate, 825 So.2d 304 (Fla. 2002); Murphy v. State, 898 So ~ 2d 1031 (Fla. 5th DCA 2005), reh'g denied, review denied.

16 ' LG-30 In ~ldin: v. State,.21 So. 3d 68 (Fla. 3d DCA 2009), the plam VIew doctrme did not justify seizure of tool boxes and work gloves from defendant's van-although the officers could see the items through the windows and they were reasonably related to the burglary under investigation, this in and of itself did not provide an independent basis for entry into the van and the search was not incident to a recent Qccupant'~ arrest., Where officers were legally conducting a search of defendant's residence pursuant to a warrant which a~thor~zed ~eizure of drugs, seizure of a pistol in plain VIew WIth hidden, defaced serial numbers was beyond the scope of the search warrant and should be suppressed provided the pistol did not present a danger to the officers making the search (Ray v. State, 634 So.2d 695 (Fla. 1st DCA), review denied, 645 So.2d 455 (Fla. 1994». However, police could not seize jewelry found in the defendant's home when, at the time, they did not know that,a nearby pawn shop had recently been burglarize~. Although the officers found the,presence of the Jewelry to be "unusual," they did not have probable cause to believe that it was involved with criminal activity. Davis v. State, 834 So.2d 322 (Fla. 5th DCA 2003). " ' Plain Smell By analogy, the plain view doctrine has been expanded to include a "plain smell" corollary-see State v. Wells, 516 So.2d 74 (Fla; '5th DCA 1987), finding that the odor of marijuana emanating from a car or a driver who recently exited his car, is sufficient probable cause to justify a search ofthe passenger compartment of the car. ' Fruits of a Weapons Search. The recent U.S. Supreme Court case Minnesota v. Dickerson, 508 U.s. 366 (1994), held that police do not need a warrant to seize narcotics while frisking a suspe~t for.concealed weapons as long as the contraband I~ mstantly recognizable by "plain feel." The search ~u~t be part of a p'rotective. pat~down for weapons JustIfied on the basis ofa rea&onable suspicion that a suspect is armed and dangerous, and the contraband nature of the object must be immediately obvious to the police officer. Administrative Searches ' ", Specifi'c requirements for searches in certain situations are provided under various sections of the Florida Statutes. Some of them are: (, Fish and wildlife' Nursing homes ~ r. ~ Assisted' living facilities Pollution control Physicians' offices Osteopaths' offices. " '::'Dairy Containers ; -Gasoline and oil storage' Animal'''crue1ty " Abuse of children Vehicles Computers and, ele'ctronics F. S. 370'02. 1, F.S F.S ' F.S F.S F.S F.S F.s F.S F.S F.S F.S School Searches Under F.S (2), the principal of a public school (or a sch?ol employee designated by the principal) has the authority to search a student's locker if he or she has a reasonable suspicion that a prohibited or illegally possessed substance or object is contained within the locker. For example, in M.E.J. v. State, 805 So.2d 1093 (Fla. 200~), a stude~t was found in the faculty parking lot smelhng of marijuana twenty minutes after school started, and he acknowledged having smoked marijuana that morning. Under these circumstances it was reasonable for sc~ool offi?ials to suspect that the student might have marijuana either on his person or in his locker, so a warrantless search was justified. Similarly, a school official may search the person of a student on school grounds based solely on a reasonable suspicion of criminal activity,' as long as school officials initiate the search dr-' police involvement is minimal. However, when police officers initiate a search, or when school officials act 'at the behest of a law enforcement agency, the search must be supported by probable cause. K.K. v. State, 717 So.2d 629 (Fla. 5th DCA 1998). In K.K., a school official. had a reasonable suspicion, based on information from some students that other students were smoking marijuana in th~ boys restroom. He entered the'restroom followed by the school resource officer who stood at the door and said n~thing. Heavy smoke was evident (although from CIgarettes) and smoldering butts were on the floor. The school official then searched the six or eight?oys who wer.e in the room and found the 'marijuana m one of their wallets. The resource officer neither initiated the search nor participated in it although he was in the room where the search was, ~onducted. Under these circumstances, the search was lawful. See also R.L. v. State, 738 So.2d 507 (Fla. 5th DCA 1999), where a school resource officer (a deputy sheriff) was approached by a student who advised him that appell~nt w~s showing a bag of marijuana and trying to get rid of It. The resource officer passed this information on to the assistant principal minutes later when he ~aw the offi,cial in the hallway. Because the deputy's mvolvement was minimal, "reasonable suspicion" was the appropriate standard, and a search was lawful. r Search of Prob~tioners/Parolees Warrantle,ss sea'reh of:a person or his residence by his parole officer can be made a condition of his parole. Persons in prison and on parole do not have the full constitutional protections. However, the results of.the warrantless search are limited, to parole proceedmgs and cannot be used in a criminal proceed ~ng Socav. State, 673 SO.2d,24 (Fla. '19.96). The'Soca court clearly stated that the evidence discovered in the warrantless search may not be admitted against the probationer in a separate criminal proceeding "... unless the search meets customary search and seizure standards established under Article I Section 12 of the Florida Constitution." The warrantle~s search must be based upon a reasonable suspicion of criminal activity (although the higher standard of probable cause need not be met). U.S. v. Knights, 534 U.S. 112 (2001). The fact of "probationary status may be used as a factor t establish probab'l l cause". However, in the Soca c~se, the prosecutor, made a conscious decision not to use a se~rch warrant. The probation officer acted on information from the State AttorJ:ey that the defend~nt was dealing drugs. The probation officer, and pohce searched the residence and found cocaiq,e. The evidence was inadmissible. r " ', '. The Court distinguished this case from' Driffin u. Wisconsin, 483 U.S. 868, (1987), where ev~den~e obtained in a warrantless search of a prdbatloner s residence was used in a criminal proceeding. However, the use of the evidence is specifically provided for by a Wisconsin statute. The Supreme Court in Griffin found the statute,to' be valid where-"... special needs beyond the normal need for law enforcement, make the warrant and probable cause requirement impractical." The Supreme Court relied on O'Connor v. Ortega; 480 U.S. 709 (1987), where government errip19yees may conduct warrantless searches without probable cause on work-related matters; Camara v. Mun. Ct. of San Francisco, 387 U.S. 523 (1967); Also see Grubbs v. State, 373 So.2d 905 (Fla. 1979), where state courts are free to provide citizens with higher standards of protection from governmental intrusion than that offered by the Federal Constitution. The "Exclusionary Rule" ' The U.S. Supreme Court in Weeks v. U.S., 232 U.S. 383 (1914) prohibited the Federal government from making illegal searches. States were not included until Mapp v. Ohio, 367 U.s. 643 (1961), although most states had adopted laws of their own prohibiting illegal searches and seizures. The rule adopted in Mapp' was called the "Exclusionary Rule." Also see Elkins v. U.S., 364 U.S. 206 (1960). Until Mapp, states often gave what would not have been admissible evidence under Federal guidelines to f~deral authorities and fede'ral authorities often gave the state law enforcement agencies evidence which may not have been admissible under state law (handed to them on a "silver platter"). The Supreme Court ruled in Burdeau v. McDowell, 256 U.S. 465 (1921), that the Fourth Amendment was a limitation upon the Federal government only. Evidence found,by private investigators, with no connection to the U.S. Government, was admissible against the defendant in Federal Court. In Green v. State, 824 So.2d 311 (Fla. 1st DCA 2002), entry by a motel owner into the defendant's room did not violate