January, 2014
Pinging Cell Phone
In this issue:
Drug Testing
K-9 Search
Altered
Firearm
Altered
License Tag
Legal Eagle
Published by:
Office of the State Attorney
West Palm Beach, FL
33401
B. Krischer, Editor
Carolyn Fey and friend were walking
in San Francisco when a black male
approached them, brandished a handgun, and demanded their belongings.
Fey ran across the street and threw
her turquoise Prada handbag under a
parked car. The gunman retrieved the
purse and fled on foot. Fey described
the gunman as: wearing blue jeans, a
white T-shirt underneath a black
hooded sweatshirt, and white shoes.
Fey told police that her wallet and a
“Palm Pre smart phone” were in her
handbag.
Fey advised the officers that her
cell phone “had GPS on it.” Officer
Zeltser “contacted Sprint PCS and
spoke to their corporate security people, who stated that if Fey would
sign a release form, they would be
able to ping the cell phone.” “The
way they explained it to me was that
they would send a signal to the
phone ... they described it as ‘pinging
it,’ that they could then basically find
a general location within 15 yards or
15 meters of where the phone was.”
Sprint faxed the release form to the
police station, Fey completed it, and
it was then faxed back to Sprint.
Zeltser testified that “I asked them to
ping the cell phone; they advised me
that it was stationary at 16th and
Mission Street.” This occurred approximately 45 minutes after the
robbery. Shortly thereafter the vehicle Barnes was riding in was stopped
by the police, he was removed from
the car and was found to have a
handgun in his waistband. The victim identified him, her purse that was
also found in the vehicle, and her cell
phone.
The defendant filed a motion to
suppress all the evidence claiming
that the GPS technology violated his
reasonable expectation of privacy.
The prosecutor argued in return,
“Here, the defendant, at gunpoint,
stole a cell phone from Ms. Fey. He
has no expectation of privacy in the
location of that stolen cell phone. So
the motion to suppress should be
denied.” The trial court agreed: “I
think Ms. Fey had every right to utilize her phone company to find her
phone, and I think that’s what happened here. I don’t believe that the
defendant has a privacy interest in
that regard. I don’t think that there
was a particular action on the part of
the police ... to intrude on the defendant’s privacy. They were in pursuit of a phone that they have consent from the owner of the phone to
pursue; so they went to the area
Officers
should consult with their agency advisors to confirm
the interpretation provided in this publication
and to2014
what
1
Legal Eagle
January
extent it will affect their actions. Past issues of the Legal Eagle are available at www.SA15.org under “Resources.”
where this phone was located. I don’t
feel that there was an unreasonable
intrusion with the stop of the defendant. Motion to suppress is denied.”
Issue:
Was the Fourth Amendment violated
when police used the Global Positioning System (GPS) to locate the
stolen cell phone and detain the
thief? No.
Fourth Amendment
Protections:
“The Fourth Amendment prohibits
‘unreasonable searches and seizures’
by the Government, and its protections extend to brief investigatory
stops of persons or vehicles that fall
short of traditional arrest. Because
the ‘balance between the public interest and the individual’s right to
personal security’ tilts in favor of a
standard less than probable cause in
such cases, the Fourth Amendment is
satisfied if the officer’s action is supported by reasonable suspicion to
believe that criminal activity may be
afoot.” In making determinations of
reasonable suspicion to justify a detention, reviewing courts “must look
at the ‘totality of the circumstances’
of each case to see whether the detaining officer has a ‘particularized
and objective basis’ for suspecting
wrongdoing. This process allows
officers to draw on their own experience and specialized training to make
inferences from, and deductions
about, the cumulative information
available to them that ‘might elude
an untrained person.’ The likelihood
of criminal activity need not rise to
the level required for probable cause,
and it falls considerably short of
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satisfying a preponderance of the
evidence standard.”
United States v. Jones:
Antoine Jones, a suspected narcotics
trafficker, drove his Jeep for 28 days
without realizing police had, without
benefit of a warrant, attached a GPS
device to track the vehicle’s movements. The District of Columbia Circuit Court of Appeals concluded that
evidence obtained from the GPS
device violated the Fourth Amendment, requiring reversal of Jones’
conviction. All nine members of the
United States Supreme Court agreed
with this result. “It is important to be
clear about what occurred in this
case: The Government physically
occupied private property for the
purpose of obtaining information.
