Author: caseyreiteresq

Criminal Defense, Legal Blog, Marijuana

Consent to Search – Grow Houses

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In Miami, there was recently an interesting case regarding a marijuana hydroponics grow operation. In the case, the defendant was arrested after police searched his home and discovered a hydroponic marijuana farming business in his garage. Detectives had received an anonymous tip that marijuana was being grown in the defendant’s home. Seven (7) police officers showed up at the defendant’s home early in the morning to search for the grow house. The seven officers were comprised of four detectives, one sergeant, and two uniformed officers, all with marked police cars. They arrived at the defendant’s house to perform what is referred to as a “knock and talk,” which is basically a police tactic used by officers who do not yet have enough evidence to place someone under arrest, and is usually used in drug cases. During a “knock and talk,” the police knock on a suspect’s door and hope that the suspect will answer, start talking, and give the police enough incriminating information to arrest him. During the “knock and talk” in this case, the defendant answered the door, allowed the officers to come into the house, and cooperated with whatever the officers asked of him. The officers testified that they smelled the odor of marijuana as soon as the door was opened. The officers read the defendant Miranda warnings, the defendant signed a consent to search, and the officers then walked around the defendant’s home and ultimately discovered the marijuana grow house in the defendant’s garage. They placed him under arrest for having a hydroponic operation/grow house under Florida Statute 893.135.

After reviewing the basic facts of that case, one might come to believe that the defendant was merely acquiescing to authority. There were seven police officers, presumably all with their full gear and weapons visible, all with marked police cars, knocking on the defendant’s door at the same time asking to search his house. Some might think that is a coercive situation, and that any consent to search must have been involuntary. Many people believe that when a police officer asks them to do something, they have to do it. Imagine if there were seven officers standing there, waiting for the person to agree!  The defendant filed a Motion to Suppress in his case, arguing just that. However, the Third District Court of Appeal in Miami, Florida found that the search of the defendant’s home was lawful and consensual, and ruled that the defendant was not coerced into agreeing to the search.

The court stated that when the police read to the defendant his Miranda warnings, they advised the defendant that he had the right to remain silent, the right to an attorney, and the right to end the encounter with the police at any time. The defendant never ended the encounter or asked for a lawyer. Instead, he cooperated. Further, the court stated that the fact that seven police officers were on scene was not enough to find that the defendant was overpowered and felt compelled to do as he was asked. The court found that it is reasonable for seven officers to investigate a narcotics tip, and because they never made any shows of authority (such as taking out their guns, or handcuffing the defendant), there was no issue.

This case provides an extremely important lesson regarding police encounters. Police officers who are conducting “knock and talks” do so because they do not have enough evidence to arrest. When people open their doors to police officers during knock and talks, they risk giving the officers enough evidence to obtain a warrant without even doing anything further. The odor of marijuana emanating from someone’s doorway is enough for police to go to a judge and get a warrant to come back and search the house. Even if there is no noticeable odor of marijuana, if people consent to the police entering their home and searching, police will do exactly that and continue to search until they find something to arrest.

People do not have to allow officers into their homes. People do not have to consent to searches. Although being confronted by a police officer may be intimidating, people should not simply acquiesce to the officer’s authority and do whatever he says. It is important for everyone to know and understand their rights.

When an officer reads Miranda warnings, he will say the following:

  • You have the right to remain silent when questioned.
  • Anything you say or do can and will be used against you in a court of law.
  • You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
  • If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.
  • If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.
  • Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?

A person who is being read those rights should pay attention and invoke them or risk giving the police enough evidence to place them under arrest, or more evidence to strengthen the State Attorney’s case.

Drug charges can have extremely serious consequences, and they are heavily prosecuted in Palm Beach County and throughout Florida. Anyone facing drug charges should contact a knowledgeable attorney to review the case and determine a defense strategy.

 

Casey Reiter is an associate attorney at Stuart R. Manoff & Associates, P.A. in West Palm Beach, Florida, practicing in the areas of Criminal Defense and Marital Law.

Criminal Defense, Legal Blog, Search and Seizure

Cell Phone Searches

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The Florida 3rd District Court of Appeal in Miami recently ruled that warrantless searches of cell phones are illegal, even when they are incident to a lawful arrest.

Generally, when a person is lawfully placed under arrest, police are legally allowed to search the person without a warrant in order to locate and remove any weapons and to seize any evidence on the person’s body or within their immediate control to prevent concealment or destruction of the evidence. This is commonly referred to as a “search incident to arrest.”