the Fourth Amendment because he was not acting on behalf of police at the time. Also see Glasser v. State, 737 So.2d 597 (Fla. 4th DCA 1999); State v. Olsen, 745 So.2d 454 (Fla. 5th DCA 1999) (both cases finding that the Fourth Amendment does ~ot apply to private action). Good Faith Exception The Supreme Court in U.S. v. Leon, 486 U.S. 897 (1984), provided that where illegally 'seized evidence was acquired pursuant to a defective war~ant but ' an officer had a reasonably objective good faith belief that the warrant was valid, the evidence was admissible. This was called the f'good Faith Exception" to the:"exclusionary Rule." In Arizona v. Evans, 514 U.S. 1 (1995), the Supreme Court ~ einforced this exception by finding that evidence gained during an arrest made on the basis of an erroneous clerical mistake of court employ~es, was admissible. In Bunse v: State, 661 So.2d 389 (Fla. 5th DCA 19,95),,a Florida Appellate Court found that cocaine seized by officers y,rho, stopped a: vehicle based on what they believed to be an invalid Mississippi license tag was admissible where the Mississippi records were 'not in the coritrol of the officers. However, the Florida Supreme Court"has held that the "Good Faith Exception" does not apply in situations where a police officer'relies on information that is incorrect due to a police error. State v. White, 660 So.2d 664 (Fla. 1995), reh'g denied. Inevitable Discovery,. "If the prosecutiop can esta,blish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means then the deterrence rationale has so little basis that the evidence should be received." Nix v. Williams, 467 U.S. 431 (1984). Generally, courts will find evidence would have been inevitably discovered if the evidence would have been discovered in the same condition, thro~gh an independent line of investigation, and, where the independent investigation was already in progress,at the time of the illegal search. In Nix, supra, two officers illegally obtained from a suspect the location of the body of a child he had mui'dered. The defendant ~rgued that testimony con, cerning the location and condition of the body should be suppressed as a result of this illegality. The Supreme Court disagreed, holding that, if the prosecution could demonstrate that the,child's body w01l1d have been discovered'without the benefit ofthe defendant's statements, suppression was not appropriate. In this case, the state demonstrated that,there was an extremely good chance that the body's location w'ould have been ' inevitably discovered, as, there was a 200 member search party combing the area that was scheduled to search the area where the body was found., Also see Hatcher v. State, 834 So.2d 314 (Fla. 5th DCA 2003), where, even assuming that a pat-down, search following a stop for a seat belt violation ~was invalid, a routine background check following the seat belt citation would have revealed several outstanding warrants. Therefore, the drugs and gun on the defendant's person would have inevitably been found during a search incident to arrest. '0 Compa ~e with State v. D.D.D., 908 So.2d 1180 (F~lil 2d DCA 2005). An officer received a anonymous tip regarding a young man allegedly~,~~rrying a weapon. Soon after, he observed D.D.D., upon seeing the officer's marked patrol car, go,behind a, tree and drop a heavy, silver pbject, then tlj-rn and walk away from the officer in, the opposite' direction than he had been traveling when the officer first saw him. The officer then frisked D.D.D., finding a sheathed knife on a chain around his neck. The Court found that although the officer's obs~rvations supported a stop, they did not justify a pat-down-the officer test~fied that he be~ieve~ he,saw D.D.D. drop the gun behind a tree, so it was1no longer reasonable to believe that D.D.D. was armed. However, because the officer had a reasonable suspicion that D.D.D. had committed a crime, he wa,s well ~ithin his authority,to stop ana detain him and even,to,bring him over to the tree to retrieve the gun. Had he done so, he

17 LG-32 LG-33 would have had probable cause to arrest, and would then have found the knife during a (lawful) search incident to that arrest.' Therefore, the knife was admissible under the inevitable'discovery d0ctrine. Indepen~ent So'urce " <, " "The Fourth Amendment does not require the sup, pression 0' ~vidence initially disc,overed during police officer's illegal entry of private premises, if that evidence i~ aiso discovered during a later search pursuant to a valid warrant that is wholly independent of the initial illegal entry. The independent source doctrine permits the introduction of evidence initially discovered during, or as a consequence df, 'an unlawful search, but later obtained ihdependently from lawful activities untainted by the initial illegality." Murray v. U.S., 487 U.S. 533 (1988). The circumstances that justify the second lawful search must have'noconnectiorf to the initial; unlawful'conduct. The facts supporting the second search must arise wholly apart from those,which purportedly Justified the initial search (e.g." a' judicial finding of probable cause, and a' warrant issued based on that finding, where the facts in, the supporting affidavit derive completely from a source independent of facts garnered during'an initial, illegal search). " 'In Murray, supra, officers conducting a narcotics investigation had probable cause to believe that a large quantity of drugs was being stored in a warehouse. Before securing a warrant, they illegally entered the warehouse and confirmed their beliefs, finding several bales of marijuana. The officers subsequently applied for and obtained a search warrant but"made no mention of their entry to the issuing judge, basing their application only on facts they had accumulated prior to the unlawful entry. The Supreme Court held that if the earlier information in the affidavit in fact supported the probable cause determination, so that the later seizure of the marijuana was not a 'result of the illegal entry but rather the result of a warrant executed pursuant to the independ'ent probable cause finding, the evidence would not be suppressed. 13. AUTO~OBILES In General Officers come in contact on a daily basis with suspects ~ho are either riding or sitting in automobiles. What action can the officer take in these' c'ases? ;' ' An officer can stop a vehicle for one, of two' re~sons: (1) If there is a suspected violation of the vehicle and traffic laws. The'stop cannot be based on the officer's whim or "gut" fe,eling. The officer :t;nust be ab.1e to articulat e facts which supp'ort his or lier suspicions. The car not looking "right" in the neighborhood or the people in the car "not fitting in" is insufficient reason for a stop ~ The temporary detention of individuals during a ' vhhicle stop constitutes a s'eizure within the meaning of the Fourth Amendment (Delaware v. Prouse, 440 U.S. 6.48~ (1979». ' In State v. Perkins; 760 'S0.2d 85 (2000), the stop of a vehicle was ruled unlawful when the sole purpose of the stop 'was to check the status of the defendant's f{ -,.' "', driver's license: The officer testified that he did not see the defendant commit any traffic, violations prior to the 'stop, The post-stop observation ofthe defendant behind the wheel was suppressed. /,,' (2) - Where the officer has a.reasonable' suspicion that the,car's occupants have been, are presently, or are about to engage in conduct which is in violation of the law ~ The officer cannot base a,stop on idle curiosity nor on, his or her "gut:' feeling. Stopping a car when it matches the description of a,vehicle used in a crime or when the occupants, fit a description of perpetrators of a crime is sufficient reason for a stop. Stopping. a vehicle based on probable cause that 11 traffic violation has occurred is valid (Pennsylvania v. Mimms, 434 U.S.