Posts Tagged ‘motion to suppress’

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New Case on Fellow Officer Rule in Motions to Suppress

Friday, February 24th, 2012

The Florida Supreme Court issued an opinion yesterday that criminal defense attorneys will enjoy.  The case is State v. Bowers (SC09-1971) and involves the use of the fellow officer rule in motions to suppress.

Before yesterday’s decision, Florida courts were split on the issue, with the Second and Fourth DCA’s being in conflict.

The conflict issue involves the application of the fellow officer rule to testimony in a motion to suppress hearing where the defendant is challenging the validity of a traffic stop. The Court held that the fellow officer rule does not allow an officer who does not have firsthand knowledge of the traffic stop and was not involved in the investigation at that time to testify as to hearsay regarding what the initial officer who conducted the stop told him or her for the purpose of proving a violation of the traffic law so as to establish the validity of the initial stop.

Hypothetical Example

Primarily, this issue is going to pop up in a motion to suppress where the initial officer (for whatever reason) is not present and the second officer was not involved in the initial stop.  Here’s a hypothetical:

A car is stopped for speeding by Ofc. #1.  Ofc. #2 shows up to assist and sees drugs in the car.  Ofc. #1 tells Ofc. #2 that the car was stopped for speeding.  Ofc. #2 was not a witness to the speeding violation.  Defendant (driver) is subsequently arrested for possessing marijuana in the vehicle.  Defendant files a motion to suppress.  Ofc. #1 doesn’t show up for the hearing.  Ofc.#2 shows up and testifies that the reason for the initial stop was for speeding.

In the past, some Florida courts have allowed Ofc. #2 to testify to such events pursuant to the fellow officer rule and allow such testimony to establish probable cause for the traffic stop.  In fact, the law of the land depended on what county the arrest occurred.  Those days are gone and now defense attorneys across Florida can rejoice in knowing the Florida Supreme Court has spoken.

Again, to reiterate the holding:  The fellow officer rule does not allow an officer who does not have firsthand knowledge of the traffic stop and was not involved in the investigation at that time to testify as to hearsay regarding what the initial officer who conducted the stop told him or her for the purpose of proving a violation of the traffic law so as to establish the validity of the initial stop.

To read the full opinion, go here.

~At Matthews Law Firm, P.A., we practice criminal defense & health law.~

(Disclaimer: This post does not constitute legal advice nor does it create an attorney-client relationship.)

A King’s Castle?–Part I

Wednesday, May 18th, 2011

(This blog is the first in a series that will focus on the U.S. Supreme Court’s decision in Kentucky v. King.)

Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.

~J.Alito

The Supreme Court has issued a ruling in Kentucky v. King, an opinion that many find worrisome.  The decision came down 8-1, with Alito writing the majority opinion.  Ginsburg was the lone dissenter.

Facts

Police officers in Lexington, Kentucky followed a suspected drug dealer to an apartment complex.  They smelled marijuana outside an apartment door, knocked loudly, and announced their presence.  When the officers began knocking, they heard noises coming from inside the apartment.  The officers believed that the noises were consistent with the destruction of evidence.  The officers announced their intent to enter the apartment, kicked in the door, and found the Defendant (whose last name was King) and others.  The officers did not have a warrant to enter the apartment. (As it turns out, the suspect they were originally chasing was not in the apartment.) While conducting a protective sweep of the apartment, they saw drugs in plain view and found additional evidence during a subsequent search.  Defendant filed a motion to suppress, which the trial court denied because it found that exigent circumstances justified the warrantless entry.  Several appeals followed, leading the case up to the U.S. Supreme Court.

Holding

The Court held that the police could enter the apartment without a warrant, because after they knocked on the door and announced their presence they heard noises inside that sounded as if drug-related evidence was about to be destroyed.

1. The exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the 4th Amendment

2.  Assuming that an exigency existed here, there is no evidence that the officers either violated the 4th Amendment or threatened to do so prior to the point when they entered the apartment.

3.  Any question about whether an exigency existed is remanded back to the Kentucky Supreme Court.

Ginsburg’s Dissent

In her dissent, J. Ginsburg said, “[t]he Court today arms the police with a way routinely to dishonor the 4th Amendment’s warrant requirement in drug cases.  In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind thay they had ample time to obtain a warrant.”  She continues:

In no quarter does the 4th Amendment apply with greater force than in our home, our most private space, which, for centuries, has been regarded as “entitled to special protection”…How “secure” do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?

To be continued…

As it turns out, King was not afforded much 4th Amendment protection in his castle.  Remember, he was not the person the officers were originally chasing.  Our next post will raise a few more questions about the implications of this ruling.

(Disclaimer:  This blog does not constitute legal advice nor create an attorney-client relationship.  If you have been charged with a crime, please consult with an attorney to discuss your options.)

Matthews Law Firm, P.A. practices criminal defense in the Bartow, Lakeland, Winter Haven areas.

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