| Read Time: 3 minutes | Fourth Amendment

Florida Police Etiquette 101

Dealing with the police can be a stressful experience, especially when you know you have done nothing wrong. The important thing to remember in any police encounter, whether it is a traffic stop or an officer approaching you on the street, is to remain calm, understand your rights, and be firm-yet-polite in asserting those rights. The Importance of the Right to Remain Silent Most of time, when a cop pulls you over on the road, it is for a routine traffic issue–speeding, a broken tail light, et cetera. The officer is not looking for a confrontation. Do not create one yourself, either by being rude or refusing to comply with legal requests for information. Driving is a privilege, not a right, so a police officer does have a right to ask you for your driver’s license, insurance information, and automobile registration during a traffic stop. However, you do not have to provide any additional information or answer questions such as, “Where were you going?” You have no doubt heard on countless cop shows over the years that a person has the “right to remain silent” and that “anything you say can and will be used against you in a court of law.” This does not just mean anything you see after you are arrested or in police interrogation. Anything you say at any point to a police officer is potential evidence. This means, for instance, if a cop asks you, “Do you know how fast you were going?”, you do not have to answer. And if you do, the cop can either use that as an admission of guilt–“Yes, I was speeding”–or even proof that you are lying. If you say nothing, the burden is on the officer to prove you did something illegal. Florida’s “Stop and Frisk” Rules But what if you are just walking down the street. Can an officer stop you and demand to see identification? The answer to that question depends on the circumstances. Florida has what is known as a “stop and frisk” law. This allows a police officer to “temporarily detain” a person and ascertain their identity–i.e., require them to produce ID–if the officer “reasonably” believes the person “has committed, was committing, or was about to commit a criminal offense.” Once the officer determines there is no “probable cause” to arrest the person, the detention must end. If you are approached by a police officer, you need to make sure this is, in fact, a stop-and-frisk detention. You should ask, “Am I free to go?” It is important to ask because otherwise, the officer may assume you are speaking with him or her voluntarily. If the officer tells you this is a stop-and-frisk, you can invoke your constitutional right to remain silent. Tell Them to Get a Warrant Police officers are trained to obtain as much information as possible. For instance, during a seemingly routine traffic stop, an experienced officer will look for any evidence of illegal drugs in a vehicle. To that end, the officer may politely ask you if it is okay to “take a look inside” your vehicle. You should always decline such a request. Unless there is something in plain view–i.e., drugs or an open container of beer on the front seat–a police officer must get a warrant from a Florida judge before searching your car without your consent. Telling an officer to get a warrant is not being difficult; it merely tells them they need to follow proper constitutional procedures. Do You Need Help From an Orlando Criminal Defense Lawyer? One final rule of etiquette: Never take any aggressive action. Obviously you should never touch or attack a police officer. But you should also avoid any sudden movements that may be misconstrued as aggressive. For instance, if an officer asks you for your registration, tell her, “I need to get it out of my glove compartment.” Do not just reach into the glove compartment–the officer may assume you are going for a hidden weapon. If you have been arrested or charged with a crime following a police encounter, keep in mind you have the right to be represented by a qualified Orlando criminal defense attorney. Contact Moses & Rooth, Attorneys at Law, at 407-377-0150 if you need to speak with a lawyer right away.

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| Read Time: 2 minutes | Fourth Amendment

We don’t need no stinking warrant

I vividly remember sitting in Professor Fletcher Baldwin’s Criminal Procedure at the University of Florida and learning about the warrant requirements of the Fourth Amendment.  I seem to recall that without a warrant searches are presumed to be invalid.  The issuance of a search warrant requires probable cause which must be demonstrated to a neutral magistrate. I bring this up not because I enjoy reminiscing about law school and the Fourth Amendment, but because it has recently been revealed that the U.S. government is conducting warrantless surveillance on U.S. residents.  This surveillance had previously been kept secret and is only now coming to light after the Department of Justice has decided that criminal defendants must be notified if they have been subject to the warrantless search.  The U.S. government justifies their actions by claiming that these searches are not illegal because it picks up U.S. based individuals only while targeting those overseas. For those keeping score we are now aware that the government is conducting surveillance on US residents, collecting details of Americans’ phone calls, and at least temporarily collected geolocation data from our cell phones.  These are just the things we know, never mind the information that has yet come to fruition.  THIS IS SCARY. Some of you may be thinking “well I have nothing to hide and am not a criminal so as long as I’m safe I do not care if the government is listening.”  That is nice thought but you would be amazed at the number of laws that are on the books.  It is so large that nobody is even sure how many criminal violations exist and some people estimate that the number is over 4000 and in the range of 10,000 to 300,000 if you take into consideration regulations.  That is just the federal government, not even each individual state’s own laws.  From drug trafficking to handing out fliers without permission, you could be arrested. We should be less concerned about the clandestine spying on foreign governments and more concerned about the US spying on our own people.