-106 (1977».,::;" Vessels ;, ". ~ Watercraft are considered similar, to ~utomobiles, and searches of watercraft may be conducted under the same circumstances that would-justify a s~arch of an, autqmobile. U.S. v. Villainonte-Marquez, 462 U.S. 579, (1983). Motor Homes Upon a showing of probable cause, police can make a warrantless search of a' mobile 'home in a "public place, if it is being used for transportation' rather than as a residence. In making this determination, offi.cers should consider the location of the mobile home; whether it is truly mobile (or, for example, on blocks); whether the motor home is licensed; whether it is connected to utilities; and whether it has convenient access to a public road. California v. Carney, 471 U.S. 386 (1985). Roadblocks and Checkpoints Police can stop vehicles when using au'officiai police roadblock o~ checkpoint to remove drunk drivers from the road or enforce other traffic safety laws. Ih Michigan Dep"tof State Police v. Sitz, 496 U.S, 444 (199Q), the U.S. Supreme Court upheld a Michigan progra,m where checkpoints would he set up at predetermined sites along state roads. All drivers passing through would be stopped and checked for obvious signs of intoxication. If such indications were detected, the motorist would be taken out of the flow of traffic ana an officer would check his or her license and registration. Ifwarranted, the officer would conduct field sobriety tests. All other motorists would continue unimpeded after the initial screening. The check lasted 75 minutes, during which 126 vehicles passed through. The 'average delay was 25 seconds. Three motorists were detained on suspicion of intoxication, and two were' arrested. In approving the checkpoint, the Court found that: ' (a) Michigan had a substantial interest in eliminating drunken driving, noting that "no one can seriously dispute the magnitude of the drunken driving problem [or the] State's interest in eradicating it." (b) This checkpoint advanced the state's interest in curbing t:q.e drunk-driving probl~m, noting that the ~se of a permissible checkpoint is but one of many reasonable alternatives to remedying the problem, and "the choice among :'such, reasonable alterna~ives remains with the governmental officials who have a unique understandi~g" of the problem'and the resources available to c.ombat. It., :... ' (c) The. Ih~r~sIOn, both object~ve and subjective, was slight, pomtmg out the brevity (25 seconds) of the average,enco.tinter. The Cour~ also note~ that any ubjective inttuslon, such as makmg a motorist fea::ful ~r annoyed, was diminished. by the fact that motorists could plainly see all vehicles wer~) being stopped. In Campbell v. State, 679 So.2d 1168 (Fla. 1996), the Florida Supreme Court upheld a checkpoint targeting unlicensed 'drivers and safety violations. The Court ruled that any roadblock Dr checkpoint, must be conducted pursuant to written guidelines issued prior to its operation. The~e guid~lines s~ould s~ecify the procedures for selectmg which,.;vehicles WIll be stopped, ~dllty assignments, detention techniques, and procedures fo~ the.dispositi?n ofve?icles. i,,' H0Weyer, m CLty of In.dwnapohs JJ. Edmond, 531 U,S. 32 (2000), the U.S: Supreme Court found that roadblogks and checkpoints conducted for the "primary purpose" of "uncover[ing] evidence, of.ordinary criminal wrong0-oing" v~olate the F~u~th Amendment. Roadblocks shcmld"oe directed toward aqipinistrative purposes, such 'as ensuring highway' s:;tfety (for example, by removing the "immediate, vehicle-bound threat".caused by dr:unk drivers) or, where appropriate, policing the nation's borders (by checking for illegal immigrants in areas reasonably close t9 tp.e border); they must not pe motivatedj)y "the general inte~e~t in crime control:" Thus, s'o-called "drug checkpoints," staffed with drug-sfiiffi,ng qogs and cpnd\lcted J9r the primary purpose of dis.cqvering a~d,int,er!iicting illeg~l narcotics, were unconstitutional. The Court did note that if exigent circumstances'were present" an appropriately tailored roadblo~k whose primary purpose was crime-control would almost certainly be permitted (for exampie,,to,thwart an imminent terrorist atta~k or to catch a dan gerous criminal likely to flee by a particular route). Of ~ourse :'ifpolice 'uncover evidence 9f Griminal wrongdoing at a valid roadblock, they may seize\ the evidence and arrest its possessor.,: ",: j :> ~ Also see Daviscv. State; 788 So.2d'1064 (Fla. 2d DCA 20.01), ~triking down, a,checkpoint where t4e writte~ plan stated that its goal.was to "target illegal drug activity" and made no mention of roadway safety. ' Contrast these cases with Illinois v»hidste'r, 540 U.S. 419 (2004), 'where the Y :,S. Supr.~ine Q.?~ft upheld a checkpoi~t designed to obtam inqr,e mformation ab?ut a recent hit-and-run accident. The Court found that the primary' pu'rpose of this checkpoint was no't to deter-, mine,wh,ether the motorists stopp'ed hadeomm.itted a crime, but to a$k,fortheir help as members ofthe p}lblic in providing information about a crime in all likelihood committed by others. The Court noted tha~ because an information-seeking storj s b,!, ~erand police,do not ask questions designed to elicit self-iricriminating i,nformat~on, such a stop', is l,ess likely to provok,.e :,ilmdety or to prove intrusiv~ than a stop to investigate cri1tiinal activity. In this ca'se?, the relevant public concerj?- was grav.e-police were investigating a crime that,re~ulted in a human death. Moreover, the checkpoint advanced this concern to a significant degree-it took place near the scene of the accident one week later at about the same time of night. It was reasonable.to believ,e some of the drivers on the road at this time had also been in the ar~a around the time of the, accident (f0r example, workers leaving the night shift at a nearby industrial complex). Most importantly;, the stops only minimally interfered with drivers. All vehicles were stopped systematicallyand each stop lasted only a few seconds, during,which' time police reque$ted information and distributed a flyer regarding, the accident. Because the checkpoint was valid, defendant's ~rrest for DUI, based on observations made.while he was stopped at tbe checkpoint, was valid. Pretext $tops ", '~ ",', The "reasonable officer" test was overruled by the U.S. 'Supreme Court in Whren v. U.S. ; 517 U.S: 806, (1996). A police officerga~ :use a traffic infra~tion as a justification to stop a/vehicle where tj;e officer,i~ really interested in searching the car for,aii}ore senpu crime. In Whi'en v. U.S., plainclothes o ficer$ stopped a vehicie on a traffic infraction and found illegal drugs in ~ plain view. ', Procedure After Valid Stop, Once a police officer makes a valid stop of an automobil~, he or'she' cab take a num15er of actions. He or she can approach the vehicle with His or her"gun drawn if the officer has reason to believe that the occupants are armed and 'dangerous or if he: or she believes the occupants have committed a' serious crime. ' The driver ca'n be ordered to turn off his or her ignition and step out of the car. Once', outside, the driver can be required to produce his or her license, registra,t;iori and insurance card. However, the officer cann0t frisk the driver or other occupants unless he-or she has a reasonable suspicion that they are,armed. Mter the driver produces the proper identification and aqswers any proper questions, and the officer completes the business fo;' which the vehicl~,w:,ls originally stopped, the officer cannot detain the driver or other occup'ants of the, car any further u~less the officer c dis9o,vers criminal conduct, OR th,e driver or pas$enge~s, consent to further d~tentiori. See Pennsylvania ~. imms, A34 U.S. 106,(1977).. ', " >", Iri biaz v.' State, 800 So.2d 326 (Fla. 2d D,CA '2001), aff'd, 850 So.24, 435 (Fla ), a" deput:y;' stopped t~e. defendant because he could not read the temporary tag in the defend~nt ' s rear wind~~. However, as he'approached the vehicle, he was able to clearly read the tag, which wa's valid. He nevertheless asked the defendant for his driver's license" which proveq. to be suspended. The Court found this request improper: OnGe the deputy determined that the tag was valid, he should,have allowed the defendant to 'go on his way. (Hadth~ officer r,equested the li?ense before determining the validity 6f the tag, the request would have been proper.) Al~o see Blac~weld'erv. State, 853 SO.2~ 47~ (2d DCA 2003). ' " }- Treatment of Passengers, With respect to occupants of the vehicle othertl1an the driver, a pollce officer' can open"the passenger door and order the passengers out of the vehicle., He can also request identification from"them. Bratcher v. State, 727 So.2d<1114 (Fla. 5th DcA 1,~99). All Officer, '" '".. t!' ;.'