In the case of Saint-Hilaire v. State of Florida,  the defendant was stopped by a police officer for a routine traffic infraction. During their interaction, the officer noticed that the defendant’s wallet contained multiple nearly identical debit cards. The defendant allegedly consented to a search of his wallet. The officer discovered that the coding on one of the cards did not match the name on the front, and then placed the defendant under arrest. At that point, the officer patted down the defendant, found his cell phone, and searched it. The search of the cell phone allegedly revealed a list of multiple names and security numbers. The defendant was ultimately charged with several counts of possession of personal identification information with intent to defraud. Possession of personal identification with intent to defraud (found in Florida Statute 817.568) is a third degree felony in the State of Florida, punishable by up to five (5) years in Florida State Prison for each count, in addition to fines.

The defendant filed a Motion to Suppress, arguing that the evidence found on his cell phone should be thrown out because it was obtained as a result of an unlawful, warrantless search by the police officer. The trial court denied the defendant’s motion, and he appealed the case.

The appellate court agreed with the defendant and found that the trial court should have thrown out the evidence. The appellate court stated that the search of a cell phone goes beyond the bounds of a legal search incident to a lawful arrest when there is no evidence that the officer had a reasonable belief that the cell phone contained evidence of a crime. The officer was legally allowed to seize (or take) the phone, but he was not allowed to search it.  If the officer wanted to search the phone, the lawful method should have been for him to obtain a warrant.

It is important to note that the State Attorney’s office in that case could still go forward with charges by using the evidence from the defendant’s wallet. If the defendant consented to the search of his wallet, any evidence found in his wallet was lawfully obtained.

Consenting to a search is never a good idea. The only reason police officers ask to search someone is because they want to obtain more evidence against that person to place them under arrest. If the police had enough evidence to arrest the person, they would arrest them. Unfortunately, many people do not know their rights. When stopped by police officers, many people feel intimidated and simply agree to whatever the officer asks, hoping that doing so will make the encounter easier. However, agreeing to searches and answering questions only makes the encounter easier for the police – it gives them more evidence to arrest without even having to apply for a warrant.

Anyone who has questions about their rights regarding searches, consent, and police investigations in Palm Beach County should contact a Florida Criminal Defense Lawyer.

 

Casey Reiter is an associate attorney at Stuart R. Manoff & Associates, P.A. in West Palm Beach, Florida, practicing in the areas of Criminal Defense and Marital Law.

Battery, Burglary, Criminal Defense, Legal Blog

Burglary and Battery

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In another interesting Palm Beach Criminal case, a man was recently criminally charged at the end of  a date at a woman’s house that took a turn for the worst. When the woman asked the man to leave her home, instead of leaving, he allegedly hit the woman in the face and then kicked her door, causing damage to the door and frame. The man is now allegedly facing charges of burglary with assault, battery, and criminal mischief.

At first glance, the burglary charge in that case might not make any sense; after all, there is nothing in the story to suggest that the man was stealing anything in the woman’s home – he was there by invitation. However, under Florida law, a person does not have to break into a home and steal something to be charged with committing a burglary. Instead, a person can be charged in Florida with burglary simply by remaining in a home after permission to remain in the home has been withdrawn and by having the intent to or by actually committing a crime therein.

Worse, burglary in Florida is a first degree felony if the burglary also includes an assault or battery, a weapon, or damage in excess of $1,000.00. A person convicted of first degree felony burglary charges in Florida could be facing life in Florida State Prison. If there was no assault, battery, weapon, or damage as described above, burglary could be charged as second degree felony punishable by up to fifteen (15) years in Florida State Prison.

There are many lesser included offenses of burglary charges, such as trespass and criminal mischief. These lesser included offenses, depending on the particular case, could be misdemeanors punishable by up to one year in county jail, or third degree felonies punishable by up to five (5) years in Florida State Prison. If the State Attorney’s office cannot prove the crime of burglary, but they are able to prove the elements of the lesser included crimes, a person could be convicted of the lesser included offense. Sometimes, a defense attorney may be able to negotiate with the prosecutor to reduce the charge from burglary to a lesser included offense, depending on the facts of the case. It is easy to see that there is a big difference between being charged with Burglary/Battery and risking a felony conviction versus a simple misdemeanor trespass.

