|Fourth Amendment Search|
What happens when a suspect throws drugs away and the cops find them?
May 17, 2016May 17, 2016 | | 0 Comment | 9:25 pm
Where drug crime defendants / suspects throw drugs under their vehicles while being removed from the vehicle after a valid traffic stop, a court can rule that the suspect has “voluntarily abandoned” the drugs. A Florida Court has just ruled there was reasonable suspicion to justify a pat down where there was a traffic stop, the target appeared nervous, could not answer some of the officer’s questions, had made a sudden U-turn into an oncoming traffic lane, and then parked facing the wrong direction just prior to the stop. The cop testified that the suspect had a pen clenched in his hand and the officer to believed it could be used as a weapon.
“Florida Statutes (2012) (entitled “Stop and Frisk Law”), provides: Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom the officer has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, the officer may search such person. . . ”
The Court ruled the policeman exceeded the scope of the pat down by searching the suspects sock, the drugs the guy tossed would have been “inevitably discovered” in the search incident to arrest based on the discovery of the drugs that he had abandoned under the vehicle. Defendant loses on the search but won because a problem with selection of jurors.
“Inevitable discovery is a recognized exception to the exclusionary rule and requires the State to establish that “the evidence would have inevitably been discovered in the course of a legitimate investigation.”
“Officer Rosa Olivo was on patrol during the evening of February 3, 2012 when she saw a car with a faded and illegible temporary tag, as well as a tinted film covering the brake lights, making it impossible to determine if the vehicle’s lights were on. Before Officer Olivo could initiate a stop of the car, the driver suddenly turned into the opposite lane of traffic without signaling and parked in the
grassy swale. Officer Olivo activated her lights and siren, exited her car, and began walking toward the car. Cole was the driver and only occupant of the car. As Officer Olivo headed toward Cole’s car, Cole began to exit his car. Officer Olivo told Cole to remain inside. Cole handed Olivo his license and registration, and Officer Olivo described Cole as very nervous, sweating and stuttering. In response to her questions, Cole told Officer Olivo he was going to meet a “good friend” who lived nearby, but when asked, Cole could not provide the friend’s name. Given Cole’s behavior, Officer Olivo requested backup.”
“Officer Lisa Lobello arrived as backup within a few minutes of Officer Olivo’s request. Upon Lobello’s arrival, Officer Olivo returned to her police vehicle to conduct further investigation related to the traffic stop. Officer Lobello engaged in small talk with Cole, who was still seated in his car. Officer Lobello described Cole as looking past her as they spoke, as if he was “visually trying to clear an area.” Cole informed Officer Lobello that he was on parole. Cole was
sweating, bouncing his legs up and down, and looked afraid. Both of his hands were clenched in fists, and he was tightly gripping an ink pen in his right hand. This caused concern for Officer Lobello, who believed that the pen was being held in such a way that it could be used as a weapon. Officer Lobello asked Cole to step out of his car so she could conduct a patdown search. She grabbed his wrist before he stepped out of the car and shook the pen out of his hand, then helped Cole out of the car. While taking him out of the car, Lobello twisted Cole’s arm and turned him around so he was facing away from her and toward his own car. As she turned him around, Officer Lobello saw Cole flick his wrist. Lobello saw dust rising from the dirt ground and believed Cole had thrown something under the car.”
“Florida’s stop and frisk law requires “not probable cause but rather a reasonable belief on the part of the officer that a person 5 temporarily detained is armed with a dangerous weapon.” State v. Webb, 398 So. 2d 820, 824 (Fla. 1981); see also J.L. v. State, 727 So. 2d 204 (Fla. 1998). Section 901.151(5), Florida Statutes (2012) (entitled “Stop and Frisk Law”), provides: Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom the officer has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, the officer may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized. The use of the term “probable cause” in the context of a stop and frisk, has been construed to mean “articulable suspicion,” “reasonable belief,” or “founded suspicion.” Webb, 398 So. 2d at 826; Smith v. State, 719 So. 2d 1018, 1022 n. 1 (Fla. 3d DCA 1998). And as the Florida Supreme Court has held, “[a] ‘founded suspicion’ is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in light of the officer’s knowledge.” Hunter v. State, 660 So. 2d 244, 249 (Fla. 1995). In State v. Cruse, 121 So. 3d 91 (Fla. 3d DCA 2013), this court set forth the factors that may be considered by officers to arrive at a reasonable suspicion that a crime is being or is about to be committed and to support the investigatory stop or detention of a suspect: 6 The time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge. To this list may be added the factor of flight. Cruse, 121 So. 3d at 97-98 (quoting Hernandez v. State, 784 So. 2d 1124, 1126 (Fla. 3d DCA 1999)).”
“Inevitable discovery is a recognized exception to the exclusionary rule and requires the State to establish that “the evidence would have inevitably been discovered in the course of a legitimate investigation.” Moody v. State, 842 So. 2d 754, 759 (Fla.2003). See also Nix v. Williams, 467 U.S.431, 444 (1984) (recognizing and adopting the inevitable discovery exception to the exclusionary rule, and holding that the exclusionary rule should not apply if “the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means”). In other words, given the evidence presented, “the case must be in such a posture that the facts already in the possession of the police would have led to this evidence notwithstanding the police misconduct.” Moody, 842 So. 2d at 759.”
Source: Cole v. State, 41 Fla. L. Weekly D970a (Fla. 3rd DCA 2016)
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