18 LG-34 LG-35 may pat-down a passenger during a traffic stop only if there is reasonable suspicion to believe the passenger may be armed and dangerdus. Arizona v. Johnson, 555 U.S. _ (2009). An officer cannot order the passenger to stay, inside the vehicle'absent'lf reasonable suspicion th'l;it the passenger has'engaged in criminal conduct. Faulkner v. State, 834 So.2d 400 (Fla. 2d DCA 2003).,In T.H. v. State, 554 So.2d 589 (Fla. 3d DCA1996), an officer stopped a vehicle for a minor traffic offense and gave the driver a ticket. The defendant passenger mouthed off to the officer continuously and the officer ordered the passenger out of the vehicle. The passenger dropped cocaine on the way out. The Cop.rt held the cocaine inadmissible where ordering the passenger out of the vehicle for a hostile attitude rather than for safety reasons was invalid. In State v. Cromatie, 668 So.2d 1075 (Fla. 2d DCA 1996), the officer made a valid traffic stop, found no warrants, and asked the driver for permission to search. The driver gave his consent and the officer found cocaine. During the search, the officer detained the passenger in the patrol car. Mter releasing the passenger, the officer also discovered cocaine in the patrol car. The Court held that,all evidence was admissible based on the consent of the driver and-ayalid detention of the passenger. An officer can briefly detain passengers to prevent flight in the event incriminating evidence is found', to minimize risk of harm, and to aid in the orderly completion of a search. < The U.S. Supreme Court stated an officer can order both driver and passenger from a vehicle and evidence of illegal drugs found on the passenger is admissible in tpe case of Maryland v. Wilson, 519"Q.S. 408 (1997). Search of'automobile A p~lice officer can search an automobile' for a variety'of reasons. <, ' (1) A warrantless, valid search may be made of a car arid any containers within, when there is probable cause to,believe that the automobile contains contraband, a weapon, or evidence of a crime. Under these circumstances a search may be made of the entire vehicle, including the trunk, locked or unlocked. containers and loc.ked glove compartment (Carroll Doctrine from Carroll v. U.S., 267 U.S. 132 (1925), and U~S. v. Ross, 456 U.S. 798 (1982» stating that the "automobile exception" provides that: "r'n this class of cases; a 'search is not unreasonable if based on facts that would justify the issuance of a wai-rallt, ev~n though the warrant has not been actually obtained." Also see Whren v.u.s., 517 U.S.' 806 (1996)', where plainclothes officers stopped a vehicle on a traffic infractioll and found illegal drugs in plain view; Pennsylvania v. Labron, '518 U.s. 938 (1996), where officers observed defendant putting bags into the trunk and opened the trunk based on probable ca'use incident to the arrest. However, in Cady v. State, 817 So.2d 948 (Fla. 2d DCA 2002), while an alert by a drug-sniffing dog provided probable cause for a search 9f a pick, up truck and' its driver, it did not justify a search of the defendant, who was only a passenger in the truck, when cocaine was found on the driver's side of the truck and the offic~rs had i10 knowledge regarding the defendanfs involvement in drug activity. Also see Jaimes v. State, 862 So.2d 833 (Fla. 2d DCA 2003). Police 'received a tip from a confidential informant that defendant was selling drugs at a bar. At the bar, officers saw defendant get out of his vehicle and into a truck occupied by another man; then, 30 seconds later, defendant got' out of the truck and met with a woman. The officers did not have probable cause to search defenaant's vehicle because no evidence was presented regarding the informarit'-s veracity and the officers never observed any transaction, which would have confirmed the tip. ' (2), Prior to 2009, if a police officer arrested an occupant of a motor, vehicle (regardless of the charge) that officer could, incident to the arrest, search, the entire passenger compartment of the vehicle and any containers found therein, whether closed or open. However, in the case of Arizona v. Gant, 556.,U.S. _ (2009), the U.S. Supreme Court substantially rewrote this doctrine. Now, when an officers arrests the driver of or a passenger in a vehicle, the officer may search the passenger compartment of the vehicle incident to the arrest only if:,., " t~e(, ' arrestee is within "rea~hing dlsta'nee" of the passenger compartine'nt at the time of the search" or..it is reasonable to believe the vehicle contains eviderice of the offense of arrest. If the arrestee has already been handcuffed and placed in'the back of a patrof car, then a search of the vehicle is no longer justified because the arrestee is no longer ca'pable of accessing any weapon potentially hidden'inside'; unless police reasonabie expect.to find evidence of the crime for which the arrest was madb in the vehicle. While police can generally expect to find evidence following a drug arrest (e.g. more drugs, paraphernalia), a search is not allowed following a traffic violation (for example, driving with a suspended license) as no evidence of such offenses' could be concealed inside the vehicle. '.',, A sea;ch of the passenger compartment of defendant's vehicle following his 'arrest on two outstanding warrants for theft' was allowed under Gant because, by its nature, the crime of theft can yield physical evidence. Brown 'v. State, 24 So.3d671 (Fla. 5th DCA 2009). ',. Under New York v. Belton, 453 U.S. 454 (1981), the scope of a vehicle se?arch incident to arrest includes the entire passenger compartment, and all containers located therein, locked or unlocked. As long as the above criteria are met, a search is allowed even when the arrestee is a "recent occupant" who has 'already stepped Qut of the vehicle when'the officer first makes contact. Thornton v. U.S., 541: U.S. 615 (2004). In Thornton, an officer checked the tags on the defendant's Lincoln Town Car and learned that they had in fact been issued to a ' "Chevy two-door." Before he had an opportunity to pull him over, however, the defendant pulled into a parking lot, parked, and got OU! of his vehicle. The officerihen :approached the defendant, and ultimately patted:hitn down and arrested him for drug possession. A search of the defendant's car incident to this arre~t was lawful. (3) The U.s. Supreme Court (Knowles v. Iowa, 525 U.S. 113 (1998» ruled that searcli,incident to a citation is not within the scope of a search iricident to an arrest. In this case the officer had probable cause to arrest hut chose instead to.issue alcitation at the scene. An arrest for violation of an ordinance, however, will justify a search of a vehicle, if the criteria in Gant are met. State u. Waller, 918 So.2d 363 (Fla. 4th DCA 20.05). (4) Police must have consent or other justification to conduct a search when they stop an individual who is driving a borrowe<l car. This is because the individual has a legiti~ate expectation o(pr~vacy in ~he vehicle. State v. Wells, 539 So.2d 464 '(Fla. 1989), affd, 495 U.S. 1 (i990). ".1 (5) When an officer has conducted a legal stop of a vehicle, and the officer has reasonable suspicion that the vehicle contains a weapon, he or she may frisk the occupants and conduct a'search for