We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning
of the Fourth Amendment when it
was adopted.” U.S. v. Jones,
(S.Ct.2012).
The Supreme Court noted that
there was little legislative guidance
regulating the use of GPS tracking
technology for law enforcement purposes. “The best that we can do in
this case is to apply existing Fourth
Amendment doctrine and to ask
whether the use of GPS tracking in a
particular case involved a degree of
intrusion that a reasonable person
would not have anticipated.”
Court’s Ruling:
The Court of Appeals in the instant
case noted that there was no physical
trespass or intrusion, under the facts
that even Barnes agreed with. “The
question then becomes how defend-
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ant fares under the ‘reasonableexpectation-of-privacy test.’ Put
more precisely, did defendant have a
legitimate expectation of privacy in
the cell phone he had stolen? The
answer is an emphatic ‘No.’ As stated most baldly by the Ninth Circuit:
‘The Fourth Amendment does not
protect a defendant from a warrantless search of property that he stole,
because regardless of whether he
expects to maintain privacy in the
contents of stolen property, such an
expectation of privacy is not one that
society is prepared to accept as reasonable.’ The principle enjoys wide
acceptance.”
“Moreover, Fey, the actual owner
of the cell phone-and the only person
who could have a legitimate expectation of privacy-had consented to its
use by Sprint and the police in apprehending the person who was illegally
in possession of the phone. Federal
courts have weighed such consent
against a criminal defendant’s claim
of privacy. (See, United States v.
Bruneau (8th Cir.1979) (consent by
owner of airplane to attach electronic
tracking device upheld).”
“Accordingly, we conclude that
the use of GPS technology in ascertaining the location of the stolen cell
phone, and thus assisting in the locating of defendant was no violation of
the Fourth Amendment.”
stolen.”
Peoplev.Barnes
CourtofAppeals,FirstDist.,Cal.
(June11,2013)
January 2014
OFFICE OF GENERAL COUNSEL
FLORIDA CASE LAW UPDATE 13-08
Case:
Greenwade v. State, 2013 WL 5641794 (Fla. 2013)
Date:
October 17, 2013
Subject:
Testing individual baggies for drugs in trafficking cases
FACTS:
Officers executed a search warrant at a Jacksonville home. The officers found and detained Mr. Greenwade while
executing the warrant. After he was detained, Greenwade told the officers, “I know why you’re here…. What you are looking for is
in the garage.” He then led the detectives to the garage, and showed them a digital scale sitting next to a green bag; white residue
could be seen on top of the bag. Greenwade admitted that he owned the bag, and he admitted that the bag contained cocaine. When
the detectives searched the bag, they found nine smaller one-ounce baggies inside the larger green bag. Each of the smaller baggies
contained a white powder. All nine baggies were individually field tested; however, the records do not reveal the results of this test.
The baggies were then submitted to FDLE for testing. However, the FDLE chemist did not receive nine individual bags; instead, she
received one Ziploc bag that comingled or contained the entire contents of each of the individual bags. It is unclear from the record
how or when the individual bags were comingled. Ultimately, FDLE detected the presence of cocaine in the Ziploc bag, and calculated the total weight all contents as 234.5 grams.
The defendant was charged with Trafficking in Cocaine in an amount exceeding 200 grams. Greenwade was later convicted at trial
and sentenced to fifteen years in prison. On appeal, Greenwade argued that he was entitled to a judgment of acquittal because the
State never tested each individual bag for cocaine before comingling the contents and weighing them. The First District Court of
Appeals affirmed his conviction. However, the Florida Supreme Court reversed the conviction for Trafficking and ordered that the
defendant be convicted of and sentenced on the lesser charge of Possession of Cocaine.
RULING:
If a defendant is charged with Trafficking based on multiple containers of a white, powdery
substance, the State is required to prove that each individual packet contains a controlled substance.
DISCUSSION: This opinion resolves a conflict among Florida’s intermediate appellate courts. In this case, the First District Court
of Appeal had upheld Greenwade’s conviction. The First District emphasized that Greenwade admitted to owning the green bag that
was found in the garage, and he admitted that the bag contained cocaine. Thus, the First District concluded that the defendant had
implicitly admitted that all of the individual, smaller baggies contained cocaine.