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| Read Time: 2 minutes | Fourth Amendment

The Government Is Watching

On July 30, 2013, a dividing U.S. Court of Appeals for the Fifth Circuit ruled that authorities do not need a warrant to obtain records detailing a cellphone location. The Court conducted a full evaluation of the Fourth Amendment rights in these circumstances.  The authorities will have to obtain a court order as opposed to a warrant; a court order is easier to acquire. A judge ruled that court orders for cell site location data under the Stored Communications Act are not unconstitutional. Authorities do not have to establish probable cause when trying to obtain the phone records for certain individuals. The Fourth Amendment to the U.S. Constitution protects the people’s rights “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”. When dealing with information on the Internet or in this case a cell site, the Fourth Amendment protections are potentially far weaker. This is because the Fourth Amendment defines “the right to be secure” in spatial terms that do not directly apply to the “reasonable expectation of privacy” in an online context. There is not a clear consensus over expectations of privacy in an online context. This poses as a huge problem when dealing with security, because there is a huge amount of data on the Internet in today’s world. The amount of useful information that authorities could potentially acquire on the Internet is baffling and they don’t need a search warrant. The government can now see all the phone calls an individual’s makes and the date and time of the phone call with just a court order, but has to obtain a search warrant to have to search your home. In this day and age, searching someone’s phone could be more intrusive than searching someone’s home. This case marked a major win for the U.S. Justice Department, which fought to salvage the ability of federal agents to obtain cell site location data via a court order, instead of a warrant, which is under the probable-cause standard. The Government does not need probable cause to search an individual’s phone record. In a day and age when so much information can be found from phone records, it is a scary thought that the Government can now obtain phone records without probable cause for any wrongdoing. There needs to be changes made to the Stored Communications Act, making it more difficult to obtain phone records and Internet information. Source:  http://m.law.com/module/alm/app/nlj.do#!/article/1064321602

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| Read Time: < 1 minute | Fourth Amendment

Courts split on legality of warrantless cellphone searches

Our society increasingly functions via portable electronic devices. Emails have largely replaced letters, cellphone calls have largely replaced those made on landlines and an individual’s wireless Internet search history can reveal a great deal about what he or she loves, hates and does on a day-to-day basis. As convenient as portable electronic devices are, they can also reveal incriminating evidence when seized by law enforcement. As a result, it is critical that the public understands the rules and regulations governing cellphone searches. Without this advanced notice, an individual’scriminal defense strategy could be greatly complicated if he or she is unsure whether a warrantless cellphone search by law enforcement will be considered a legal or illegal search and seizure under the Fourth Amendment. Unfortunately, courts nationwide are divided on the legality of warrantless cellphone searches. Some insist that they are constitutional, while others insist that they are constitutional violations. In addition, some courts believe in a more nuanced approach, in which warrantless cellphone searches of criminal suspects are legal under some circumstances and illegal under others. This divided approach is unacceptable in relation to both criminal justice and personal freedom. Only when individuals have fair notice of what privacy rights they do and do not have can they make decisions about the kinds of behavior they will and will not engage in. In addition, an inconsistent approach to this issue leads to disparate treatment of criminal defendants. Whereas one court might protect a defendant’s privacy, another court might treat the exact same defendant in the opposite way. It is critical that this issue be addressed in a way that courts begin to treat this issue consistently. Source: New York Times, “Courts divided over searches of cellphones,” Somini Sengupta, Nov. 26, 2012

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| Read Time: < 1 minute | Fourth Amendment

Mandatory Drug Testing for State Employees ruled Unconstitutional

A federal judge in Miami has ruled that the mandatory drug testing of government employees pursuant to Governor Scott’s Executive Order is unconstitutional.  You can read Judge Ungaro’s opinion here. The Judge ruled that requiring drug testing of government employees violated the Fourth Amendment of the Constitution which prohibited unreasonable searches and seizures.  Judge Ungaro wrote that “The fundamental flaw with the Executive Order is that it infringes privacy interests in pursuit of a public interest which, in contrast to the concrete and carefully defined concerns inSkinner, Nat’l Treasury, and Vernonia, is insubstantial and largely speculative. So what does all this mean?  Well the trial judge ruled that Governor Scott’s executive order was unconstitutional.  The judge ruled that the privacy interest were more important then the public interest, which was the goal of the order. Call this one a score for protecting the Fourth Amendment and not allowing the government to infringe upon our private lives.

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