weapons.of the full passenger compartment, including all closed con: tainers "if specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dang.erous and the suspect may gain immediate control of weapons." (Michigan v. Long, 463 U.s (1983».. (6) If the driver of a vehicle voluntarily consents to the search of his or her car the search is permissible as long as (lfthe scope of the search was established prior to the consent and (2) containers can be opened without being damaged (Florida v. Jimeno, 499 U.S. 934 (1991»..I. NOTE: Polic~ officers' while searching i~ this 'mode should not place the subject in a setting where it is impossible to withdraw consent. "',. (7) The police can also perform a valid warrantless search of a caras part of an invent0ry search which is conducted after an arrest is made. The inventory'search must be conducted in good faith pursuant to local police procedures and cannot be used as a pretext for investigating suspected criminal-activity (Colorado v. Bertine, 479 U.S, 3B7 (1987); State v. Wells" -supra; Williams v. State, 903 So.2d 974 (Fla. 4th. DCA 2005)" reh'g denied). If the State fails to introduce apy evidence that an inventory search was conducted pursuant to standardized procedures, any contraband found will be suppressed. (Beezley v. State, 863 So.2d 386 (Fla.. 2d DCA 2003). The mere fact that the defendant was arrested does not in and of itself justify the impoundment of a legally parked vehicle; there must be circumstances.indicating that the vehicle is in danger Of creating 'a hazard to the. public or of being lost or stolen. Williamsv. State, supra. (8) An officer can seize contraband which is in open view in an automobile and which the officer observes from a lawful vantage point. -Thus, if the officer had no authority to stop the car in the first place," the "plain view" theol!y for a warrantless search will be rejected by the courts. The Court will also examine whether a "search" occurred or not (State v. Starkey, 559 So.2d 335, 337 (Fla. 1st DCA (1990)),.where the Court found that the act oflooking into the interior of a vehicle did not constitute a "search"). -,' (9) The U.s. Supreme Court in the case of Ohio v. Robinette, 519 U.S. 33 (1996), held that police are not required to tell a lawfully stopped motorist that "you are legally free to go" before asking for Gonsent to search. In Robinette, an officer stopped a vehicle on an infraction. Mter warning the driver against speeding and returning the driver's'license the. officer asked if he could search the vehicle. The driver resp'onded ''Yes'' and the officer fourid cocaine. (A note of caution: Before asking for consent as the result of a stop of a traffic infraction, write a ticket or give a warning and return to the driver all property belonging to the driver, i.e., driver's license, registration, proof of insurance, and copy of cit'ationorwritten warning. But see Marshall v. State, 864 So.2d 1139 (Fla: 1st DCA 2003), where the defendant's consent to a search following a traffic infraction was not voluntary when, once' the. citation was,issued, the, officer continued to question the defendant regarding a discrepancy in his earlier answers,.then walked a drug' dog around his vehicle, further detaining the defendant for another ten minutes before finally asking consent to search.) (10) Under F.S searches and seizures ofvehicles carrying contraband or illegal intoxicating liquors or merchandise may be made by any duly authorized and: constituted bonded officer of this state exercising police authority. '...', (11) The U.S. Supreme Court in Wyoming,v. Houghton, 526 U.S. 295 (1999) ruled that police'officers with probable cause to search a car may inspect the passengers belongings, found in the car, that are capable of concealing the object of the search. (12) ' In Maryland v. Dyson, 527 U.S. 465 (1999), the U.S. Supreme Court concluded that even if law enf0rcement officers have ample time to obtain a search warrant for a motor vehicle, they are'not required to do so., '. (13) The Fourth Amendment does not require that police have a reasonable,-articulable suspicion of criminal activity before allowing a well-trainednarcotic~detection dog to sniff the exterior of a vehicle during a lawful traffic stop; as long as this does not extend the duration,of the stop. Illinois v. Caballes:, 543 U.S. 405,(2005). However, in Whitfield v. State, 33 So.3d 787 (Fla. 5th DCA 2010), a canine sniff search was unconstitutional when it did not begin until after a citation was issued and/the purpose of the traffic stop was completed. ' (14) Failure to signal (as required by'f.s ) is a moving violation, thus giving an officer probable cause to stop a vehicle that does not signal appropriately. However, the statute requires a signal only if another vehicle would be affected by the turn. State v. Riley, 638 So.2d 507 (Fla. 1994). When no other vehicle is affected by a turn, then a signal is not required 'by the statute. If a signal is not required, then a traffic stop predicated on failure to use a turn signal is illegal and any evidence obtained as a result of that stop must be suppressed. Hurd v. Staie, 958 'So.2d 600 (Fla. 4th DCA, 2007).. " 14. SEIZURE OF VEHICLES Wh~re police havef' probable cause to b,~lieve 'that ~n automobile used in connection with drug traffick~, ing is contraband subject t6dvil forfeiture; the Fourth Amendment does not reqti'ire that they obtain a warrant to seize the vehicle from a public place. This is

19 BG-36 LG-37 true whether the acts giving rise to the'probable cause happened contemporaneously with the seizure or happened some point in time before the seizure. This is,a reversal by the U.S. Supreme,Court on a Florida Supreme Court ruling on forfeiture seizure warrants. Florida'v. White, 526 U.S. 559 (1999). ' 15. ARREST GUIDELINES' G,enerally,', /)',. Under Chapter 901 of the Florida Statutes, a law enforcement 'officer is 'given the authority to make an arrest for the commission of a, crime with or without a warrant. It is.important to note that no arrest warrant shall be dismissed., nor any person in custody be discharged!, because of >any defect as to form in the w.arrant; the,warrant may be amended by a judge to remedy such defect (Florida Rules of Criminal Procedure (Fla.R.Crim;P.) Rule 3.121). : Under Fla.RCrim.P. Rule it is the duty of the state attorney to proyide the personnel or 'procedure for, criminal intake in the judicial system. All sworn complaints charging the commission of a criminal offense shall be filed in the office of the clerk of thel circuit and delivered to the state attorney for further proceedings. '" ~' '. When a law enforcement officer makes an arrest for either a felony or a misdemeanor or a penal violation, he or she is required to take the accused to police headquarters and bring the accused before the booking officer. It is necessary for the arresting officer,to,make an.affidavit in writing setting down certain facts and circumstances to, justify the arrest. The following 'are minimum guidelines foil the content of this affidavit. Each jurisdiction,will have diff.erent requirements as to the "arrest affidavit." (The officer should always check with hi's or her superior,,'police legal advisor, or local state attorney as to the applicable-requirements. If the affidavit is insufficient, it can be: corrected.) \ An arrest. is vali<;l as long as. there was objective probable cause, even if-the officer had a different subjective motivation for, making ~ the arrest. Arkansas,v: Suliivan, 532 U.S. 769 (2001).