However, the Florida Supreme Court rejected this reasoning. The Court was worried that if the State is allowed to comingle individual baggies without testing each bag, there is a significant risk that one or more of the smaller containers may contain a noncontrolled substance or a counterfeit controlled substance. According to the Court, that risk is especially great when the suspected
substance is white powder: the white powder could be anything, including many non-controlled substances. Therefore, when law
enforcement seizes multiple containers of white powder, each container must be tested to ensure the presence of a controlled substance. In reaching this conclusion, the Court emphasized that this rule applies only to white powder or other substances that carry a
substantial risk of misidentification. Earlier cases held that marijuana and even rock cocaine do not carry a substantial risk of misidentification and do not need to be tested individually. The Court’s opinion leaves those cases intact.
David H. Margolis
Regional Legal Advisor
Florida Department of Law Enforcement
Orlando Regional Operations Center
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January 2014
Recent Case Law
Canine Search Warrant
and approximately 19.1 grams of
cocaine. When Grue came to the
Deputy David Alvarado of the Orbusiness center at the Buena Vista
ange County Sheriff’s Office was
Palace Hotel to pick up his package,
working at the FedEx sort line with
Officer Alvarado, acting undercover,
his assigned K-9, ‘Dixie.’ For reahanded the package to him. Grue was
sons that are unclear from the record,
detained and subsequently charged.
Officer Alvarado pulled a package
Grue filed a motion to suppress
addressed to Joseph Grue at the
alleging the search warrant was defiBuena Vista Palace Hotel from the
cient because the K-9 was not
line and placed it with other similar
properly qualified to provide probapackages. Dixie alerted Officer Alble cause for the search. The trial
varado of the presence of narcotics in
court granted the motion based on
the package addressed to Grue.
the Florida Supreme Court’s ruling
Based upon Dixie’s alert, Officer
in Harris v. State (Fla.2011). The
Alvarado applied for a search warState took this appeal. In the interim
rant. The affidavit in support of the
the U.S. Supreme Court overturned
application for the warrant was a prethe Florida Supreme Court’s ruling
printed form with a minimal amount
in Harris.
of case-specific information. The
Issue:
affidavit noted Officer Alvarado’s
What elements must the State estabcredentials, training, and experience
lish to verify a police drug dog is
handling narcotics detection dogs,
qualified to establish probable cause
including Dixie. The affidavit also
for a search with or without a
set forth information regarding Dixwarrant?
ie’s training, including that she parCanine Search:
ticipated in a narcotics scent discrimIn Harris, the Florida Supreme Court
ination course. It attested to the fact
held that, to establish that a dog is
that Dixie was “certified” and had
sufficiently reliable such that its alert
located “thousands of pounds of narcan provide probable cause, the State
cotics” in the past. The affidavit remust present the following evidence:
lated what occurred at the FedEx
(1) “the dog’s training and certificaoffice leading up to and including
tion records;” (2) “an explanation of
Dixie’s alert on the package adthe meaning of the particular
dressed to Grue.
training and certification;” (3) “field
Based on the information conperformance records (including any
tained in the affidavit, a search warunverified alerts);” and (4) “evidence
rant was issued. Officer Alvarado
concerning the experience and trainopened the package and found it coning of the officer handling the dog,
tained 6.2 grams of oxycodone pills
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as well as any other objective evidence known to the officer about the
dog’s reliability.”
The U.S. Supreme Court overruled
the Florida Supreme Court’s requirement that the State present particular
evidence in order to establish a dog’s
reliability. See, Florida v. Harris,
(S.Ct.2013). The Court noted that
this “evidentiary checklist” was the
antithesis of the ‘totality of the circumstances’ approach. It specifically
took issue with the Florida Supreme
Court’s requirement that the State
present field performance records,
noting why field performance records are actually less reliable than
records of a dog’s performance in
standard training and certification
settings. For this reason, the Court
held that “evidence of a dog’s satisfactory performance in a certification
or training program can itself provide
sufficient reason to trust his alert.”
Even without formal certification,
the Court noted, a dog’s alert can
provide probable cause if the dog
“recently and successfully completed
a training program that evaluated his
proficiency in locating drugs.” The
Supreme Court then concluded that
the State had established probable
cause for a warrantless search.