Anyone facing charges of burglary, battery, trespass, or criminal mischief in the State of Florida should meet with a Florida criminal defense attorney to discuss the case, understand their rights and the potential ramifications of a guilty plea or a conviction, and determine the best defense strategy going forward.

 

Casey Reiter is an associate attorney at Stuart R. Manoff & Associates, P.A. in West Palm Beach, Florida, practicing in the areas of Criminal Defense and Marital Law.

Battery, Criminal Defense, Legal Blog

Aggravated Battery

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In the State of Florida, aggravated battery with a deadly weapon is a second degree felony punishable by up to fifteen (15) years in Florida State Prison and a fine of $10,000.00 if convicted. Aggravated battery is codified by Florida Statute 784.045 and is defined as committing a battery (which is touching another person against his or her will) and either (1) purposefully causing great bodily harm, permanent disability, or permanent disfigurement to the victim, (2) using a deadly weapon, or (3) knowingly committing battery on a pregnant person.

Recently in Palm Beach County, a criminal case made the news when a defendant was charged with aggravated battery with a deadly weapon after allegedly hitting her spouse with a glass candle holder. A “deadly weapon” does not have to be a firearm or even a car. Instead, a deadly weapon can be virtually any object that can be threatened to be used to cause death or great bodily harm to another person. Interestingly, if that defendant had used her fists instead of the candle holder, she likely would have only faced charges for simple battery, which is punishable only by up to one year in county jail and fine of $1,000.00.

There may be applicable defenses in an aggravated battery case, including but not limited to self-defense. A Florida criminal defense attorney will be able to review a battery case and the facts surrounding the incident, determine whether there are any applicable defenses, and talk with the State Attorney’s office to attempt to negotiate a favorable plea bargain or a reduction of charges. A felony conviction in Florida is serious and will have severe consequences. Anyone facing battery charges in the State of Florida, including aggravated battery, should discuss their options with a Florida criminal defense attorney.

 

Casey Reiter is an associate attorney at Stuart R. Manoff & Associates, P.A. in West Palm Beach, Florida, practicing in the areas of Criminal Defense and Marital Law.

Criminal Defense, Legal Blog

Talking to Police Officers

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Growing up, children are taught that police officers are their friends. If a child needs assistance, he or she should feel comfortable asking a police officer for help. In cases involving young children, this suggestion is typically good advice. However, as children become young adults, the nature of police interaction becomes more dangerous. Unless reporting a crime committed against them, adults will typically learn that talking with the police will not be beneficial, and lawyers usually recommend against it. This is not to say that all police officers are inherently bad; there are certainly good police officers who are conscious that it is their job to serve and protect. However, when a person is being investigated for a crime, talking to a police officer will almost never help.

Whenever the police show up at someone’s home, it is not to deliver good news. Police officers rarely, if ever, go to someone’s home just to say hello and see how their day is going. Usually, if the police appear at someone’s house or call on the phone, it is because they suspect that person has committed a crime. Even when an officer walks up to a person on the street, it is usually not to have a pleasant conversation. Instead, the police are trying to have what is called a “consensual encounter” to try to get more information and, they hope, give them probable cause to make an arrest. At this point, a person does not have to talk to the police; it is within the person’s rights to politely decline the encounter and walk away.

However, if the police have moved beyond a consensual encounter and are now detaining that person, it is because the officers believe that have enough evidence to make an arrest. At this point, no communication with the officers will help; instead, it will only create more evidence against the detainee. It is very rare that a detained person will be able to talk his way out of an arrest. At the point of detention, officers are typically convinced that person has committed a crime and they will not believe a denial. Even the most eloquent and clever conversationalist can fall into this trap and inadvertently give police officers more “ammo” for whatever charges they plan on arresting the suspect for. As is often seen on TV, Miranda warnings include for a reason that “anything you say can and will be used against you.”

In the United States, people are supposed to be presumed innocent until proven guilty. Every case is different, but in the criminal justice world, the same rules should equally apply to the innocent and guilty. If you are being investigated for a crime,  you should contact a Florida criminal defense attorney regarding your specific case.  The hiring of a lawyer is an important decision that should not be based solely upon advertisements.

 

Casey Reiter is an associate attorney at Stuart R. Manoff & Associates, P.A. in West Palm Beach, Florida, practicing in the areas of Criminal Defense and Marital Law.