(arrest for driving without registratibn,or proof of insurance and carrying a weapon valid when supported by probable cause, even if the officer's "true:' purposejor making the. arrest was to search defendant's car for drugs). An arrest is valid even if the crimin~l offense for which probable cause. actually exists is not "closely related" to the offense stated by the officer at the,time of arrest. Devenpeck l),.- Alford, 543 U.S. 146 (2004). Guidelines The followin{item~ shouid appear in the arrest affidavit: " ", (1) A complete narrative of the offense including the day, time, place, lighting conditions, etc., and the name and address of the accused: All facts should be included which should be sufficient for a showing ~f prob'itble cause' for the arrest:' All elements of the charged' off'ej?se as reqnir,ed by the applicable ~tatute or ordinance should be cov~red. NOTE: When writing the arrest affidavit, the author suggests that, in the first, paragraph,' the officer establish the legality of the contact with the subject (i.e., explain whether this was a consehsual encounter, a Terry stop based on reasonable ;suspicion, or a stop based on probable cause, citing the relevant fads)..., ''' (2) for all felonies, misdemeanors or state penal violations. If the arrest is for violation of a county or city ordinarice(s) then the respective county"or city ordinance number(s)..', " " " (3),The correctc'ounty 'or, city enabling code mlmber(s) for all state penaf mlsdem~anor violations. (4) Signature of tp.earre.sting offi~er and If possible a witness to the Qfficer's' sign~ture.,'.,. ' '. (5) Signature by a deputy clerk otthe court or a Florida D:otary public:...' ~.,." '" (6) A list of all essential witnes$es to the. arrest including their,addres,ses. " The correct' Florida St ;~e statute ~umber(s) 1'6. SERVICE, OF PROCESS AND SUBPOENA A. Service of Process-Civil Cases ~ 1.. Issued by The Court. Chapter 48' and the Florida Rules' of Civil Procedure (Fla.R.Civ.P.) provide the direction for service of process and subpoenas on persons in civilcases. A civil action is commenced with the filing of a formal written complaint in theappropriate court 'Yithjurisdiction over the matter,:(fla.r.civ.p. 1.0,50). Service of process is made after the-issuance by the clerk or judge, under the clerk o,r judge's signat~re and under seal ofthe court, of a summons (F.8. 4B.011; Fla.R.Civ.P. 1.'070): 2. Who Is Authorized To Make Service? Persons authorized to serve'papers inelude the sheriff or deputies in the county where the person to be s'erved is located or any competent person appointed by the Court (F.S. 4B.021; Fla.R.Civ.P (b)., (a). Under F.S. 4B.Q11, all process, except subpoenas, shall be directed to,"ailand singular'the sheriffs of the state." Under FB ;the sheriff has the right to execute all processes 'of the Supreme Court, cir.cuit courts and boards of county commissioners of the state and the right to execute writs, warrants and other papers directed to them in their respective county. Under F~ S and 34.0B the sheriff shall charge fixed nonrefundable fees in al civil cases and -be entitled to fees for service upon each person. Under F.8. 4B.021, the sheriff may appoint a special process server to serve initial nonenforceable civil-process papers, provided the special process, server meets certain requirements(, (b) Under F.S. 4B.29,. a person who.desires to be a pl'ocess server must submit an application to the chief judge of the circuit or the judge's designee and meet the requirements of F.S: 4B.29(3) and other requirements of the local court. All.successful applicants receive a certified process server identification card. Guidelines for the process server are.provided in subsections (6), (7), and (B) off.8. 4B.29. The circuit court administra- tor and the clerk of'the Court. yv~ll maintain a list of approved, pr0cess servers. c'. ' ;, J 3. Time and Method of Service,: Service onbunday is not valid unless the ~ourt specifically authorizes such service. Failure to serve a party within 120 days after the filing of a civil action will result in a dismissal of the action (Fla.R.Civ.P. ~.070(i»-. Service is rn.~de by delivering' a copy of the surpm<ms, ~nd complal;ptr!;l.nd any other papex,s attachedrpersoi),ally to, the 'pe:n;op, being served; 0.1' by leaving the papers, at his qsru,al place of abode with any ~erson!esiding there, fiifteen years of age or old,er 'l~nd mformmg that.. person 'of, the contents (F.s'.,"4B.031) :,!'~:: :1'< 4.. Who Can Be Served?j,;,~} rhe person served at the resid~nce does not have,lto be a fa'mily merrtber. and can -be anyone ~r:esiding in the hom.e. A pr,ocess s~r:ver must attempt to ascertain the identity and ag.e.of the person being se,r:.ved. Thepe,rson seryed does not"have to accept s~rvice or physically touch th~ 'p,ap ers. If the person runs, the papers can bejeft \.\There they can be easily found by the person. If the person will not open the door, th~ papers'can be, left on the doorstep as long as the' server can verify.-th~tf the person i s.llt home (talked with the per~on ol).,t:he'tejephone oroutside before approaching the,d00r):.ifjthe server knows someone is inside but cannotsaythat-:the person inside was the persoh being,servedror someone residing in the home who is fifteen years of age or 0lder, then process is invalid (Cullimore v.,barrfett BarLk of Jacksorp)ilie, 386 So.2d 894 (Fla. 1st DCA (}9BO»). -, 5. Specific Rules for Service:, Service on Tenants:,Service on ten,a,nts for eviction also may: be made by:, a,ttaching the papers to a conspicuous place on- the prqpertyonly,when there is no one fifteen years of age,or-older at, th~ 'r~sidence and WHEN the tenant cannot be lo.cated in;15he COtlI}.ty; and AFTER a,ttempting pej's()n.::~lservice twice at least six hour,s apart (F~.S ;> 4B.1~3 and.83.22):.~,;. Service on Minors/lncoJnpetents:,If se.rvige i,s,on an unmarried m,inor, the parent or guardian,rnustbe served (F.S. ;:1B:04l;),.If service is on a person declared incompetent; the service is made on the guardia:n(f.s: 4B.042). t _ ',,. _ Ai Service on prisoners: \ Proces,~ against apr.isqn,~:r must be served on the prisoner (F.S. 4B.051), Service on P.ersons Outside State: "When authorized, service is the same as if within the state (F.S ). " '., It Service on Corporations:,;PrQcess.Q)l a private Gorporation may be,se:rved,on an officer, dire tor..;when an officer is not found, or business agent residing in the state. For foreign corporations, service may be made op any agent transacting business in the st.ate, or,on any officer or business agent while on,corporate business in the state (F.S. 4B.OB1)., ' Process on anyabusiness qualified to transact business in Florida may also be served,on the' register~d agent and,registered offiee (E ~ S. 4B.091).. If the registered agent c~nnot he found".seryice made be made on any employee, at, the place of busine,$s (F"s. 4B.081(3».. ',f 6. Service by Mail: Service by mail is generally not permitted except in small claims matters $2,500 or less where registered mail with a return receipt mu~t be used Substitute Service: Substitute service may be.authorized by a specific statute when a resident or nonresident conceals his location. A plaintiff must attempt personal service, or icon a partnership or GorpoJ)ation< 0n the offigers or partners. Certlfied Q.f. registered mail mus,t then..be lj.sed. If all attempts at locating th~ defendant fail then service, personal or by certified mail, is made upon the. designated stat\ltqry or public officer. (F.S. 4B.161). An affidavit must be filed sta,ting that a plaintjff :was diligent. in attempts to locate the defendi;l.nt orthat the d,efendant is in fact hiding from service. :.