Court’s Ruling:
Relying on the Supreme Court’s pronouncement overturning the ruling in
Harris v. State, the 5th D.C.A. sustained the search warrant - thereby
reversing the trial court’s ruling.
January 2014
“Generally, an alert by a properly
trained narcotics detection dog provides probable cause. The alert, however, must be sufficiently reliable.
Whether the alert is reliable enough
to establish probable cause is determined based on the totality of the
circumstances…”
“However, the test for probable
cause does not require the proof that
the beyond a reasonable doubt standard or even the preponderance of the
evidence standard requires. Rather,
the question we must answer ‘is
whether all the facts surrounding
[the] dog’s alert, viewed through the
lens of common sense, would make a
reasonably prudent person think that
a search would reveal contraband or
evidence of a crime.’ Here, the affidavit passes this test. It represented
that Dixie and Officer Alvarado had
gone through extensive training and
that Dixie had discovered thousands
of pounds of narcotics in the past. It
then alleged that she had given a
positive alert to the presence of narcotics in the package addressed to
Grue. Based on these facts, a magistrate making a ‘practical common
sense decision’ could reasonably
have found that there was a ‘fair
probability’ evidence of a crime
would be discovered in the package.”
“Accordingly, we reverse the order granting the motion to suppress.”
affidavit in support of the search
warrant.
“The form affidavit utilized by
Officer Alvarado was not a model of
clarity nor did it provide a wealth of
information. It did not contain any
factual information bearing on the
time, place, or qualifications of any
of the facilities where Officer Alvarado or Dixie trained or the training programs in which they participated. It contained a rote statement
that Dixie was trained and certified,
but did not describe or explain the
training process. Although Harris
allows for evidence of a dog’s certification or training to presumptively
establish probable cause, we believe
that it is preferable to provide additional information as to the identity
of the organization that certified the
K-9, the dates of that certification,
and additional subsequent training.”
These deficiencies noted by the
D.C.A. provide an outline of the factual basis needed for a valid warrant.
Statev.Grue
5thD.C.A.(Dec.6,2013)
Ed. Note: See Legal Eagle,
Eagle March,
2013, “Dog Sniff as Probable Cause.”
PossessionofaFirearm
withanAlteredSerialNo.
Two Sheriff’s deputies smelled the
odor of burning marijuana emanating
from a parked car. They removed the
Lessons Learned:
four occupants from the vehicle and
The 5th D.C.A. made the point that
searched it. K.D.T. had been sitting
the trial court relied on the law availin the front passenger-side seat, in
able at the time. That ruling was subclose proximity to an unlocked glove
sequently overturned by the U.S.
compartment in which the deputies
Supreme Court. That issue aside, the
found a handgun. K.D.T. made sponD.C.A. commented on the deputy’s
taneous statements incriminating
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himself as the possessor of the gun.
The firearm was found to be missing
the serial number plate. He was
therefore charged with the additional
crime of possession of a firearm with
the serial number removed,
F.S.790.27(2)(a).
At trial the defendant argued that
the State did not present any evidence that he was aware that the firearm’s serial number had been altered
or removed. The trial court disagreed
with that analysis of the law. It analogized this possession charge to one
of marijuana possession and determined that the State needed only
prove that K.D.T. knew he possessed
the gun, not that he knew the serial
number had been altered or removed.
The D.C.A. disagreed.
Issue:
Is the unlawful possession of a firearm sufficient to prove the related
charge of a possession of a firearm
with the serial number removed? No.
Constructive Possession:
As has been oft stated in these Legal
Eagles, mere proximity to contraband is insufficient to prove
knowledge and control to sustain
criminal charges. In this instance the
juvenile defendant was seated in a
vehicle with others and in close
proximity to the glove compartment
containing the firearm. Those facts
standing alone would have been insufficient for the State to prove the
gun charge. However, here K.D.T.
made incriminating statements as to
his ownership. An admission, his
fingerprints, DNA, or the presence of
other of his possessions in the glove
compartment, would have allowed
January 2014
the State to prove the constructive
possession of the firearm.
