Florida Criminal Defense and DUI Defense Blog

30Nov, 12

I spent an enjoyable Tuesday afternoon in Court, playing the role of Freedom Fighter as a stood up for the Fourth Amendment, which prohibits the police from conducting unreasonable searches and seizures. In this case, my guy had a pocketful of pot.

As the curtain rises on this drama, several deputies were investigating a reported sexual assault. The woman reporting that crime told them that the perpetrator was in a trailer across the street from the scene of the events in this case. While approaching that trailer, one deputy heard yelling coming from a trailer across the street. The deputy did not hear threats, and he did not hear anything that he considered to be the sound of any physical violence or weaponry.

The deputy saw a guy walk out of the trailer and slam the door behind him. The deputy told him to “come to me,” using an authoritative tone of voice that the deputy testified was more like a command than a request. As the guy, obeying the deputy’s command, walked toward him, he put his hands into his pockets. The deputy ordered him to take his hands out of his pockets, and pointed his flashlight at the pockets. Deputy then saw a baggie of marijuana protruding from one of the guy’s pockets.

The judge found the deputy to be credible in every way, and believed he was doing his duty in a conscientious manner. However, the judge found as a matter of law that this was not a consensual encounter; it was an investigative detention.

For this to be lawful, a law enforcement officer must possess a reasonable articulable suspicion that the person he seeks to detain and investigate has committed, is committing, or is about to commit a crime. In order not to violate a person’s Constitutional rights to be free of unreasonable search and seizure, an investigative detention requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough.

Under the facts as presented in this case, the judge determined that, at the time the deputy commanded the guy to come to him and take his hands from his pockets, the deputy did not have a reasonable articulable suspicion that the guy had committed, was committing, or was about to commit a crime.

In simpler terms, the cop went too far. Since he was able to find and seize the marijuana only because he went too far, the Government could not use the wacky weed as evidence.

Case dismissed. Pot smoker walks free.

And the Fourth Amendment lives another day.

Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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