-. B. Service by ~\lqlication: 'Seryice by publication is allowed in very, limited matters,such, as liens, title claims, partitiqn, garnishment, replevin, probate a,nd other matters not requiring person,al service by law (F ).. S;trict compliance with the statute$ are r:equired and a : dilig~nt search ll'!lst hel,:made for the defendant. The plaintiff l1lu~t file a sworn affidavit of his belief as to the facts justifying service by publication (F.B. 49,05i).-F.8., 50.0l:1 and provide guidance on publication:. (?; ~;'i,\ 9. Returnof Service: Fla.R.Civ.P. l.070(b) provides that a return of service; 'or return of'incdmplete service, shall be filed with the Court-by -the; person making service. Proof of ;service is made by affidavit "promptly 'and in any event within the time during Which the person served m -o.st.respond." The ~rule also ~provides that failur'e ';ib "file proof of service :will not invalidate 'the service made. Under{F.S. 4B.21, :a failure to state all the facts required in a return will invalidate the service, but the return. is amendable to state the truth.-at any time on application 'to the court. The server will,1ikely"be required to file an affidavit of service to correct the, error. Also note 'under' F.S. 4B.21, that afaihire tb s'tate all the facts shall subject the officer so failing toa fine not exceeding $10, in the court's discretion. ' ;. t "' 10. Service.. of Foreign' Process:.. An officer may make service or-papers 'issued by,ahother state court on any pellsonln'this state in the same manner,as service is made in;this state. An officer se.rving foreign process will not be held liable for failure to execut~ any process delivered to him. A sheriff is entitled to receive comparable fees as ; charged ~ in 'this state. ' 11. Failure To Respond to a Summons and Complaint:.. In a Civil action;. the failure to respond to a valid summons and complaint will' likely result in a defaulbjudgment against the defendant. A defendant has a deadline of twenty days a'fter service to file a formal answer to a complaint (Fla.R.Civ.P (a». If no answer is provided, the plaintiff will likely make a motion for default ' and, if the' defendant fails to respond or appear, obtain a'fi,oraer from the Court (Fla.R:Civ.P. L 160). ' ' NOTE: In an.'eviction action, the tenant has only five days to respond to a Complaint For Eviction (F.S. 83:22). '. 12. Pleadings Served Mter the Initial Summons and Complaint: Pleading'{'servedafter the initial

20 summons and complaint are mailed or given to the defendant attorney along with a certificate of service as shown in Fla.R.Civ.P (f). Facsimile service is permitted. In the event the party is not represented by an attorney, the pleading is delivered OR mailed to the party's last known address or if no,address is known, it is given to the Court clerk. Delivery is made by handing a copy to the attdrney or party or leaving a copy with a person'in charge'at" the attorney's office if the attorney or leaving it in a conspicuous place in the attorney's office if no one is in the office, or,if the office is closed leaving it at the person's 'usual' place of abode with someone 15 years of age and informing such person of the contents.,. 13. Time Computation: Fla.R.Civ.P provides for the calculation and possible enlargement of time periods for the civil rules. 'Time,periods run from the day after the act or event. The last day of the period is included in the time 'limit computed unless it is a Saturday, Sunday or legal holiday. Five days are added to periods where service is allowed by mail. t _, B. Service of a Subpoena-Civil Cases (i) Subpoenas may be issued t6,command appearances, of witnesses at depositions and at trial (Fla.R.Civ.p; (a),,1.310, 1.410). A subpoena may also be issued to include the production of documents (subpoena duces tecum) (Fla.R.Civ.P (b». (ii) The subpoe~a shall be issued by the clerk of the Court under the seal of the, Court and shall specify the time and'place (Fla.R.Civ.P Q).. The subpoena shall give "reasonable notice" to appear (Fla.R.Civ.P (b».. I (iii) Service shall be made by "any p~rson authorized by law to serve process or by any other person who is not a party and who is not.less than 18 years of age." (Fla.R.eiv.P (c».,),,. (iv) Service and proof of s~rvice are made in the same manner as for service of a summons and complaint under F.S If service is by a' person other than an authorized law enfor~ement officer, that person shall file an,affidavit as proof of service. A subpoena c,an be mailed in certain instaneet:; as long as it-is mailed seven gays prior to the date of the witness' required appearance. (v) Failure To Respond: A person who fails to respond to a subpoena for a criminal proceeding,or administrative hearing may be cited for contempt of court and have sanctions i:r.pp9sed (Fla.R.Civ.P and 1.410(e». A defendant who fails to respond to a subpoena may have an order-of default entered against him. A plaintiff who fails to respond may have an order of dismissal entered against him. C. Service of Summons-Criminal Cases 1. Issued by the Court:, Chapter 901 and th~ Florida Rules of Criminal Procedure (Fla.R.Crim.P.) provide that a judge is empowered to issue a summons instead of a warrant in 'criminal matters within his jurisdiction. The summons shall state the name of the person, the nature of the offense, and the time and place to appear (F.S ). 2. Authorized To Serve: LG-38 (i) Under F and , sheriffs have the authority to execute all processes of the Supreme Court, circuit court, county court and boards of county commissioners in their county (for instance: a judge may issue a summons to appear in court or a warrant for the arrest of a person for whom a complaint has been filed; after a prosecutor files an information or an indictment for crimes other thana capital dffense or an offense punishable by life imprisonment a judge wil-lissue a capias for arrest or a summons to appear befo're the court). 1 (ii) Under the" authority provided under' Chapter 901 and specifically Fla.R.Crini.P. 3; 125 all law enforcement officers may make an arrest 'and issue a Notice To Appear in court foj; first or second degre'e misdemeanors or violation of a municipal 'or county ordinance. " ' " ~ (iii) Under the authority 'of Chapter 316 or the Rules of Traffic Court, a law enforcement officer may issue a, traffic citation commanding an appearance in court.. 