But the State’s evidence concerning the gun’s missing serial number
was not sufficient to prove the elements of that crime. Section 790.27
(2)(a) makes it unlawful for “any
person to knowingly sell, deliver, or
possess any firearm on which the
manufacturer’s or importer’s serial
number has been unlawfully altered
or removed.” On the type of gun at
issue here, the serial number is not
engraved directly on the weapon.
Rather, it is etched on a separate
plate that is attached to the weapon.
According to the trial evidence, the
plate was missing from the particular
gun that K.D.T. possessed.
Court’s Ruling:
As stated above the trial court ruled
that there was no separate knowledge
requirement for the State to prove.
Rather, the crime was completed
when K.D.T. possessed the firearm
without the serial number. The
D.C.A. disagreed. “We disagree. . . .
The drug possession offenses are not
analogous to this crime. Our legislature amended the drug possession
statutes to provide that knowledge of
the illicit nature of the controlled
substance is not an element of the
possession crime, but is an affirmative defense to that crime. In contrast, section 790.27(2) requires
knowing possession and the standard
jury instruction recites that the defendant must know the serial number
has been altered or removed. The
more apt analogy is to the crime of
possessing a vehicle ‘with
knowledge’ that the motor vehicle
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identification number ‘has been destroyed, removed, covered, altered,
or defaced,’ s 319.33(1)(d), F.S. The
Fourth District has held that possession of a vehicle, without more, did
not prove the guilty knowledge necessary to support a conviction. Jackson v. State, (4DCA 1999). Jackson
suggested that an additional fact,
such as the defendant’s fingerprints
appearing in the area of the altered
VIN, might have been sufficient to
show the requisite knowledge that
the number had been tampered”
“Finally, there is the . . . statutory
directive that when the language of
any provision in the criminal code is
susceptible of differing constructions, ‘it shall be construed most
favorably to the accused.’ 775.021
(1), F.S. The circuit court’s interpretation of section 790.27(2)(a) in this
case was inconsistent with that statutory rule of construction.”
“Here, the State did not present
any evidence other than that the serial number plate was missing. Without additional evidence such as an
admission, or that it was obvious to
an observer that the plate had been
removed, K.D.T.’s mere possession
of the weapon was insufficient to
prove the knowledge element of the
section 790.27(2) crime. We reverse
the court’s finding that K.D.T. committed this crime.”
Lessons Learned:
Had the Florida Legislature wanted
to make the possession of a firearm
without a serial number a strict liability crime the language of the statute would be devoid of the word
“knowingly.” In that F.S. 790.27
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(2)(a) contains that limiting word the
State will require proof that the defendant knew or should have known
the firearm had a missing or altered
serial number. Additionally, the
standard jury instruction for the
crime requires a finding that the defendant “knew the serial number had
been altered or removed.”
Florida Jury Instruction 10.18 provides, “To prove the crime of Sale or
Possession of Firearm with Altered
or Removed Serial Number, the State
must prove the following elements
beyond a reasonable doubt:
1. Defendant knowingly [altered]
[removed] the [manufacturer’s]
[importer’s] serial number from a
firearm.
2. Defendant did so with the intent
to disguise the true identity of the
firearm.
To “possess” means to have personal charge of or exercise the right
of ownership, management, or control over the thing possessed.
Possession may be actual or constructive. Actual possession means:
a.
the firearm is in the hand of
or on the person,
b.
the firearm is in a container
in the hand of or on the person, or
c.
the firearm is so close as to
be within ready reach and is under
the control of the person.
Mere proximity to a firearm is not
sufficient to establish control over
that firearm when it is not in a place
over which the person has control.
Constructive possession means the
firearm is in a place over which defendant has control, or in which defendant has concealed it.
January 2014
If the firearm is in a place over
which defendant does not have control, the State establishes constructive possession if it proves that defendant (1) has knowledge that the
firearm was within [his] [her] presence, and (2) has control over the
firearm.
Possession may be joint, that is,
two or more persons may jointly
possess an article, exercising control
over it. In that case, each of those
persons is considered to be in possession of that article.
If a person has exclusive possession of the firearm, knowledge of its
presence may be inferred or assumed.
If a person does not have exclusive possession of the firearm,
knowledge of its presence may not
be inferred or assumed.
K.D.T.v.State
2ndD.C.A.(Dec.13,2013)
AlteringaLicenseTag
Police officers stopped Tyrone Jenkins’ vehicle because he was playing
loud music, had a tinted plastic cover
over his license tag, and failed to
make a complete stop at a red light.