3. Time arid Method of Service:, '. This summons shall be served in the same manner as a civil complaint under F.S '1 and ; Failure To 'Respond: (i) Failure' to'respond to 'a 'summons tnay be ~considered an indirect contempt of court (F.B ). A fine of not more than $100 may be im pas'ed. The judge "shall'!' issue,a warrant. If a person'signs a Notice To Appear and fails to appear, 'a warrant for his arrest shall be issued (Fla.R ~ Crim.P (h». '(ii) Under' F.S , failure to appear before the Court 'as required by a: written notice to appear shall result in a fine not more than 'the principal charge and/or impri'sonment up to the maximum of the principal charge. " (iii) Under the terms ofa pretrial release for most. offenses, willful failure to appear at a subsequent hearing or to breach a bond willresult'in a warrai1't and a forfeiture of bail (Fla.R.Crim.P ). ' 5. Service After Initial Pleadings:.:Service of pleadings and papers after the' initial indictment or information shall be served on the attorney for the party or the party by mailing or delivehng to the-last known address or if the address is unknown to the clerk of the Court (Fla.R:Crim.P ). 6. Computation 'of Time: (i) Fla.R.Crim.P provides for the 'calculation and possible enlargement of time periods 'for the civil niles. Time periods run from the day after the act or event. The last day of the period is included in the time limit computed unless it is a Saturday, Sunday or legal holiday. (ii) If the period of time is less than seven days'; intermediate Saturdays, Sundays and legal holidays are excluded EXCEPT for periods of time less than seven days in the rules for First Appearance (Fla.R.Crim.P ), Pretrial Detention (Fla.R.Orim.P (a)'and (c», and Nonadversary Proceedings (Fla.R.Crim.P (a». Five days are added to periods Where service is allowed by mail (Fla.R.Crim.P ). ' r, LG-39 D. Service of a -Subpoena-Criminal _,, Cases " " ' Compulsory Pro?ess: ~rtlcle 1, ~ection ' f h Florida ConstitutIOn provides the right of the o t e f. AI d to compulsory process 0 WItnesses. so see ~~U;:er 914 and Green v. State, 377 So.2d 193 (1979), e r~ answered, 39'5 SO.2d 532 (1981), appeal after 'r~c a~d, 427 Sb.2d 1036 (1983). '. m 2 Witnesses: In" Chapter' 914, KS :des that subpoenas shall run throughout the provl. h d state, be directed to -,all the sher~ffs of t e ~tate ~n h 11 include the names of all WItnesses summoned. ~en a Notice of App~ara~ce is issu~d by. a ~aw en D rrient officer or a Judge, the notice will m~lude a orscehedule c of Witnesses, and Evidence for Notlce " to Appear (Fla:R.CriI?i.P. ' ~ : 125(l». " 3.. ServIce: " (i) Florida Statutes (Servl~e 'of P~oc~ss) rovides that service of process of subpoenas, crimmal p civil' are made by delivery of process to the person ~r ing ;erved,or at his place of abode with any person o~er the age of fifteen, advising that person of the contents.. - k (ii) Substitute servic~. can be ~ade l~ the wor - lace (with the hope that it IS served m a private place). ~ervice of a criminal witness, sllbpoena upon a ~~w enforcement officer or government empl~yee called to testify in ai! officifil ' capacity clln be delivered to.the home or to the workplace. A subpoena canpe malle~ in certairiihstanc~s as lorig as it is mailed seven d~ys prior t? t~e' date of th~ w~t~ess' required appe,ara~ce. 4. Interstate Extradltlon: Chapter 942 p~ovldes for the interstate' extradition of witnesses n~ede<;l for crirriinal irive~tigations or proceedings. E. Fraud'ulent 'Practices 'Florida Statutes " (Simulated" Process) provides that: "It is unla~ful for any?erson, firm or corporation to send or deliver, or cause to be sent or delivered -any letter paper; document, noti,ce of.intent to bring suit, or other notice or demand, which simulates a summons, complaint, writ, or other court. process, or any letter, paper, or document which simulates the seal of the state or the ~ staiion~ry of any state agency." Violation of this section is a second degree misdemeanor. ( 17. CHARGING DOCUMENTS A. Notice:... '. 1. A defendant is first notified of being charged WIth a criminat'offense by a Summons issued by a Judge or a Notice to Appear issued by'a law~ enfoi'cement officer (most misdemeanors for ~hich a pe;rson ~o~ld ~e :eleased on his' own recognizance);' by,arrest 'rlt~ or Wlt~oUt a warrant and then'service of an affidavit? mformahon or indictment (som~ misdemeanors, all felonies and capital crimes), and for tt affic infractions by i~su~n~e of a traffic citation (a combined summons, notlce to appear and complaint)..,. ;',," 2. "In circuit courts..., prosecutlon shall be solely by indictment or information, except th'at prosecution in county courts for violati6ns of municipal ordinances and metropolitan county ordina.nces may ~e by affidavit or docket entries and prosecutions for misdemeanors, municipal ordinances, and couiity ordinances may b?, by notice to appear and served pursuant to Rule , (Fla.R.Crim.P.3.140(a)(2». I B. Time for Filing.. Charges:; -, ',:.,For defendants in custody, formal charges must be filed within 30 days from the arre~t date or from the date of se'rvice of a capias for arrest. If no charges are filed, on the 30th day shall order:' (1) the automatic release of the defendant on the 33rd day; or ',',.. (2)., with a,showing of good cause by the State, order.release on the,40th day... A defendant shall not r.emain in custody beyo~d 40 days without being formally charged (Fla.R.Crlm.P ). For defendants not held in custody, F.S. 9~2.~3 provides.that the pros'ecutor shall file charges wlthm 30 days. If the prosecutor fails to file, the,cause shall be dismissed. ';'\'.: 'i~, C. Indictment:,,' '.k -' '. " <, 'r 1. An indictment is returned ~y a grand J~ry after the grand jury.convenes to hear evidence B:,gamst.the def~~da~~ : i~dictme~t 'is mandato~yi~ ' ~ll capital crimes and discret1onary.. ~.r any.other crime; A grand jury!llay indict fpr any offense The indictment must be specific as to, tpe allegatioj). The Cotir~ ~ay order the pro.secu~io,~ to f'frnish a 'statement of particulars when t!:e m9-1ftrp,e~t is not sufficient to enable a defendant to prepare a def~nse (Fla.If Crim.p. 3~ t40(p.h. A defect in ~he ~orm olthe indictment shall not be groundsjor ~lsmlssa,l (Fla.R.Civ.P (0». However, case ~aw.ha~ f~end that where the information is so vague, ~ndl~tmct, indefinite and misleading, the Court may dismiss the, action or grant a new trial (Leonetti v. State, 418 So.2d l!192 (Fla. 5th DCA 1982». -,~., 4. The clerk of the Court maintains custody of the document (Fla.R.Crim.P ). '_' '. 5. ' An- arraignment will be held to,formally read the allegations to the defendant and request a p~ea of guilty or not guilty from the defendant (Fla.R.Crlm.P ). ', ". " d 6. Upon indictment, a defendant will beret~rne to custody or a capias or warrant for arrest ~Ill be issued if not being held in custody o~ no~ pr~vlo.usly arrested. If the offense is not triable m,circuit court, the judge will either issue asum~o~s for t~e county court or bail the accused for trial In county court (Fla.R.Crim.P (a)(2»., D. Information: 1. An information is; 'a document. fil~d by the prosecution af~!ming in go~d faith. instl~ut~on ~f the prosecution of the defendant. An mformation IS required for all prosecutions in circuit or county court, except where an indictment is returned (F.S ; Fla.R.Crim.P.3.14Q(a»... ". ' '" 2. As with an indictment, the mformatum shall be a plain, concise, and definite written statement of, :