The officers arrested Jenkins for altering a license tag, a second-degree
misdemeanor. Incident to arrest, they
searched him and the car. The officers found cocaine in Jenkins’ wallet
and baggies with cocaine residue and
a digital scale in the car trunk. Less
than a month later, police officers
again spotted Jenkins’ car; it still had
the tinted plastic license tag cover.
They conducted a traffic stop and
arrested him again for obscuring a
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license tag. An inventory search of
the car uncovered seven hundred
counterfeit music and video CDs and
DVDs. The defendant was charged
with all offenses, and upon his rearrest a violation of probation was
instituted. The trial court found him
guilty and sentenced Jenkins to 36
months incarceration.
The defendant filed a motion to
suppress all the evidence obtained
from the two traffic stops arguing
that his arrests were unlawful because altering a license tag was a
misdemeanor that must be committed within the presence of a law enforcement officer for an arrest to be
lawful. It is undisputed that Jenkins
did not alter the tag in the presence
of the police officers. Unpersuaded,
the trial court denied the motions
based on its review of the case law
on obscured tag.
Issue:
Is the offense of altering a license tag
a misdemeanor, and if so must it be
committed in the officer’s presence.
Yes, and Yes.
Altering a License Plate:
Section 320.061, provides as follows: “No person shall alter the original appearance of any registration
license plate, mobile home sticker,
validation sticker, or vehicle registration certificate issued for and assigned to any motor vehicle or mobile home, whether by mutilation,
alteration, defacement, or change of
color or in any other manner. No
person shall apply or attach any substance, reflective matter, illuminated
device, spray, coating, covering, or
other material onto or around any
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license plate that interferes with the
legibility, angular visibility, or detectability of any feature or detail on
the license plate or interferes with
the ability to record any feature or
detail on the license plate. Any person who violates this section commits
a misdemeanor of the second degree,
. . .”
Court’s Ruling:
Because the statute clearly imposes a
misdemeanor sanction for violation
of the altering a license tag statute,
and it is not one of the enumerated
misdemeanors where arrest on probable cause is permitted, and because
Jenkins did not violate the statute in
the officer’s presence, the 2nd D.C.A.
reversed all his convictions. “The
officers were not present when the
clear tinted plastic cover was placed
over the license plate. We note that
the officers could have instead
charged Mr. Jenkins with violating
section 316.605, F.S., requiring display of license plates in a manner
that ‘all letters, numerals, printing,
writing, and other identification
marks upon the plates regarding the
word ‘Florida,’ the registration decal,
and the alphanumeric designation
shall be clear and distinct and free
from defacement, mutilation, grease,
and other obscuring matter, so that
they will be plainly visible and legible at all times 100 feet from the
rear....’
“However, the arrest still would
not have been lawful, even though
Mr. Jenkins displayed the license
plate-in the officers’ presence-in a
manner that allegedly was not plainly
visible and legible, because violating
January 2014
section 316.605 is not a misdemeanor or municipal or county ordinance,
but a noncriminal traffic infraction.
See s. 316.605(1) (‘A violation of
this subsection is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in
chapter 318.’).”
“The proper procedure to handle
the tag alteration charges was for the
officers to issue a traffic citation containing a notice to appear, see
316.650, Fla. Stat., which ‘invokes
the subject matter jurisdiction of the
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court and commences prosecution of
the criminal traffic case.’ See Fla. R.
Traffic Court 6.165.”
“Because the arrests were unlawful, ‘the law mandated suppression
of the evidence seized in any search
performed incident to that arrest.’
Accordingly, we reverse Mr. Jenkins'
convictions. . .”
Lessons Learned:
This is really just a simple case of a
misdemeanor not committed in the
officer’s presence. Under normal
circumstances it merely requires a
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filing package directed to the State
Attorney’s Office, which will result
with a Summons issued to the defendant requiring him to appear in
court to respond to the charges.
Once the arrest is deemed unlawful the “fruit of the poisonous tree”
doctrine will deny the State the use
of any of the seized evidence in court
against the accused. Obviously, without the items that constitute the felony charges all those counts are dismissed as well.
Jenkinsv.State
2ndD.C.A.(Dec.14,2012)
January 2014